Section 955a(c) of Title 21 of the United States Code makes it a crime "for any person on board any vessel within the customs waters of the United States to knowingly or intentionally ... possess with intent to ... distribute" marijuana. This appeal questions whether the Congress, in enacting this statute, intended to reach the possession of marijuana by foreigners aboard a foreign vessel on the high seas.1 The district court held that Congress did not so intend and dismissed the indictment.2 We reverse.

On January 7, 1984, the U.S. Coast Guard cutter Escape, while patrolling an area in the Caribbean Sea known as the Mysteriosa Bank of the Yucatan Pass, a thoroughfare used to transport marijuana from Colombia, South America to the United States, sited a shrimp boat, the El Don, lying dead in the water, apparently having engine trouble. The Coast Guard suspected that the El Don was a smuggling vessel; she was not rigged for fishing, flew no flag, and bore no markings indicating her home port. Exercising the "right of approach,"3 the Escape pulled alongside the El Don, and several Coast Guardsmen boarded her to examine her registration papers and determine her identity. In the course of accomplishing this, the Coast Guardsmen discovered a cargo in excess of four and one-half tons of marijuana in the vessel's hold.

The Coast Guardsmen determined that the El Don was of Panamanian registry. This information was relayed to the U.S. State Department which, in turn, communicated with the Panamanian government. Thereafter, the Coast Guard, presumably with Panama's approval, instructed the Escape to seize the El Don and its crew and to take them to Key West, Florida for prosecution. The Escape followed this instruction.

On January 20, 1984, in the Southern District of Florida, the El Don 's crew, the appellees here, were indicted under the Marijuana on the High Seas Act of 19804 and the Comprehensive Drug Abuse Prevention and Control Act of 19705 in five counts, as follows. Count I charged the defendants under 21 U.S.C. Sec. 955c (1982)6 with conspiring to possess marijuana in United States customs waters in violation of 21 U.S.C. Sec. 955a(c) (1982).7 Count II charged the defendants with the substantive offense, violating section 955a(c). Count III charged the defendants, again under 21 U.S.C. Sec. 955c, with conspiring to possess marijuana with intent to import it, or knowing that it will be imported, into the United States in violation of 21 U.S.C. Sec. 955a(d) (1982),8 and count IV charged the substantive section 955a(d) offense. Count V charged the defendants with conspiring, in violation of 21 U.S.C. Sec. 963 (1982), to import marijuana into the United States from a place outside thereof in violation of 21 U.S.C. Secs. 952(a) and 960(a)(1) (1982).9

The defendants moved the district court to dismiss all five counts of the indictment on the ground that the sections of the Marijuana on the High Seas Act on which the counts were based were so vague and overbroad as to violate the due process clause of the fifth amendment. They attacked counts I and II on an additional ground; Congress did not intend to make it a crime for a person not a United States citizen to conspire to possess, or to possess, marijuana on a foreign vessel on the high seas. The defendants also moved the court to suppress the marijuana the Coast Guard had taken from the El Don, claiming that the seizure violated the fourth amendment.

The district court, on March 30, 1984, convened a hearing on the defendants' motions. At that and subsequent hearings, the parties produced the facts we have recited, albeit in somewhat greater detail, on the issue of the validity of the Coast Guard's search and seizure of the El Don. Following the hearings, the court, in a memorandum order, dismissed the indictment. The court gave no reasons for its action, except as to count II.10 It concluded that count II failed to state an offense because the defendants' possession of marijuana had taken place on a foreign vessel located on the high seas, i.e., beyond the territorial waters of the United States, and section 955a(c) did not reach such conduct. The government now appeals.

Before addressing the merits of the government's appeal, we should point out the issues that are not before us. First, we need not consider whether the provisions of the Marijuana on the High Seas Act underpinning the indictment are unconstitutional. The district court did not hold that they are, and the issue has not been presented in the parties' briefs. Second, we need not consider the sufficiency of counts III, IV and V of the indictment because the defendants concede their sufficiency to state federal offenses. Accordingly, these counts will not be discussed. Third, the district court, in view of its disposition of the defendants' motions to dismiss the indictment, did not pass on the validity of the Coast Guard's search and seizure of the El Don. We likewise do not pass on the issue.11

This leaves two questions for us to decide. First, did the Congress, in enacting section 955a(c) of the Marijuana on the High Seas Act, intend to reach foreign flag vessels on the high seas? If not, count II was properly dismissed. Second, and apart from the first question, does count I of the indictment allege a section 955c conspiracy?

