700 F.3d 1245 (11th Cir. 2012), 11-14049, United States v. Bellaizac-Hurtado

Docket Nº:11-14049, 11-14227, 11-14310 and 11-14311.
Citation:700 F.3d 1245
Opinion Judge:PRYOR, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Yimmi BELLAIZAC-HURTADO, a.k.a. Fausto, a.k.a. El Zarco, a.k.a. El Colorado, Luis Carlos Riascos-Hurtado, Pedro Angulo-Rodallega, a.k.a. Pepito, Albeiro Gonzalez-Valois, a.k.a. Tocayo, Defendants-Appellants.
Attorney:Jonathan Colan, Anne Ruth Schultz, Dustin M. Davis, Wifredo A. Ferrer, Kathleen Mary Salyer, U.S. Attys., Miami, FL, Phillip Drew DiRosa, U.S. Atty., Fort Lauderdale, FL, for Plaintiff-Appellee. Stewart Glenn Abrams, Michael Caruso, Tracy Michele Dreispul, Fed. Pub. Defenders, Miami, FL, for Defe...
Judge Panel:Before BARKETT and PRYOR, Circuit Judges, and BATTEN,[*] District Judge. BARKETT, Circuit Judge, specially concurring:
Case Date:November 06, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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700 F.3d 1245 (11th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Yimmi BELLAIZAC-HURTADO, a.k.a. Fausto, a.k.a. El Zarco, a.k.a. El Colorado, Luis Carlos Riascos-Hurtado, Pedro Angulo-Rodallega, a.k.a. Pepito, Albeiro Gonzalez-Valois, a.k.a. Tocayo, Defendants-Appellants.

Nos. 11-14049, 11-14227, 11-14310 and 11-14311.

United States Court of Appeals, Eleventh Circuit.

November 6, 2012

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Jonathan Colan, Anne Ruth Schultz, Dustin M. Davis, Wifredo A. Ferrer, Kathleen Mary Salyer, U.S. Attys., Miami, FL, Phillip Drew DiRosa, U.S. Atty., Fort Lauderdale, FL, for Plaintiff-Appellee.

Stewart Glenn Abrams, Michael Caruso, Tracy Michele Dreispul, Fed. Pub. Defenders, Miami, FL, for Defendant-Appellant in No. 11-14049.

Orlando do Campo (Court-Appointed), do Campo & Thorton, PA, Miami, FL, for Defendant-Appellant in No. 11-14227.

Albert Zachary Levin (Court-Appointed), Albert Z. Levin, PA, Miami, FL, for Defendant-Appellant in No. 11-14310.

Philip Robert Horowitz (Court-Appointed), Law Office of Philip R. Horowitz, Miami, FL, for Defendant-Appellant in No. 11-14311.

Appeals from the United States District Court for the Southern District of Florida.

Before BARKETT and PRYOR, Circuit Judges, and BATTEN,[*] District Judge.

PRYOR, Circuit Judge:

This appeal presents a novel issue about the scope of congressional power to proscribe conduct abroad: whether the Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70503(a), 70506, exceeds the power of Congress to " define and punish ... Offences against the Law of Nations," U.S. Const. Art. I, § 8, cl. 10, as applied to the drug-trafficking activities of Yimmi Bellaizac-Hurtado, Pedro Felipe Angulo-Rodallega, Albeiro Gonzalez-Valois, and Luis Carlos Riascos-Hurtado in the territorial waters of Panama. Because we conclude that drug trafficking is not an " Offence[ ] against the Law of Nations" and that Congress cannot constitutionally proscribe the defendants' conduct under the Offences Clause, we vacate their convictions.

I. BACKGROUND

During a routine patrol of Panamanian waters in 2010, the United States Coast Guard observed a wooden fishing vessel operating without lights and without a flag. The Coast Guard informed the Panamanian National Aero-Naval Service of the vessel. The Panamanian Navy pursued the vessel until its occupants abandoned the vessel and fled into a jungle. When members of the Panamanian Navy searched the

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vessel the next morning, they discovered approximately 760 kilograms of cocaine. The Panamanian National Frontier Service searched on land for the occupants of the abandoned vessel and arrested Bellaizac-Hurtado, Angulo-Rodallega, Gonzalez-Valois, and Riascos-Hurtado in various locations on the beach and in the jungle. After an exchange of diplomatic notes, the Foreign Ministry of the Republic of Panama consented to the prosecution of the four suspects in the United States.

A federal grand jury indicted Bellaizac-Hurtado, Angulo-Rodallega, Gonzalez-Valois, and Riascos-Hurtado for conspiracy to possess with intent to distribute five kilograms or more of cocaine, and for actual possession with intent to distribute five kilograms or more of cocaine, on board a vessel subject to the jurisdiction of the United States. See 46 U.S.C. §§ 70503(a), 70506; 21 U.S.C. § 960(b)(1)(B). The defendants moved to dismiss the indictment " based upon the lack of jurisdiction and the unconstitutionality of the Maritime Drug Law Enforcement Act as applied to [their] conduct." A magistrate judge recommended that the motion be denied. The magistrate judge reasoned that the district court had jurisdiction because the defendants were operating a stateless vessel and that the Act was constitutional as applied because Congress and several courts had determined that drug trafficking was " universally condemned" by various nations with " reasonably developed" legal systems. The district court adopted the magistrate judge's report. The district court also explained that section 70505 of the Act " limits the actors that have standing to challenge the validity of an MDLEA prosecution on international law grounds."

