United States v. Hernandez

• Decision Date: 28 July 2017
• Docket Number: No. 15-10810,15-10810
• Citation: 864 F.3d 1292
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elder Nehemias Lopez HERNANDEZ, Saulo Arahon Hernandez Almaraz, Jose Luis Aguilar Lopez, Samuel Savala Cisneros, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

864 F.3d 1292

UNITED STATES of America, Plaintiff-Appellee,

v.Elder Nehemias Lopez HERNANDEZ, Saulo Arahon Hernandez Almaraz, Jose Luis Aguilar Lopez, Samuel Savala Cisneros, Defendants-Appellants.

No. 15-10810

United States Court of Appeals, Eleventh Circuit.

July 28, 2017

Daniel Matzkin, Lisa Helene Miller, Timothy Cronin, Dustin M. Davis, Wifredo A. Ferrer, Daren Grove, Dexter Alan Lee, Yvonne Rodriguez-Schack, Kathleen Mary Salyer, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Orlando do Campo, do Campo & Thornton, P.A., Michael Caruso, Vincent Peter Farina, Federal Public Defenders, Federal Public Defender's Office, Ashley M. Litwin, Marc David Seitles, Seitles & Litwin, PA, Miami, FL, Timothy Cone, Law Offices of Timothy Cone, Washington, DC, Bernardo Lopez, Federal Public Defender's Office, Richard Anthony Merlino, Jr., Richard A. Merlino, PA, Fort Lauderdale, FL, for Defendants–Appellants.

Before HULL, MARCUS, and ROGERS^* , Circuit Judges.

ROGERS, Circuit Judge:

The United States prosecuted these four defendants—Lopez Hernandez, Hernandez Almaraz, Aguilar Lopez, and Savala Cisneros—under the Maritime Drug Law Enforcement Act (MDLEA), which criminalizes an individual's possessing with intent to distribute a controlled substance "[w]hile on board a covered vessel," which includes "a vessel subject to the jurisdiction of the United States," which in turn includes "a vessel without nationality." 46 U.S.C. §§ 70502(c)(1)(A), 70503(a)(1), (e)(1) (2012). The U.S. Coast Guard arrested the four defendants on board the Cristiano Ronaldo , which the defendants claimed was registered in Guatemala—and claimed so truthfully, as it later turned out. Shortly before the search of the ship, however, when asked by the Coast Guard, the Guatemalan government could neither confirm nor deny the ship's registry. The parties proceeded to trial. The Government presented evidence that the defendants threw overboard about 290 kilograms of cocaine shortly before arrest. The jury convicted all four defendants of every indicted crime.

On appeal, the defendants argue primarily that the Cristiano Ronaldo was not "a vessel without nationality" because the vessel was properly registered in Guatemala, as the U.S. Coast Guard should have been able to determine with the information that it had. But the Cristiano Ronaldo fit within the MDLEA's broad definition of a "vessel without nationality" because a designee of the U.S. Secretary of State has certified, and thereby "proved conclusively," that Guatemala had not "affirmatively and unequivocally" asserted that the Cristiano Ronaldo was of Guatemalan nationality. Under the clear terms of the MDLEA, that certification put the crime within the territorial coverage of the statutory prohibition. The executive branch thereby effectively assumed responsibility for any diplomatic consequences of the criminal prosecution. The defendants' other arguments—insufficient evidence, prosecutorial misconduct, improper suppression or loss of evidence, erroneous admission of hearsay, and misapplication of two sentencing enhancements—are also without merit.

I.

On November 5, 2013, the U.S. Coast Guard identified a suspicious go-fast vessel in international waters, about 120 nautical miles southwest of the El Salvador/Guatemala border, in the Pacific Ocean. The vessel was not flying any national flag. When a Coast Guard helicopter approached it, the vessel sped off, despite radio-transmitted orders in English and in Spanish to halt, and despite several warning shots into the water. The Coast Guard fired at the Cristiano Ronaldo 's engines, immobilizing the vessel. Crewmen on the vessel then began dumping black packages overboard.

Officers of the Coast Guard boarded the Cristiano Ronaldo and ultimately arrested the four crewmen—the four defendants in this case. When the Coast Guard officers boarded the ship, Hernandez Almaraz said he was its captain. He also said he was a Guatemalan citizen, as did the other three crewmen. He claimed that the Cristiano Ronaldo was registered in Guatemala. Soon thereafter, the Coast Guard contacted the Guatemalan government to confirm or deny the claim of registry. The Guatemalan government responded that it "could neither confirm nor deny." The Coast Guard proceeded to search the ship.

