933 F.3d 121 (2nd Cir. 2019), 16-1055-L, United States v. Prado

Docket Nº:Docket 16-1055-L, 16-1212-cr, 16-1214-cr
Citation:933 F.3d 121
Opinion Judge:Leval, Circuit Judge:
Party Name:UNITED STATES of America, Appellee, v. Javier Joaquin Alarcon PRADO, Luis Armando Valencia Bautista, Hector Valencia Bautista, Defendants-Appellants.
Attorney:EDWARD SCOTT ZAS, Federal Defenders of New York, New York, NY, for Defendant-Appellant Javier Joaquin Alarcon Prado; DONALD JOSEPH YANELLA, III, New York, NY, for Defendant-Appellant Hector Valencia Bautista; STEWART L. ORDEN, Scarsdale, NY, for Defendant-Appellant Luis Armando Valencia Bautista;...
Judge Panel:Before: LEVAL, POOLER, and HALL, Circuit Judges. Pooler, Circuit Judge, concurring in the judgment:
Case Date:August 05, 2019
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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933 F.3d 121 (2nd Cir. 2019)

UNITED STATES of America, Appellee,

v.

Javier Joaquin Alarcon PRADO, Luis Armando Valencia Bautista, Hector Valencia Bautista, Defendants-Appellants.

Docket Nos. 16-1055-L, 16-1212-cr, 16-1214-cr

United States Court of Appeals, Second Circuit

August 5, 2019

Argued: May 10, 2017

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Appeal from a judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, J. ).

EDWARD SCOTT ZAS, Federal Defenders of New York, New York, NY, for Defendant-Appellant Javier Joaquin Alarcon Prado;

DONALD JOSEPH YANELLA, III, New York, NY, for Defendant-Appellant Hector Valencia Bautista;

STEWART L. ORDEN, Scarsdale, NY, for Defendant-Appellant Luis Armando Valencia Bautista;

SIDDHARTHA KAMARAJO, Assistant United States Attorney (Karl N. Metzner, Jason M. Swergold, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: LEVAL, POOLER, and HALL, Circuit Judges.

Opinion

Leval, Circuit Judge:

Defendants Joaquin Alarcon Prado, Hector Valencia Bautista, and Luis Armando Valencia Bautista appeal from the judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, J. ), convicting them, on their pleas of guilty, of conspiracy to

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distribute cocaine, and of possession of cocaine with intent to distribute, while on board a stateless vessel subject to the jurisdiction of the United States in violation of the Maritime Drug Law Enforcement Act, ("MDLEA" or "the Act"), 46 U.S.C. § § 70501 et seq. The guilty pleas (and the judgments of conviction) are set aside because of the failure to follow Rule 11, Fed. R. Crim. P., in the guilty plea procedure. The indictment is dismissed because the government did not demonstrate that the vessel was subject to the jurisdiction of the United States.1

BACKGROUND

The district court conducted a hearing in part to determine whether the vessel on board which drugs were found was subject to the jurisdiction of the United States. The theory of the government was that the vessel was subject to the jurisdiction of the United States because it was without nationality, i.e., not registered in any nation. The government’s evidence submitted at the hearing consisted entirely of the sworn complaint of Andres Mahecha, a detective of the New York City Police Department on a task force of the United States Department of Homeland Security ("DHS"), supplemented by exhibits including a video and photographs taken by the Coast Guard showing the interception of the vessel.2

According to Mahecha’s account, on June 19, 2015, officers of the United States Coast Guard patrolling the waters of the Pacific Ocean, off the coast of Central America, received a tip from Homeland Security that a Colombian drug cartel "was sending a go-fast carrying a large shipment of cocaine from Colombia towards Costa Rica." App’x 13. A "go-fast" is a small, rapid speed boat, which, because of its speed and low profile, is often used in drug trafficking.

