United States v. Davila-Mendoza

• Decision Date: 26 August 2020
• Docket Number: No. 17-12039, No. 17-12742,No. 17-12038,17-12038
• Citation: 972 F.3d 1264
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Andres Albeto DAVILA-MENDOZA, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Otmar Sing Gonzalez, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Julio Bravo Pineda, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

972 F.3d 1264

UNITED STATES of America, Plaintiff - Appellee,

v.Andres Albeto DAVILA-MENDOZA, Defendant - Appellant.

United States of America, Plaintiff - Appellee,

v.Otmar Sing Gonzalez, Defendant - Appellant.

United States of America, Plaintiff - Appellee,

v.Julio Bravo Pineda, Defendant - Appellant.

No. 17-12038

No. 17-12039

No. 17-12742

United States Court of Appeals, Eleventh Circuit.

August 26, 2020

Jonathan Colan, Andrea G. Hoffman, Daniel Matzkin, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Plaintiff-Appellee United States of America.

Manuel L. Casabielle, Manuel L. Casabielle, PA, Miami, FL, for Defendant-Appellant Andres Albeto Davila-Mendoza.

Jose Rafael Rodriguez, Law Offices of J. Rafael Rodriguez, Miami, FL, for Defendant-Appellant Otmar Sing Gonzalez.

Michael Caruso, Federal Public Defender, Tracy Michele Dreispul, Stewart Glenn Abrams, Federal Public Defender's Office, Miami, FL, for Defendant-Appellant Julio Bravo Pineda.

Before JILL PRYOR, BRANCH, and BOGGS,^* Circuit Judges.

BRANCH, Circuit Judge:

In this case, three foreign nationals in a foreign vessel in the territorial waters of a foreign nation were arrested by the United States Coast Guard with the consent of the foreign country and prosecuted in the United States for drug-trafficking crimes under the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. §§ 70501 – 70508. The defendants unsuccessfully moved to dismiss the indictment, in relevant part, on the ground that the MDLEA was unconstitutional as applied to them because Congress lacks the authority to criminalize acts committed in the territorial waters of foreign nations. The defendants ultimately pleaded guilty to the drug-trafficking crimes, but preserved their right to appeal the denial of their motion to dismiss. This appeal followed and presents us with a question of first impression—whether the MDLEA exceeds Congress's authority pursuant to the Constitution's Foreign Commerce Clause or, alternatively, the Necessary and Proper Clause, as applied to the drug-trafficking activities of these defendants in the territorial waters of a consenting foreign country. After careful consideration, and with the benefit of oral argument, we conclude that the MDLEA, as applied to these defendants, exceeds Congress's constitutional authority, and we vacate their convictions.

I. BACKGROUND

The undisputed facts are as follows. On June 4, 2016, Andres Davila-Mendoza, Otmar Gonzalez, Julio Pineda, and a minor were on board a stalled go-fast vessel in the territorial waters of Jamaica. With the permission of the Jamaican government, U.S. Coast Guard officials who had been patrolling the area by air and sea boarded and searched the distressed vessel. They discovered that the vessel was loaded with 3,500 kilograms of baled marijuana. Pineda told the Coast Guard officials that he was the captain, that he was Nicaraguan, that the vessel was Costa Rican, and that they were traveling from Jamaica to Costa Rica. Another crew member stated that the vessel was overloaded with marijuana and its engines had stopped working. With the further permission of the Jamaican government, the Coast Guard seized the boat occupants and the drugs, and the United States prosecuted the three men.

The three defendants were charged in an indictment with possessing and conspiring to possess with intent to distribute more than 1,000 kilograms of marijuana while on board a vessel, in violation of the MDLEA, 46 U.S.C. §§ 70503(a)(1), 70503(b) ; 70506(b). That statute provides in relevant part that: "While 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). This prohibition "applies even though the act is committed outside the territorial jurisdiction of the United States." Id. § 70503(b). For purposes of the MDLEA, a "covered vessel" includes "a vessel subject to the jurisdiction of the United States." Id. § 70503(e). And the MDLEA specifically provides that a vessel in the territorial waters of a foreign nation is subject to the jurisdiction of the United States "if the nation consents to the enforcement of United States law by the United States." Id. § 70502(c)(1)(E).¹ Notably, in enacting the MDLEA, Congress found "that ... trafficking in controlled substances aboard vessels is a serious international problem, is universally condemned, and presents a specific threat to the security and societal well-being of the United States." Id. at § 70501.