It is unlawful for any person on board any vessel within the customs waters of the United States to knowingly or intentionally ... possess with intent to ... distribute [marijuana].

The "customs waters of the United States" are defined12 as:

The term "customs waters" means, in the case of a foreign vessel subject to a treaty or other arrangement between a foreign government and the United States enabling or permitting the authorities of the United States to board, examine, search, seize, or otherwise to enforce upon such vessel upon the high seas the laws of the United States, the waters within such distance of the coast of the United States as the said authorities are or may be so enabled or permitted by such treaty or arrangement and, in the case of every other vessel, the waters within four leagues of the coast of the United States [i.e., within the twelve mile limit].

Count II of the indictment alleges that the defendants possessed the marijuana in this case "within the customs waters of the United States," meaning that the possession occurred either within twelve miles of the coastline of the United States, the area normally considered as the customs waters, or within such area on the high seas beyond the twelve mile limit as the United States and a foreign government have, by "treaty or other arrangement," designated as an area in which the United States can board, seize, or search a vessel flying the flag of such foreign government for the purpose of enforcing the laws of the United States. Count I charged the defendants with conspiring to possess the marijuana within such customs waters. The district court dismissed counts I and II because the evidence adduced at the suppression hearing disclosed that the El Don and the defendants were seized at a point hundreds of miles from the United States and therefore, the district court assumed, far beyond the "customs waters" Congress contemplated under section 955a(c).

The district court erred in making this assumption. To be sure, the El Don was beyond the twelve mile limit and thus outside the statutorily measured customs waters. But this did not end the inquiry. The court should have recognized that the point on the high seas of the El Don's seizure could have been "customs waters" designated by the United States and Panama, by "treaty or other arrangement," as a place where the United States could seize and prosecute under section 955a(c) those in possession of marijuana aboard a Panamanian vessel. The court should have allowed the government to prove such a designation at trial. The legislative history of the section 955b(a) customs waters definition makes it clear that Congress intended section 955a(c) to reach foreign citizens aboard foreign flag vessels in areas on the high seas designated by the United States and the nation whose flag the vessel flies as places where the laws of the United States will be enforced.13

Congress first formulated the definition of "customs waters" when it passed the Anti-Smuggling Act of 1935, 19 U.S.C. Secs. 1701-1711 (1982),14 to reduce the smuggling of liquor into the United States in contravention of our revenue laws. Prior to the passage of the Anti-Smuggling Act, the government could only prosecute smugglers in vessels seized within the statutory twelve-mile customs waters area; smuggling vessels could hover beyond that twelve-mile limit with impunity. The United States did have liquor treaties with sixteen nations, which allowed it to seize a treaty nation's vessel and to enforce the anti-smuggling laws if the vessel was caught within one hour's sailing distance of the coast of the United States, but these treaties were not self-executing. Absent statutory authority, the United States lacked the power to apply its penal laws to a treaty nation's vessel located outside the twelve-mile limit, yet within one hour's sailing distance from the shore. H.R.Rep. No. 868, 74th Cong., 1st Sess. 4 (1935); S.Rep. No. 1036, 74th Cong., 1st Sess. 4 (1935). Congress solved this problem by passing the Anti-Smuggling Act. The Act created customs enforcement areas15 that extended into the high seas beyond the twelve-mile limit; "customs waters" means "twelve miles in the case of domestic or nontreaty foreign vessels [and] treaty distance ... in the case of foreign treaty vessels." H.R.Rep. No. 868, 74th Cong., 1st Sess. 7 (1935); S.Rep. No. 1036, 74th Cong., 1st Sess. 11 (1935).

