United States v. Clifford McRary, 665 F.2d 674

United States v. Clifford McRary

665 F.2d 674

5th Cir.

1982

Check Treatment

*2 Before HILL HENDERSON, Circuit Judges, **, SMITH Judge. HENDERSON, Judge: appeal In this we áre faced with a novel legal growing issue unique out of an factual situation began as a kidnap- routine ping prosecution. 21, 1974, July appellant,

On Clifford McRary, Widener, met with captain Earl sport fishing “Spook,” boat and made arrangements for a trip Key boat West to the Dry Tortugas. Early the next morning, McRary, his wife Patricia and their Captain two children met Widener and First Mate Mollie DeWitt aboard the “Spook” and set Dry out for the Tortugas. coast, About 8.5 miles from the Florida produced and his wife guns and demanded Captain Cuba. changed Widener course “Spook” and the sailed into Havana harbor later that evening. After delay, Cap- some tain Widener and subsequent- DeWitt were ly permitted to return to the United States “Spook.” McRary was arrested Cuban authorities and convicted of Contra Seguridad Las Del Estado (apparently a phrase catch-all crime Cuba). serving After prison sentence in Cuba, McRary returned to the United 1978 and was arrested and kidnapping. with His first convic- was reversed this court because he was not afforded a opportunity sufficient assert an insanity defense. United McRary, Sherouse, Miami, Fla., Thomas M. court McRary again convicted, was retried and appointed, for defendant-appellant. and now raises two issues for our considera- O’Donnell, Sonia Escobio appeal. Asst. tion on explain U. For reasons we S. Miami, Atty., Fla., Murray, later, John F. Acting we reverse. ** Smith, Judge Claims, Honorable Edward sitting designation. S. for the U.S. Court of court, tes- apparently relying on the district

McRary’s assignment of error deals first Captain Widener that Florida timony federal miles approximately 10.5 territory conviction. The extends indictment and Record, statute, sea, part, (three leagues) as follows: out to Spanish relevant reads 88, 89, vol. 6 the motions at overruled seizes, confines, (a) unlawfully Whoever in order to convict instructed the abducts, inveigles, decoys, kidnaps, or car- *3 McRary transported find must that or ries and holds for ransom reward away appeal, foreign the crew in commerce.3 On any person, except in the or otherwise thereof, was McRary complains that the instruction parent aby case of a minor when judge’s to that the refusal erroneous and (1) transported is in person wilfully the in “high jurisdictional seas” basis use the commerce; foreign interstate or [or] agree. requires reversal. We charge (2) person act the is any such special prevail, he must McRary done within the maritime and ter- for to order States; First, jurisdiction ritorial he show two hurdles. must overcome in grounds alleged jurisdictional

