United States of America, Plaintiff-appellant, v. Eduardo Santa-lara, Alfonso Castano-millan, Felix Deavila-mendoza, Yamil Gomez-blanquicet, Luis Gomez-salgado,domingo Guerreo-pitalua, Maximo Jaraba- Caicedo, Adelmomajorda-burbano, Hernan Palomino, Defendants-appellees, 783 F.2d 989 (11th Cir. 1986)

The sole issue in this Government appeal from the dismissal of a marijuana indictment is whether the district court correctly held that it lacked subject matter jurisdiction because the marijuana-laden vessel was not within the customs waters of the United States when it was seized.

Two recently decided cases in this Circuit, not available to the district court, indicate that the district court applied incorrect law in dismissing the indictment. We, therefore, vacate and remand for further proceedings in light of United States v. Romero-Galue, 757 F.2d 1147 (11th Cir. 1985) and United States v. Gonzalez, 776 F.2d 931, 933 (11th Cir. 1985).

VACATED AND REMANDED.

HATCHETT, Circuit Judge, specially concurring:

I specially concur, as I have done previously in the Romero-Galue line of cases. Based on Romero-Galue, 757 F.2d 1147 (11th Cir. 1985), the court has now decided in at least three other cases that informal communication, by radio, teletype, or the like, constitutes an "other arrangement" within the meaning of 19 U.S.C. § 1401(j). See United States v. Gonzalez, 776 F.2d 931 at 933 (11th Cir. 1985); United States v. Bent-Santana, 774 F.2d 1545, 1548 (11th Cir. 1985); United States v. Salvat, 779 F.2d 58 (11th Cir. 1985).

Because 21 U.S.C. § 955a(c), the statute under which these defendants were convicted, incorporates the definition of customs waters in section 1401(j), this circuit's construction of "other arrangement" has become the basis for sustaining indictments against drug smugglers apprehended pursuant to informal agreements by the Coast Guard with their flag countries. Under this circuit's law, if the officer of a Coast Guard vessel is able to reach some official in a foreign country who will give consent to jurisdiction over a foreign vessel, the waters around the vessel instantly become "customs waters." Under the same rationale, if communications difficulties should frustrate the effort to establish contact with someone in the foreign country, the waters around the vessel presumably would never be transformed into "customs waters."

In my special concurrence in Gonzalez, I described my reasons for concluding that Congress did not intend the criminal jurisdiction of the United States to depend on occasional consent by representatives of foreign nations.

In urging this circuit to consider more carefully congressional intent in enacting section 955a(c), I respectfully note my disagreement with the statement in the recent case, Bent-Santana, that "at least four other circuits ... have held that verbal or written consent conveyed by the country of the vessel's flag constitutes an agreement sufficient to place [a] vessel in the customs waters of the United States." At 1549. In United States v. Loalza-Vasquez, 735 F.2d 153, 156 (5th Cir. 1984), the court affirmed two conspiracy counts on a holding that a reasonable-minded juror could conclude from the evidence that the destination of the vessel involved was the United States. On the possession count, the court held that the district court did not commit clear error in admitting testimony that a teletype was received and allowing the government to submit certified copies of two of the messages to show consent. 735 F.2d at 157. Concededly, the court refers to "the ultimate issue of jurisdiction" and affirms the convictions. 735 F.2d at 158. But the vital issues of statutory construction were apparently not raised. Thus, Loalza-Vasquez cannot fairly be said to stand for a well-considered decision by the Fifth Circuit to construe "other arrangement" as this circuit has. The treatment in United States v. Streifel, 665 F.2d 414 (2d Cir. 1981) of this issue is acknowledged in the Bent-Santana opinion to be dictum. See Bent-Santana, At 1549. Both United States v. Green, 671 F.2d 46, 51 (1st Cir. 1982), cert. denied, 457 U.S. 1135, 102 S. Ct. 2962, 73 L. Ed. 2d 1352 (1982), and United States v. Dominguez, 604 F.2d 304, 308 (4th Cir. 1979), cert. denied, 444 U.S. 1014, 100 S. Ct. 664, 62 L. Ed. 2d 644 (1980), involve another statute. These two cases construe the meaning of "special arrangement" in 19 U.S.C. § 1581(h), which authorizes boarding and search to enforce the laws of the United States, but which does not independently create criminal liability, as does section 955a(c). Moreover, a "special arrangement" is a means for searching vessels "without the customs waters of the United States." Green, 671 F.2d at 52 (citing 19 U.S.C. § 1587(a)) (emphasis added).

No other circuit has had the issue of the proper construction of section 955a(c) placed squarely before it. I urge the en banc court to take the lead in providing a sound construction of the meaning of "customs waters" in section 955a(c).