Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-18-2002

USA v. Best
Precedential or Non-Precedential: Precedential

Docket No. 01-4321




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PRECEDENTIAL

       Filed September 18, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-4321

UNITED STATES OF AMERICA,
       Appellant

v.

ROBERT ALEXANDER BEST

On Appeal from the District Court of the Virgin Islands

District Court Judge: The Honorable Thomas K. Moore
(D.C. Crim. No. 01-cr-00202)

Argued on May 13, 2002

Before: AMBRO, FUENTES, and GARTH, Circuit Jud ges.

(Opinion Filed: September 18, 2002)

       DAVID L. ATKINSON
       United States Attorney

       SARAH L. WEYLER (argued)
       Assistant United States Attorney
       Office of United States Attorney
       5500 Veterans Drive, Suite 260
       Charlotte Amalie
       U.S. Virgin Islands 00802

        Counsel for Appellant




       DAVID J. COMEAUX (Argued)
       Ogletree, Deakins, Nash, Smoak
        & Stewart
       The Tunick Building, Suite 202
       1336 Beltjen Road
       St. Thomas, USVI 00802

        Counsel for Appellee

OPINION OF THE COURT

FUENTES, Circuit Judge:

In this case, defendant Robert Best was seized by the
Coast Guard from beyond the territorial sea of the United
States and indicted for attempting to smuggle aliens into
the country. We must decide whether Best, whose vessel
was sailing under a Brazilian flag, may be tried in federal
district court even though the United States did not obtain
Brazil’s consent to intercept the foreign vessel and seize the
defendant. The District Court entered an order dismissing
the indictment, holding that the court lacked jurisdiction
because the defendant had been seized in violation of
international law. On appeal, the government contends that
the court has the power to try the defendant despite any
violations of international law.

Because it is well established that a court’s power to try
a defendant is ordinarily not affected by the manner in
which the defendant is brought to trial, and because we
conclude that no exceptions to this general rule apply here,
in light of the facts surrounding the defendant’s seizure, we
will reverse the District Court’s dismissal order and remand
the case for trial.

I.

On May 16, 2001, the United States Coast Guard patrol
boat "Nunivak" was patrolling the waters near St. Croix,
U.S. Virgin Islands. That evening, the patrol boat spotted a
large, wooden cargo vessel named the Cordeiro de Deus
approximately sixteen nautical miles east of St. Croix. This

                                2


placed the vessel within the twenty-four nautical mile
"contiguous zone" of the United States, but outside the
country’s territorial waters.1 According to the government,
at the time the Coast Guard spotted the vessel on radar,
the Cordeiro de Deus appeared to be on a standard
smuggling route headed for St. John or St. Thomas. After
the vessel failed to respond to several radio calls, an officer
of the Nunivak formed a four-person boarding team and
instructed it to contact the Cordeiro de Deus. He further
instructed the boarding team to ask right of visit questions
of the crew and to seek consent to board the vessel.

Traveling in a small, inflatable boat, the boarding team
approached the starboard side of the Cordeiro de Deus and
observed five men standing on that side of the deck. A
member of the boarding team who was a Spanish
interpreter asked the men questions in both English and
Spanish, but determined that they spoke neither language.
One of the crew members went inside the boat and came
back with a small Brazilian flag. Because the interpreter
knew that Portuguese is spoken in Brazil and that Spanish
and Portuguese have many words in common, he
communicated to the crew in Spanish and with hand
signals.

The crew members understood that the Coast Guard
sought to come aboard and indicated their permission for
the boarding team to do so. Best was one of the five men
standing on the deck of the Cordeiro de Deus and was
identified by the other men as the captain of the vessel.
_________________________________________________________________
1. A nation’s contiguous zone lies adjacent to its territorial seas. As
explained by Presidential Proclamation 7219, "[i]nternational law
recognizes that coastal nations may establish" these zones so as to
"exercise the control necessary to prevent infringement of [their]
customs, fiscal, immigration, or sanitary laws and regulations within
[their] territory or territorial sea, and to punish infringement of the above
laws and regulations committed within [their] territory or territorial sea."
Presidential Proclamation No. 7219, 64 Fed. Reg. 48701 (Aug. 2, 1999).
Under Article 24 of the Convention of the Territorial Sea and the
Contiguous Zone, April 29, 1958, art. 24, 15 U.S.T. 1606, 516 U.N.T.S.
205, a nation’s "contiguous zone may not extend beyond twelve miles
from the baseline from which the breadth of the territorial sea is
measured."

