United States of America, Plaintiff-appellee, v. Marino Sanchez Martinez, Dario Cordova Vargas-blandon,eldidio Bezerra- Anicatide, Julio Velez-miranda, Disildogallardo Smith, Ausberto Ricar-sanchez, Adalbertopedrosa-caicedo, Sabino Iris Gutierrez, Rafaelballesteros-velazquez, Manuel Mesino Pajaro, Rafeal C.correa, Victor C. Fuentes, Defendants-appellants, 700 F.2d 1358 (11th Cir. 1983)

Thirteen defendants appeal their convictions of conspiracy to possess with intent to distribute marijuana, 21 U.S.C. Section 955c, and possession with intent to distribute marijuana, 21 U.S.C. Section 955a(a). The appellants present many issues on appeal relating to jurisdiction, admission of a foreign document, cautionary instructions on a prior conviction, the sufficiency of the evidence, jury instruction on stateless vessels, the seizure of the vessel and the impartiality of the trial judge.¹  After careful consideration of the issues raised by Appellants, we affirm the convictions.

FACTUAL BACKGROUND

On December 24, 1980, the United States Coast Guard cutter "Dependable" encountered a seventy-five foot vessel in the Caribbean Sea, approximately ninety miles south of Cuba and two hundred miles from the nearest point in the United States. The "Dependable's" officers observed that the vessel was headed in a northerly direction, appeared to be heavily loaded and have a false waterline, bore no home port and the name "Ocean Lady" was on a plaque affixed to the vessel's cabin.

From a distance of approximately one hundred feet, Coast Guard Officer Nelson Romeu made contact with persons aboard the "Ocean Lady" by using a cardboard loud-hailer. One of these persons, appellant Marino Sanchez Martin, identified himself as the captain of the vessel and responded to officer Romeu's questions by stating that the vessel's name was Ocean Lady, its country of registration was Costa Rica, there were nine crew members, all the crew members were Costa Ricans, the last port was Aruba, the destination was Tampico, Mexico and the vessel had no cargo.

After this exchange, communication between officer Romeu and the captain resumed by C.B. radio. Romeu asked the same set of questions and the captain responded somewhat differently by stating that the vessel's country of registration was Honduras, there were thirteen crew members, all crew members were Columbians except himself, a Venezuelan, the last port was Barranquilla, Columbia, the destination was Tampico, Mexico and the vessel had no cargo.

Captain Marino Sanchez Martin gave permission to the Coast Guard to board the "Ocean Lady." After boarding, the Coast Guard personnel noticed the odor of marijuana. The captain produced documents including a Honduran vessel registration certificate and granted officer Romeu's request to conduct a security sweep of the vessel. The Coast Guard found numerous wrapped packages in the vessel's engine room, which subsequent tests showed to contain marijuana.

The Coast Guard initiated contact with the government of Honduras and remained on board the "Ocean Lady" with the captain's permission waiting for word from Honduras. The Coast Guard informed the crew that Honduras denied registration of the "Ocean Lady" and then placed the thirteen appellants under arrest, advised them of their rights, and transported them to the Drug Enforcement Administration office in Key West, Florida. The thirteen appellants were subsequently indicted, tried by a jury and all were found guilty on both counts.

THE SEIZURE

Appellants argue that the Coast Guard's stopping and boarding of the "Ocean Lady" in international waters was unconstitutional under the Fourth Amendment. Whether the Fourth Amendment applies to stateless vessels is considered an open issue in this circuit. United States v. Marino-Garcia, 679 F.2d 1373, 1384 n. 21 (11th Cir. 1982). Marino-Garcia, suggested that a number of considerations militate against extension of the Fourth Amendment to stateless vessels and that even if the Fourth Amendment applies, a vessel's status as stateless may render any search and seizure reasonable. Id.

However, we need not and do not decide this issue because the stopping and boarding of the "Ocean Lady" can be sustained under existing case law. As stated in Marino-Garcia:

[U]nder international law, the Coast Guard has the authority to approach an unidentified vessel in order to ascertain the vessel's nationality. Consistent with the Fourth Amendment, the Coast Guard may subject the unidentified vessel to a seizure for the limited purposes of a document inspection where there is reasonable suspicion to believe either that the vessel is an American flagship or that the vessel is attempting to conceal its identity.

