United States v. Clark

• Decision Date: 19 July 2017
• Docket Number: Criminal No. 16–565 (ADC)
• Citation: 266 F.Supp.3d 573
• Parties: UNITED STATES of America, v. Michael CLARK, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

266 F.Supp.3d 573

UNITED STATES of America,

v.Michael CLARK, et al., Defendants.

Criminal No. 16–565 (ADC)

United States District Court, D. Puerto Rico.

Signed July 19, 2017

Filed July 20, 2017

Nicholas G. Smith, United States Attorneys Office District of Puerto Rico, San Juan, PR, for Plaintiff.

Eric A. Vos, Samantha Kurland Drake, Federal Public Defender's Office, Hato Rey, PR, for Defendants.

OPINION AND ORDER

AIDA M. DELGADO–COLÓN, Chief United States District Judge

I.Introduction and procedural history

By an Indictment, dated September 8, 2016, a federal Grand Jury has charged defendantsMichael Clark, Cedrick Walton, David Mallard Thomas, and John Benn with conspiracy to possess marihuana with intent to distribute on board a vessel without nationality, 46 U.S.C. §§ 70503(a)(1),70506(b); and possession of marihuana with intent to distribute on board a vessel without nationality, 46 U.S.C. § 70503(a)(1)and18U.S.C. § 2.ECF No. 16 .These charges, under the Maritime Drug Law Enforcement Act ("MDLEA"), stem from the more than one thousand kilograms of marihuana that the U.S. Coast Guard allegedly recovered from a vessel found in international waters about forty-four nautical miles off the coast of Isla La Blanquilla, Venezuela.ECF No. 1–1 , ¶¶ 4, 9.All four defendants were also found on the vessel.Id ., ¶ 10.The vessel "display[ed] no indicia of nationality," and defendants' conflicting oral claims about the vessel's nationality could be "neither confirm[ed] nor den[ied]" by the nations invoked.Id ., ¶¶ 5–6, 8.Defendants, who are all foreign nationals, id ., ¶ 6, have pleaded not guilty to the charges.

A.Defendants' motions to dismiss the Indictment are untimely

On January 20, 2017, Clark filed an untimely motion to dismiss the Indictment pursuant to Federal Rule of Criminal Procedure 12(b)(1).ECF No. 38 .The next day, Walton, Thomas and Benn also filed an untimely motion to dismiss.ECF No. 39 .The motions are untimely because the Court had set, on November 1, 2016, a motion deadline of December 9, 2016.ECF No. 35 .Although Walton, Thomas and Benn asked the Court to extend the deadline to December 29, 2016, ECF No. 36 , and then to January 20, 2017, ECF No. 37 , the Court did not grant the requests.ECF No. 40 .Meanwhile, Clark did not request a deadline extension.Thus, both motions were approximately six weeks late.Even if the Court had granted Walton, Thomas and Benn their extension requests, their motion was still a day late.Accordingly, the Court deems both motions untimely pursuant to Federal Rule of Criminal Procedure 12(c)(3)."And a court cannot consider an untimely claim unless ‘the party shows good cause.’ "United States v. Ponzo , 853 F.3d 558, 574(1st Cir.2017)(quotingFed. R. Crim. P. 12(c)(3) ).

B.Defendants show ‘good cause’ to consider their late motions

Although defendants do not expressly invoke the good-cause exception to the lateness of their constitutional claims under Rule 12(c)(3), they note that "neither the Supreme Court nor the First Circuit Court of Appeals have squarely addressed the constitutionality of the MDLEA's jurisdictional component under Article I of the United States Constitution."ECF No. 38at 4.Defendants also observe that, because of the failure of others to "properly preserve the issue,"the Court of Appeals has, thus far, "avoided or applied plain error review to the constitutional question."Id .Because the claims that defendants are raising have become commonplace in the MDLEA prosecutions in this District, the Court finds that they have shown good cause for the Court to consider them.It appears that, aside from an unreported decision by the undersigned, seeUnited States v. Balbuena–Peguero , No. 16-CR-656, 2017 WL 1399696(D.P.R.Apr. 18, 2017), this Court has not yet upheld the constitutionality of the MDLEA pursuant to the Offences Clause in Article I, Section 8, Clause 10 of the Constitution.But, as will be seen, the MDLEA is readily affirmed as a proper exercise of Congress's express power, under the Offences Clause, "[t]o define and punish ... Offences against the Law of Nations."SeeU.S. Const. art. I, § 8, cl. 10.

Due to a substantial overlap in the content of defendants' motions, the Court will address each claim as though it was jointly raised.In essence, defendants contend that this prosecution under 46 U.S.C. § 70503(a)(1), a provision of the MDLEA, must be dismissed because the statute, as applied to vessels without nationality in international waters, contravenes international law, Congress's Article I powers, and due process.Those claims are unavailing.

