Coast Guard May Seize Individuals from Foreign Vessels

United States v. Best, 2002 WL 31080306 (3rd Cir. Sept. 18, 2002).

Joseph M. Long, 2L

The Third Circuit recently addressed the issue of whether a U.S. District Court may exercise personal jurisdiction over a defendant seized from a foreign vessel on the high seas and charged with violations of immigration law. Applying the doctrine known as the Ker-Frisbie rule, the court followed the precedent that an illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. Furthermore, no exception to the doctrine interrupted U.S. jurisdiction over the vessel captain and crew.

Background
The Coast Guard intercepted the Coreiro de Deus, a Brazilian cargo vessel, on a suspected smuggling route to St. John’s Island and St. Thomas Island off the coast of the Virgin Islands. After numerous unanswered radio communications with the vessel, the Coast Guard deployed a four-man team to conduct a safety inspection of the ship. The initial radar detection, the initial contact, and the safety inspection of the Coreiro de Deus occurred within the contiguous zone of the United States. The Contiguous Zone extends twelve miles seaward from the U.S. territorial sea and allows the U.S. to exercise the control necessary to prevent infringement of customs, fiscal, immigration, or sanitary laws and regulations.1

In the crew’s initial attempts to communicate with Coast Guard officials, one crewman of the ship displayed a Brazilian flag to the Coast Guard officers. Upon searching the vessel, the Coast Guard discovered paperwork from Brazil and one document with a stamp from Suriname. The Coast Guard claimed that these documents did not reveal the nationality of the boat.

The boat was pulled closer to shore and inspected by agents of the Immigration and Naturalization Service (INS). The inspection uncovered thirty-three hidden Chinese nationals whom were interview by INS agents, along with the vessel’s captain, Captain Best, and his crew. After these interviews, the government informed Best and his crew of their rights concerning criminal charges on alien smuggling.

The Appeal
A grand jury indicted Best and his crew with conspiring to bring illegal aliens and bringing illegal aliens to the U.S. Best filed a motion to dismiss with the District Court arguing that the U.S. lacked personal jurisdiction over Best and had violated international law by not receiving consent from Brazil to seize him and his crew. The District Court concluded that the U.S. violated international law and dismissed the indictment. The government filed a motion for reconsideration, which the District Court denied. The government filed a notice of appeal to the Court of Appeals for the Third Circuit.

Personal Jurisdiction
Under U.S. Supreme Court precedent, known as the Ker-Frisbie rule, a U.S. court’s power to try a defendant is ordinarily not affected by the manner in which the defendant is brought to trial.2 In other words, a defendant properly may be brought into court for trial even though he was arrested illegally. The Supreme Court has also held that “illegal arrest or detention does not void a subsequent conviction.”3

However, two judicially created exceptions have eroded the Ker-Frisbie doctrine over the years. The first exception, originally invoked in U.S. v. Toscanino, invalidates the Ker-Frisbie doctrine when government conduct during the arrest “shocks the conscience.”4 Toscanino created the requirement that the Ker-Frisbie doctrine must yield to the demands of due process and that the court “must divest itself of jurisdiction over a person of the defendant where it has been acquired as the result of the government’s deliberate, unnecessary, and unreasonable invasion of the accused constitutional rights.”5 Yet, the court recognizes that this exception is limited by its particular facts. For Toscanino to apply, the governmental conduct must be “sufficient to convert an abduction which is simply illegal into one which sinks into a violation of due process.”6 The court found that the actions of the Coast Guard and INS did not reach this standard.

The second exception makes the Ker-Frisbie doctrine inapplicable if “a treaty of the United States is directly involved.”7 The District Court relied on this exception claiming that the Coast Guard’s actions violated international law. The Third Circuit held that this was not an accurate reading of the exception. The Third Circuit determined that, in order for a court to lose its jurisdiction over an accused individual, a treaty must exist and the treaty must “specifically” prohibit the abduction of foreign nationals.8

In the case at hand, the court did rely on this exception, but determined 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.”9 The court further noted that jurisdiction exists despite the “potential violation of international law.”10

The court then addressed Best’s argument that, although a treaty between the United States and Brazil does not exist, the District Court did not have jurisdiction because of Presidential Proclamation No. 7219, extending the U.S. Contiguous Zone. Best argued that the Proclamation limits the United States’ ability to punish individuals to its contiguous zone. In response, the court notes that the Proclamation specifically states that “nothing in the Proclamation amends existing Federal or State law”11 and the Ker-Frisbie doctrine is unaffected by the language of the Presidential Proclamation.

Conclusion
The Third Circuit found that, because a U.S. court’s power to try a defendant is not affected by the manner in which the defendant is brought to trial, the seizure of Best and his crew does not affect the United States’ ability to try the defendants for immigration violations. At the time of the arrest, the United States and Brazil were not members to any binding treaty that would govern Best’s adjudication or make the government’s arrest of Best illegal. Further, the Presidential Proclamation does not affect the scope of the Ker-Frisbie doctrine. Because no exception to the doctrine is applicable to the facts at hand, the U.S. could claim jurisdiction over Best.

ENDNOTES
1. April 29, 1958, art. 24. 15 U.S.T. 1606, 516 U.N.T.S. 205. President Clinton extended the U.S. Contiguous Zone in 1999: A coastal nation may establish the territorial and contiguous zones as to “exercise the control necessary to prevent infringement of [their] customs, fiscal, immigration, or sanitary laws and regulations within [their] territory or territorial seas.” Presidential Proclamation 7219, 64 Fed.Reg. 48701 (Aug. 2, 1999).
2. Frisbie v. Collins, 342 U.S. 519 (1952).
3. Gerstein v. Pugh, 420 U.S. 103, 199 (1975).
4. U.S. v. Toscanino, 500 F.2d 267, 273 (2d Cir. 1974).
5. Id. at 275.
6. U.S. ex rel. Lujan v. Gengler, 510 F.2d 62, 66 (2d Cir. 1975).
7. Ford v. U.S., 273 U.S. 593, 605-06 (1927).
8. U.S. v. Matta-Ballesteros, 71 F.3d 754, 762 (9th Cir. 1995) (citing U.S. v.Alvarez-Machain, 504 U.S. 655, 644-66 (1992)).
9. Best, 2002 WL 31080306 at *4.
10. Id. The Third Circuit relied on Supreme Court precedent found in U.S. v. Alvarez-Machain, 504 U.S. at 669, and Cook v. U.S., 288 U.S. 102, 122 (1933).
11. Presidential Proclamation 7219, 64 Fed.Reg. 48701 (Aug. 2, 1999).