Id. at 1385. [citations omitted] The Coast Guard approached the "Ocean Lady" to determine its nationality. After receiving inconsistent answers concerning the vessel's country of registration and noting that the name on the vessel's cabin was in the English language, the Coast Guard had "reasonable suspicion to believe" the vessel was "attempting to conceal its identity." Id. Further, the vessel's captain gave permission to the Coast Guard to board the "Ocean Lady."

Once on board, the Coast Guard has "the authority, indeed the duty, to act upon suspicions aroused during the boarding." United States v. Postal, 589 F.2d 862, 889 (5th Cir. 1979). When the Coast Guard boarded, the officers noticed the smell of marijuana. The Coast Guard then conducted a security sweep of the vessel, apparently with the captain's consent, and found packages of marijuana.

There was nothing about the Coast Guard's stopping, boarding or seizure of the "Ocean Lady" which violated the Fourth Amendment or would deprive United States federal courts of jurisdiction.

NEXUS

Prior to trial the appellants urged the district court to dismiss the indictment as premised on an unconstitutional statute, 21 U.S.C. Section 955a.²  Appellants again raise this issue on appeal, contending that the United States does not have jurisdiction to prosecute a foreign crew member on a non-United States vessel for violation of federal controlled substance laws because there is no nexus between the person, vessel or acts and the United States.

Appellants' argument is foreclosed by the recent decision of United States v. Marino-Garcia, 679 F.2d 1373 (11th Cir. 1982), which concluded that

[t]here need not be proof of a nexus between the stateless vessel and the country seeking to effectuate jurisdiction. Jurisdiction exists solely as a consequence of the vessel's status as stateless. Such status makes the vessel subject to action by all nations proscribing certain activities aboard stateless vessels and subjects those persons aboard to prosecution for violating the proscriptions.

Id. at 1383. Thus, Marino-Garcia, held that 21 U.S.C. Section 955a "properly extends the criminal jurisdiction of this country to any stateless vessel in international waters engaged in the distribution of controlled substances." 679 F.2d at 1383.

JURY INSTRUCTION

The decision in Marino-Garcia is predicated on the vessel's status as stateless. Appellants, however contend that their convictions must be reversed because the jury instruction on stateless vessels was error.

In accordance with the convention on the High Seas,³  the trial judge instructed the jury that "a 'vessel subject to jurisdiction of the United States' is a vessel which is not validly registered under the law of any nation; or a vessel which claims two or more nationalities according to its convenience, notwithstanding the validity of any claimed nationality...." Appellants contend that the jury instruction was erroneous because it was not supported by the evidence. Specifically, Appellants contend that the government failed to adduce evidence that Appellants intended to use two flags or nationalities "according to convenience."

The evidence at trial was that the Coast Guard received two different responses to questions concerning the vessel's country of registration (Costa Rica and Honduras), as well as inconsistent answers to other questions. There was testimony that the "Ocean Lady" was flying a Honduran flag and that the vessel was not flying any flag. Under these circumstances, the jury instruction was proper. It was within the jury's province to determine whether Appellants were claiming two nationalities according to convenience. While the jury might have concluded that the vessel's captain did not understand the first set of questions enabling the jury to disregard the inconsistent answers, the jury instruction provided the jury with that opportunity. The jury instruction was therefore not erroneous as unsupported by the evidence.

THE DOCUMENT

A vessel may be stateless under the Convention on the High Seas if it claims two or more nationalities according to convenience or if it is a vessel which is not validly registered under the law of any nation. The Government sought to prove the latter alternative by the introduction of a certificate of non-registration of the vessel "Ocean Lady".

During the initial encounter with the Coast Guard, the vessel's captain produced various documents, including a Honduran vessel registration certificate.⁴  The Coast Guard later informed the thirteen Appellants that the government of Honduras denied registration of the "Ocean Lady." At trial, the Government sought to introduce a certificate from the General Commander of the Naval Force of Honduras concluding that the "Ocean Lady" was not registered in Honduras.⁵  Appellants objected to the document as inadmissible hearsay and contend on appeal that the district court's admission of the document constitutes reversible error.

