United States v. Arboleda

Citation553 F.Supp.3d 1107
Decision Date11 August 2021
Docket NumberCase No: 8:20-cr-138-CEH-JSS
Parties UNITED STATES of America v. Jhonis Alexis LANDAZURI ARBOLEDA, Dilson Daniel Arboleda Quinones and Luis Elias Angulo Leones
CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida

Tereza Zambrano Ohley, Toni Andrea Goodin, Emmett Jackson Boggs, Jr., Lauren N. Stoia, United States Attorneys Office, Tampa, FL, for United States of America.

Kathleen M. Sweeney, Public Defender, Raudel Vitier, Public Defender, Percy King, Public Defender, Federal Public Defender's Office, Tampa, FL, for Luis Elias Angulo Leones.

William Fargo Sansone, Sansone Law, PA, Raudel Vitier, Federal Public Defender's Office, Tampa, FL, for Jhonis Alexis Landazuri Arboleda.

Kathleen S. Lucey, Law Office of Kathleen S. Lucey, St. Petersburg, FL, Raudel Vitier, Federal Public Defender's Office, Tampa, FL, for Dilson Daniel Arboleda Quinones.

ORDER

Charlene Edwards Honeywell, United States District Judge This cause comes before the Court on the Report and Recommendation (Doc. 144), issued by Magistrate Judge Julie S. Sneed. In the Report and Recommendation, Magistrate Judge Sneed recommends Defendant Angulo Leones's Motion to Dismiss Indictment (Doc. 48) and Defendant Arboleda Quinones's Motion to Dismiss for Lack of Jurisdiction (Doc. 54), which Defendant Jhonis Alexis Landazuri Arboleda adopted (Docs. 50, 55), be denied. All parties were furnished copies of the Report and Recommendation and were afforded the opportunity to file objections pursuant to 28 U.S.C. § 636(b)(1).

On December 23, 2021, Defendant Luis Angulo Leones filed an "Objection to the Magistrate Judge's Report and Recommendation on the Motion to Dismiss" (Doc. 151), which Defendants Jhonis Alexis Landzuri Arboleda and Dilson Daniel Arboleda Quinones adopted (Docs. 152, 153). The Government filed a response to the objections. Doc. 161. Upon consideration of the Report and Recommendation, the Objections, and upon this Court's independent examination of the file, the Objections will be overruled, the Report and Recommendation adopted, and the Motion to Dismiss Indictment (Doc. 48) and Motion to Dismiss for Lack of Jurisdiction (Doc. 54) denied.

I. BACKGROUND

A March 19, 2020 indictment charged Defendants with possession and conspiracy to possess with intent to distribute 5 kilograms or more of cocaine on board a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. §§ 70503(a), 70506(a) and (b), 18 U.S.C. §§ 2 and 21, and 21 U.S.C. 960(b)(1)(B)(ii). Doc. 1. The charges arose after Defendants were interdicted in international waters of the Eastern Pacific Ocean by the United States Coast Guard on March 10, 2020, and a search of their go-fast vessel ("GFV") led to the discovery of cocaine hidden under false decking of the GFV. Docs. 120-1 at 1–2.

The GFV was spotted by a maritime patrol aircraft on March 10, 2020, in an area of international waters known for drug trafficking. Doc. 68-1 at 1. The GFV was white with painted markings on the side and was carrying three persons on board. Id. The vessel bore the name Divino Nino Jesus and the hull was marked with letters and numbers: "PQ-1647" and other painted markings. Id.

The patrol aircraft conveyed the information to a Coast Guard cutter called Mohawk, which was on patrol in the area. Doc. 123 at 34. A boarding team from the Mohawk was dispatched in a small, 26-foot, over-the-horizon ("OTH") boat, Hawk I, to intercept the GFV. Id. at 36, 122. The Coast Guard personnel who made up the Boarding Team consisted of Chief Boatswain's Mate Jeremy Swearer ("Chief Swearer"), United States Coast Guard Maritime Enforcement Specialist Luis Saenz ("Officer Saenz"), United States Coast Guard Boatswain's Mate First Class Seth Pontecorvo ("Officer Pontecorvo"), Boatswain's Mate Second Class Harry Seibert, and Machinery Technician Petty Officer Third Class Don Castellon. Id. at 35, 145. Chief Swearer, who was the Boarding Officer, relayed back to the Mohawk the Boarding team's observations regarding the GFV including shape and color of markings on the GFV. Id. at 38–39. No flag was flying from the GFV, but the white hull had blue trim, stripes on the forward part of the bow, and a square painted on the aft with colored stripes. Id. at 40, 78, 155.

As Hawk I came alongside the GFV, Officer Saenz announced their presence, introducing himself and the crew. Doc. 123 at 146. Officer Saenz is a native Spanish speaker and certified translator by the U.S. Coast Guard. Doc. 123 at 140, 161. Chief Swearer, through Officer Saenz who was serving as translator, directed the Defendants to gather in the center of the GFV, and Defendants complied. Doc. 123 at 41. Once Chief Swearer determined there was no immediate danger, the "Go-Pro" recording device being worn by Officer Saenz was turned off and Chief Swearer, through Officer Saenz, began the right of approach questioning. Id. at 38.

