334 F.3d 819 (9th Cir. 2003), 01-50293, U.S. v. Moreno-Morillo

Docket Nº:01-50293
Citation:334 F.3d 819
Party Name:U.S. v. Moreno-Morillo
Case Date:June 25, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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334 F.3d 819 (9th Cir. 2003)

United States Court of Appeals, Ninth Circuit

United States of America, Plaintiff-Appellee,


Carlos MORENO-MORILLO, aka Carlos Moreno-Moreo, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit

United States of America, Plaintiff-Appellee,


Alberto Gonzalez-Rivas, Defendant-Appellant.

United States of America, Plaintiff-Appellee,


Jose Sabino-Caicedo, Defendant-Appellant.

United States of America, Plaintiff-Appellee,


Bernardo Pandeles-Valencia, Defendant-Appellant.

Nos. 01-50293, 01-50305, 01-50310, 01-50477.

United States Court of Appeals, Ninth Circuit

June 25, 2003.

Argued and Submitted Oct. 10, 2002.

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Mark S. Windsor and Janice M. Deaton, San Diego, CA, argued the case for the appellants and filed briefs. Kay Sunday, Eugene G. Iredale, and Benjamin Sanchez also were on the briefs.

Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Karen E. Moore, Assistant United States Attorney, San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Judith N. Keep, District Judge, Presiding. D.C. No. CR-00-02636-K-04.

Before: HUG, BRUNETTI, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We must decide a challenge to the constitutionality of the Maritime Drug Law Enforcement Act arising out of the boarding by the United States Coast Guard of a foreign vessel in international waters off the west coast of Mexico and the arrest and conviction of the Colombian nationals on board.


Carlos Moreno-Morillo, Alberto Gonzalez-Rivas, Jose Sabino-Caicedo, and Bernardo Pandeles-Valencia ("Defendants") are Colombian nationals who were on board a vessel in international waters approximately 200 miles southwest of Acapulco, Mexico on July 20, 2000. The U.S.S. Antietam, a U.S. Navy destroyer, was patrolling those same waters that night, carrying a United States Coast Guard Law Enforcement Detachment Team. A naval helicopter based on the Antietam spotted the ship sitting dead in the water. Soon thereafter, the vessel began moving south and one of the men on board was observed speaking on a radio. The naval personnel in the helicopter then contacted the Antietam, which proceeded to the area. Upon seeing the approaching Antietam, the vessel's speed increased and its occupants were observed pulling white bundles from below-deck compartments on the vessel, which they proceeded to throw overboard. 1

The vessel eventually was stopped and boarded by Coast Guard personnel. All on board stated that they were Colombian nationals, while the individual identified as the captain of the boat claimed that it was of Colombian registry. The Coast Guard then notified the State Department which in turn contacted the Colombian government in an effort to verify registry. The Colombian government neither confirmed nor denied that the ship was in fact Colombian.

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The vessel was deemed stateless and the Defendants were taken into custody, brought to San Diego, and, on August 21, 2000, indicted for violations of 46 App.U.S.C. § 1903, the Maritime Drug Law Enforcement Act ("MDLEA"). Specifically, the Defendants were charged with violations of section 1903(a), possession of cocaine on board a vessel subject to the jurisdiction of the United States with intent to distribute, and section 1903(j), conspiracy to possess cocaine on board a vessel subject to the jurisdiction of the United States with intent to distribute.

On August 24, the Defendants moved to dismiss the indictment on the grounds that (1) the MDLEA is an unconstitutional exercise of congressional authority; (2) the district court lacked jurisdiction over the Defendants; and (3) the penalty provisions of the MDLEA violate the Fifth and Sixth Amendments by allowing for increased maximum penalties on the basis of facts not charged in the indictment and submitted to the jury.

On October 18, 2000, following a hearing, the district court denied the Defendants' challenges to the constitutionality of the statute and to the court's jurisdiction. In denying the motion to dismiss for lack of jurisdiction, the district court stated:

Insofar as the argument that the statute is basically unconstitutional, or at least the jurisdiction of this court is unconstitutional, the Government has relied on the U.S. Constitution, Article I, Section 8, Clause 10, which allows Congress to define and punish piracies and felonies on the high seas and offenses against the laws of nations, and the Ninth Circuit has specifically held the Maritime Drug Law Enforcement Act that's involved in this case Constitutional [in] United States v. Davis, 905 F.2d 245, 248.