                                3


When asked about their destination and cargo, the men
indicated that they were en route to Martinique to buy
cigarettes and that their last port of call was Brazil. The
boarding team also asked to inspect the vessel’s
documents. In response, the crew produced paperwork
from Brazil and one document that contained a stamp from
Suriname. The United States claims that the boarding team
was unable to determine the nationality of the Cordeiro de
Deus from these documents. The vessel bore no markings
of a homeport.

The boarding team next began a safety inspection.
During the inspection, two members of the boarding team
discovered a group of Chinese nationals that appeared to be
hiding in the cargo hold. The boarding team reported its
findings to the Nunivak, which, after contacting Coast
Guard authorities, was instructed to escort the Cordeiro de
Deus close to St. Croix so that agents from the United
States Immigration and Naturalization Service ("INS") could
interview the individuals aboard the vessel. Two INS agents
boarded the Cordeiro de Deus late the next afternoon and
determined that there were thirty-three Chinese nationals
on board. The next day, with the assistance of a Chinese
interpreter, the INS agents interviewed the Chinese
nationals. That afternoon, after transporting the Chinese
nationals and all of the crewmembers to St. Croix, the
agents interviewed Best and, on the following day,
completed interviews with the other crew members.

On the morning of May 19, 2001, the government
presented Best and four others for an advice of rights on
the criminal charge of alien smuggling. A grand jury
returned an indictment charging Best with conspiring to
bring illegal aliens to the United States in violation of 8
U.S.C. S 1324(a)(1)(A)(v)(I) and bringing illegal aliens to the
United States in violation of 8 U.S.C. S 1324(a)(1)(A)(i).2 On
August 1, 2001, Best filed a motion to dismiss the
indictment, arguing that the District Court lacked personal
jurisdiction over him because the United States had taken
_________________________________________________________________

2. The government moved to dismiss the charges against two of the other
defendants named in the original indictment. Another defendant named
in the original indictment pled guilty.

                                4


him from the high seas in violation of international law. The
District Court agreed with Best, holding that the United
States was required to obtain consent from Brazil under
international law before it could seize Best from the
Cordeiro de Deus and try him for violating the immigration
laws. Because the United States failed to secure such
consent, the court concluded that it lacked jurisdiction over
Best and entered an order dismissing the indictment on
October 26, 2001.

The government filed a motion for reconsideration on
November 5, 2001 and a notice of appeal on November 21,
2001.3 Due to the filing of the notice of appeal, the District
Court denied the government’s motion for reconsideration
for lack of jurisdiction on November 29, 2001.

II.

The District Court had subject matter jurisdiction over
this case pursuant to 48 U.S.C. S 1612 and 4 V.I.C. S 32.
We have appellate jurisdiction under 28 U.S.C. S 1291.
Because whether the District Court properly dismissed the
indictment for lack of jurisdiction is a question of law, we
exercise plenary review. United States v. Ezeiruaku, 

, 139 (3d Cir. 1991).
_________________________________________________________________

3. Best contends that the government’s appeal is untimely because,
according to him, the notice of appeal was not "filed" until November 27,
2001, the date it was mailed to Best’s counsel. Under 18 U.S.C. S 3731,
the government may appeal from a district court order dismissing an
indictment, as it did here. Under Fed. R. App. P. 4(b)(1)(B), the
government’s notice of appeal must be filed in the district court within
30 days after the filing of the order being appealed or the filing of a
notice of appeal by any defendant. Because the government filed its
notice of appeal on November 21, 2001, within the permissible 30 days,
the government was timely in filing. Under Fed. R. App. P. 3(a), an
appellant is obligated to provide its notice of appeal only to the district
clerk, and not to any other parties. The district clerk then serves notice
of the filing to all other parties pursuant to Rule 3(d). We also note that
the government would have been timely had it waited 30 days after filing
its motion for reconsideration to file its notice of appeal. See Government
of the Virgin Islands v. Lee, 

, 519 (3d Cir. 1985).

