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State v. Stepansky

Published online by Cambridge University Press:  27 February 2017

Mary Coombs
Mary Coombs*
Affiliation:
University of Miami School of Law
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Type
International Decisions
Information
American Journal of International Law , Volume 95 , Issue 2 , April 2001 , pp. 438 - 445
Copyright
Copyright © American Society of International Law 2001

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References

1 Fla. Stat. ch. 910.006 (2000).

2 State v. Stepansky, 761 So. 2d 1027 (Fla.), cert, denied, 121 S.Ct. 385 (2000); see Sean, D. Murphy, Contemporary Practice of the United States, 94 AJIL 536 (2000).Google Scholar

3 U.S. Const. Art. I, §10.

4 The court cited its own precedent of State v. Stalder, 630 So. 2d 1072 (Fla. 1994). See also Eastern Enterprises v. Apfel, 524 U.S. 498, 524 (1998) (same maxim).

5 U.S. Const. Amend. X.

6 In this context, the court cited United States v. Lopez., 514 U.S. 549 (1995), one of a string of recent U.S. Supreme Court cases applying federalism doctrine to declare invalid an attempted exercise of federal power, in this case to criminalize gun possession in the vicinity of schools. State v. Stepansky, 761 So. 2d at 1030.

7 Citing Skiriotes v. Florida, 313 U.S. 69 (1941).

8 U.S. CONST. Art. I, §8, cl. 10 (granting Congress the power to “define and punish Piracies and Felonies committed on the high Seas”).

9 In its discussion of this issue, the court rightly refers to the U.S. Constitution Art. I, §10, cl. 1, which declares that” [n] o State shall enter into any Treaty, Alliance, or Confederation.” In an earlier portion of its opinion, however—where it introduces the three headings for discussing Stepansky’s arguments—the court cites this section but describes it in text as “the provision granting the federal government the power to enter treaties,” State v. Stepansky, 761 So. 2d at 1031. This description appears to relate to Art. II, §2, cl. 2, a provision that is not directly at issue in Stepansky.

10 U.S. CONST. Art. III, §2, cl. 1.

11 United States v. Arjona, 120 U.S. 479, 487 (1887) (the authority of the United States “does not prevent a state from providing for the punishment of the same thing”), cited in State v. Stepansky, 761 So. 2d at 1031.

12 18 U.S.C. §3231 (1994).

13 U.S. Const. Art. VI, cl. 2.

14 Askew v. American Waterways Operators, Inc., 411 U.S. 325, 341 (1973). See United States v. Locke, 529 U.S. 89 (2000), in which the Court relied on the more nuanced conflict-preemption approach, leaving open the possibility that some of the state’s regulation of oil tankers might be constitutional. For an analysis of Locke, see Patrick, O. Gudridge, Case Report: United States v. Locke, 94 AJIL 745 (2000).Google Scholar

15 State v. Stepansky, 761 So. 2d at 1034 (citing Lockeand Ray v. Adantic Richfield Co., 435 U.S. 151 (1978)).

16 504 So. 2d 396 (Fla. 1987). In that case, the basis for jurisdiction was territorial. The prosecution alleged that the premeditation that was an essential element of the crime had occurred within Florida. Id. at 398-99.

17 State v. Stepansky, 761 So. 2d at 1034.

18 The application of Florida criminal law is limited to cases in which “the criminal laws of the United States prohibit substantially the same act or omission on board ships of the United States registry outside of the territory of the United States.” Fla. Stat. ch. 910.006(4). Since the 1989 enactment of the Florida statute, new federal law has been enacted that extends federal jurisdiction to the actions of Stepansky and to some—but not all—acts and omissions covered by the Florida statute. See 18 U.S.C. §7(8) (1994) (extending special maritime and territorial jurisdiction of the United States to include “[t]o the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States”); see generally infra text accompanying notes 39-43.

19 Fla. Stat. ch. 910.006(4) (“ [n] o person shall be tried under this section if that person has been tried in good faith by another state for substantially the same act or omission,” with “state” being defined under the statute, id. ch. 910.006(2) (c), as meaning “any foreign state, the United States or any state, territory, possession, or commonwealth thereof, or the District of Columbia”). Note that U.S. constitutional law, by contrast, permits successive prosecutions and punishments for the same act by the federal and state governments. See, e.g., Abbate v. United States, 359 U.S. 187 (1959); United States v. Lanza, 260 U.S. 377 (1922).