On January 26, 2001, however, the government filed what it termed a "Motion on Jurisdiction" which noted that, under the MDLEA, the Court is required to rule on jurisdictional issues prior to trial. See 46 App.U.S.C.§ 1903(f).

The government attached to its motion a copy of a certificate under seal bearing the signature of the acting Secretary of State. That certificate attests that one Commander Scott Genovese was, at the time the certificate was issued, the Coast Guard Liaison to the State Department. Attached to the certificate under seal is Cmdr. Genovese's declaration describing the events surrounding the apprehension of the Defendants. Also appended to the certificate is documentation concerning the communications between the United States and Colombian governments in the aftermath of the detention of the Defendants revealing that the Colombian government could neither confirm nor deny the claim of registry.

The government attempted to present this documentation at a hearing before the district court on Friday, February 2, 2001, four days before trial was set to begin. While the government asserted that its motion was merely a "housekeeping matter," there was nevertheless quite a bit of confusion. The district court--thinking that it had already decided all issues of jurisdiction at the October 18, 2000, hearing--was non-plussed when presented with the certificate, asking counsel for the government, "What am I supposed to do with this?" Counsel for Defendants objected to the admission of the document, to which the court responded, "Okay, I'll take your objection under submission. If there's anything further anybody wants to say about this document, you can tell me Monday."

There was no further challenge to the document, and on February 6, 2001, a jury

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was empaneled. The next day, before opening statements in the trial were scheduled to be delivered, the Defendants agreed to plead guilty to the first count of the indictment, conspiring to possess with intent to distribute more than 100 kilograms of cocaine on board a vessel subject to the jurisdiction of the United States.

Under the relevant terms of their plea agreement, the Defendants "preserve[d] their right to appeal the Court's pre-trial rulings concerning Constitutionality of the statute, jurisdiction, and violation of Rule 5 on the bases set forth in the papers below." During the Rule 11 colloquy, the court questioned the Defendants regarding their qualified pleas: "So, basically, what you want to appeal is the Constitutionality of the statute that brought you here, why I have jurisdiction--you're saying you still don't like the fact that you're in the United States." When asked by the court if they understood that they could appeal those issues and those issues only, each Defendant answered affirmatively.

The guilty pleas were entered and the Defendants timely appealed.


On appeal, the Defendants first raise two distinct constitutional challenges. They argue, first, that Congress lacked the authority to enact the MDLEA and, second, that the statute itself violates their rights under the Fifth and Sixth Amendments to the Constitution.


Three of the four Defendants persist in arguing that 46 App.U.S.C. § 1903 is unconstitutional because it does not require on its face a showing of nexus to interstate or foreign commerce with the United States; this despite the district court's finding that the government had correctly located congressional authority to enact the MDLEA not in the Commerce Clause, but in Article I, Section 8, Clause 10 of the Constitution, which empowers Congress "to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." U.S. Const., art. I, § 8, cl. 10.

As an exercise of congressional power pursuant to Article I, Section 8, Clause 10, this court clearly has held that the MDLEA is constitutional. See United States v. Davis, 905 F.2d 245, 248 (9th Cir. 1990) (holding that the MDLEA falls within Congress' "power to define and punish piracies and felonies on the high seas....").

One of the Defendants, Mr. Gonzalez-Rivas, contends that drug-trafficking is not among the felonies and piracies on the high seas that Congress is empowered to define under Article I, Section 8, Clause 10. We, however, have held otherwise. In United States v. Aikins, 946 F.2d 608 (9th Cir. 1990), this court found that the MDLEA "expressly prohibits the possession of drugs on certain vessels with intent to distribute" and, citing Davis, further found that such a prohibition was within Congress "power to 'define and punish piracies and felonies committed on the high seas.' " Id. at 613.

Congress, therefore, was acting within its constitutionally conferred authority when it passed the MDLEA. That authority is expressly conferred...

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