United States v. Aybar-Ulloa, 15-2377

• Decision Date: 25 January 2021
• Docket Number: No. 15-2377,15-2377
• Citation: 987 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Johvanny AYBAR-ULLOA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

987 F.3d 1

UNITED STATES of America, Appellee,

v.Johvanny AYBAR-ULLOA, Defendant, Appellant.

No. 15-2377

United States Court of Appeals, First Circuit.

January 25, 2021

Opinion En Banc

KAYATTA, Circuit Judge.

United States law enforcement authorities apprehended Johvanny Aybar-Ulloa ("Aybar") on a stateless vessel in international waters carrying packages of cocaine in violation of the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. §§ 70501 – 70508. In appealing his subsequent conviction, Aybar makes a two-step argument. First, he contends that Congress's authority to criminalize and punish conduct on the high seas under Article I, Section 8, Clause 10 of the United States Constitution ("the Define and Punish Clause") must be cabined by the limitations of international law on a nation's power to criminally prosecute conduct on the high seas. Second, he argues that the United States exceeded those limitations of international law by prosecuting him in this case.

In a divided opinion, a panel of this court trained its attention exclusively on the second part of Aybar's argument. See United States v. Aybar-Ulloa, 913 F.3d 47, 53-56 (1st Cir. 2019). Relying on prior circuit precedent, the panel majority rejected that necessary part of Aybar's argument for two reasons: First, we previously held in United States v. Victoria, 876 F.2d 1009 (1st Cir. 1989) (Breyer, J.), that international law does indeed "give[ ] the United States ... authority to treat stateless vessels as if they were its own." Id. at 1010 (second alteration in original) (quoting United States v. Smith, 680 F.2d 255, 258 (1st Cir. 1982) ). Second, our prior opinion in United States v. Cardales, 168 F.3d 548 (1st Cir. 1999), included certain statements construing international law as allowing a nation to define trafficking in controlled substances aboard vessels as a threat sufficient to justify an assertion of jurisdiction under the "protective principle." Id. at 553.

As both the panel majority and the panel dissent observed, our prior opinion in Victoria "did not fully spell out" its reasoning. Aybar-Ulloa, 913 F.3d at 54 ; see also id. at 61 (Torruella, J., dissenting in part). Cardales, in turn, can be read as applying only to the circumstance where a foreign flag nation consents to the application of United States law to persons found on that nation's flagged vessel. Id. at 55-56 (citing Cardales, 168 F.3d at 552-53 ). And the question of the United States' jurisdiction over persons on vessels on the high seas recurs in this circuit. For those reasons, we granted Aybar's petition to rehear this appeal en banc.

Following that rehearing, we now affirm Aybar's conviction. In doing so, we find that his prosecution in the United States for drug trafficking on a stateless vessel stopped and boarded by the United States in waters subject to the rights of navigation on the high seas violates no recognized principle of international law. To the contrary, international law accepts the criminal prosecution by the United States of persons like Aybar, who was seized by the United States while trafficking cocaine on a stateless vessel on the high seas, just as if they were trafficking on a United States-flagged ship. We therefore need not and do not reach the question of whether the application of MDLEA to Aybar would be constitutional were international law otherwise. We also need not and do not rely on the protective principle, leaving its potential application for another day. Finally, for the reasons agreed upon by the full panel, we vacate Aybar's sentence and remand for resentencing under the Sentencing Commission's clarified guidance reflected in Amendment 794. See id. at 56-57.

I.

A.

As Aybar urges, we take the facts as "[p]er the affidavit [filed by the government] in support of the complaint." On August 9, 2013, the HMS Lancaster, a foreign warship, launched a helicopter while on patrol in the Central Caribbean. Operators aboard the helicopter spotted a thirty-foot go-fast vessel dead in the water at 15-03N, 067-01W, an area approximately 160 nautical miles south of Puerto Rico constituting international waters.¹ The vessel bore no indicia of nationality and was carrying numerous packages in plain view.

A Law Enforcement Detachment Team of the United States Coast Guard was embarked on the HMS Lancaster at the time of the incident. Members of this team launched a small boat to conduct a right-of-visit approach. Coast Guard personnel identified defendant Aybar and two others aboard the go-fast vessel. Aybar and another member of the vessel claimed to be citizens of the Dominican Republic, while the master of the vessel claimed Venezuelan citizenship. In response to inquiry from the Coast Guard personnel, the master of the vessel made no claim of nationality for the vessel. The Coast Guard personnel suspected contraband.