                                5


III.

At issue in this appeal is whether the District Court has
personal jurisdiction over a defendant charged with
violating the immigration laws and seized from a foreign
vessel on the high seas. It is well established that a court’s
power to try a defendant is ordinarily not affected by the
manner in which the defendant is brought to trial. See
Frisbie v. Collins, 

, 522 (1952) (upholding
conviction of defendant who had been kidnapped in
Chicago by Michigan officers and brought to trial in
Michigan); Ker v. Illinois, 

, 444 (1886) (holding
that court’s power to try defendant for crime was not
impaired by forcible abduction of defendant from Peru); see
also United States v. Romero-Galue, 

, 1151
n.10 (11th Cir. 1985) (noting that "[j]urisdiction over the
person of a defendant ‘in a federal criminal trial whether
citizen or alien, whether arrested within or beyond the
territory of the United States,’ is not subject to challenge on
the ground that the defendant’s presence before the court
was unlawfully secured") (quoting United States v. Winter,

, 985-86 (5th Cir. 1975)). This general rule,
commonly referred to as the Ker-Frisbie doctrine, "rest[s] on
the sound basis that due process of law is satisfied when
one present in court is convicted of crime after having been
fairly apprised of the charges against him and after a fair
trial in accordance with constitutional procedural
safeguards." 

.

The Supreme Court explained in Frisbie that"[t]here is
nothing in the Constitution that requires a court to permit
a guilty person rightfully convicted to escape justice
because he was brought to trial against his will." 

years following Frisbie, however, it appeared increasingly
difficult to reconcile the strict application of its rule with
the expanded interpretation of due process expressed by
the Court in later cases such as Mapp v. Ohio , 

, 646 (1961), in which the Court held that due process
requires application of the exclusionary rule in state
prosecutions. In 1970, nearly two decades after Frisbie had
been decided, we observed that the doctrine’s validity "has
been seriously questioned because it condones illegal police
conduct." Gov’t of Virgin Islands v. Ortiz , 

,

                                6


1045 n.2 (3d Cir. 1970). Four years later, the Second
Circuit, citing the "erosion" of the Ker-Frisbie doctrine,
carved out an exception to the general rule in United States
v. Toscanino, 

(2d Cir. 1974).

The defendant in Toscanino alleged that he had been
forcibly abducted from Uruguay and tortured and
interrogated over seventeen days at the behest of the United
States government. 

Concluding that the
government’s alleged conduct "shocks the conscience," 

the Second Circuit held that the Ker-Frisbie doctrine
must yield to the requirements of due process and,
accordingly, that a court must "divest itself of jurisdiction
over the person of a defendant where it has been acquired
as the result of the government’s deliberate, unnecessary
and unreasonable invasion of the accused’s constitutional
rights." 

In United States ex rel. Lujan v. Gengler, 

(2d
Cir. 1975), which the Second Circuit decided shortly after
Toscanino, the court effectively limited its holding in
Toscanino to that case’s shocking facts. In Lujan, a federal
prisoner claimed that his due process rights had been
violated under Toscanino because he had been forcibly
abducted in Bolivia and then taken to New York. 

Despite the fact that Lujan was forcibly abducted, the
Second Circuit applied Ker-Frisbie and refused to order the
district court to divest itself of jurisdiction, observing that
"the government conduct of which [Lujan] complains pales
by comparison with that alleged by Toscanino." 

The court explained that "[l]acking from Lujan’s petition is
any allegation of that complex of shocking governmental
conduct sufficient to convert an abduction which is simply
illegal into one which sinks to a violation of due process."4
Id.
_________________________________________________________________

4. Specifically, the court noted that, unlike Toscanino, Lujan did not
claim that he was knocked unconscious by a gun blow, that drugs were
administered to subdue him during the flight to the United States, or
that the United States Attorney was aware of his abduction or of any
subsequent interrogation. 