Anticipating that smuggling vessels flying the flag of a treaty nation would attempt to avoid seizure and prosecution under the Act by hovering just beyond a one hour's sailing distance from our shore, Congress provided that the one hour sailing distance could be extended by an "arrangement" between the United States and the treaty nation. What Congress contemplated was that the Executive Branch could arrange with a treaty nation to create instantaneously a customs enforcement area for one hundred miles16 around a particular hovering vessel; such an arrangement would be in the nature of an "executive agreement."17 Congress therefore inserted the term "arrangement" in its definition of "customs waters" to ensure that the United States would have a means of combatting smugglers trolling just beyond the treaty extended customs waters, waiting for a chance to strike.18

Congress' goal when it enacted section 955a(c) of the Marijuana on the High Seas Act was not unlike the one Congress had in mind when it passed the Anti-Smuggling Act; both statutes authorize the prosecution of smugglers hovering on the high seas beyond the twelve mile limit. Under section 955a(c), the government can now reach narcotics smugglers aboard vessels of nontreaty nations within twelve miles of our coast and those aboard vessels of treaty nations within the area on the high seas designated by treaty or other arrangement. Whether such a treaty or other arrangement existed between the United States and Panama concerning the El Don is a mixed question of fact and law which the government should be entitled to address at trial.19

The defendants argue Congress did not intend that "customs waters" be established in areas as remote as the one in which the El Don was seized, because this would transgress principles of international law. It is true that Congress did not intend to transgress international law; it limited the reach of the Marijuana on the High Seas Act, declaring that the Act was "designed to prohibit all acts of illicit trafficking in controlled substances on the high seas which the United States can reach under international law."20 H.R.Rep. No. 323, 96th Cong., 1st Sess. 11 (1979). This limitation, however, would not have precluded the designation, by treaty or other arrangement, of the place where the El Don was seized as "customs waters."

Nothing in international law prohibits two nations from entering into a treaty, which may be amended by other arrangement, to extend the customs waters and the reach of the domestic law of one of the nations into the high seas. The defendants cite no authority to the contrary. Even absent a treaty or arrangement, the United States could, under the "protective principle" of international law, prosecute foreign nationals on foreign vessels on the high seas for possession of narcotics. The protective principle permits a nation to assert jurisdiction over a person whose conduct outside the nation's territory threatens the nation's security or could potentially interfere with the operation of its governmental functions. United States v. Marino-Garcia, 679 F.2d 1373, 1381 & n. 14 (11th Cir.1982), cert. denied, 459 U.S. 1114, 103 S. Ct. 748, 74 L. Ed. 2d 967 (1983); United States v. Columba-Colella, 604 F.2d 356, 358 (5th Cir.1979); Rivard v. United States, 375 F.2d 882, 885, n. 7 (5th Cir.1967), cert. denied, 389 U.S. 884, 88 S. Ct. 151, 19 L. Ed. 2d 181 (1967).21 The defendants' argument is thus without merit. Count II of the indictment stated a section 955a(c) offense, and the district court erred in dismissing it.

The defendants' attack on count II having collapsed, it follows that their challenge to count I, alleging a conspiracy to violate section 955a(c), must also fail. Section 955c22 does not require the government to prove an overt act; it must only establish that the defendants intended to possess marijuana, for example, within "customs waters." These waters, as we have indicated, include those within the twelve mile limit and those beyond which are established by treaty or other arrangement. Cf. United States v. Jonas, 639 F.2d 200, 205 (5th Cir.1981); United States v. DeWeese, 632 F.2d 1267, 1271 (5th Cir.1980), cert. denied, 454 U.S. 878, 102 S. Ct. 358, 70 L. Ed. 2d 188 (1981); United States v. Ricardo, 619 F.2d 1124, 1129 (5th Cir.), cert. denied, 449 U.S. 1063, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980) (all interpreting the drug smuggling conspiracy provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. Secs. 846, 963 (1982)); accord United States v. Bodden, 736 F.2d 142 (4th Cir.1984) (affirming conspiracy conviction pursuant to 21 U.S.C. Sec. 955c of defendants arrested on the high seas). As with count II, the Government should have the opportunity to establish the elements of count I at trial, including whether the defendants conspired to possess the marijuana with intent to distribute while in customs waters.

The judgment of the district court is reversed and the case is remanded for further proceedings.

REVERSED and REMANDED.