The Government offered the document into evidence under Federal Rules of Evidence, Rules 803(10)⁶  and 902(3).⁷  Appellants first contend that Federal Rules of Evidence, Rule 803(8) (C)⁸  renders the document inadmissible against any defendants in a criminal proceeding because the document contains "factual findings resulting from an investigation made pursuant to authority granted by law." Appellants rely primarily on United States v. Oates, 560 F.2d 45 (2nd Cir. 1977) to support their position.⁹ 

In Oates, the Second Circuit concluded that the official report and accompanying worksheet of the United States Custom Service chemist who analyzed the white powdery substance seized from one of the defendants were hearsay and could not satisfy the public records and reports exception of Federal Rules of Evidence, Rule 803(8) because of subsection (C). The Oates court found that the chemist's report was a report of "factual findings resulting from an investigation made pursuant to authority granted by law" and therefore reasoned that Rule 803(8) (C) precluded the document's status as a public record. The Second Circuit, however, extended the proscription of Rule 803(8) (C) to Rule 803(b), the hearsay exception for records of regularly conducted activity predicated on its reasoning that the congressional intent was to "render law enforcement reports and evaluative reports inadmissible against defendants in criminal cases." United States v. Oates, 560 F.2d at 77.

Even assuming we were to find the Second Circuit's reasoning persuasive, Oates is inapposite. The document presently in question is not a law enforcement report or an evaluative report. Further, Appellants suggest that we extend Rule 803(8) (C) not to Rule 803(b), but to the entirely distinct hearsay exception for absence of public records or entry embodied in Rule 803(10). Such an interpretation would preclude admission against any defendant in a criminal trial of documents or testimony relating to the absence of any public record or entry. This is not the intent of the Federal Rules of Evidence,¹⁰  nor has this Circuit ever intimated that the admission of documents or testimony under Rule 803(10) against a criminal defendant is problematic.¹¹  We therefore reject Appellants' argument that the document's admissibility was precluded by Rule 803(8) (C).

Appellants also contend that the document was inadmissible because it did not satisfy the criteria of Federal Rules of Evidence, Rule 803(10). Specifically, Appellants contend that the document was deficient because it did not state there was a diligent search. In considering the admissibility of a document, courts are not bound by "magic words," which if they appear like an incantation cast a spell of admissibility on the document. This is especially true when considering translated documents. The Honduran Naval Force certificate recites that "an extensive search has been carried out" and the failure to specifically state that a diligent search has occurred does not render the document erroneously admitted.¹²  Further, the "diligent search" language of Rule 803(10) appears to apply to testimony rather than to certificates in accordance with Rule 902. There is no doubt that the certificate complied with Rule 902(3) concerning self-authenticating foreign public documents. See note 7 supra.

Appellants also contend that the Government failed to prove that records of vessels were regularly made and preserved for all of Honduras in that office. Appellants place much emphasis on the fact that the General Commander of the Naval Forces of Honduras is in the City of Comayueguela, Central District, but that the license found aboard the "Ocean Lady" was issued by the Commander of the port of Tela, Honduras. The certificate is signed by the "General Commander" of the Naval Force of Honduras and recites its conclusion that after a search at the "headquarters of this Command of the Title of Registration for the vessel denominated 'Ocean Lady' " that such vessel is not matriculated in Honduras. Appellants' arguments address the weight to be given to the document by the jury, but do not impair the document's admissibility when the document is self-authenticating under Rule 902.

We therefore conclude that the district court properly admitted the document from the General Commander of the Naval Force of Honduras.

SUFFICIENCY OF THE EVIDENCE

Appellants contend that the evidence was insufficient to support the jury verdicts of guilt on both the conspiracy and possession counts. As we recently stated in United States v. Barnes, 694 F.2d 233 (11th Cir. 1982):

In assessing the sufficiency of the evidence supporting a criminal conviction, the standard of review is: "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence."

Id. at 233. The evidence must be examined in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942).

The evidence adduced at trial was sufficient to enable a reasonable jury to find guilt beyond a reasonable doubt. The thirteen appellants were aboard a seventy-five foot shrimping vessel with over 26,000 pounds of marijuana. Coast Guard personnel could smell the marijuana as soon as they boarded the vessel. The vessel's captain gave inconsistent answers regarding the vessel's country of registration, destination, number and nationality of crew members and last port. Additionally, the captain stated there was no cargo.

"It is well established that where crewmen are found aboard a vessel upon which the presence of contraband is obvious, their conspiracy is inferable." United States v. Julio-Diaz, 678 F.2d 1031 (11th Cir. 1982). Further, a jury could reasonably conclude that the crewmen constructively possessed the marijuana because more than mere presence has been established. United States v. Riker, 670 F.2d 987 (11th Cir. 1982). Thus we find that a reasonable jury could have concluded that the thirteen appellants were guilty of conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana and decline to overturn Appellants' convictions.

