U.S. v. Delgado-Garcia, 03-3060.

Citation374 F.3d 1337
Decision Date23 July 2004
Docket NumberNo. 03-3060.,No. 03-3068.,No. 03-3067.,03-3060.,03-3067.,03-3068.
PartiesUNITED STATES of America, Appellee, v. Jose DELGADO-GARCIA, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
374 F.3d 1337
UNITED STATES of America, Appellee,
Jose DELGADO-GARCIA, Appellant.
No. 03-3060.
No. 03-3067.
No. 03-3068.
United States Court of Appeals, District of Columbia Circuit.
Argued February 26, 2004.
Decided July 23, 2004.

Page 1338


Page 1339

Appeals from the United States District Court for the District of Columbia (No. 02cr00293-01) (No. 02cr00293-02) (No. 02cr00293-03).

Tony Axam, Assistant Federal Public Defender, argued the cause for appellants. With him on the briefs were A. J. Kramer, Federal Public Defender, and Joseph Virgilio and Mona Asiner, appointed by the court. Iris E. Bennett, Assistant Federal Public Defender, entered an appearance.

David B. Goodhand, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese III, and Jeanne M. Hauch, Assistant U.S. Attorneys.

Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge ROGERS.

SENTELLE, Circuit Judge:

Each of the appellants, Jose Delgado-Garcia, Jose Prado-Morales, and César BravoCeneño, pleaded guilty either to conspiring to induce aliens illegally to enter the United States, or to attempting to bring illegal aliens into the United States in violation of 8 U.S.C. § 1324(a). Despite those pleas, they took direct appeals and now attack their convictions on several grounds. We reject their claims and affirm the convictions.


In their plea proffers, appellants admitted to conspiring to transport 191 Ecuadorian nationals in order to facilitate their illegal entry into the United States. Appellants attempted to transport the passengers via a 54-foot fishing vessel, the José Alexander II. Delgado-Garcia was the captain and piloted the ship. Bravo-Ceneno was the ship's mechanic. PradoMorales was a crew member.

The ship's voyage began May 27, 2002, from a position some distance off-shore from Santa Elena, Ecuador. The plan apparently was to transport the Ecuadorians on the ship to Mexico, and for the Ecuadorians to enter the United States by land from there. On or about June 6, 2002, a United States Navy helicopter sighted the vessel off the Guatemalan coast and recognized it as being overcrowded. Upon the approach of the helicopter, the vessel changed course. The vessel displayed no running lights, flew no flags, and had at least 70 passengers visible on the deck. Thereafter, the U.S.S. Fife, a United States Navy ship carrying a United States Coast Guard law enforcement detachment ("LEDET"), located the vessel, later identified as the José Alexander II, in international waters, 170 nautical miles south of Guatemala and Mexico. After monitoring the movements of the vessel, the LEDET hailed it to begin questioning, but received no response. The LEDET launched a boat from the U.S.S. Fife, approached the

Page 1340

vessel, and attempted questioning from the boat. Migrants on board the José Alexander II responded to questioning that they had inadequate food, water, and fuel; that they had left Gayaquil, Equador, on May 27, 2002; and that the master and crew of the ship had left before the U.S.S. Fife's approach. After rendering assistance and verifying that one of the passengers could navigate the vessel to Guatemala, the LEDET advised the migrants to take the vessel to the port at Quetzal and escorted it there. Thereafter, LEDET personnel determined, based on interviews with the passengers and further investigation, that the ship had been attempting to facilitate the illegal immigration of the passengers to the United States.

A grand jury charged appellants with conspiracy to encourage and induce aliens illegally to enter the United States, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v), (a)(1)(A)(iv), and (a)(1)(B)(I), and attempted bringing of unauthorized aliens to the United States, in violation of 8 U.S.C. §§ 1324(a)(2) and (a)(2)(B)(ii). Appellants moved to dismiss the indictment on several grounds. They contended that the indictment did not charge an offense under § 1324(a), arguing that the statute does not apply extraterritorially. Appellants also asserted that their interdiction violated international law, as the José Alexander II, they claimed, was under the exclusive jurisdiction of Ecuador and the government of Ecuador did not consent to the U.S. government escorting that vessel to Ecuador. They argued, additionally, that the Fife's crew had exceeded the authority granted under 14 U.S.C. § 89(a). That provision gives the Coast Guard authority, among other things, to "make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States." Appellants claimed that this provision did not authorize the interdiction of the José Alexander II because it was in international, not U.S., waters when the Fife approached it, and because the crew lacked reasonable suspicion to believe that the vessel's crew was engaged in illegal activity that would affect the United States. Lastly, appellants argued that prosecuting them under § 1324(a) violated the Fifth Amendment's due process clause, as there was no "nexus" between appellants' conduct and the territory of the United States.

