663 F.3d 45 (1st Cir. 2011), 10-2203, United States v. Mitchell-Hunter

Docket Nº:10-2203.
Citation:663 F.3d 45
Opinion Judge:STAHL, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Javier MITCHELL-HUNTER, Defendant, Appellant.
Attorney:Rachel Brill, by Appointment of the Court, for appellant. Justin Reid Martin, Assistant United States Attorney, with whom Nelson P
Judge Panel:Before TORRUELLA, STAHL, and THOMPSON, Circuit Judges.
Case Date:December 12, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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663 F.3d 45 (1st Cir. 2011)

UNITED STATES of America, Appellee,


Javier MITCHELL-HUNTER, Defendant, Appellant.

No. 10-2203.

United States Court of Appeals, First Circuit.

December 12, 2011

Heard Nov. 10, 2011.

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[Copyrighted Material Omitted]

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Rachel Brill, by Appointment of the Court, for appellant.

Justin Reid Martin, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, STAHL, and THOMPSON, Circuit Judges.

STAHL, Circuit Judge.

Defendant-appellant Javier Mitchell-Hunter (Mitchell) was charged with drug crimes under the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. §§ 70501-70508, after he was apprehended on a go-fast vessel in the Caribbean by a Coast Guard counter-narcotics patrol. Before the district court, Mitchell moved for dismissal based on lack of jurisdiction under the MDLEA, arguing that use of State Department certifications memorializing the inability of Colombia and Venezuela to confirm or refute the go-fast's master's claim of national registry, without an opportunity to cross-examine their author, constituted a violation of his Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The district court denied his motion to dismiss, finding that jurisdiction was adequately established and that there was no violation of the Confrontation Clause. United States v. Nueci-Pena, No. 07-00888CCC, 2010 WL 759160 (D.P.R. Feb. 26, 2010). This timely appeal followed.

I. Facts and Background

On February 23, 2007, members of a United States Coast Guard enforcement team on counter-narcotics patrol in the Caribbean detected a suspicious go-fast vessel, which was not displaying registry numbers, a hailing port, or a national flag. The Coast Guard boarded the vessel seeking to verify its national registry. Francisco Nueci-Pena (Nueci) identified himself as the master of the ship.

The evidence is contradictory as to which nationality Nueci claimed. Contemporaneously, Petty Officer Hector Canaval, a member of the enforcement team that boarded the vessel, reported that Nueci claimed Colombian registry. United States Coast Guard Commander G. Philip Welzant, a designee of the Secretary of State, stated in his March 20, 2007 Certification for the Maritime Drug Law Enforcement Act Case Involving the Go-Fast Vessel (First Welzant Certification) that

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Colombian authorities were contacted but could neither confirm nor refute the vessel's registry. Thus, the vessel qualified as a " vessel without nationality," and was subject to the jurisdiction of the United States under the MDLEA, 46 U.S.C. § 70502(c)(1)(A), (d)(1)(C). Meanwhile, a February 27, 2007 affidavit by Federal Bureau of Investigation Special Agent Benjamin Walker, who was not present at the interdiction, stated that Nueci claimed Venezuelan registry, that Venezuelan authorities were contacted, and that they were unable to confirm or deny the vessel's registry (Walker Affidavit).

Regardless of the claimed nationality, Coast Guard personnel recovered burlap sacks from the go-fast vessel, which were later determined to contain 1,170 pounds of cocaine. Thereafter, on February 27, 2007, the Coast Guard brought the six members of the go-fast's crew, which included Mitchell, to shore in San Juan, Puerto Rico. A criminal complaint was issued the same day with the Walker Affidavit attached. A federal grand jury from the District of Puerto Rico issued a second superseding indictment on April 4, 2007,1 charging the members of the crew with one count of drug possession and one count of conspiracy to possess drugs with intent to distribute, in violation of the MDLEA, 46 U.S.C. §§ 70503(a)(1), 70504(b)(1), and 70506(b).

On October 23, 2007, Nueci and Mitchell moved for dismissal of the criminal complaint, arguing that Nueci had claimed Venezuelan registry consistent with the Walker Affidavit, and that because Commander Welzant had only certified that Colombia could not confirm or deny registry, jurisdiction of the United States under the MDLEA had never been established.2 The motion also included a request for an evidentiary hearing on the issue of jurisdiction.

The government initially opposed the motion by arguing that " vessel without nationality" status had been properly ascertained via contact with the Colombian government, as memorialized in the First Welzant Certification. However, the government then went further, filing a supplemental opposition including a second Certification for the Maritime Drug Law Enforcement Act Case Involving the Go-Fast Vessel from Commander Welzant (Second Welzant Certification), dated January 15, 2008, describing the Coast Guard's contact with the Venezuelan government on that day. The Venezuelan government could neither confirm nor refute the go-fast vessel's registry. The government therefore asserted that the vessel was indeed " without nationality" and subject to the jurisdiction of the United States, regardless of which claim of registry Nueci had made.

On January 23, 2008, the parties met with a magistrate for a status conference on the pending motion to dismiss for lack of jurisdiction and the need for an evidentiary hearing. The parties agreed that an evidentiary hearing was not necessary and that jurisdiction could be determined on the papers. Importantly, as the magistrate later noted in the Supplemental Report and Recommendation (Supplemental R & R), " defense counsel voiced no objection to consideration of the [Welzant Certifications], nor did they request to cross-examine Commander Welzant or anyone

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providing responses on behalf of Colombia or Venezuela." The magistrate's status conference report stated, " The Court takes this matter under advisement. An order will be entered if the need for an evidentiary hearing arises." Without holding any hearing, the magistrate filed a Report and Recommendation, recommending that the motion to dismiss be denied, which was adopted by the district court on April 9, 2008.

On November 28, 2008, now represented by new counsel, Mitchell filed a motion to supplement his previous motion to dismiss and again requested an evidentiary hearing. This time, Mitchell argued that the two Welzant Certifications were testimonial hearsay, and that under Crawford, their...

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