RICAR-SANCHEZ'S CAUTIONARY INSTRUCTION

Appellant Ricar-Sanchez contends that the district court committed error requiring reversal of his conviction by denying his requested cautionary instruction concerning jury consideration of a prior conviction for conspiracy to import marijuana. The evidence of the prior conviction was properly admitted, over objection, in accordance with United States v. Beechum, 582 F.2d 898 (5th Cir. 1978), cert. denied, 440 U.S. 920, 99 S. Ct. 1244, 59 L. Ed. 2d 472 (1979), because intent was a seriously contested issue during the trial. Appellant Ricar-Sanchez then requested a cautionary instruction "to the effect that the conviction can only be considered as against Mr. Ricar insofar as it may reflect on the knowledge and intent issue and cannot be used to infer guilt of this charge." Tr. at 771. The trial judge responded, "I am not going to get into commenting on the evidence. I am simply going to say the government is offering it against Ausberto Ricar-Sanchez and it may only be considered by the jury in their consideration of the verdicts involving his case." Tr. at 771. After the evidence concerning the prior conviction of Ricar-Sanchez, the trial judge instructed the jury:

Ladies and gentlemen, just very briefly, the testimony of the last witness will be considered by you in determining the verdict with respect to Ausberto Ricar-Sanchez.

It is not admitted into evidence for any other purpose against any other defendant. All right. Thank you.

Tr. at 789.

Without question, the trial judge did not sufficiently instruct the jury. We can only speculate why the judge failed to give the instruction approved by the District Judges Association.¹³  We remind district judges in this circuit of the absolute importance of giving a cautionary instruction to the jury when evidence of extrinsic offenses is admitted.

We must therefore consider whether the district judge's failure to give the jury a sufficient cautionary instruction requires reversal or whether the error is harmless. The doctrine of harmless error does not require reversal of criminal convictions if the error had no substantial influence on the verdict and there was sufficient evidence to support the verdict apart from the error. United States v. Rodriguez, 573 F.2d 330 (5th Cir. 1978).

We find that the error in this case was harmless. There was sufficient evidence to support the verdict without the evidence of the prior conviction of Appellant Ricar-Sanchez. The evidence against all thirteen Appellants was virtually identical. The extrinsic offense evidence against Ricar-Sanchez could not have had a substantial influence on the jury's verdict where other Appellants, against whom evidence of prior convictions was not admitted, were also convicted. Further, during the final jury charge, the district court instructed the jury that "the defendant is not on trial for any act or conduct or offense not alleged in the indictment."¹⁴  We therefore conclude that on the specific facts of this case, the failure to give the proper cautionary instruction is harmless error.

TRIAL JUDGE'S IMPARTIALITY

Appellants argue that the district judge was not impartial. After a review of the transcript, we find no evidence that the trial judge failed to maintain an aura of impartiality. The trial lasted over a week, involved thirteen defendants and was complicated by language barriers requiring interpreters. Under such circumstances, it is not surprising that everything done or said by the trial judge did not please the numerous counsel involved. It appears to us that the trial court was even-handed with all concerned. We therefore find Appellants' contention to be meritless.

CONCLUSION

Having considered all the issues raised by Appellants and finding that none require reversal, the convictions of all thirteen Appellants are AFFIRMED.

CLARK, Circuit Judge, specially concurring:

I concur in the affirmance of the conviction. I would go further than the majority and hold that the Fourth Amendment does not apply to the stopping and boarding of a stateless vessel by the Coast Guard. Without such a right, the Coast Guard has no way of determining the vessel's nationality, which could be United States. This is certainly true of a vessel displaying the name "Ocean Lady," but I do not limit my opinion to vessels with an English language name.

21 U.S.C.A. Sec. 955b subjects to the jurisdiction of the United States "a vessel without nationality." 14 U.S.C.A. Sec. 89 authorizes the Coast Guard "upon the high seas" to "go on board of any vessel subject to the jurisdiction ... of the United States."

Thus, I have no problem interpreting these statutes to authorize the actions of the Coast Guard in this case. To accept the argument of appellants, the Coast Guard could not go on the vessel until a search warrant was obtained. This would require a delay. After boarding, as done here, there would be another delay while awaiting verification of the vessel's Honduran registration. In my opinion, the defendant's rights were protected when there was no arrest until the Coast Guard verified the lack of Honduran registration and that the vessel was in fact stateless. See United States v. Marino-Garcia, 679 F.2d 1373 at 1379 (11th Cir. 1982).