U.S. v. Bustos-Useche

• Citation: 273 F.3d 622
• Decision Date: 13 November 2001
• Docket Number: BUSTOS-USECHE,No. 00-20355,00-20355
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDILSON, also known as Pacifico Duarte, also known as Edilson Useche Bustos, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 622

273 F.3d 622 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDILSON BUSTOS-USECHE, also known as Pacifico Duarte, also known as Edilson Useche Bustos, Defendant-Appellant.

No. 00-20355

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

November 13, 2001.

Appeal from the United States District Court for the Southern District of Texas, Houston Division

Before EMILIO M. GARZA, and PARKER, Circuit Judges, and ELLISON District Judge.^*

ROBERT M. PARKER, Circuit Judge:

Defendant-Appellant Edilson Bustos-Useche pleaded guilty to possession with intent to distribute a controlled substance and conspiracy to possess with intent to distribute a controlled substance in violation of the Maritime Drug Law Enforcement Act. See 46 U.S.C. app. 1903. The district court sentenced Bustos to 210 months in prison, followed by a five-year term of supervised release. On appeal, Bustos argues that the district court did not have jurisdiction to accept his guilty plea, that the court should have suppressed his statement to United States Coast Guard officials, and that the court erroneously enhanced his offense level for possession of a dangerous weapon.

I. Facts

In May of 1999, the M/V CHINA BREEZE, a 510-foot Panamanian freighter bound for Portugal, sailed through the international waters south of the passage between Hispanola and Puerto Rico. The United States government suspected the vessel's use in drug trafficking based on information from federal authorities in Greece. On May 27, 1999, the Panamanian government issued a statement of no objection to allow the United States Coast Guard to board the freighter and search for contraband. The Coast Guard boarded the vessel and found four tons of cocaine in a disabled sewage tank. The following day, Panama gave express permission for the enforcement of United States laws on the vessel. The Coast Guard then ordered the M/V CHINA BREEZE to Galveston, Texas. During the ten-day voyage to Galveston, Coast Guard officials questioned the crew members about the hidden cocaine.

Agent Mihalopoulos of the Drug Enforcement Administration interviewed Bustos on May 31, 1999. Three other uniformed officers and a translator were present during the interview. After Agent Mihalopoulos recited the Miranda Warnings, Bustos asked the officers whether his right to counsel entailed postponing the interview until a lawyer arrived. One of the officers stated that Bustos was correct. Bustos claimed that an officer told him that it would be in his best interest to cooperate because he was facing a potential twenty-year prison sentence. Bustos began crying and agreed to give a statement.

When asked about his identification, Bustos claimed that the documents identifying him as Pacifico Duarte, a Panamainian citizen born on December 4, 1975, were falsified. Bustos stated he was Edilson Bustos-Useche from Columbia, born on June 9, 1977. He explained that he traveled from Colombia to Panama in 1998 to obtain the false identification so that he could work as a seaman on a Panamanian vessel. Bustos admitted to being on three voyages where drugs were transported. Bustos claimed he was responsible for accounting for the cocaine on the M/V CHINA BREEZE. He also admitted that he possessed a .38 caliber revolver, which he threw overboard when he heard the Coast Guard helicopters.

Following his arraignment, Bustos filed a motion to suppress the statements he made to the Coast Guard and DEA officials. Bustos also objected to the court's jurisdiction claiming that his true date of birth was February 20, 1983, and therefore he was a juvenile at the time of the offense and indictment. Bustos also filed a motion to incorporate and adopt the motions of his co-defendants, who argued that the court lacked jurisdiction under 42 U.S.C. app. 1903(c) because Coast Guard officials did not have consent from the Panamanian government to enforce United States laws at the time the officials seized the cocaine. The district court rejected Bustos's arguments and set the case for trial. On November 9, 1999, Bustos volunteered an unconditional guilty plea to possession with intent to distribute a controlled substance under 46 U.S.C. app. 1903(a) and conspiracy to possess with intent to distribute a controlled substance pursuant to 46 U.S.C. 1903(j). Prior to sentencing, Bustos objected to the two-level enhancement recommendation in the presentence report, arguing that his possession of a firearm was unrelated to the charged offenses. The district court adopted the conclusions in the presentence report and sentenced Bustos to a 210-month term of imprisonment and five years of supervised release.

II. Maritime Drug Law Enforcement Act

Bustos claims that the district court did not have jurisdiction to accept his plea because the M/V CHINA BREEZE was not subject to United States jurisdiction at the time the officers seized the hidden cocaine. Before reaching the merits of Bustos's argument, we assess whether his guilty plea prevents him from raising the issue on appeal.