. Perhaps most
importantly, Lujan "disclaim[ed] any acts of torture, terror, or custodial
interrogation of any kind." 

decisions of the Supreme Court indicate that
there is reason to doubt the soundness of the Toscanino
exception, even as limited to its flagrant facts. A year after
Toscanino was decided, the Supreme Court generally
reaffirmed the validity of the Ker-Frisbie doctrine, refusing
to "retreat from the established rule that illegal arrest or
detention does not void a subsequent conviction." Gerstein
v. Pugh, 

, 119 (1975). More recently, in United
States v. Alvarez-Machain, 

(1992), the Court
held that the rule of Ker-Frisbie was fully applicable to a
case in which a Mexican national had been forcibly
abducted, even though the abduction may have been
"shocking" and in violation of general international law
principles. 

In light of these cases, it appears
clear that the Ker-Frisbie doctrine has not eroded and that
the exception described in Toscanino rests on shaky
ground. United States v. Matta-Ballesteros, 

,
763 (9th Cir. 1995) (observing that, "[i]n the shadow cast by
Alvarez-Machain, attempts to expand due process rights
into the realm of foreign abductions, as the Second Circuit
did in [Toscanino], have been cut short"). Even more
apparent is that the alleged circumstances surrounding the
Coast Guard’s seizure of the defendant in this case do not
come close to resembling the "shocking governmental
conduct" that the Second Circuit equated with a violation of
due process in Toscanino. Accordingly, even if we were to
adopt the Toscanino exception to Ker-Frisbie, it would not
apply to the facts of this case.

A second possible exception to the rule of Ker-Frisbie,
rooted in cases from the Prohibition era, relates to the
violation of a treaty. In Ford v. United States , 

(1927), the Supreme Court distinguished Ker, explaining
that "the Ker case does not apply here" on the ground that
"a treaty of the United States is directly involved." 

Although the Court ultimately held that the
defendants failed to raise timely the jurisdictional issue, the
Court’s dictum regarding Ker clearly indicated that "the
rules may be quite different" when a treaty has been
violated. United States v. Postal, 

, 874 (5th
Cir. 1979).

In Cook v. United States, 

(1933), a later
Prohibition-era case involving the same treaty discussed in

                                8


Ford, the Supreme Court again acknowledged that the
government may limit its own jurisdiction by entering into
a treaty. In that case, the government seized the British
vessel Mazel Tov outside the territorial seas of the United
States and then brought suit against it. 

Cook, as
master and bailee of the Mazel Tov, argued that the trial
court lacked jurisdiction to adjudicate rights in connection
with the vessel because it was seized outside the territorial
limits of the United States and in violation of a treaty with
Great Britain. 

agreed, noting that the treaty
in question fixed the conditions under which a vessel may
be seized and taken for adjudication in accordance with the
country’s applicable laws. 

Accordingly, it held
that "[o]ur government, lacking power to seize, lacked
power, because of the Treaty, to subject the vessel to our
laws." 

holding, the Court distinguished prior cases
where forfeitures of vessels wrongfully seized by the Navy
were upheld, explaining that those cases involved vessels of
American registry and that "the seizures did not violate any
treaty, but were merely violations of the law of nations
because made within the territory of another sovereign." 

Interpreting the broader significance of Cook and Ford,
the Fifth Circuit concluded that those cases "stand for the
proposition that self-executing treaties may act to deprive
the United States, and hence its courts, of jurisdiction over
property and individuals that would otherwise be subject to
that jurisdiction." 

(emphasis
added). In clarifying that not "every treaty to which the
United States is a party acts to limit the jurisdiction of its
courts," the court explained that "treaties affect the
municipal law of the United States only when those treaties
are given effect by congressional legislation or are, by their
nature, self-executing." 

v. Robertson, 

, 194 (1888); Foster v. Neilson, 27 U.S. (2 Pet.) 253,
311 (1829); Sei Fujii v. State, 

(1952);
Dickinson, "Are the Liquor Treaties Self-Executing?" 20
Am.J.Int’l L. 444 (1926)). When a treaty is self-executing,
"no legislation [is] necessary to authorize executive action
pursuant to its provisions." 

.