that the charged the and the indictment years any shall be for term of punished second, such an were incorrect and that life. rights and his substantial affected indictment, tracking 18 The U.S.C. 1201. § see, 52(a); requires reversal. Fed.R.Crim.P. 1201(a)(1), 18 al- language the of U.S.C. § Hughes, 658 F.2d leged McRary unlawfully caused the (Former response, the 5th Cir. captain “Spook” crew of and to be government contends that “transported foreign in commerce.”1 proper premise alleged and objected transportation McRary’s counsel and, alternative, for in in as commerce a means obtain- of the jurisdiction federal is not element ing jurisdiction federal before trial and offense, so error was harmless. objection close renewed the at the Record, 7, jurisdiction not be government’s case. vol. 6 at specifically challenged judge's predicated transportation He also here on in Cap charge jurisdiction Contrary to the belief of and, 1201(a)(1)(foreign apparently, tain the trial predicated on 18 Widener U.S.C. § commerce) judge, jurisdiction of the request and submitted a to in- the territorial miles three language struct the in the of U.S.C. United States extends country’s jurisdiction).2 The from shores. United States § convenience, special McRary purposes 1. The claim that For “every in U.S.C. mentioned element of U.S.C. maritime 1201(a)(2) including will and defined in 18 U.S.C. § § ‘travel in commerce’ § jurisdiction. jurisdic- “high ‘special to as seas” and referred maritime and territorial tion,’” Appellee’s Brief at correct. judge charged that: The trial alleges The indictment “did elements There three essential knowingly unlawfully transport and cause proved beyond a reasonable doubt must be transported to be . . . proscribed by establish order .to fishing ‘Spook’, crew [the] vessel ...” this law: 1201(a). violation of 18 U.S.C. no There is grand jury charge hint meant person That was thereafter Third: such kidnapping offense of within the “maritime and transported so commerce while territorial of the United States.” kidnapping. for confined 2. Title 18 tion of the United States which includes vessel on States or States citizen. where the special U.S.C. at least maritime 18 U.S.C. partly 1201(a)(2) registered 7.§ owned territorial perpetuated confers in the United jurisdic- jurisdic- with- Record, .travel between the United eign eign Foreign territory country. country. vol. ^[******] commerce whenever 7 at commerce means of the United States A person States and a he moves into a for- for- Louisiana, plan here. originated Steamship Co. but the necessary Cunard act Mellon, S.Ct. federal attach would not Warren, transpired L.Ed. 894 until the intended victim 1978)(en Consequently, 1064n. 4 had crossed into Mexico. Whiteman, banc); jurisdiction. 4 M. International Law there was no federal Bishop, problem slightly 1—14 W. International Law: here is different. We (1962).4 It is “transports Cases and Materials 589-597 must determine whether in for- undisputed eign merely forcing that the occurred 8.5 commerce” means and, high kidnapped person miles from shore hence on the to enter a State held, seas. This similar court has in facts to or whether there is a these, transportation departure there can be no in forced from the United States foreign commerce where would-be kid subsequent involuntary entry and a in a nappers plan contrive a in the United We believe that State. Con- *4 gress States to entice their victim into Mexico so predicate juris- intended the latter may that he be abducted there a Mexi diction.