On January 31, 2003, the district court denied appellants' motion. Shortly thereafter, in February 2003, Prado-Morales and Bravo-Ceneño unconditionally pleaded guilty to the conspiracy count in the indictment and Delgado-Garcia unconditionally pleaded guilty to the attempt count. This appeal followed.


This direct criminal appeal comes to us in a strange posture. Appellants moved to dismiss the indictment on the statutory, constitutional, and international-law grounds they now raise on appeal. Yet they unconditionally pleaded guilty to the crimes of which they were charged. The first issue we address, therefore, is whether their unconditional pleas waived the claims they now assert on appeal. For the reasons that follow, we hold that these pleas waived all of appellants' claims. However, the government does not advance the argument that the unconditional pleas waived appellants' claim that § 1324(a) does not apply extraterritorially. The government has thus waived its waiver argument on that point. Cf. United States v. Johnson, 216 F.3d 1162, 1166 (D.C.Cir.2000) (discussing the government's waiving of a defendant's procedural

Page 1341

default). We therefore reach the merits of appellants' claim that § 1324(a) does not apply extraterritorially.

Appellants assert four claims on appeal; these claims are, more or less, the same arguments that were the basis of their motion to dismiss the indictment. First, appellants reassert their claim that the substantive statute which they by their pleas admitted violating, 8 U.S.C. § 1324(a), does not apply extraterritorially, and therefore not to them in this case. Second, appellants argue that the government failed to prove that they committed a crime with effects in the United States, and therefore did not prove a "nexus" between appellants' conduct and the United States, as they claim the Fifth Amendment's due process clause requires. Third, appellants assert that their prosecution violated 14 U.S.C. § 89(a), for the same reasons they asserted below. Finally, appellants claim that their apprehension violated customary international law and a treaty to which the United States is a party.

Appellants waived all of these claims by pleading guilty unconditionally. Unconditional guilty pleas that are knowing and intelligent — and there is no claim that appellants' pleas were otherwise — waive the pleading defendants' claims of error on appeal, even constitutional claims. See, e.g., United States v. Drew, 200 F.3d 871, 876 (D.C.Cir.2000). There are two recognized exceptions to this rule. The first is the defendant's claimed right "not to be haled into court at all;" for example, a claim that the charged offense violates the double jeopardy clause. Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 2103-04, 40 L.Ed.2d 628 (1974); see also Menna v. New York, 423 U.S. 61, 62-63 & n. 2, 96 S.Ct. 241, 242, 46 L.Ed.2d 195 (1975) (per curiam). This is the so-called "Blackledge/Menna" exception. The second is that the court below lacked subject-matter jurisdiction over the case, as a claim of lack of subject-matter jurisdiction, "because it involves a court's power to hear a case, can never be forfeited or waived." United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 1784, 152 L.Ed.2d 860 (2002) (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 1009, 140 L.Ed.2d 210 (1998)).

None of appellants' claims falls into either of these exceptions. As to the subject-matter jurisdiction exception: there is no question that the district court had subject-matter jurisdiction over appellants' case. Appellants' best argument to the contrary rests on their claim that the indictment failed to state an offense, which they claim deprived the district court of subject-matter jurisdiction over them. The government apparently agrees with appellants that this purported defect in the indictment concerns the district court's subject matter jurisdiction over appellants' case, rather than the merits of the case.

We do not agree. Under Article III of the Constitution, "[t]he judicial power of the United States" is "vested ... in such inferior Courts as Congress may from time to time establish." U.S. Const. art. III, § 2. Congress conferred original jurisdiction on the district court over appellants' case by enacting 18 U.S.C. § 3231. That statute, passed originally in 1948, see 62 Stat. 826, provides that the "district courts of the United States shall have...

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