U.S. v. Zakharov

• Decision Date: 15 November 2006
• Docket Number: No. 03-50214.,03-50214.
• Citation: 468 F.3d 1171
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anatoli ZAKHAROV, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

468 F.3d 1171

UNITED STATES of America, Plaintiff-Appellee, v. Anatoli ZAKHAROV, Defendant-Appellant.

No. 03-50214.

United States Court of Appeals, Ninth Circuit.

Argued November 3, 2004.

Submitted November 7, 2006.

Filed November 15, 2006.

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Michael L. Crowley, San Diego, CA, for the defendant-appellant.

David Jonathan Weiner, United States Department of Justice, Washington, D.C., William V. Gallo, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-01-01652-6-JM.

Before: TASHIMA, FISHER, and TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge:

We confront the constitutional limits of our extraterritorial jurisdiction in yet another major drug-smuggling operation on the waters of the eastern Pacific Ocean. Anatoli Zakharov appeals his jury conviction for (1) conspiracy to possess over 9200 kilograms of cocaine with intent to distribute on board a vessel, and (2) possession of the cocaine with intent to distribute on board the vessel. He challenges the amended Maritime Drug Law Enforcement Act ("MDLEA"), codified at 46 U.S.C. app. §§ 1901-1904, as unconstitutional on the grounds that Congress removed jurisdiction from the enumerated elements of the maritime drug-smuggling offense that must be decided by a jury beyond a reasonable doubt. He also challenges the district court's failure to suppress evidence of his confession and the sufficiency of evidence supporting his convictions.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Zakharov's convictions. First, the MDLEA is constitutional as applied to Zakharov. Facts underlying statutory jurisdiction were not contested, and determination of constitutional nexus jurisdiction is properly within the province of the court, not the jury. Second, we find the evidence sufficient to establish the required nexus between the United States and the defendant's drug-smuggling activities. Third, the district court properly determined that Zakharov's confession should not be suppressed because the Fourth Amendment does not apply to non-resident aliens outside of the United States. Fourth, the eleven-day delay in bringing Zakharov before a magistrate judge was not unreasonable under Federal Rule of Criminal Procedure 5(a) in light of the time necessary to transport him by sea to the United States. Finally, evidence of Zakharov's confession was properly admitted, and sufficient evidence existed to allow any rational trier of fact to find him guilty beyond a reasonable doubt. We uphold the convictions.

But, because we cannot reliably determine from the record "whether the sentence imposed would have been materially different had the district court known that the [federal] sentencing guidelines were advisory," United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.2005) (en banc), we grant a limited remand as to the sentence imposed.

I

Zakharov was a crew member aboard the Svesda Maru, a fishing vessel registered in the country of Belize. On April 28, 2001, the vessel was 500 miles off the coast of southern Mexico in international waters when it was spotted by the crew of the USS Rodney M. Davis, a United States Navy frigate performing drug interdiction and maritime patrol duties in cooperation with the United States Coast Guard. A seven-member Coast Guard Law Enforcement Detachment ("boarding team") deployed from the Davis in a small boat and attempted to make contact with the Svesda Maru. The boarding team observed that the Svesda Maru was flying the Belizean flag. When the Svesda Maru did not respond after she was hailed by the Navy frigate, the Coast Guard team boarded the Svesda Maru and conducted a four-day search of the vessel including a "space accountability search." The Davis's boarding team was relieved by a second Coast Guard crew on the fifth day of the search. The second crew discovered more than 9200 kilograms of cocaine cleverly secreted in an area behind a fuel tank of the vessel.¹

Following discovery of the cocaine, the Coast Guard seized the Svesda Maru pursuant to our bilateral treaty with Belize and with the express permission of the Belizean government. The Svesda Maru's crew, all Russians and Ukrainians, were taken into custody aboard the Coast Guard Cutter Active. They were kept together on the deck of the cutter for the ten days it took to reach San Diego, California. None of the Svesda Maru crewmen was interrogated while on board the Coast Guard ship.