II.Legal standards governing the legality of the MDLEA under international law

"The MDLEA makes it unlawful for an individual to ‘knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board ... a vessel of the United States or a vessel subject to the jurisdiction of the United States.’ "United States v. Nueci–Peña , 711 F.3d 191, 197(1st Cir.2013)(ellipsis in original)(quoting46 U.S.C. § 70503(a)(1) )."That prohibition ‘applies even though the act is committed outside the territorial jurisdiction of the United States.’ "Id . (quoting46 U.S.C. § 70503(b) )."A vessel ‘subject to the jurisdiction of the United States’ includes ‘a vessel without nationality.’ "Id . (quoting46 U.S.C. § 70502(c)(1)(A) )." ‘A vessel without nationality’ in turn is defined, as relevant here, as ‘a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.’ "Id . (quoting46 U.S.C. § 70502(d)(1)(C) ).

A.The MDLEA definition of ‘vessel without nationality’ and international law

The definition of ‘vessel without nationality’ under the MDLEA"does not conflict with international law."United States v. Matos–Luchi , 627 F.3d 1, 6(1st Cir.2010).In fact, the MDLEA definition is "consistent with" the definition, under international law, of a ‘stateless vessel.’Id . at 6–7.Both definitions are "designed prudentially" and "informed by the need for effective enforcement."Id . at 6.Under both definitions, "a vessel may be deemed ‘stateless,’ and subject to the enforcement jurisdiction of any nation on the scene, if it fails to display or carry insignia of nationality and seeks to avoid national identification."Id .Both the MDLEA and international law allow a vessel to "make an oral claim of nationality," but the vessel " ‘must ... be in a position to provide evidence of it’ " because, to be valid, an "affirmative" claim of nationality must also be "sustainable."¹Id . (quoting Anderson, Jurisdiction over Stateless Vessels on the High Seas: An Appraisal under Domestic and International Law , 13 J. Mar. L. & Com. 323, 341(1982)).Accordingly, under the MDLEA and international law, a boat is "without nationality" if it does not "fly a flag or carry registry papers," and if its oral "claim of nationality is ... rejected or not backed up by the nation invoked."Id . (citing46 U.S.C. § 70502(d)(1)(A), (C) );see alsoUnited States v. Victoria , 876 F.2d 1009, 1010(1st Cir.1989)(holding that a boat, sixty miles off the coast of Colombia, that "had no flag or any other indications of nationality" was "a ‘stateless’ vessel" under the MDLEA and international law because it had "no evidence of its nationality on board.").²

B.U.S. jurisdiction over ‘vessels without nationality’ and international law

Once a vessel is deemed ‘stateless,’ the United States may "exercise criminal jurisdiction" over it "pursuant to the Law of Nations and [the MDLEA]."United States v. Cuevas–Esquivel , 905 F.2d 510, 514(1st Cir.1990);see alsoVictoria , 876 F.2d at 1010(holding that "the United States, as a matter of international law, may prosecute drug offenders on stateless ships found on the high seas" because "international law ... gives the ‘United States ... authority to treat stateless vessels as if they were its own.’ ")(final ellipsis in original)(quotingUnited States v. Smith , 680 F.2d 255, 258(1st Cir.1982) ).Indeed, "international law permits any nation to subject stateless vessels on the high seas to its jurisdiction ... solely as a consequence of the vessel's status as stateless" because "a ship without a nationality, or unwilling to claim one, has no right of navigation by international law."Victoria , 876 F.2d at 1011(ellipsis and emphasis in original)(quotingUnited States v. Marino–García , 679 F.2d 1373, 1382–83(11th Cir.1982); then quoting Shearer, Problems of Jurisdiction and Law Enforcement against Delinquent Vessels , 35 Int'l &Comp. L. Q. 320, 336(1986))."Vessels without nationality are international pariahs" because they"are frequently not subject to the laws of a flag-state."Marino–García , 679 F.2d at 1382."As such, they represent ‘floating sanctuaries from authority’ and constitute a potential threat to the order and stability of navigation on the high seas."Id . (citing H. Meyers, The Nationality of Ships 318 (1967); then citing M. McDougal & W. Burke, The Public Order of the Oceans 1084 (1962)).

For those reasons, "the assertion of jurisdiction over stateless vessels on the high seas in no way transgresses recognized principles of international law ... nor results in impermissible interference with another sovereign nation's affairs."Id . at 1382–83.Also, "there need not be proof of a nexus between the stateless vessel and the country seeking to effectuate jurisdiction" because "[j]urisdiction exists solely as a consequence of the vessel's status as stateless."Id . at 1383."Such status makes the vessel subject to action by all nations proscribing certain activities aboard stateless vessels and subjects those persons aboard to prosecution for violating the proscriptions."Id . ;see alsoVictoria , 876 F.2d at 1011(the First...