Coast Guard officers in a reconnaissance plane spotted a small craft moving at high speed in international waters approximately 300 nautical miles off the border between Nicaragua and Costa Rica.3 A Coast Guard cutter then sped to the area and sent out a helicopter and an interceptor launch in pursuit of the go-fast. When the go-fast failed to stop after the firing of warning shots, the helicopter crew fired on the vessel and disabled its engines. As the go-fast came to a stop, one of its occupants was observed throwing bundles into the sea. Officers on the launch boarded the go-fast and there encountered the three defendants, the only persons aboard. They also found twelve bundles later determined to contain approximately 680 kilograms of cocaine. Mahecha’s complaint states, "All three of the defendants claimed to be of Ecuadorian nationality. [ ] In response to questioning by members of the Boarding Team, none of the defendants claimed to be the master or individual in charge of the Go-Fast. ... The Boarding Team also

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did not find any registration documents [i.e., documents indicating that it was registered as a vessel of any nation] onboard the Go-Fast." App’x 14. His affidavit adds that "[t]he Go-Fast was not flying any flag, nor did it have any signs of registry painted on the side of the vessel." Id .

According to the Government’s memorandum of law filed in the district court, the boarding team removed the cocaine and defendants from the go-fast, and then set fire to the go-fast and sank it, concluding that it was a navigation hazard. The defendants were arrested, transported to Guantanamo Bay in Cuba, and from there flown to New York to be charged and tried.

Affidavits submitted by defendants Hector Bautista and Javier Prado differ from Mahecha’s account in a few respects. While Mahecha’s affidavit stated that the go-fast was "not flying any flag," App’x 14, the defendants’ affidavits asserted that the go-fast had an image of the Ecuadorian flag printed on the side of the vessel (which is corroborated by a video made by the Coast Guard boarding party that was attached to Mahecha’s affidavit). There is no evidence that the officers inquired of the defendants as to the nationality or registration of the vessel, and both Javier Prado and Hector Bautista asserted in their affidavits that the officers did not make any such inquiry. Nor is there evidence (or a contention by the government) that the Coast Guard officers communicated with the registry of Ecuador or any other nation to determine whether the vessel was registered.

PROCEDURAL HISTORY

Following indictment, the defendants moved for various forms of relief, including dismissal of the indictment. The court conducted a hearing to determine whether the vessel was stateless, at which point it received the evidence described above. On the basis of that evidence, the court concluded that the go-fast was stateless and therefore subject to the jurisdiction of the United States under 46 U.S.C. § 70502(c)(1)(A). Accordingly, it declined to dismiss the indictment. The defendants moved for reconsideration, but, while the motion was pending, they entered pleas of guilty. They were sentenced to 24 months of imprisonment and three years of supervised release. The defendants then brought these appeals.

DISCUSSION

Notwithstanding their having pleaded guilty, the defendants contend their convictions should be overturned, and the indictment dismissed, because the government failed to show that the go-fast was stateless and subject to the jurisdiction of the United States, as required by 46 U.S.C. § 70503(e)(1).

I. The Requirements of the MDLEA

The MDLEA, in Section 70503, captioned "Prohibited Acts," prohibits possession of a controlled substance with intent to distribute "even though ... committed outside the territorial jurisdiction of the United States," if the prohibited act is committed aboard a "covered vessel." "Covered vessel" is defined to include three categories of vessels— one being a "vessel subject to the jurisdiction of the United States." The pertinent clauses are as follows: (a) Prohibitions.— While on board a covered vessel, an individual may not knowingly or intentionally—

(1) manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance; ...

(b) Extension Beyond Territorial Jurisdiction.— Subsection (a) applies even though the act is committed outside the

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...

(e) Covered Vessel Defined.— In this section the term "covered vessel " means—

(2) any other vessel if the individual is a citizen of the United States or a resident alien of the United States.

(1) a vessel of the United States or a vessel subject to the jurisdiction of the United States ; or

46 U.S.C. § 70503 (emphasis added).

Section 70502, captioned "Definitions," defines "vessel subject to the jurisdiction of the United States" to include a "vessel without nationality," as well as several other categories of vessels including, most prominently, vessels that are in, or entering, or have departed from, the waters of the United States, and, only if the foreign nation consents, vessels that are in the waters of a foreign nation or are registered in a foreign nation. See id. at § 70502(c)(1). Whether a vessel is "without nationality" is addressed by § 70502(d) and can turn on the outcome of a "claim of nationality or registry." (d) Vessel Without Nationality.—

(1) In...

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