20 Fla. Stat. ch. 910.006(5) (a) (1). See id. ch. 910.006(1) (d): “The interests of the state do not in principle require a general assertion of primary jurisdiction over acts or omissions at sea that would duplicate or conflict with the execution of any law enforcement responsibility of any other jurisdiction.” It should be noted that neither Liberia (the flag state) nor the United States sought to prosecute Stepansky or submitted an amicus brief in the case. The court pointedly notes, 761 So. 2d at 1030 n.3, that the United States was invited to submit a brief.

21 U.S. Const. Art. I, §10, cl. 1.

22 Convention on the High Seas, Apr. 29,1958, Art. 6,13 UST 2313, 2315,450 UNTS 82,86 (“save in exceptional cases expressly provided for in international treaties..., [ships] shall be subject to [the] exclusive jurisdiction [of the flag state] on the high seas”).

23 Stepansky v. State, 707 So. 2d 877, 879 (1998).

24 State v. Stepansky, 761 So. 2d at 1032 (citing Skiriotes v. Florida, 313 U.S. 69, 85 (1941); United States v. Roberts, 1 F.Supp. 2d 601, 606 (E.D. La. 1998); Stefan A. Riesenfeld, International Agreements, 14 Yale J. Int’l L. 455, 463 (1989)).

25 Id. (citing United States v. Postal, 589 F. 2d 862, 884 (5th Cir. 1979)).

26 For the federal statute, see supra note 18. The cases are Roberts and United States v. Pizdrint, 983 F.Supp. 1110 (M.D. Fla. 1997).

27 313 U.S. 69, 71-72 (1941).

28 Restatement (Third) of the Foreign Relations Law of the United States §402 cmt. k (1986).

29 State v. Stepansky, 761 So. 2d at 1032-33.

30 The court recognized in dicta that a different question might be presented if Florida sought to prosecute a foreign national, but noted that Stepansky had no standing to raise die rights of such a possible future defendant. Id. at 1033.

31 Id. at 1034-35.

32 221 U.S. 280, 285 (1911).

33 §402.

34 State v. Stepansky, 761 So. 2d at 1035. While the court plausibly analyzes the effects doctrine, it cites approvingly the lower court’s blatantly incorrect framing of the issue: that a Florida court could have extraterritorial jurisdiction when there was a substantial effect in Florida, no conflict with federal law, and “no foreign nation [that] has criminal jurisdiction over said acts.” Id. This last limitation is clearly not required, nor is it met in the instant case or in any other in which the statute applies; the flag state has concurrent, territorial jurisdiction.

35 Id. at 1036. The statute included legislative findings that the State of Florida “is a major center for international travel and trade by sea,” Fla. Stat. ch. 901.006(1) (a), and “has an interest in ensuring the protection of persons traveling to or from Florida by sea,” id. ch. 901.006(1 )(b). The court also cites to the analogous conclusions drawn in United States v. Roberts, 1 F. Supp. 2d 601, 608 (E.D. La. 1998), and United States v. Pizdrint, 983 F.Supp. 1110, 1113 (M.D. Fla. 1997).

36 State v. Stepansky, 761 So. 2d at 1037.

37 Skiriotes v. Florida, 313 U.S. 69, 76-77 (1941).

38 State v. Stepansky, 761 So. 2d at 1039-40.

39 See supra note 18.

40 Although lawyers may tend to focus on questions concerning the jurisdiction to try people, the problems of authority for first-level law enforcement—of giving legal authority to the same local personnel who had the practical capacity to take miscreants into custody when the ship docked—was a significant impetus for enacting the statute. This point was emphasized by one of the drafters of the Florida statute, my colleague Bernard Oxman, in conversations regarding its background [hereinafter Oxman conversation].

41 Discussions prior to drafting the statute suggested that the relevant U.S. Attorney’s offices felt that these sorts of crimes were more appropriately and efficiently prosecuted by local authorities. Oxman conversation, supra note 40. Cf. William, H. Rehnquist, Remarks on the Federalization of Criminal Law, Address Before the American Law Institute (May 11, 1998), in 11 Fed. Sentencing Rep. 132 (1998)Google Scholar; Task Force on the Federalization of Crim. Law, American Bar Ass’n, The Federalization of Criminal Law (1998).Google Scholar

42 18 U.S.C. §7 (8). In the two cases construing this statute in the context of cruise ships, the courts sensibly relied on this provision and not 18 U.S.C. §7(1), allowing jurisdiction when the vessel belongs in part to a U.S. citizen; the relevant (non-U.S.) corporate owners had U.S. nationals among their stockholders. See United States v. Roberts, 1 F.Supp. 2d 601 (E.D. La. 1998); United States v. Pizdrint, 983 F.Supp. 1110 (M.D. Fla. 1997).