This second exception to the Ker-Frisbie doctrine is
buttressed by the more recent Alvarez-Machain case, in
                                9


which the Supreme Court observed that the Ker-Frisbie
doctrine is inapplicable to cases where a person is forcibly
abducted from a country in violation of an extradition
treaty to which the United States is a 

. To defeat jurisdiction in such a case, the Eleventh
Circuit observed that, under Alvarez-Machain, "a defendant
must demonstrate, by reference to the express language of
a treaty and/or the established practice thereunder, that
the United States affirmatively agreed not to seize foreign
nationals from the territory of its treaty partner." United
States v. Noriega, 

, 1213 (11th Cir. 1997);
see also United States v. Rezaq, 

, 1130 (D.C.
Cir. 1998). However, the Ninth Circuit noted that, if a treaty
does not specifically prohibit the abduction of foreign
nationals, then it will not cause a court to be divested of
jurisdiction over the abducted individual. 

(citing 

-
66).

In this case, the District Court appears to have
determined that it lacked jurisdiction over Best based
loosely upon this second exception to the rule of Ker-
Frisbie, although it did not make any explicit reference to
the doctrine.5 Because the Coast Guard seized Best from a
foreign vessel beyond the territorial sea of the United
States, the District Court reasoned that the seizure was
"subject to established international law of the high seas
universally recognized by all civilized nations including the
United States." Memorandum Opinion ("Mem.") at 12. Just
as the Fifth Circuit in Postal held that the violation of a
self-executing treaty divested the trial court of jurisdiction,
the District Court here held that the violation of
international law arising from the seizure of Best prevented
it from exercising personal jurisdiction over the defendant.
We disagree.
_________________________________________________________________

5. The court distinguished Alvarez-Machain and other cases that discuss
Ker-Frisbie on the ground that they did not involve an abduction from
the high seas, but rather from another country or in violation of an
extradition treaty. Mem. at 12. To the extent that the court meant to
suggest that the Ker-Frisbie doctrine is wholly inapplicable to all forcible
abductions of foreign nationals that take place on the high seas, we find
no support for that position and we reject it.

                                10


As the Fifth Circuit observed in Postal, a defendant
"cannot rely upon a mere violation of international law as
a defense to the court’s 

. We
find substantial support for that position in Supreme Court
cases such as Alvarez-Machain and Cook , which both
recognize that the rule of Ker-Frisbie is not muted when
there is a "violation of general international law principles."

; 

.
Accordingly, we conclude that, unless the government’s
seizure of Best was in violation of a treaty between the
United States and Brazil, the District Court has jurisdiction
over Best in spite of the potential violation of international
law.

In its Memorandum Opinion, the District Court cited to
the following provisions of three international treaties:
Article 24 of the Convention of the Territorial Sea and the
Contiguous Zone, April 29, 1958, art. 24, 15 U.S.T. 1606,
516 U.N.T.S. 205 ("Territorial Sea Convention");6 Article 22
of the Convention of the High Seas, April 29, 1958, art. 22,
13 U.S.T. 2312, 450 U.N.T.S. 82 ("High Seas Convention");7
_________________________________________________________________

6. Article 24 of the Territorial Sea Convention provides:

       1. In a zone of the high seas contiguous to its territorial sea, the
       coastal State may exercise the control necessary to:

       (a) Prevent infringement of its customs, fiscal, immigration or
       sanitary regulations within its territory or territorial sea;

       (b) Punish infringement of the above regulations committed
       within its territory or territorial sea.

       2. The contiguous zone may not extend beyond twelve miles from
       the baseline from which the breadth of the territorial sea is
       measured.

       3. Where the coasts of two States are opposite or adjacent to each
       other, neither of the two States is entitled, failing agreement
       between them to the contrary, to extend its contiguous zone beyond
       the median line every point of which is equidistant from the nearest
       points on the baselines from which the breadth of the territorial
       seas of the two States is measured.