The defendants moved to dismiss the indictment on the grounds that the application of the MDLEA to them exceeded Congress's power under the Define and Punish Clause, U.S. Const. art. I, § 8, cl. 10. They also objected to the district court's exercise of in personam jurisdiction over them as a violation of their due-process rights. The government responded that the extraterritorial application of the MDLEA to the defendants was authorized by the Foreign Commerce Clause, id. art. I, § 8, cl. 3, and/or the Necessary and Proper Clause, id. art. I, § 8, cl. 18.

The magistrate judge heard oral argument on the issue and recommended that the defendants’ motion be denied, finding that Congress had lawfully exercised its power under the Foreign Commerce Clause. The magistrate judge also found that international law provided adequate notice to the defendants, satisfying due process. The defendants filed objections, and the district court affirmed and adopted the report and recommendation of the magistrate judge.

The defendants pleaded guilty under a conditional plea agreement that preserved their right to appeal the denial of their motion to dismiss the indictment. The district court sentenced each defendant to 59 months of imprisonment to be followed by removal proceedings and 5 years of non-reporting supervised release. The defendants now appeal on that preserved basis, and we consider their appeals together.

II. STANDARD OF REVIEW

"We review de novo the legal question of whether a statute is constitutional." United States v. Campbell , 743 F.3d 802, 805 (11th Cir. 2014) (quoting United States v. Tinoco , 304 F.3d 1088, 1099 (11th Cir. 2002) ).

III. DISCUSSION

The defendant-appellants in this consolidated appeal argue that the MDLEA, as applied to them, exceeds Congress's authority under Article I of the Constitution. The government contends that the MDLEA, as applied to the defendants, was a valid exercise of Congress's power under the Foreign Commerce Clause, or alternatively, under the Necessary and Proper Clause. We address whether Congress has such authority under each Clause in turn.

A. The Foreign Commerce Clause

As an initial matter, the district court correctly recognized that, under our Circuit precedent, the Constitution's Define and Punish Clause does not authorize the MDLEA's operation in foreign territorial waters. See United States v. Bellaizac-Hurtado , 700 F.3d 1245, 1258 (11th Cir. 2012). That tripartite clause grants Congress power to "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. Because the crimes here were not committed on the high seas,² the Piracies and Felonies Clauses do not apply. And we explained in Bellaizac-Hurtado that the use of the term "the law of nations" in the Offenses Clause limits its application to those offenses recognized by customary international law. 700 F.3d at 1249–53. Because drug trafficking is not such an offense, id. at 1253–57, we held that the MDLEA was unconstitutional under the Offenses Clause as applied to the Bellaizac-Hurtado defendants, who had been charged with drug trafficking on board a vessel in the territorial waters of Panama.

But we generally presume statutes to be constitutional. United States v. Morrison , 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). And our Court has suggested in passing, albeit dicta, that there may exist a different Article I authorization for the MDLEA's operation as applied to conduct that occurs in the territorial waters of a foreign nation—the Foreign Commerce Clause. United States v. Baston , 818 F.3d 651, 667 (11th Cir. 2016) ("If the government had invoked the Foreign Commerce Clause in Bellaizac-Hurtado , we might have reached a different result."). The government here has taken us up on that suggestion and argues that the MDLEA as applied to the conduct of these defendants was a valid exercise of Congress's authority pursuant to the Foreign Commerce Clause. Accordingly, the question we must answer is whether the Foreign Commerce Clause authorizes the MDLEA's operation as applied to these defendants.

1. Legal Framework

The Constitution provides that "Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. This tripartite clause is commonly known as the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause, respectively. "The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation." Gonzales v. Raich , 545 U.S. 1, 16, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). The Supreme Court first defined the nature of Congress's commerce power in its 1824 decision in Gibbons v. Ogden , explaining that:

[c]ommerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. ... It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may

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