43 The fact that another section of the statute, Section 910.006(3) (f), refers explicidy to the effects doctrine suggests that the drafters may not have had that doctrine in mind as a basis for Section 910.006(3) (d). Nonetheless, an effects analysis of the latter section is entirely plausible and consistent with the principle that courts should always seek to uphold the validity of statutes whenever such a construction is legitimate.

As in the case of much criminal legislation, the impetus for Florida’s statute was also political. There has been much negative publicity about the cruise-ship industry in recent years, some of it focused on the alleged frequency of shipboard criminality and on the inadequate response to it. See, e.g., Sixty Minutes: Cruising far Fun and Profit (CBS television broadcast, June 25, 2000)Google Scholar; Frantz, Douglas, Sovereign Islands: On Cruise Ships, Silence Shrouds Crimes, N.Y. Times, Nov. 16, 1998, at A1.Google Scholar As the statute itself suggests, providing more effective means of ensuring arrest and prosecution in such cases is a not unexpected response. See Fla. Stat. ch. 910.006(1) (a), (b) (quoted supra note 35).

44 The statute applies regardless of whether the victim or the perpetrator is a passenger or a member of the crew. As a practical matter, however, particularly since the statute contemplates cooperation with the master of the ship, Fla. Stat. ch. 910.006 (5) (a) (3), all but the most serious crimes between crew members are likely to lead not to the culprit being turned over to the state for prosecution, but to a private response—typically termination of the offending party’s employment by cruise-line authorities.

45 Stepansky v. State, 707 So. 2d 877, 880 (1998) (Harris, J., concurring and concurring specially).

46 Fla. Stat. ch. 910.006(5) (a) (2).

47 Such a limit on application of the statute should not apply when there is an alternative basis for Florida jurisdiction, such as the Florida citizenship of the suspect or victim, id. ch. 910.006(3) (a), (f), a request by the state in whose territory the act occurred that Florida exercise jurisdiction, id. ch. 910.006(3) (c), or the consent of the state of which the suspect is a national, id. ch. 910.006(3) (a). These bases raise no issues of conflict with the concerns of states, and as the court rightly noted, defendants have no independent international law right to contest Florida jurisdiction.

48 The administrative difficulties of doing so should be minimal, especially as applied to the defendant’s state of nationality. The request can be made on a standard form, and the authorities are in any event obligated under Article 36(b) of the Vienna Convention on Consular Relations, April 24,1963,21 UST 77,596 UNTS 261, to notify appropriate foreign authorities of the defendant’s arrest and detention. But see Breard v. Green, 523 U.S. 371 (1998) (refusing to block U.S. state’s execution of prisoner who had been denied these rights). For an analysis of Breard, see Agora: Breard, 92 AJIL 666 (1998).

49 The statute as drafted is consistent with such a limitation, charging the attorney general to “take all measures necessary to ensure that law enforcement officers and prosecutors” respect criteria calling for Florida (1) to exercise residual authority and not interfere with jurisdiction by the United States, the flag state, or the state with territorial jurisdiction, (2) to act consistent with international law and the responsibilities of federal authorities, and (3) to cooperate with the flag state and the master of the ship whenever feasible. Fla. Stat. ch. 910.006(5). No regulations appear to have been issued implementing this section of the statute.

50 The significant negative publicity has been in the form of reports on the problem of shipboard crime in general, rather than stemming from any particular incident. That could, of course, change. Cf. Christie, Agatha, Murder on the Orient Express (Harper Collins 1998) (1934).Google Scholar

51 18 U.S.C. §922(q) (1994 & Supp. V 1999).

52 42 U.S.C. §13981 (1994 & Supp. V 1999) (provision of statute providing federal tort remedy).

53 See United States v. Lopez, 514 U.S. 549 (1995),and United States v. Morrison, 529 U.S. 598 (2000), respectively.