A. Effect of Bustos's Guilty Plea

A guilty plea forecloses appellate review of the factual and legal elements necessary to sustain a final judgment of guilt and a lawful sentence. See United States v. Broce, 488 U.S. 563, 569 (1989). "By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime." Id. at 570. A defendant who pleads guilty may challenge "the very power of the State to bring the defendant into court to answer the charge against him." Blackledge v. Perry, 417 U.S. 21, 30 (1974). Defendants may therefore raise jurisdictional defects on appeal. See United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999) (explaining that errors on the face of an indictment constitute jurisdictional defects, which are not waived by a guilty plea); United States v. Owens, 996 F.2d 59, 60 (5th Cir. 1993) ("By pleading guilty to an offense, therefore, a criminal defendant waives all non-jurisdictional defects preceding the plea."); United States v. Ruelas, 106 F.3d 1416, 1418 (9th Cir. 1997) (stating that a guilty plea does not confer jurisdiction on a district court to receive the plea). The validity of a guilty plea is a question of law we review de novo. See United States v. Hernandez, 234 F.3d 252, 254 (5th Cir. 2000).¹

A defendant violates the provisions of the Maritime Drug Law Enforcement Act if he possesses with intent to distribute a controlled substance while on board a vessel subject to the jurisdiction of the United States. See 46 U.S.C. app. 1903(a). A marine vessel flying the flag of a foreign nation is subject to the jurisdiction of the United States if "the flag nation has consented or waived objection to the enforcement of United States law . . .." 46 U.S.C. app. 1903(c)(1)(C). Bustos argues that if the United States did not have jurisdiction over the vessel, then the district court did not have jurisdiction to accept his guilty plea.

Bustos's argument hinges on whether the jurisdictional requirements of section 1903 are merely substantive elements of the crime or prerequisites to the district court's subject matter jurisdiction. Certain elements of an offense may be jurisdictional in nature, yet not a condition to subject matter jurisdiction. See, e.g., United States v. Johnson, 194 F.3d 657, 659 (5th Cir. 1999) (holding that the interstate commerce requirement is merely an element of the offense and not essential to subject matter jurisdiction), vacated on other grounds, United States v. Johnson, 529 U.S. 848 (2000); United States v. Rea, 169 F.3d 1111, 1113 (8th Cir. 1999) (same); United States v. Robinson, 119 F.3d 1205, 1212 n.4 (5th Cir. 1997) (noting that the interstate commerce element in the Hobbs Act is not purely jurisdictional). Based on the former language of section 1903, courts construed the phrase "a vessel subject to the jurisdiction of the United States" as a factual element of the offense. See United States v. Cardales, 168 F.3d 548, 554 (1st Cir.), cert. denied, 528 U.S. 338 (1999); United States v. Klimavicius-Viloria, 144 F.3d 1249, 1256 (9th Cir. 1998); United States v. Medina, 90 F.3d 459, 461 (11th Cir. 1996). Cf. United States v. Pretel, 939 F.2d 233, 236-37 (5th Cir. 1991) (stating that whether an exiled Panamanian leader had authority to consent was a political question that was not appropriate for submission to a jury).

Congress added subsection (f) to the statute in 1996. Subsection (f) states that "[j]urisdiction of the United States with respect to vessels subject to this chapter is not an element of any offense. All jurisdictional issues arising under this chapter are preliminary questions of law to be determined by the trial judge." 46 U.S.C. app. 1903(f). Based on this addition to the statute, we conclude that the district court's preliminary determination of whether a flag nation has consented or waived objection to the enforcement of United States law is a prerequisite to the court's jurisdiction under 1903.² Bustos is therefore not foreclosed from raising the issue on appeal.

B. Jurisdiction Under the Maritime Drug Law Enforcement Act

Bustos argues that the district court did not have jurisdiction under the statute because the United States lacked jurisdiction over the vessel at the time Coast Guard officials seized the cocaine. Bustos claims that the Coast Guard received permission to enforce United States law the day after the drugs were discovered.³ He argues that he cannot be prosecuted for violating section 1903 if the statute did not apply to him during the time he possessed the cocaine.⁴ We review the district court's legal conclusions on jurisdiction de novo. See Foster v. Townsley, 243 F.3d 210, 213 (5th Cir. 2001).

Persons charged with a crime under section 1903 do not have standing to raise issues of international law. See 46 U.S.C. app. 1903(d). By enacting section...