Concluding that the vessel was without nationality, the Coast Guard personnel then boarded and searched the vessel. Following the search, the Coast Guard proceeded to take all three men and the packages found on board back to the HMS Lancaster, where the packages' contents tested positive for cocaine. The three men were then transferred to a United States Coast Guard vessel and taken to Ponce, Puerto Rico, where they were held in custody.

B.

Shortly thereafter, a federal grand jury issued an indictment against Aybar, charging him under MDLEA with conspiring to possess with intent to distribute cocaine on board a vessel subject to the jurisdiction of the United States, 46 U.S.C. § 70506(b) (count one), and aiding and abetting possession with intent to distribute cocaine on board a vessel subject to the jurisdiction of the United States, 46 U.S.C. §§ 70502(c)(1)(A), 70503(a)(1), 70504(b)(1), 70506(a), 18 U.S.C. § 2 (count two). The indictment also included an allegation of forfeiture, 46 U.S.C. § 70507.

MDLEA provides that "[w]hile on board a covered vessel, an individual may not knowingly or intentionally ... manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance." 46 U.S.C. § 70503(a)(1). As relevant here, a "covered vessel" includes "a vessel subject to the jurisdiction of the United States," id. § 70503(e)(1), which is defined to include "a vessel without nationality," id. § 70502(c)(1)(A). "[A] vessel without nationality," in turn, includes "a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel." 46 U.S.C. § 70502(d)(1)(B).

Aybar moved to dismiss the indictment for lack of jurisdiction, arguing that Congress's power under Article I "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations," U.S. Const. art. I, § 8, cl. 10, did not reach his conduct. After the district court denied his motion, Aybar proceeded to plead guilty. Aybar's plea accepted the facts substantiating the charges against him under MDLEA. Those facts, in turn, make clear that the vessel on which he was found was "a vessel without nationality" as defined in section 70502(d)(1)(B) because, while on board the vessel, the master made no claim of nationality when requested to do so by a United States officer authorized to enforce the United States drug laws. Despite his guilty plea and concessions, Aybar adequately preserved his challenge to Congress's constitutional power to criminalize his conduct pursuant to its Article I powers. See Class v. United States, ––– U.S. ––––, 138 S. Ct. 798, 804-05, 200 L.Ed.2d 37 (2018). On January 9, 2019, a divided panel rejected that challenge, affirming his conviction. For unrelated reasons, the panel also vacated the district court's sentence and remanded for further proceedings.

II.

Our analysis proceeds in five parts summarized as follows: First, the "go-fast" ship upon which Aybar travelled was rendered "stateless" when its master on board failed upon request to make a valid claim of nationality for it, flouting, among other things, the important requirement of international law that every vessel on the high seas sail under the flag of a nation state. Second, as a stateless vessel, the ship was susceptible to the exercise of jurisdiction by any nation intercepting the vessel on the high seas, just as if the vessel were one of that nation's own. Third, the exercise of jurisdiction over Aybar's ship just as if it were a United States vessel included jurisdiction over drug trafficking on the vessel just as if it were drug trafficking on a United States vessel, which is considered to be the territory of the United States. Fourth, the application of that territorial jurisdiction to prosecute Aybar in a United States court for illegally trafficking cocaine is compatible with, and welcomed by, any relevant specific rules and undertakings governing the assertion of domestic power on the high seas. Fifth, we offer several important caveats.

A.

Under international law governing the seas, every vessel must sail under the flag of one, and only one, state. United Nations Convention on the Law of the Sea ("UNCLOS") art. 92, Dec. 10, 1982, S. Treaty Doc. No. 103-39, 1833 U.N.T.S. 397.² In turn, every state maintains an obligation to "fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag," id. art. 91(1), and to "issue to ships to which it has granted the right to fly its flag documents to that effect," id. art. 91(2). While the type of registration papers may differ from state to state depending on domestic laws, every state must keep a register of "the names of all private vessels sailing under its flag," and ensure "that every vessel may be identified from a distance." 1 L.F.L. Oppenheim, International Law §§ 290 (Jennings et al. eds., 9th ed. 2008). "Without a flag or papers,...