United States v. Ballestas

Decision Date28 July 2015
Docket NumberNo. 13–3107.,13–3107.
Citation795 F.3d 138
PartiesUNITED STATES of America, Appellee v. Javier Eduardo Juan BALLESTAS, also known as El Mono, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Marie L. Park, appointed by the court, argued the cause and filed the briefs for appellant.

Scott A.C. Meisler, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief was Meredith Mills, Trial Counsel. John A. Romano, Trial Attorney, and Elizabeth Trosman, Assistant U.S. Attorney, entered appearances.

Before: GARLAND, Chief Judge, and SRINIVASAN and WILKINS, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge:

Javier Eduardo Juan Ballestas, a Colombian citizen, was indicted under the Maritime Drug Law Enforcement Act (MDLEA) and extradited to the United States for prosecution. Ballestas pleaded guilty to a charge of conspiracy to distribute drugs “on board ... a vessel subject to the jurisdiction of the United States,” in violation of the MDLEA. 46 U.S.C. §§ 70503(a), 70506(b). He reserved the right to bring an appeal on certain issues, including whether the MDLEA's conspiracy provision reaches extraterritorially to encompass his charged conduct in Colombia, and whether the application of the MDLEA against him violates the Due Process Clause of the Fifth Amendment because of the absence of an adequate nexus between his conduct and the United States. Because we are unpersuaded by Ballestas's arguments on those and other issues, we affirm.

I.

A long-term investigation conducted by United States and Colombian officials uncovered an international drug-trafficking operation based in Colombia. The organization used stateless vessels to transport large quantities of cocaine from Colombia through international waters, ultimately destined for the United States. Email and phone surveillance revealed that Ballestas supported the organization's drug smuggling activities. He provided maps and law enforcement reports purporting to reveal the location of United States, Colombian, and other nations' air and maritime forces in the vicinity of the Caribbean Sea at specific times. Vessels engaged in trafficking runs used those reports to evade detection and capture.

Between May 2008 and September 2010, law enforcement agents seized or attempted to seize eight of the organization's cocaine shipments. Intercepted communications linked Ballestas to at least four of the seized shipments, which together accounted for thousands of kilograms of seized cocaine.

The government sought indictment of Ballestas and six co-conspirators for violating the MDLEA, 46 U.S.C. §§ 70501 et seq. The MDLEA provides that an “individual may not 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,” id. § 70503(a), or attempt or conspire to do the same, id. § 70506(b). The statute defines a “vessel subject to the jurisdiction of the United States” to include “vessel[s] without nationality.” Id. § 70502(c)(1)(A). See generally United States v. Miranda, 780 F.3d 1185 (D.C.Cir.2015).

In February, 2011, a federal grand jury returned an indictment charging Ballestas with conspiring to distribute drugs “on board ... a vessel subject to the jurisdiction of the United States” in violation of the MDLEA. See 46 U.S.C. §§ 70503(a), 70506(b). Ballestas was arrested in Colombia and extradited to the United States to stand trial.

In September, 2012, Ballestas filed a motion to dismiss the indictment. He contended that the MDLEA's conspiracy provision did not extend extraterritorially to reach individuals (like Ballestas) who never came “on board” the relevant vessels. Id. § 70503(a). Ballestas also argued that applying the MDLEA against him violated the Due Process Clause because of the absence of a nexus between his conduct and the United States.

In response to Ballestas's motion, the government proffered facts supporting the conspiracy charge. Two boats in particular, the government submitted, supported Ballestas's prosecution under the MDLEA for conspiring to distribute drugs on board a vessel without nationality. First, a boat intercepted in international waters near Panama on March 3, 2010, displayed no visible flag and held no valid registration. Second, another boat, seized in Panamanian waters on March 11, 2010, similarly had no flag or registration. Officials observed the vessel in international waters, pursued the vessel into Panamanian waters, and then seized it. According to the government's proffer, Ballestas provided assistance with the cocaine shipments aboard both of those vessels.

Several months after responding to the motion to dismiss, the government informed Ballestas that the crew members apprehended during the March 3rd seizure had been charged and convicted under the MDLEA in the Middle District of Florida. The government provided Ballestas with the docket number and name of that case.

In February 2013, the district court denied Ballestas's motion to dismiss the indictment. The court concluded that the conspiracy provision of the MDLEA applied extraterritorially to Ballestas's actions in Colombia. Physical presence “on board” a vessel, the district court held, is not an essential element of a conspiracy offense under the MDLEA. The court further held that the vessels apprehended on March 3rd and 11th qualified as stateless vessels “subject to the jurisdiction of the United States.” 46 U.S.C. § 70502(c)(1). In addition, the court rejected Ballestas's due process challenge, finding that there is no requirement to show a nexus to the United States when the alleged crimes involve stateless vessels.