can national. United v. 601 States purpose kidnap- behind the federal reaching its ping prevent kidnappers law was to Mclnnis, decision in the court noted that: evading capture by moving juris- from one In contrast to the cases cited to this court diction to another. Chatwin v. United transportation where the interstate fol- States, 455, 233, 326 U.S. 66 S.Ct. 90 L.Ed. illegal lowed some activity, defend- [the (1946). 1932, 198 originally As enacted in contemplate did not any unlawful 22, 1932, 271, 1, ants] 3, Act of June Ch. 47 §§ act before crossed the inter- 326, [the victim] Lindbergh Stat. law contained the national boundary. It is true that [the following definition of “interstate or for- attempted “decoy” vic- defendant] [the eign commerce”: Mexico, but, prior into to his arrival tim] 2. The term “interstate or Sec. Mexico, no unlawful interference with commerce,” herein, as used shall include actions was intended.5 [the victim’s] State, transportation Territory, from one 601 F.2d at 1326. The is cor- or the District of Columbia to another rect, however, pointing State, Territory, out that Mclnnis or the District of Colum- precise bia, issue confronted or country; to a or from a significance 4. For the of Florida’s claim to in which the Cases United States exercises Spanish leagues, three see United States v. extraterritorial because of its ad Florida, 121, 1026, objective principle 80 4 herence to the S.Ct. of territorial Postal, (1960). possible 1096 v. Another source of mis- see United States denied, (5th Cir.), understanding might 589 F.2d 862 832, cert. 444 for the trial court have U.S. 61, Note, (1979); 100 been the S.Ct. belief that Florida’s territorial limit Jeopardy High expanded by contiguous “Double on the Seas: Interna zone. The Beware, 10 contiguous tional Traffickers Ga.J.Int’l. & zone extends from the three mile (1980), clearly Comp.L. distinguishable 648 territorial limit to twelve miles out to sea. It is theory jurisdiction requires part because that high seas. While the United States acts be intended to plenary the extraterritorial power exercises subject only over the territorial sea effect in the United States. to the may vessels not be interfered with unreasona- were The defendants Mclnnis bly, the control of the United States over for- conspiracy kidnap. The court held that a eign contiguous boats in the zone is limited to conspiracy which is conceived in the United customs, fiscal, immigration the enforcement of States, objective of which is to commit a sanitary regulations. or United States v. War- country, illegal kidnapping in a ren, 1978) (en banc); act, completed, not have because the if would 24, generally, see Art. Convention on the Terri- Mclnnis, Here, been a as in no unlawful crime. Zone, 1958, Contiguous torial Sea and the prior act was committed to the victim’s “unre 205; U.N.T.S. T.I.A.S. No. 5639 15 U.S.T. crossing state and strained and uncoerced 1606; Whiteman, M. Law at 482 International national boundaries....” United States v. McInnis, 601 F.2d at 1326. State, violation of international law.8 United Na Territory, country District of Columbia. tions on the Law of Sea— Conference Seas, 29, 1958, Apr. High Convention both Congress meant It is obvious Multilateral, No. 450 U.N.T.S. T.I.A.S. include foreign commerce to interstate and 6; 5200,13 see Art. U.S.T. from one state to another transportation Rodgers, States country. The “com- word state or preceded consistently in the stat- L.Ed. 1071 merce” is foreign” Louisiana, ute without “interstate separate hint “commerce” should have L.Ed.2d 1025 v. Per addition, Congress meanings for each.6 ez-Herrera, F.2d expressly provided for the case such as Reagan, F.2d seas, here, (1) 43-Foot United States One enacting jurisdic- Vessel, (S.D.Fla. Sailing F.Supp. 879 jurisdic- tion). That section invokes federal hold We therefore for ah unlawful seizure “within basis mandates special maritime and territorial place take Unit Title 7 of States.” Section ed and that the victim subse turn, seas in includes quently State. special definition of maritime and territori- kidnap it is uncontroverted that Since nec- al of the United States but ping here occurred outside owned essarily restricts its reach to vessels instructing court erred *5 part by in whole or United States citizens. the as the jury on commerce adopt government’s If and we the view jurisdictional of offense. element the to acts “foreign construe commerce” include any high committed vessel on seas having lost the waters, after the vessel enters battle, by asserting to seeks win the war seas) 1201(a)(2) (high restriction in § particular predicate for federal that vessels with a nexus to the United States jurisdiction is an element of (for- 1201(a)(1) would be in conflict with § any respect and in that be would Furthermore, eign commerce).7 jurisdiction harmless because federal was jurisdiction extending States would its be juris seas proved under § to include acts committed in international diction). reject argument. When waters even if there no were connection federally crime an area a created involves between the vessel and the United States. traditionally left to the of the jurisdiction domain expansion Such of domestic states, jurisdictional authority of the high to vessels on the with no attach- seas sovereign part a of the ment to the would be a clear United becomes crucial States cifically supplied jurisdictional Lindbergh apparent ground of the law another was ly kidnapping clearly § consolidated into 18 U.S.C. it for shows that high jurisdiction by defi propose encompass enacted 1948 to combine the scattered of nitions interstate commerce. implication within that for Revisors, by The mere consolidation course, change legisla of is not evidence of a exception requirement An to this nexus Pipeline Alyeska Wilder tive intent. Service v. every power punish found in nation’s act Society, ness 421 U.S. 95 S.Ct. See, piracy of on the seas. committed (1975). (cid:127) (Second) Foreign Relations Restatement (1965). This Law of the United 34 interpretation government’s 7. Under the there jurisdiction” entirely limit- “universal almost would be no be- need show that vessel piracy. Id. The ed cases longs registered to a United States citizen be grant jur- commerce would definition prerequisite in the United If States. such States in the case of isdiction to United could be read into definition of jur- exercise offense over which federal courts implication, jurisdiction require isdiction virtue of “interstate precisely same would proof in 18 commerce” as defined U.S.C. as that and would there- spe- Congress fore be redundant. The fact that Bass, 336, Fitzpatrick, (5th proof. United States v. 581 F.2d 1221 Cir. 30 L.Ed.2d 488 92 S.Ct. United the defendant was indicted for bank (Former Platenburg, v. States robbery predi- and federal Murrah, 1981); 5th Cir. United v. States allegation cated on the the bank was (5th 478 F.2d 762 Cir. While the insured the FDIC. The evidence at the Bankston, court in United v. States disclosed that the bank was FDIC in- 1979), F.2d state that does sured,9 judge but the trial “the the defendant cross convict, jury that in order to it find must merely lines state furnishes basis for fed federally the bank was chartered —an eral and does not constitute an alternative basis of federal offense, element of the ...” the statement proved Reversing one not at the trial. is dicta and the like those cited as conviction, the court stated: statement, support for that holds however, problem, Our lies not with the prove need not that a de sufficiency proof of the bank’s fendant knew he crossed state lines. Id. at insured status but in the fact 532; Feola, v. States incorrectly respect Beil, to the basis for 1978), States v. the offense 577 F.2d 1313 denied, charged. cert. correctly The defendant asserts L.Ed.2d 634 In cases where the is an essential element of the directly issue is addressed it has been uni crime that the institution robbed formly juris held that the basis for federal federally day insured on the diction is an essential element of of- robbery. The district court’s instruction Bass, supra; fense. United Unit presence of a federal charter. . . Platenburg, (For ed 657 F.2d 797 place proper cannot serve in instruc- 1981); Brown, mer 5th Cir. status, federally tion on insured the basis 616 F.2d 844 charged in the indictment and asserted at 601 F.2d 1319 trial. The defendant thus contends that Fitzpatrick, States v. charge failure to on this essen- *6 (5th McBryar, Cir. tial element amounts to reversible error. (5th Cir.), 553 F.2d 433 cert. denied 434 U.S. agree. charging The indictment 54 L.Ed.2d 136 alleged defendant the institution Howard, (2d United States v. 506 F.2d 1131 federally robbed was insured —not feder- Murrah, Cir. United States v. ally chartered. (5th 1973). Cir. The substitution therefore, depended at the trial of a new element of the offense being able to establish the insured status (high jurisdiction) for the one con savings and loan association. in (foreign tained the indictment 581 F.2d at 1223 While it is jurisdiction) is a fatal variance between here, Fitzpatrick, true that unlike See, proof. indictment and the Stirone indictment, instructions varied from the v. United comparison only points out the serious na- Ylda, Fitzpa- ture of the in this case. 1981). Furthermore, 653 F.2d 912 trick, government alleged FDIC status urging improper that an status, judge proved FDIC but concerning instruction an essential element Here, harmless, another basis. offense was fails to satis factorily distinguish government alleged foreign applicable jurisdic- Fitzpatrick alleged 9. The the indictment assertion that bank) “clearly distinguishable appellant (FDIC tional and the court insured with, carefully proved that case was it was at the trial. nor did the states that government prove, applicable jurisdictional Fitzpatrick, United States v. basis,” 11, n.5, Appellee’s misrep- Brief at is a Fitzpatrick. resentation of the facts in (which undisputed show facts did not

