Thursday, November 16, 2006
Ninth Circuit Upholds U.S. Jurisdiction Over Crew of Drug-Laden Ship Seized in International Waters
By a MetNews Staff Writer
A ship holding a large amount of cocaine, some bundled with markings similar to other cocaine found in the United States, stopped 1,500 miles from San Diego, has sufficient nexus with the United States to give U.S. courts jurisdiction over its crewmembers, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court upheld the conviction, in the U.S. District Court for the Southern District of California, of Anatoli Zakharov, a crewmember of the Svesda Maru, on charges of conspiracy and possession of cocaine with intent to distribute.
The case involves what was at the time the largest U.S. maritime seizure of cocaine—about 13 tons, worth more than $600 million.
One day in 2001, the crew of the USS Rodney M. Davis, a United States Navy frigate performing drug patrol duties, spotted the Svesda Maru in international waters 500 miles off the coast of southern Mexico, about 1,500 miles from San Diego. The 152-foot fishing vessel, registered in Belize, was in an area not known for fishing.
A Coast Guard boarding team, working with the Navy, deployed from the Davis and attempted to make contact with the Svesda Maru. When the Svesda Maru did not respond, team members later testified, the team boarded it, and began searching for illegal drugs.
On their fifth day of searching, the Coast Guard found the cocaine in a hidden compartment behind a fuel tank. The Coast Guard seized the vessel pursuant to a U.S. treaty with Belize, and with the express permission of the Belizean government.
The Svesda Maru’s crew, eight Ukrainians and two Russians, were taken into custody and kept on the deck of the Coast Guard Cutter Active, without being interrogated, for the 10 days it took to reach San Diego.
Prior to Zakharov’s initial appearance before a magistrate judge, a drug enforcement agent interviewed him through a Russian interpreter for about two hours. The agent advised Zakharov of his constitutional rights, and Zakharov signed a Russian-language Miranda waiver.
The agent testified that Zakharov admitted that he was to be paid $20,000 for the trip, and that he and the crew knew that the vessel contained cocaine. But he claimed that only the captain knew all of the details of the voyage. He also claimed this was the first time he engaged in such activity.
After holding evidentiary hearings on the court’s jurisdiction, Judge Jeffrey T. Miller ruled that the shipment was likely to have effects in the United States. He found that four of the 12 markings on the cocaine bundles were found previously in the United States and that, based on the type of vessel, its location, and the kinds of navigational charts on the vessel, the cocaine was destined for the United States. He also found that neither Russia nor Europe was likely the intended final destination of the cocaine.
After the jury convicted him, Zakharov was sentenced to 240 months in custody to be followed by five years of supervised release.
On appeal he argued that the district court lacked jurisdiction over him. He claimed the evidence was insufficient to establish a nexus between the United States and the seized cocaine.
He made specific evidentiary challenges to Miller’s findings and questioned determinations on the credibility of witnesses. But Judge Richard C. Tallman, writing for the Ninth Circuit, held that Miller did not err, saying:
“In essence, Zakharov’s claim constitutes no more than an argument that it would have been reasonable for the district court to believe his expert witness instead of the expert witness for the United States. Zakharov’s argument does not create ‘a definite and firm conviction that a mistake has been committed’ by the district court in its credibility and factual findings.”
“In any event, the location of the vessel, the large amount of cocaine, the types of navigational charts on board, and the existence of some matching logos are sufficient indicators of nexus for the exercise of United States jurisdiction to ‘not be arbitrary or fundamentally unfair.’”
Judges A. Wallace Tashima and Raymond C. Fisher joined in the opinion.
The case is United States v. Zakharov, 03-50214.
Copyright 2006, Metropolitan News Company