  Assertion of Jurisdiction by the United States Over Foreign
      Vessels Seized Pursuant to a Special Arrangement

T h e U n ited S tates m ay stru c tu re a S pecial A rra n g e m e n t so as to enable it to assert
   ju ris d ic tio n o v e r a vessel seized on b e h a lf o f a foreign state, o n c e th e fo reig n state
   w aiv es its ju risd ictio n .

O n c e th e U n ited S tates asserts ju ris d ic tio n o v e r a seized vessel, it m ust c o m p ly w ith the
   req u irem en ts o f th e F o u rth A m en d m en t.


                                                                                        April 15, 1980
   M EM ORANDUM OPINION FOR TH E DEPUTY ASSISTANT
         ATTORNEY G EN ER A L, CRIM INA L DIVISION

   This responds to your inquiry whether the United States could assert
jurisdiction over foreign vessels seized pursuant to a Special Arrange­
ment if the flag state decided not to prosecute the vessel after the
United States had seized the boat on behalf of the flag state. We believe
that the Special Arrangement may be stuctured so that the United
States can assert jurisdiction when the flag state refuses to prosecute.
Once the flag state declines to continue to exercise its jurisdiction, the
United States can assert jurisdiction, obtain a warrant to search and
seize the vessel, and institute forfeiture proceedings.
   As we noted in our memorandum to the Deputy Legal Adviser of
February 19, 1980* on this general subject, the President is relatively
free to negotiate the details of a jurisdictional agreement with a foreign
state. Williams v. Rogers, 449 F.2d 513, 522-523 (8th Cir. 1971), cert,
denied, 405 U.S. 926 (1972). Jurisdiction under these agreements may be
exclusive, concurrent, or a matter of one party having primary jurisdic­
tion which it may then choose to waive. Holmes v. Laird, 459 F.2d
1211, 1212, 1214 (D.C. Cir. 1972) (jurisdiction reasserted after initial
waiver); Art. VII(3)(c), Agreement Between the Parties to the North
Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, 4
U.S.T. 1792, T.I.A.S. No. 2846 (NATO SOFA); Art. XVII, Adminis­
trative Agreement Under Article III of the Security Treaty Between
the United States of America and Japan, Feb. 28, 1952, 3 U.S.T. 3342,
T.I.A.S. No. 2492 (Administrative Agreement). For example, under the
Administrative Agreement with Japan, the United States had “exclusive

  •N o t e : T h e text o f the F ebruary 19, 1980 m em orandum appears in this volum e at p. 406. Ed.


                                                    572
jurisdiction over all offenses” committed by its soldiers and civilians in
Japan. Art. XVII, § 2. However, the United States could waive its
jurisdiction at the request of the Japanese government. Id., § 4. “Upon
such waiver, Japan may exercise its own jurisdiction.” Id. Not until the
United States waived its jurisdiction, however, could Japan assert its
own jurisdiction.
   Similarly, we believe that the United States could enter into an
agreement that would preclude assertion of its jurisdiction until the flag
state waived its jurisdiction. The agreement could be a two-tier ar­
rangement: first, there would be an initial seizure on behalf of the flag
state. While the United States held the ship in custody for the flag state,
the Special Arrangement would permit only the flag state to assert
jurisdiction. However, if the flag state decided that it did not wish to
proceed against the ship, it could decline to continue its jurisdiction.
We would recommend that the Special Arrangement include a specific
time limit for this period to reduce the likelihood that the ship remains
unprocessed for any length of time.
   The flag state’s primary jurisdiction must be made clear. The Special
Arrangement is premised on the flag state’s underlying jurisdiction
when the United States seizes the ship. The Special Arrangement
should state that we would normally expect the flag state to continue to
exercise that jurisdiction by assuming custody promptly. However, in
order to permit flexibility, the Special Arrangement could include a
second tier: assertion of jurisdiction by the United States when—and
only when—the flag state renounces its jurisdiction.1 It should be made
clear that the United States does not exercise concurrent jurisdiction
under the Special Arrangement. Only when the flag state refuses to
exercise its criminal jurisdiction any longer may the United States
exercise its own.
   The Special Arrangement should state the precise method by which
the United States will inform the flag state and third parties that it is
asserting jurisdiction. Although such detail may not be necessary, see
Administrative Agreement, supra, the danger that a forfeiture proceed­
ing will be dismissed because of improper notice or delay, especially
given the courts’ willingness to read the statutes narrowly in order to
protect innocent owners, is reason enough to use special caution in
drafting this Special Arrangement.2
   When the United States does assert jurisdiction, it should make sure
that the formal seizure of the ship is done without violating the Fourth
Amendment. Evidence which is obtained in violation of the Fourth

   1 T h e Special A rrangem ent should be drafted to ensure that there is no gap betw een the renunci­
ation o f jurisdiction by th e flag state and its assertion by the U nited States. See 33 C .F .R . § 604-8
(1979).
   2 In addition, the m ore precise the Special A rrangem ent is, the easier it will be to convince a court
that the Executive has considered all the “details” for w hich it is responsible—including w hen U nited
States courts should be allow ed to review the proceedings.