exist), BRADFORD, proved jur- Smith, the alternative Hardwick Charles J. isdiction, al., Plaintiffs-Appellants, judge and the et Fitzpatrick clearly mandates reversal when the is in- BRONNER, etc., al., David et jurisdictional ground structed on Defendants-Appellees. is contradicted the evidence. present jurisdiction- since the No. 80-7591. upon judge al basis which the instructed the Appeals, United States Court exist, cannot conviction Fifth Circuit.* stand.10 Unit B McRary also contends that his trial in the United States for after his con- Jan.

viction of a similar Cuba consti- jeopardy.

tuted double Because the first of assignments reversal, requires of error

we do not consider the claim. second For reasons,

the foregoing the conviction is

REVERSED. HILL, Judge, specially

JAMES C.

concurring: agree

I that we are bound

States v.

1979) and for that reason I concur. question

I holding the rationale of the

Mclnnis and I think binds us to an

improper result case. The

inference could be drawn that the victims

were in kidnapped fact at the commence-

ment of trip, they just the boat but didn’t

know it. They predic- did not discover their

ament gun until the drawn on the

seas. *7 put

If I occurs should hard

to find that merely actionable

because the act of accompa-

nied concealed a ruse. Neverthe-

less, because of Mclnnis opinion of our

panel required. agree against allegation

10. with the that under difficult to defend an presented facts, McRary evidence at the trial a true cannot be jurisdiction. have found provided being This obser- convicted without with ade- vation, correct, while notice, is irrelevant. The quate opportunity to defend and a could not have inferred correctly to deliberate each ele- because were never informed of that basis ment of the offense. and the defendant never had opportunity required or notice to defend * 9(1) Fifth of Public Former true, may very it. While it well be as Law 96-452—October admits, very that it would have been