7. Article 22 of the High Seas Convention provides:

       1. Except where acts of interference derive from powers conferred
       by treaty, a warship which encounters a foreign merchant ship on

                                11


and Article 33 of the United Nations Convention on the Law
of the Sea, U.N.Doc. A/CONF.62/122 (1982), reprinted in
21 I.L.M. 1261-1354 (1982) ("UNCLOS").8 The court did not
recognize, however, that Brazil is a party neither to the
Territorial Sea Convention nor to the High Seas Convention.
Furthermore, although UNCLOS was signed by the United
States in 1994 and subsequently transmitted to the United
States Senate, it has not been ratified by the Senate and,
accordingly, does not have the force of law.9 Because none
_________________________________________________________________

       the high seas is not justified in boarding her unless there is
       reasonable ground for suspecting:

       (a) That the ship is engaged in piracy; or
       (b) That the ship is engaged in the slave trade; or

       (c) That, though flying a foreign flag or refusing to show its flag,
       the ship is, in reality, of the same nationality as the warship.

       2. In the cases provided for in sub-paragraphs (a), (b) and (c)
       above, the warship may proceed to verify the ship’s right to fly its
       flag. To this end, it may send a boat under the command of an
       officer to the suspected ship. If suspicion remains after the
       documents have been checked, it may proceed to a further
       examination on board the ship, which must be carried out with all
       possible consideration.

       3. If the suspicions prove to be unfounded, and provided that the
       ship boarded has not committed any act justifying them, it shall be
       compensated for any loss or damage that may have been sustained.

8. Article 33 of UNCLOS provides:

       1. In a zone contiguous to its territorial sea, described as the
       contiguous zone, the coastal State may exercise the control
       necessary to:

       (a) prevent infringement of its customs, fiscal, immigration or
       sanitary laws and regulations within its territory or territorial sea;

       (b) punish infringement of the above laws and regulations
       committed within its territory or territorial sea.

       2. The contiguous zone may not extend beyond 24 nautical miles
       from the baselines from which the breadth of the territorial sea is
       measured.

9. Under the Constitution, the President has the power to make treaties
"provided two thirds of the Senators present concur." U.S. Const. art. II,
S 2, cl. 2.

                                12


of these are treaties to which both Brazil and the United
States are parties, the seizure of Best from the Cordeiro de
Deus could not have been in violation of any of them. Thus,
we find that the treaties cannot serve to limit the rule of
Ker-Frisbie in this case.

Best maintains that, even in the absence of an applicable
treaty between the United States and Brazil, the United
States limited its own jurisdiction through Presidential
Proclamation No. 7219, 64 Fed. Reg. 48701 (Aug. 2, 1999)
("Proclamation"), which the District Court described as
being "expressly intended to bring federal criminal
jurisdiction in line with accepted international law." Mem.
at 17. The Proclamation, signed by President Clinton in
1999, provides, in relevant part:

       The contiguous zone of the United States   is a zone
       contiguous to the territorial sea of the   United States, in
       which the United States may exercise the   control
       necessary to prevent infringement of its   customs,
       fiscal, immigration, or sanitary laws and regulations
       within its territory or territorial sea, and to punish
       infringement of the above laws and regulations
       committed within its territory or territorial sea.

Best argues that the language of the
Proclamation demonstrates that the government can only
"punish" individuals found in the contiguous zone for the
infringement of laws "committed within its territory or
territorial sea." Because the Cordeiro de Deus never entered
the territorial sea of the United States, he contends that he
cannot be punished under the language of the
Proclamation. Even if we were to agree with Best’s
interpretation of the above-quoted language, however, the
Proclamation also states that "[n]othing in this
proclamation amends existing Federal or State law[.]" 

must reject any suggestion that the
Proclamation has an effect on the scope of the well-
established rule of Ker-Frisbie.

IV.

Because the facts surrounding the seizure of the
defendant in this case clearly do not place it within any

                                13


potential exceptions to the Ker-Frisbie doctrine, we conclude
that the doctrine is fully applicable to this case. Thus,
Robert Best, who was seized by the Coast Guard beyond
the territorial waters of the United States aboard a vessel
sailing under the Brazilian flag, may be tried in federal
district court for the violation of United States immigration
laws even though the government did not secure Brazil’s
consent to intercept the vessel and seize the defendant. We
will therefore reverse the District Court’s order dismissing
the indictment and will remand the case for trial.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                14