Appeals from judgments entered in the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, convicting defendants of possession with intent to distribute marijuana on board a vessel on the high seas subject to United States jurisdiction, in violation of 21 U.S.C. § 955a(a) (Supp. V. 1981).
Feinberg, Chief Judge, Oakes and Pierce, Circuit Judges.
This appeal, coming to us on conditional pleas of guilty preserving several questions,*fn1 raises three issues. The first of these is said to go to "subject matter jurisdiction," the second relates to the constitutionality of the underlying jurisdictional statute, and the third is based on the government's failure to preserve certain tapes. The appellants, all foreign nationals, pleaded guilty to possession with intent to distribute marijuana "on board a vessel subject to the jurisdiction of the United States on the high seas," in violation of 21 U.S.C. § 955a(a) (Supp. V 1981)*fn2 and 18 U.S.C. § 2 (1976) (aiding and abetting). The United States District Court for the Eastern District of New York, Jacob Mishler, Judge, accepted the defendants' guilty pleas on the condition that the issues of subject matter jurisdiction and the failure to preserve the tapes would be preserved. We remand for further findings in respect to the status of the vessel involved, the "Juan XXIII."
On January 5, 1983, at about 3:00 p.m., a single-stack motor vessel was sighted by a U.S. Coast Guard aircraft in international waters approximately 73 miles off Long Island. The vessel was headed for Montauk. Fifty minutes later the vessel had altered its course 180 degrees, and by 5:00 p.m. personnel aboard the aircraft observed an individual jettisoning bale-like objects, some 123 of which were counted by the aircraft. The aircraft subsequently dropped a marker buoy at the spot the bales were jettisoned. A Coast Guard cutter was dispatched and three aircraft successively maintained surveillance of the vessel until the cutter arrived in the vicinity at 2:30 a.m. on January 6.
The cutter came within sight of the vessel at approximately 7:00 a.m. No identifying markings on the vessel were visible from as close as 300 yards. After several unsuccessful attempts to establish contact by radio or bullhorn, the Coast Guard finally elicited a radio response that the vessel was the Juan XXIII of Honduran nationality, and permission was given to board. Circling the vessel prior to boarding, the boarding party saw two small boards or plaques on the railing just above the pilot house reading "Juan XXIII, Honduras." The boarding party was given the vessel's Honduran registry papers, dated September, 1979, later found by the district court to be counterfeit. Search of the engine room and cargo for a "main beam number" revealed traces of what appeared to be marijuana, the smell of which pervaded the air despite the hold having been washed down with diesel fuel. A field test on the substance indicated the presence of THC, the active ingredient of marijuana. The boarding party returned to the cutter.
According to the testimony of Lt. Voiles, who had headed the boarding party, the Coast Guard received word that night, January 6, that the Honduran government refuted the claim to Honduran registry. The following day the Juan XXIII was again boarded. Wooden pallets which had been on the floor of the cargo hold the day before were no longer there. The appellants were taken into custody and the Juan XXIII secured. Meanwhile many of the bales which had been jettisoned had been recovered. Eventually, custody of the crew, contraband, and other evidence was transferred to the Drug Enforcement Administration and prosecution on a two count indictment charging conspiracy to violate 21 U.S.C. § 955a(a) and possession of marijuana with intent to distribute commenced.
Motions to dismiss for lack of subject matter jurisdiction were filed on the basis that the United States did not have jurisdiction over Colombian nationals aboard a non-American vessel in international waters. It was also argued that there was insufficient proof that the vessel was "stateless" so as to be subject to the jurisdiction of the United States within section 955a(a),*fn3 and that the indictment should be dismissed. Next it was argued that the Government's evidence of the air and sea surveillance should have been suppressed because the Coast Guard, in what the United States Attorney called an act of "bureaucratic negligence," destroyed certain tapes which the Magistrate had in effect ordered preserved. Certain other motions now waived were filed. All defense motions were denied, with the judge making findings in connection with the "statelessness" issue that will be discussed below.
Subject Matter Jurisdiction
A. Nexus Requirement. Appellants argue that Congress cannot assert American jurisdiction to prosecute criminally foreigners on non-American vessels anywhere on the high seas in the complete absence of any nexus between the defendants and the United States, even though Congress clearly intended, as it provided in 21 U.S.C. § 955a(h) (Supp. V 1981), "to reach acts of possession, manufacture, or distribution committed outside the territorial jurisdiction of the United States." The district court found, however, that there was a nexus between the defendants and the United States. The court concluded that the defendants possessed marijuana with intent to distribute it in the United States from the fact that the vessel was initially sighted headed towards Montauk Point and then, upon sighting the well-marked Coast Guard aircraft, turned around and took flight in the opposite direction. We do not quarrel with that finding which the court found was "established . . . beyond any reasonable doubt." But the law of this circuit, as recently formulated in United States v. Pinto-Mejia, 720 F.2d 248, 260-61 (2d Cir. 1983), is that "stateless vessels on the high seas are, by virtue of their statelessness, subject to the jurisdiction of the United States . . . even absent proof that the vessel's operators intended to distribute their cargo in the United States. . . ."*fn4 Thus on either basis -- that there was a nexus or that a nexus is unnecessary -- the ruling of the district court that there was jurisdiction must be sustained.*fn5
B. " Statelessness." The question remains whether the Juan XXIII was "stateless," for only stateless vessels or vessels "assimilated to" stateless vessels come under United States jurisdiction pursuant to section 955a(a) and (b). The Government argues that this question was not reserved since it does not fall under the rubric "subject matter jurisdiction," but rather goes to the merits. See Fogel v. Chestnutt, 668 F.2d 100, 105-07 (2d Cir. 1981) (Friendly, J.) (elaborating upon judicial confusion between "jurisdiction" and whether the complaint states a cause of action), cert. denied, 459 U.S. 828, 103 S. Ct. 65, 74 L. Ed. 2d 66 (1982). But whether or not one agrees with the Government that the Pinto-Mejia panel fell into the trap against which Judge Friendly warned in Fogel, appellants here were entitled to rely on that case's holding that statelessness was an element of subject matter jurisdiction. 720 F.2d at 256-61.*fn6
We have no doubt that the issue of "statelessness" was preserved for review here under the slippery label of "jurisdiction." At all times below both counsel and court treated the question of statelessness as part of the issue of subject matter jurisdiction, the court referring to it at one point as "some variation" of the jurisdiction issue and, later, "a jurisdiction issue." Moreover, it is more than a bit inconsistent for the Government to argue as it does that Pinto-Mejia was correct in finding that the stateless nature of the vessel is the basis for subject matter jurisdiction under international law, but wrong to treat the question of the vessel's status as one going to ...