The defendants conditionally pleaded guilty to the conspiracy charge. The district court sentenced Bellaizac-Hurtado to imprisonment for 90 months, supervised release for five years, and a $100 fine; Angulo-Rodallega to imprisonment for 36 months, supervised release for two years, and a $100 fine; Gonzalez-Valois to imprisonment for 36 months, supervised release for two years, and a $100 fine; and Riascos-Hurtado to imprisonment for 25 months, supervised release for two years, and a $100 fine. The defendants appealed their convictions on the ground that the Act, as applied, exceeded the power of Congress under Article I, Section 8, Clause 10. We consolidated their appeals.

II. STANDARD OF REVIEW

" We review de novo the legal question of whether a statute is constitutional." United States v. Tinoco, 304 F.3d 1088, 1099 (11th Cir.2002).

III. DISCUSSION

The United States argues that the Maritime Drug Law Enforcement Act, as applied to the defendants, is a constitutional exercise of the power granted to Congress " [t]o 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. The Supreme Court has interpreted that Clause to contain three distinct grants of power: the power to define and punish piracies, the power to define and punish felonies committed on the high seas, and the power to define and punish offenses against the law of nations. See United States v. Smith, 18 U.S. (5 Wheat.) 153, 158-59, 5 L.Ed. 57 (1820). The first two grants of power are not implicated here: piracy is, by definition, robbery on the high seas, United States v. Furlong, 18 U.S. (5 Wheat.) 184, 198, 5 L.Ed. 64 (1820), and the Felonies Clause is textually limited to conduct on the high seas, see U.S. Const., Art. I, § 8, cl. 10. The United States relies instead on

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the third grant— the Offences Clause— as the source of congressional power to proscribe the defendants' drug trafficking in the territorial waters of Panama. The question whether Congress has the power under the Offences Clause to proscribe drug trafficking in the territorial waters of another nation is an issue of first impression in our Court.

We divide our discussion in two parts. First, we explain why the power of Congress to define and punish conduct under the Offences Clause is limited by customary international law. Second, we explain why drug trafficking is not a violation of customary international law and, as a result, falls outside of the power of Congress under the Offences Clause.

A. Customary International Law Limits the Power of Congress to Define and Punish Crimes Under the Offences Clause.

The power granted to Congress in the Offences Clause is limited by customary international law for two reasons. First, the related Supreme Court precedent and the text, history, and structure of the Constitution confirm that the power to " define" is limited by the law of nations. Second, the phrase " Offences against the Law of Nations" is understood today to mean violations of customary international law.

1. The Power of Congress to Define " Offences against the Law of Nations" Is Limited to Established Offenses Against the Law of Nations.

The power to " define" offenses against the law of nations does not grant Congress the authority to punish conduct that is not a violation of the law of nations. The Supreme Court has explained that the power to " define" in Article I, Section 8, Clause 10, is limited by the three specific subjects of the Clause. For example, the Supreme Court has explained that Congress may not define murder as " piracy" to punish it under the Piracies Clause:

Nor is it any objection to this opinion, that the law declares murder to be piracy . These are things so essentially different in their nature, that not even the omnipotence of legislative power can confound or identify them. Had Congress, in this instance, declared piracy to be murder, the absurdity would have been felt and acknowledged; yet, with a view to the exercise of jurisdiction, it would have been more defensible than the reverse, for, in one case it would restrict the acknowledged scope of its legitimate powers, in the other extend it. If by calling murder piracy, it might assert a jurisdiction over that offence committed by a foreigner in a foreign vessel, what offence might not be brought within their power by the same device? The most offensive interference with the governments of other nations might be defended on the precedent. Upon the whole, I am satisfied that Congress neither intended to punish murder in cases with which they had no right to interfere, nor leave unpunished the crime of piracy in any cases in which they might punish it ....

Furlong, 18 U.S. (5 Wheat.) at 198. And, on the issue whether Congress must declare the conduct to be an offense against the law of nations to exercise its power under the Offences Clause, the Supreme Court has explained that " [w]hether the offense as defined is an offense against the law of nations depends on the thing done, not on any declaration to that effect by Congress." United States v. Arjona, 120 U.S. 479, 488, 7 S.Ct. 628, 632, 30 L.Ed. 728 (1887).

This precedent is consistent with the original understanding of the word " define." During the Founding period, the

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word " define" meant " [t]o give the definition; to explain a thing by its qualities" and " [t]o circumscribe; to mark limits." Samuel Johnson, A Dictionary of the English...

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