The cutter arrived in San Diego on May 13, 2001. Prior to Zakharov's initial appearance before a magistrate judge, an agent of the United States Drug Enforcement Administration ("DEA") interviewed him through a Russian interpreter. The agent advised Zakharov of his constitutional rights, and Zakharov signed a Russian-language Miranda waiver. The interview lasted approximately one and one-half to two hours. The agent testified that Zakharov initially denied knowledge of the cocaine but was eventually persuaded to talk. Zakharov then admitted that he was to be paid $20,000 for the trip and that he and the crew knew that the vessel contained cocaine, but he claimed that only the captain knew all of the details of the voyage. He also claimed that this was his first experience smuggling cocaine.

Later that day, a federal magistrate judge found probable cause to support the complaint against Zakharov. Zakharov's initial appearance in court was on the following day. The magistrate ordered his detention without bail. Zakharov was indicted on May 24, 2001, and he pled not guilty to one count of conspiracy to possess cocaine with intent to distribute aboard a vessel and one count of possession of cocaine with intent to distribute aboard a vessel, in violation of the MDLEA, 46 U.S.C. app. § 1903(a), (c)(1)(C), (f) & (j), and 18 U.S.C. § 2. In November 2002, a jury in the Southern District of California convicted Zakharov on both counts. He was sentenced to 240 months in custody to be followed by five years of supervised release.

II

Zakharov first argues that the district court lacked jurisdiction to adjudicate his claims under the MDLEA. He claims that (1) the district court erred in failing to submit facts necessary to establish jurisdiction to the jury, and (2) the government failed to present sufficient evidence to establish a nexus between the United States and the seized cocaine.

The MDLEA prohibits drug smuggling activity by "any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States, or who is a citizen of the United States or a resident alien of the United States on board any vessel." 46 U.S.C. app. § 1903(a). The statute provides:

Jurisdiction 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 solely by the trial judge.

Id. § 1903(f). In United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998), we distinguished between "statutory jurisdiction" and the nexus requirement of "constitutional jurisdiction." A court determines statutory jurisdiction by asking whether the vessel at issue is "a vessel subject to the jurisdiction of the United States," which MDLEA defines according to the ship's nationality (if any), its location, and any relevant agreements between the United States and foreign nations regarding the enforcement of United States criminal laws on vessels or in territorial waters subject to the nation's jurisdiction. See 46 app. U.S.C. § 1903(c). In contrast, a court determines constitutional jurisdiction based on the nexus between the United States and the attempted criminal transaction. See Klimavicius-Viloria, 144 F.3d at 1257. Both jurisdictional inquiries must be satisfied "where the MDLEA is being applied extraterritorially." United States v. Perlaza, 439 F.3d 1149, 1160 (9th Cir.2006).

Zakharov argues that § 1903(f) violates the Fifth and Sixth Amendments of the United States Constitution and the requirement of Apprendi v. New Jersey, 530 U.S. 466, 483-84, 499-500, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that all facts necessary to constitute a statutory offense must be proven to a jury beyond a reasonable doubt. He asserts that Congress cannot "define away facts necessary to constitute a criminal offense" by labeling certain facts as non-elements of the crime. He argues that, by adopting § 1903(f), Congress impermissibly removed factual questions of statutory and constitutional nexus jurisdiction from the hands of the jury. We review de novo questions regarding the constitutionality of a statute. See United States v. Bynum, 327 F.3d 986, 990 (9th Cir.2003).

In Perlaza we made clear that, notwithstanding § 1903(f), contested facts underlying the existence of statutory jurisdiction must be resolved by a jury.² Perlaza, 439 F.3d at 1165-67. We ruled in light of the Fifth and Sixth Amendments that such facts though "not formally identified as elements of the offense charged must be submitted to the jury and proved beyond a reasonable doubt." Id. at 1166 (citation and quotation omitted). Accordingly, insofar as Zakharov claims that statutory jurisdiction is an element of the crime that must be proven to the jury, that argument is now moot. Moreover, there is no factual question pertaining to statutory jurisdiction for the jury to decide. There is no dispute for purposes of § 1903 that the district court possessed statutory jurisdiction in the instant action: the Svesda Maru was a Belizean-flagged vessel registered in Belize, and the Coast Guard received consent to enforce United States law aboard her both expressly from the Belizean government and pursuant to our bilateral treaty with Belize.³ See id. at 1168; 46 U.S.C. app. § 1903(c)(1)(C) (...