                                                  573
Amendment may not be relied on to sustain a forfeiture. One 1958
Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965).3 Some courts
have permitted a warrantlesis seizure when there is probable cause to
believe the object is subject to forfeiture. See United States v. Pappas,
600 F.2d 300 (1st Cir. 1979); United States v. Sink, 586 F.2d 1041, 1048
(5th Cir. 1978); cert, denied, 443 U.S. 912 (1979). However, other courts
require exigent circumstances. United States v. McCormick, 502 F.2d
281 (9th Cir. 1974). This might be hard to show if the ship is in the
custody of the United States and its crew has been arrested or re­
moved. Although several courts have held that forfeiture statutes do
permit summary seizure, the Fifth Circuit is still “determining] the
scope” of the forfeiture laws. Sink, supra, 586 F.2d at 1048 (5th Cir.
1978).4 We would recommend that a warrant be obtained for the
search and seizure.
   The United States may take advantage of a seizure made by anyone
on its behalf by adopting the act and proceeding to enforce the forfeit­
ure by legal process. The Caledonian, 17 U.S. (4 Wheat.) 100, 103
(1819). United States v. Story, 294 F. 517 (5th Cir. 1923). However, here
the original seizure, even though made by a United States officer, will
be on behalf of a foreign nation.5 Although seizures by citizens on
behalf of a state government may be adopted by the federal govern­
ment, In re Commercial Investment Trust Corp., 31 F.2d 494 (W.D. N.Y.
1929); United States v. One Studebaker Seven-Passenger Sedan, 4 F.2d
534 (9th Cir. 1925); United States v. Story, supra, a court might decide
that this line of cases is distinguishable. Such adoption might also raise
questions as to whether the original seizure was purely on behalf of the
flag state—which might lead to renewed questions about whether there
was concurrent jurisdiction over the ship.6
   We recommend that the United States obtain a warrant to seize the
ship, using the testimony of the officer who makes the original seizure
to establish probable cause.7 If this is done as promptly as possible after

    3 T h e forfeiture m ay still proceed, how ever, if it can be p ro ven by untainted evidence. United States
v. One (1) 1971 Harley-Davidson Motorcycle, 508 F.2d 351 (9th C ir. 1974); United States v. One 1976
Cadillac Seville, Vin, A ll F. Supp. 879 (E .D . M ich. 1979); Mayo v. United States, 413 F. Supp. 160, 162
(E .D . 111. 1976).
    4 T h e F irst C ircuit, w hich includes the p o rt o f Boston w ithin its jurisdiction, has issued conflicting
signals on the question w h eth er an unauthorized seizure bars a subsequent forfeiture. A fter stating that
the illegality o f the underlying seizure is irrelevant, Interbartolo v. United States, 303 F.2d 34 (1st Cir.
1962), reaffirm ing Strong v. United States, 46 F.2d 257 (1st C ir. 1931), it questioned, w ithout deciding,
w h eth er Interbartolo w as still g o o d law. United States v. One 1972 Chevrolet Nova, 560 F.2d 464 (1st
Cir. 1977); Berkowitz v. United States, 340 F.2d 168 (1st Cir. 1965). T hen in United States v. Pappas, 600
F.2d 300 (1st Cir. 1979), the C o u rt lim ited Berkowitz T h e district c ourts reflect that confusion.
C om pare United States v. One 1975 Pontiac LeMans, 470 F . Supp. 1243, 1247 (D . Mass. 1979) (citing
Interbartolo), and United States v. F /V Taiyo Maru, 395 F. Supp. 413 (D . M aine 1975), w ith Melendez
v. Shultz, 356 F. Supp. 1205 (D . Mass. 1973).
    s W e note that the arresting officer should be aw are that his original seizure may be the basis o f
later action by th e U nited States and therefo re th e subject o f scrutiny by A m erican courts.
    6 W e w ould also recom m end th at the Special A rrangem ent specifically state that the flag state
can n o t reassert its jurisd ictio n at a later date.
    7 A n y dru g s w hich are no lo n g er on board should also be seized on behalf o f the U nited States.



                                                      574
the flag state renounces jurisdiction, it should foreclose an argument
that the seizure of the ship was improper.

                                       L a r r y L . S im m s
                               Deputy Assistant Attorney General
                                   Office o f Legal Counsel




                                575