Ballestas sought reconsideration of the district court's denial of his motion to dismiss. He argued that certain intervening decisions undermined the court's extraterritoriality and due process holdings. The district court denied the motion for reconsideration, and, shortly thereafter, Ballestas pleaded guilty to a superseding information. In connection with Ballestas's sentence, the superseding information omitted certain drug quantity specifications that had appeared in the indictment in order to avoid triggering a ten-year mandatory minimum term of imprisonment.

Ballestas's plea agreement reserved his right to appeal “the specific and limited issue” of the denial of his motion to dismiss and motion for reconsideration. App. 192. The agreement also preserved his right to appeal his sentence on the grounds that it “exceeds the maximum permitted by statute or results from an upward departure from the guideline range established by the Court at sentencing.” Id. at 193. In connection with his plea agreement, Ballestas and the government entered a joint statement of stipulated facts. Those facts established Ballestas's awareness of and involvement with the vessel interdicted on March 3rd and also established that the vessel was “without nationality” and therefore subject to the jurisdiction of the United States. Id. at 181–82. The district court accepted Ballestas's plea after conducting a colloquy in accordance with Federal Rule of Criminal Procedure 11.

In November 2013, the district court calculated Ballestas's sentencing guidelines range to be seventy to eighty-seven months based on the quantity of drugs stipulated to have been recovered from the March 3rd vessel. The court sentenced Ballestas to a below-guidelines sentence of sixty-four months of imprisonment followed by three years of supervised release. Ballestas now appeals, challenging the denial of his motion to dismiss, the denial of his motion for reconsideration, and his sentence.

II.
A.

Ballestas first contends that the MDLEA's conspiracy provision does not apply extraterritorially to reach his conduct in Colombia. We disagree.

The MDLEA's conspiracy provision, 46 U.S.C. § 70506(b), provides that a “person attempting or conspiring to violate section 70503 of this title is subject to the same penalties as provided for violating section 70503.” The underlying substantive offense set forth in § 70503 prohibits “knowingly or intentionally manufactur[ing] or distribut[ing], or possess[ing] with intent to distribute, a controlled substance on board,” inter alia, “a vessel subject to the jurisdiction of the United States,” id. § 70503(a), which includes “a vessel without nationality,” id. § 70502(c)(1)(A).

In arguing that the MDLEA's conspiracy provision fails to reach extraterritorially, Ballestas relies on two canons of statutory interpretation. First, he invokes the presumption against extraterritoriality, which dictates that, [w]hen a statute gives no clear indication of an extraterritorial application, it has none.” Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 255, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). Second, he relies on the so-called Charming Betsy canon, which takes its name from a decision in which the Supreme Court explained that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804).

Each of those “principle[s],” however, “represents a canon of construction, or a presumption about a statute's meaning, rather than a limit upon Congress's power to legislate.” Morrison, 561 U.S. at 255, 130 S.Ct. 2869. Thus, notwithstanding the presumption against extraterritoriality, a statute will be construed to apply extraterritorially if Congress gives a “clear indication” of that intention. Id. With regard to the Charming Betsy canon, similarly, if “a statute makes plain Congress's intent,” a court “must enforce the intent of Congress irrespective of whether the statute conforms to customary international law.” United States v. Yousef, 327 F.3d 56, 93 (2d Cir.2003)....

To continue reading

Request your trial
109 cases
  • United States v. Craig
    • United States
    • U.S. District Court — District of Columbia
    • August 6, 2019
  • United States v. Saffarinia
    • United States
    • U.S. District Court — District of Columbia
    • January 15, 2020
    ...Court must presume the facts alleged in the Indictment as true for purposes of deciding the motion to dismiss. United States v. Ballestas , 795 F.3d 138, 149 (D.C. Cir. 2015). Although Mr. Saffarinia's motion to dismiss accepts the allegations as true, he "intends to disprove them at trial.......
  • United States v. Caldwell
    • United States
    • U.S. District Court — District of Columbia
    • December 20, 2021
    ...marks omitted). In evaluating a motion to dismiss, the court must assume “the truth of . . . factual allegations” in the indictment. Id. at 149. The court's review of an “is limited to reviewing the face of the indictment, and more specifically, the language used to charge the crimes.” Unit......
  • United States v. Mostofsky
    • United States
    • U.S. District Court — District of Columbia
    • December 21, 2021
    ...its understanding of the case by assuming as true the facts set forth in the Indictment and associated filings. United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015). According to the Criminal Complaint, filed January 11, 2021, with a joint session of Congress underway at the Capit......
  • Request a trial to view additional results
1 books & journal articles
  • Criminal Justice is Local: Why States Disregard Universal Jurisdiction for Human Rights Abuses.
    • United States
    • Vanderbilt Journal of Transnational Law Vol. 55 No. 2, March 2022
    • March 1, 2022
    ...trafficking is not yet considered a violation of customary international law." 700 F.3d at 1255. (167.) See United States v. Ballestas, 795 F.3d 138 (D.C. Cir. 2015) (citing the Felonies Clause). The court's reasoning in Bellaizac-Hurtado is not even clearly correct with respect to the "def......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT