## Facts

- A U.S. Coast Guard cutter patrolling the Caribbean Sea observed the shrimp boat *El Don* dead in the water and suspected it was a smuggling vessel because it was not rigged for fishing and lacked a flag and identifying markings.
- The Coast Guard boarded the vessel under the international-law “right of approach” to determine its nationality and inspect registration papers.
- During the boarding, Coast Guardsmen discovered more than four and one-half tons of marijuana in the vessel’s hold.
- The vessel was determined to be of Panamanian registry.
- The Coast Guard relayed the registry information to the U.S. State Department; the Coast Guard was then instructed, apparently with Panama’s approval, to seize the vessel and crew and transport them to Key West, Florida.
- The crew (foreign nationals) was indicted on five counts, including conspiracy and substantive offenses under 21 U.S.C. §§ 955a(c), 955a(d), 955c, and conspiracy to import under 21 U.S.C. § 963.
- The district court dismissed the indictment, concluding Congress did not intend § 955a(c) to reach foreigners on a foreign vessel on the high seas and that the court lacked jurisdiction.
- The United States appealed the dismissal.

## Issues

1. Whether Congress intended 21 U.S.C. § 955a(c) (“within the customs waters of the United States”) to apply to foreign nationals aboard a foreign-flag vessel on the high seas when enforcement authority is based on a treaty or other arrangement with the flag state.
2. Whether the indictment was legally sufficient, or whether dismissal before trial was improper because the government should be allowed to prove jurisdictional facts (including any relevant treaty/arrangement).
3. Whether other asserted challenges (including due process vagueness/overbreadth and Fourth Amendment suppression) warranted dismissal at this stage.

## Decision

- The Eleventh Circuit reversed the district court’s order dismissing the indictment and remanded for further proceedings.
- The court held that § 955a(c) was intended to reach foreign nationals on foreign vessels on the high seas when the vessel is within “customs waters” as defined through a treaty or other arrangement with the flag state.
- The court held the indictment adequately stated offenses by tracking the statutory language and alleging the conduct occurred within U.S. “customs waters.”
- The court ruled that whether a treaty/arrangement existed and authorized enforcement in the location of the seizure was a matter of proof for trial, not a basis for pretrial dismissal.
- The court left remaining constitutional and suppression arguments for resolution in further proceedings.

## Legal Principles

- “Customs waters,” for foreign vessels, includes waters beyond the territorial sea where, by treaty or other arrangement with a foreign government, the United States is authorized to enforce its customs laws with respect to that vessel (19 U.S.C. § 1401(j) as incorporated into the statutory scheme).
- Congress may extend criminal jurisdiction over conduct on the high seas through statutes that operate in conjunction with treaties or arrangements with foreign nations; § 955a(c) reflects this design.
- An indictment that alleges the statutory elements (including that the conduct occurred within “customs waters”) is not required to plead the treaty/arrangement in detail; the existence and scope of such jurisdictional facts are determined through evidence.
- Pretrial dismissal is improper when it rests on resolving disputed jurisdictional facts that the government is entitled to attempt to prove at trial.

## Conclusion

The Eleventh Circuit held that § 955a(c) can apply to foreign crews on foreign-flag vessels on the high seas when U.S. enforcement authority is established by treaty or other arrangement defining “customs waters,” and it reinstated the indictment because jurisdictional authorization was a trial-proof issue rather than a pleading defect.


United States v. Romero-Galue, 757 F.2d 1147 (11th Cir. 1985)