627 F.3d 1 (1st Cir. 2010), 08-2289, United States v. Matos-Luchi

Docket Nº:08-2289, 08-2290, 08-2291.
Citation:627 F.3d 1
Opinion Judge:BOUDIN, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Epifanio MATOS-LUCHI, Manolo Soto-P
Attorney:Ricardo R. Morel for appellants. David E. Hollar, Criminal Division, Appellate Section, Department of Justice, with whom Lanny A. Breuer, Assistant Attorney General, Gary G. Grindler, Deputy Assistant Attorney General, Rosa E. Rodr
Judge Panel:Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges. LIPEZ, Circuit Judge, dissenting.
Case Date:December 01, 2010
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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627 F.3d 1 (1st Cir. 2010)

UNITED STATES of America, Appellee,

v.

Epifanio MATOS-LUCHI, Manolo Soto-Pé rez, Ramón Carrasco-Carrasco, Defendants, Appellants.

Nos. 08-2289, 08-2290, 08-2291.

United States Court of Appeals, First Circuit.

December 1, 2010

Heard May 6, 2010.

Ricardo R. Morel for appellants.

David E. Hollar, Criminal Division, Appellate Section, Department of Justice, with whom Lanny A. Breuer, Assistant Attorney General, Gary G. Grindler, Deputy Assistant Attorney General, Rosa E. Rodríguez-Vé lez, United States Attorney, and Nelson J. Pé rez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

BOUDIN, Circuit Judge.

This appeal by several defendants convicted of drug trafficking-Epifanio Matos-Luchi, Manolo Soto-Perez, and Ramon Carrasco-Carrasco-requires the interpretation of the Maritime Drug Law Enforcement Act (" MDLEA" ), 46 U.S. C. § 70501 et seq. (2006), which inter alia delineates federal enforcement authority over drug crimes carried on at sea outside U.S. territorial limits. The factual background and proceedings in the district court are as follows.

In May 2007, Petty Officer Richard Young and a team of five other U.S. Coast Guard personnel were stationed on the HMS Ocean, a British aircraft carrier, to assist with law enforcement efforts in the Carribean Sea. On May 12, the Coast Guard team deployed in a helicopter to

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investigate a low-flying airplane spotted in the vicinity; from the air, they saw the plane drop several bale-shaped packages into the sea about thirty to thirty-five miles from the coast of the Dominican Republic.1

A small boat waiting nearby-a twenty to twenty-five foot fishing " yola" propelled by an outboard motor and allegedly crewed by the three defendants-then approached the drop site and began to retrieve the bales. The officers suspected drug trafficking and descended in the helicopter. The boat crew jettisoned the bales and fled. After giving chase for nearly an hour, the Coast Guard helicopter returned to the drop site to retrieve the bales, which proved to contain packages of cocaine.

While the helicopter retrieved the drugs, a U.S. Customs and Border Protection airplane followed the yola as it proceeded north towards the Dominican Republic. The boat experienced engine problems and halted about twenty-five miles from the Dominican coast. At the request of the U.S. Customs officials, a Dominican Coast Guard cutter sailed out to retrieve the yola and its crew. The three crew members were taken on board the cutter and the yola was tied to its stern.

Later that evening, Young and two others traveled from the HMS Ocean to the Dominican cutter where, with the permission of the Dominican authorities, they questioned the three defendants who now were on board the cutter. Young later testified that when questioned, Matos, Soto and Carrasco declined to make a claim of nationality for the yola:

I asked ... who was the captain of the vessel they were on or the senior person in charge of the boat, and they responded there was no single person in charge. Since I could not determine if there was a captain of the vessel, I asked if anybody would like to speak for the boat and give me a claim of nationality. And they shook their heads no, and actually did not give me a full response. Because I could not get one individual to make a claim for the vessel, I then questioned what was the nationality of the personnel. And they had all told me and informed me that they were from the Dominican Republic. I asked if the boat had come from the Dominican Republic as well, and they, in turn, agreed.

While Young interrogated the yola crew, another Coast Guard officer boarded the yola, now tied to the stern of the cutter. No ensign, flag, registration, or other evidence of the vessel's nationality was found on board. The U.S. Coast Guard crew were instructed by their superiors to detain the defendants, who were transferred to the HMS Ocean and then brought to Puerto Rico for prosecution in federal district court.