Aboard Hawk I were laminated copies of the Alpha and Victor reports,1 which Chief Swearer used. See Docs. 68-1, 68-2; 123 at 122. Using a grease pen to mark up the laminated sheets, Chief Swearer noted the Boarding Team's observations of the GFV and Defendants’ responses to the questions asked. Id. at 45. As he's looking at the sheets, Chief Swearer testified that he told the translator Officer Saenz to ask the exact verbiage from the sheets. Id. at 42, 44. Officer Saenz asked each of the questions on the Alpha and Victor reports using the exact same language as appears on the reports. Id. at 43. Officer Saenz testified he asked each Defendant individually in Spanish, while pointing with his hand at the Defendant whom he was asking, if they are the captain or the person in charge. Doc. 123 at 149–50. All of the Defendants responded that they took turns driving the boat, but no one was directly in charge of that voyage. Id. at 151. None of them indicated that any of the others were in charge. Id. Officer Saenz then asked each Defendant in Spanish, while pointing to the individual with whom he was speaking, if they wanted to claim nationality of the vessel. Id. at 152. Chief Swearer confirmed this procedure in which Officer Saenz pointed to each individual Defendant when asking the questions from the reports. Id. at 119. Defendants responded "no;" they did not want to make a claim of nationality for the vessel. Id. at 44, 152.

Question 3 on the Victor Report to be directed to the suspects as a group reads as follows:

"Who is the master or person in charge/(PIC) of the vessel?" If no one is identified as the master or PIC, ask each person individually, "Are you the master or PIC?" If no one admits to being the master or PIC, ask each person individually, "Do you claim nationality for the vessel?" Doc. 68-1 at 3.

Chief Swearer testified that all questions came from the Alpha and Victor reports and that none of the Defendants claimed to be the master. Doc. 123 at 43, 122. Chief Swearer directed Officer Saenz to ask each Defendant if they wanted to make a claim of nationality. Id. at 44. When Chief Swearer directed Officer Saenz to ask the questions, he read directly from the verbiage on the Alpha and Victor reports. Id. Chief Swearer noted Defendants’ responses on the laminated sheets right after Officer Saenz responded with the Defendants’ answers. Id. at 45. Chief Swearer testified that none of the Defendants identified themselves as the master or made a claim of nationality for the vessel. Id. at 43, 44. Two of the Defendants identified themselves as nationals of Ecuador and Colombia. Doc. 123 at 153. Officer Saenz relayed all of Defendants’ responses to Chief Swearer who, in turn, relayed the information to Coast Guard personnel on the Mohawk. Id. at 153–54. The Coast Guard personnel who received the information from Chief Swearer completed the versions of the Alpha and Victor reports admitted into evidence.2 Id. at 45–46, 68.

On March 11, 2020, personnel aboard the Mohawk advised Chief Swearer that the Boarding Team had been granted permission to board the vessel as a vessel without a nationality. Doc. 123 at 46, 157. The Boarding Team boarded the GFV and conducted an intrusive search of the vessel. Id. at 47–49, 96. No registration documents or cloth flag were found on the GFV. Id. at 47. After drilling holes in the deck, the Boarding Team found cocaine in a false deck of the vessel. Id. at 49. The Defendants were transferred to the Mohawk and detained there and ultimately transported to Port Everglades, Florida. The GFV was sunk at sea for hazard-to-navigation purposes. Id.

On June 9, 2020, Angulo Leones moved to dismiss the indictment arguing that the Boarding Team failed to ask for both the master in charge and the individual in charge to make a claim of nationality or registry as part of the inquiry required to determine if a vessel is stateless. Doc. 48. On June 15, 2020, Arboleda Quinones filed a similar motion to dismiss for lack of jurisdiction. Doc. 54. The motions were adopted by Defendant Landazuri Arboleda. Docs. 50, 55, 77. On July 4, 2020, the Government responded in opposition to Defendantsmotions to dismiss. Doc. 68. The Magistrate Judge held an evidentiary hearing on the motions to dismiss on October 13 and 14, 2020. Docs. 123, 124.

A. Angulo LeonesMotion to Dismiss Indictment (Doc. 48)

Angulo Leones moves to dismiss the indictment pursuant to 46 U.S.C. § 70504(a) on the ground that the Court lacks jurisdiction. Doc. 48. Specifically, Angulo Leones contends the Government cannot meet its burden of proving that the vessel was stateless. Angulo Leones claims that prior to declaring a vessel stateless under 46 U.S.C. § 70502(d), the Government was required to ask for both the master and the individual in charge to make a claim of nationality or registry for the vessel. Although the boarding officers asked for the master of the vessel, Angulo Leones argues they did not ask for the individual in charge of the vessel. Angulo Leones provides, in his motion, a picture of the vessel...

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