What happened during the intervening period—the period after Hernandez Almaraz claimed the ship's registry in Guatemala but before the Coast Guard contacted the Guatemalan government to check that claim—is unclear.

The Coast Guard states, "No registration documentation was provided to or located by United States law enforcement personnel." That may have been true when the Coast Guard asked the Guatemalan government about the ship's registry, but the Coast Guard later found registration documents on the ship, as the United States ultimately provided the documents to the defendants during discovery.

Some of the defendants claim, or at least suggest, that the Coast Guard had the registration documents before it asked Guatemala about the Cristiano Ronaldo 's registry. In support of the motion to dismiss the indictment, Aguilar Lopez wrote, "As soon as Cristiano Ronaldo was boarded by the U.S. Coast Guard, [Hernandez Almaraz] gave the Coast Guard a document, issued by the Guatemalan Navy, certifying that Cristiano Ronaldo is registered as a Guatemalan vessel." On appeal, Savala Cisneros states that "once the Cristiano Ronaldo was boarded by the U.S. Coast Guard, [Hernandez Almaraz] gave the Coast Guard [the registration] document."

Later, the Coast Guard retrieved some packages where the defendants had thrown packages overboard. The retrieved packages contained about 290 kilograms of cocaine, valued contemporaneously on the streets at about $8.7 million.

Some of the evidence from the scene was lost. The Cristiano Ronaldo was accidentally sunk when Coast Guard officers, during a standard "At Sea Space Accountability" procedure, drilled holes in the Cristiano Ronaldo to check if there were hidden compartments; they used putty to cover the holes, but water nevertheless began pouring into the ship. The wet clothes that the defendants were wearing that day were discarded because of concerns of mold. Similarly, and out of the same concern, the burlap sacks that had covered the cocaine packages were discarded.

Before trial, the district court rejected the defendants' motion to dismiss for lack of jurisdiction, and granted the Government's motion to determine that the vessel was subject to the jurisdiction of the United States. The court relied on the certification from Commander Salvatore J. Fazio of the U.S. Coast Guard, as designee of Secretary of State John Kerry, which declared that Hernandez Almaraz claimed the Cristiano Ronaldo 's Guatemalan registry, and that the Guatemalan government could neither confirm nor deny that claim. The district court specifically declined to inquire into "the factual underpinnings of the certificate" because the court reasoned that they were "neither relevant or appropriate" under the MDLEA. In the same order, the district court denied the motion to reconsider its previous order granting the Government's motion to quash the subpoena to Commander Fazio.

The parties proceeded to a four-day jury trial. The Government's trial evidence included the testimony of Officer Arambula of the U.S. Coast Guard about the actions and statements of his colleague Officer Ligsay. The closing arguments were somewhat heated, with the Government calling the defense attorneys "spin doctors," for example.

The jury convicted all four defendants of all indicted crimes.

The district court sentenced Lopez Hernandez, Savala Cisneros, and Aguilar Lopez to 188 months' imprisonment. The district court sentenced Hernandez Almaraz to 200 months' imprisonment, applying to him two sentencing enhancements related to his role as the captain of the Cristiano Ronaldo .

II.

The district court properly determined that the Cristiano Ronaldo was a vessel within the jurisdiction of the United States because it was a "vessel without nationality" within the meaning of the plain text of the MDLEA. Such a vessel is statutorily defined to include:

[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.

46 U.S.C. § 70502(d)(1)(C). Defendants essentially challenge whether the terms of this provision have been met, but the Government has proved conclusively that they have. The Government produced the written certification of Commander Salvatore J. Fazio of the U.S. Coast Guard, in which Commander Fazio declared that: (i) the self-identified master of the Cristiano Ronaldo claimed that the ship was registered in Guatemala; (ii) the U.S. government asked the Guatemalan government to confirm or deny the vessel's registry; and (iii) the Guatemalan government responded that it "could neither confirm nor deny that the go-fast vessel was registered in Guatemala." As Commander Fazio further stated, "Accordingly, the Government of the United States determined the vessel was without nationality in accordance with 46 U.S.C. § 70502(d)(1)(C), rendering the vessel subject to the jurisdiction of the United States [under the MDLEA]." Commander Fazio's certification was accompanied by a certificate by Secretary of State John Kerry designating Commander Fazio to act on the part of the Department of State. The MDLEA specifies that "[t]he response of a foreign nation to a claim of registry ... is proved conclusively by certification of the Secretary of State or the Secretary's designee." Id. § 70502(d)(2). Because Commander Fazio is an appropriate designee of the U.S. Secretary of State, under the plain text of the MDLEA, his certification conclusively proves that the Guatemalan government responded that it "could neither confirm nor deny" the Cristiano Ronaldo 's...