The defendants were charged by indictment with violations of the MDLEA: one count of possessing cocaine with the intent to distribute, 46 U.S. C. § 70503, and one count of aiding and abetting that crime, 18 U.S. C. § 2 (2006), all while on board a " vessel without nationality" and so within the enforcement authority of the United States, 46 U.S. C. §§ 70502(c)(1)(A), 70503(a)(1). The defendants moved to dismiss the indictment " for lack of jurisdiction," arguing that there was no proof that they were on board a " vessel without nationality" as alleged in the indictment. The district court held that motion in

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abeyance, and the defendants proceeded to trial.

When the government rested its case in chief, the defendants sought a judgment of acquittal from the court, repeating that there was no proof that they were on board a " vessel without nationality." The court denied the motion. The most extensive explanation given by the judge, provided in response to defense counsel's repeated efforts to have the jury instructed on the issue, was as follows:

Title [46], the law defines a vessel without nationality. And look at this. A vessel on which the master or individual in charge-you need a master or individual in charge, to begin with-fails on request of an officer of the United States, authorized to enforce applicable United States law, to make a claim of nationality or registry for that vessel.

....

And then what happens on top of that, you have a vessel that is in international waters, no written registration on the outside. No name, no flying flag, no nothing.

....

I believe it is entirely up to me to make a determination as to jurisdiction, and I'm convinced that there is jurisdiction, so I cannot ask the jury to make that determination.

Ultimately, the jury found the defendants guilty as charged of possession with intent to distribute the seized drugs. Conformably with the statute, the issue of whether the vessel was without nationality was not submitted to the jury. See 46 U.S. C. § 70504(a). Based on the weight of the cocaine recovered-which was 386 kilograms-the defendants were later each sentenced to 235 months' imprisonment. This appeal followed.

The most abstruse issue in the case, with which we begin, is whether the defendants' possession of the cocaine with intent to distribute occurred on board " a vessel subject to the jurisdiction of the United States," 46 U.S. C. § 70503(a)(1). To put the issue in context requires an understanding of the design and background of the MDLEA-a statute initially enacted in 1986 as 46 U.S. C.app. § 1903, see Pub.L. No. 99-570, § 3202, 100 Stat. 3207, 3207-95 to -97 (1986), and later relocated to its present code sections, 46 U.S. C. §§ 70501-70507, see Pub.L. No. 109-304, § 10(2), 120 Stat. 1485, 1685-89 (2006).

Invoking its constitutional power " [t]o define and punish Piracies and Felonies committed on the high Seas," U.S. Const. art. I, § 8, cl. 10, Congress in the MDLEA made it unlawful inter alia for anyone to

knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board ... a vessel subject to the jurisdiction of the United States ... even though the act is committed outside the territorial jurisdiction of the United States.

46 U.S. C. § 70503(a)-(b).2

Underscoring its aim to reach broadly, Congress defined " a vessel subject to the jurisdiction of the United States" to include six categories of boats (listed in full in an appendix to this decision)-first among them " a vessel without nationality," 46 U.S. C. § 70502(c)(1)(A).

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In turn, " a vessel without nationality" is defined to " include[ ]" the following:

(A) a vessel aboard which the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed;

(B) a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and

(C) a vessel aboard which the master or individual in charge makes a claim of registry for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.

46 U.S. C. § 70502(d)(1).

That the listed examples do not exhaust the scope of section 70502(d) is confirmed by Congress' contrasting use of the phrase " includes only" in a related provision,3 by its evident and explicit attempts to sweep quite broadly, see, e.g., S. Rep. 99-530, at 15-16, 1986 U.S. C.C.A.N. 5986 (1986), and by relevant precedent, United States v. Rosero, 42 F.3d 166, 170 (3d Cir.1994) (Alito, J.). At the very least, Congress intended to include in section 70502(d), in addition to the specific examples given, those vessels that could be considered stateless under customary international law. Id. at 170-71; see also H.R.Rep. No. 96-323, at 23-24 (1979) (discussing predecessor statute).

Congress' intent to reach broadly was reconfirmed in the Coast Guard Authorization Act of 1996, Pub.L. No. 104-324, § 1138, 110 Stat. 3901, 3988-89, which amended the MDLEA by providing that the " jurisdiction" of the United States over a vessel under the MDLEA was " not an element of the offense" but a matter to be determined " solely by the trial judge," id. § 1138(a)(5) (now codified at 46 U.S. C. § 70504(a)), and that a defendant had no standing to claim that enforcement violated " international law" -reserving such objections only to foreign nations, id. §...

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