On Appeal from the United States District Court for the District of New Jersey (Camden) (Criminal Nos. 84-00147 through -11)
Before: ADAMS, SLOVITER and MANSMANN, Circuit Judges.
On May 1, 1984, the United States Coast Guard cutter Active stopped and boarded the Ida II, a coastal freighter of Panamanian registry. The incident occurred in the North Atlantic, approximately 200 miles east of the New Jersey coast. A search of the Ida II uncovered over 23 tons of marijuana, carefully secreted in the cargo hold. The ship's captain and ten crew members, citizens of countries other than the United States, were placed under arrest, indicted and subsequently convicted of three counts of narcotics offenses.
Similar events confront law enforcement officials with some frequency, and therefore this case raises important questions concerning the jurisdiction of the United States courts to enforce federal narcotics laws on the high seas, and the evidence required to prove knowing and intentional violation of these laws by crew members on vessels employed in drug smuggling operations. In addition, the defendants raise several objections to rulings made at their trial. Based on a careful review of these issues, we will affirm.
An evaluation of federal court subject matter jurisdiction in this case requires a detailed analysis of the three counts for which defendants were convicted. All eleven defendants were charged with conspiracy to import over 23 tons of marijuana into the United States, contrary to 21 U.S.C. §§ 952(a), 960(a)(1) (1982), and in violation of § 963 (count I); possession of marijuana with intent unlawfully to import it into the United States, in violation of 21 U.S.C. §§ 955a(d)(1), 960(a)(2), and 18 U.S.C. § 2 (1982) (count II); and possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(6), and 18 U.S.C. § 2 (count III).*fn1
The acts at issue occurred on the high seas, over which no nation may assert territorial jurisdiction.*fn2 However, Congress may assert extraterritorial jurisdiction over violations of United States law, so long as such jurisdiction does not abridge constitutional provisions or this nation's international agreements.*fn3
Congress' intent to afford extraterritorial application to the crimes charged in count II is clear. The substantive provision, 21 U.S.C. § 955a(d), states; "It is unlawful for any person to possess, manufacture, or distribute a controlled substance (1) intending that it be unlawfully imported into the United States. . . ." This statute was enacted as part of the Marijuana on the High Seas Act of 1980, and includes an unequivocal provision for extraterritorial jurisdiction. Section 955a(h) provides: "This section is intended to reach acts of possession, manufacture, or distribution committed outside the territorial jurisdiction of the United States."
In contrast, the criminal provisions cited in counts I and III, concerning conspiracy to import contraband and possession of contraband with intent to distribute,*fn4 do not, on their face, indicate that they are to be given extraterritorial application. This does not end our inquiry, however. As the Supreme Court explained in United States v. Bowman, 260 U.S. 94, 67 L. Ed. 149, 43 S. Ct. 39 (1922):
Crimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and frauds of all kinds, which affect the peace and good order of the community, must of course be committed within the territorial jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard. . . .
But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the government's jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents. Some such offenses can only be committed within the territorial jurisdiction of the government because of the local acts required to constitute them. Others are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.
Id. at 98. The statutes at issue here fall into the second category described in Bowman. Congress undoubtedly intended to prohibit conspiracies to import controlled substances into the United States, and intentions to distribute such contraband there, as part of its continuing effort to contain the evils caused on American soil by foreign as well as domestic suppliers of illegal narcotics. Application of these laws to smugglers on the high seas is necessary to accomplish this purpose, such that extraterritorial application may by readily implied. To deny such use of the criminal provisions "would be greatly to curtail the scope and usefulness of the statute[s]."
Accordingly, we conclude that the narcotics statutes cited in the complaint were intended to have extraterritorial application. That, however, does not necessarily mean that jurisdiction is present in this case. A further hurdle is the traditional requirement of international law that a state apply criminal jurisdiction to acts committed outside its territorial borders only where an effect occurs within those borders. Strassheim v. Daily, 221 U.S. 280, 285, 55 L. Ed. 735, 31 S. Ct. 558 (1911); Restatement (Second) of the Foreign Relations Law of the United States § 18 (1965).*fn5 Federal courts will not impute to Congress an intent to disregard such "limitations customarily observed by nations upon the exercise of their powers. . . ." United States v. Aluminum Co. of America, 148 F.2d 416, 443 (2d Cir. 1945) (certification form Supreme Court for lack of quorum).
Recently, American commentators have notes a change in the traditional rule, arguing that international law permits jurisdiction even where an effect is intended but no accomplished in the forum state's territory. Most significantly, the revised draft of the Restatement recognizes this new doctrine. Restatement (Revised) of the Foreign Relations Law of the United States § 402 (Ten. Draft No. 6, 1985). A comment provides:
Cases involving only intended but not realized effect are rare, but international law does not preclude jurisdiction on this basis, subject to the principle of reasonableness. When the intent of the person sought to be charged is clear and the effect to be produced by the challenged activity is substantial and foreseeable, the fact that an act or conspiracy was thwarted before its effect was felt does not deprive the target state of jurisdiction to make its law applicable to that activity.
To assess which assertions of jurisdiction are reasonable, the draft directs that all circumstances be considered, including the foreseeability of the effect, the importance of regulation to the regulating state, and the likelihood of conflict with regulation by other states. Here, importation and distribution of over 23 tons of marijuana would clearly have a harmful effect and merit federal law enforcement attention. Further, other nations are unlikely to have a desire to regulate smuggling in the area of the north Atlantic where the Ida II was located. Therefore, Congress' intent to apply the enumerated statutes extraterritorially is, under the facts of this case, reasonable.
The drug smuggling context reveals the wisdom of the approach taken by the revision to the Restatement. All the crimes charged here do not require proof of an action within the United States. A conspiracy to import may be established without proof of an overt act in the United States, see, e.g., United States v. Bey, 736 F.2d 891, 894 (3d Cir. 1984) (construing identical language of 21 U.S.C. § 846 (1982)); United States v. Marable, 578 F.2d 151, 153-54 (5th Cir. 1978) (construing § 963); sections 955a(d)(1) and 955a(h) refer explicitly to acts of possession with intent to import committed outside the United States; and section 84(a)(1) also imposes no locational requirement. The purpose of these provisions is to halt smugglers before they introduce their dangerous wares into and distribute them in this country. A jurisdictional requirement that an effect occur in the United States contravenes this purpose, and need not be imposed in a case such us this, so long as it is proven that an effect in the United States was intended, and no interests of comity are affects. See, e.g., United States v. Ricardo, 619 F.2d 1124, 1128-29 (5th Cir.) (§ 963), cert. denied, 449 U.S. 1063, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); United States v. Loalza-Vasquez, 735 F.2d 153, ...