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UNITED STATES v. NEWBALL

October 22, 1981

UNITED STATES of America,
v.
Carlos NEWBALL, et al., Defendants



The opinion of the court was delivered by: NICKERSON

The indictment in this case charges in Count One that all twelve defendants, foreign nationals who were crewmembers of a fishing boat seized by the Coast Guard, intentionally possessed with intent to distribute twelve (12) tons of marijuana while on board "a vessel of the United States" known as the "Lucky Louise" and also known as the "Coral I," on the high seas, in violation of 21 U.S.C. § 955a(a). Count Two charges that two of the defendants, Carlos Newball and Ignacio Parentes-Herrera, willfully attempted to destroy a "vessel of the United States" on the high seas in violation of 18 U.S.C. § 2273.

In pertinent part Section 955a(a) of Title 21, cited in Count One, makes it unlawful for any person on board a vessel "of the United States" or "subject to the jurisdiction of the United States" on the high seas knowingly or intentionally to possess with intent to distribute a controlled substance. Section 2273 of Title 18, cited in Count Two, in pertinent part, makes it a crime for a person on the high seas willfully to attempt to destroy a vessel "of the United States."

The defendants have moved to dismiss the indictment. They contend that the boat was not a vessel "of the United States" within the meaning of either of the foregoing sections and was not a vessel "subject to the jurisdiction of the United States" as that term is used in 21 U.S.C. § 955a(a). They further argue that if the sections do apply they violate due process, exceed Congress' enumerated powers, contravene the Convention on the High Seas, 1958, and deny equal protection by impinging on rights guaranteed by the first, fourth, fifth and ninth amendments to the United States Constitution.

 Much of the defendants' argument is premised on the assumption that the boat is a Honduran vessel. This court holds that the boat is a "vessel of the United States" within the meaning of both 21 U.S.C. § 955a(a) and 18 U.S.C. § 2273, and that those sections are not beyond the power of Congress.

 I

 On July 18, 1981 crewmembers of the United States Coast Guard cutter Cape Fairweather boarded a 70 foot fishing vessel bearing the name "Coral I" approximately sixty miles south of Nantucket. The boarding party found numerous bales of marijuana, later determined to be in excess of 22,000 pounds. The master of the vessel, defendant Carlos Newball, produced for the Coast Guard crewmembers documentation purporting to show that the vessel was owned by Henry Suarez-Ibarra, apparently a resident of Honduras, and had been registered as a Honduran vessel since August 13, 1980.

 The boarding party thereupon withdrew, and in accordance with maritime practice, American authorities attempted to secure from the Honduran government permission to seize the vessel. The Cape Fairweather also endeavored to verify the identity of the vessel with Coast Guard agencies by means of the number 553379 inscribed on the vessel's mainbeam. During this interval the Coast Guard cutter trailed the vessel out to sea.

 On the next day, July 19, 1981, the Coast Guard crewmembers allegedly observed the fishing vessel begin to list and members of its crew spread a liquid about it, board a small launch, and set the vessel on fire. The Coast Guard then reboarded the vessel, put out the fire, and seized the vessel and its crew, bringing them to Montauk.

 The Coast Guard check into the identity of the vessel revealed that a United States Certificate of Registry had been issued on January 24, 1981 to Lawrence Griffith, a citizen of the United States, for a 70 foot vessel having the mainbeam number 553379 and called "Lucky Louise." The Coast Guard General Index or Abstract of Title for vessel number 553379 indicated that the vessel had been conveyed to Lawrence Griffith by bill of sale on December 24, 1980 by Ernesto Vildostegui, Jr., to whom the vessel had been conveyed on April 4, 1979 by its original owner.

 According to the Abstract of Title, the vessel was still owned by Griffith when it was seized and had never been owned by Henry Suarez-Ibarra. Furthermore, the United States Maritime Administration informed the United States Attorney that it had no record of having received a request for permission to transfer the "Lucky Louise" to a foreigner, although such permission is required by United States shipping laws.

 Although the documentation found on the vessel when it was seized purported to show that it had a Honduran registry, a certified statement dated August 10, 1981 by Ruben Humberto Montoya, Commander-in-Chief of the Honduran Navy, stated that he had found no record of registration for the vessel and that "the government of Honduras has concluded that the Coral I is not a Honduran registration vessel."

 After the seizure Coast Guard officials confirmed that the vessel's mainbeam number is 553379, the number of "Lucky Louise." Moreover, according to the government the name "Coral I" appeared to have been painted on the vessel recently and a stencil of that name was found on board. The government has thus made a prima facie showing that the vessel on which the defendants and the marijuana were found is the "Lucky Louise."

 II

 Both counts of the indictment charge the defendants with committing unlawful acts on board a "vessel of the United States." The term "vessel of the United States" for the purposes of 21 U.S.C. § 955a(a) alleged in Count One ...


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