United States v. Osorio

• Decision Date: 13 April 2023
• Docket Number: 22-cr-20592-BLOOM
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JESUS ALBETO HERNANDEZ OSORIO, LUIS VIDAL VASQUEZ VASQUEZ, OSCAR JOSE CARRENO FERNANDEZ, LUIS JOSE ALFONZO RODRIGUEZ Defendants.
• Court: U.S. District Court — Southern District of Florida

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UNITED STATES OF AMERICA, Plaintiff, v. JESUS ALBETO HERNANDEZ OSORIO, LUIS VIDAL VASQUEZ VASQUEZ, OSCAR JOSE CARRENO FERNANDEZ, LUIS JOSE ALFONZO RODRIGUEZ Defendants.

No. 22-cr-20592-BLOOM

United States District Court, S.D. Florida

April 13, 2023

OMNIBUS ORDER ON MOTIONS TO DISMISS INDICTMENT

BETH BLOOM UNITED STATES DISTRICT JUDGE.

THIS CAUSE is before the Court upon Defendant Jesus Alberto Hernandez Osorio's (“Hernandez Osorio”) Motion to Dismiss Indictment, ECF No. [18] (“Hernandez Osorio Motion”)^[1], and Defendant Oscar Jose Carreno Fernandez's (“Carreno Fernandez”) Motion to Dismiss, ECF No [19]^[2](“Carreno Fernandez Motion”) (collectively “Motions”).^[3]Plaintiff United States of America (“Government”) filed an Omnibus Response in Opposition to the Motions, ECF No. [29] (“Response”), to which Hernandez Osorio and Carreno Fernandez each filed a Reply, ECF Nos. [33]-[34]. The Court has carefully reviewed the Motions, all opposing and supporting submissions, the record in this case, the applicable law, and is otherwise fully advised. For the reasons discussed below, the Motions are denied.

I. BACKGROUND

According to the Criminal Complaint, on or about November 23, 2022, a Maritime Patrol Aircraft (“MPA”) spotted a north-bound go-fast vessel (“GFV”) approximately 108 nautical miles north of Aruba in international waters and upon the high seas. ECF No. [1] ¶ 3. The GFV had four individuals on board, numerous fuel barrels, packages visible on the deck, and did not display an indicia of nationality. Id. The HNLMS Holland with embarked Law Enforcement Detachment (“LEDET”) 408 was in the area and was diverted to interdict and investigate. Id. United States Coast Guard (“USCG”) District 7 assumed tactical control of HNLMS Holland and launched their Fast-Raiding Interception and Special Forces Craft (“FRISC”) which embarked LEDET 408 boarding team and a helicopter to interdict. Id. The HNLMS Holland requested and was granted a Statement of No Objection to conduct a Right of Visit boarding from USCG District 7 Id.

Defendants Hernandez Osorio and Carreno Fernandez were onboard the vessel as well as Luis Vidal Vasquez Vasquez and Luis Jose Alfonzo Rodriguez (collectively “Defendants'). Id. ¶ 4. One of the Defendants claimed Columbian nationality, two claimed Venezuelan nationality and the fourth claimed Dominican Republic nationality. Id. Accordingly, the GFV was treated as a vessel without nationality and subject to the jurisdiction of the United States. Id. A full law enforcement boarding ensued, and law enforcement officials recovered thirty-eight bales from the GFV. Id. ¶ 5.

The Government filed a Criminal Complaint in this case on December 5, 2022, finding probable cause to charge Defendants with conspiracy to possess with intent to distribute a controlled substance while onboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70506(b). See generally id. Defendants appeared for their initial appearances before Magistrate Judge Lauren F. Louis on December 6, 2022. See ECF Nos. [3], [4], [5], [6].

On December 14, 2022, a grand jury sitting in the Southern District of Florida returned a two-count Indictment against Defendants charging each with conspiracy to possess with intent to distribute a controlled substance while on board a vessel subject to the jurisdiction of the United States, in violation of Title 46 U.S.C. §§ 70503(a)(1) and 70506(b) (“Count I”); and possession with intent to distribute a controlled substance while onboard a vessel subject to the jurisdiction of the United States, in violation of Title 46 U.S.C. §§ 70503(a)(1) and 18 U.S.C. § 2 (“Count II”). See ECF No. [7] (“Indictment”).

Defendants now seek to dismiss the Indictment. Hernandez Osorio moves for dismissal of the Indictment for lack of jurisdiction because (1) the Maritime Drug Law Enforcement Act (“MDLEA”) is unconstitutional as applied to the Defendants' alleged conduct and (2) the Government has not established that the GFV was without nationality as defined by the MDLEA. See ECF No. [18] at 2. Carreno Fernandez moves for dismissal of the Indictment because (1) the Government lacks subject matter jurisdiction; (2) the Netherlands conducted the law enforcement action rather than the United States; and (3) there is an absence of necessary nexus to the United States, due process and Constitutional violations.

The Government Responds that the MDLEA applies to Defendants' offenses on the high seas and may be enforced within a foreign nation's exclusive economic zone within the high seas; (2) subject matter jurisdiction has been established as the master or person in charge failed to make a claim for nationality for the vessel; (3) the United States has jurisdiction over stateless vessels with a United States Law Enforcement Detachment Team while on board a foreign flagged partner nation's vessel; (4) there is no nexus requirement for MDLEA prosecution of Drug Trafficking Offenses and the exercise of jurisdiction over Defendants does not violate due process; and (5) Defendant's Miranda rights were not violated. See generally ECF No. [29].

I. LEGAL STANDARD

a. Motion to Dismiss Indictment

A motion to dismiss an indictment is governed by Federal Rule of Criminal Procedure 12(b). A defendant may challenge an indictment on various grounds, including failure to state an offense, lack of jurisdiction, or constitutional reasons. See United States v. Kaley, 677 F.3d 1316, 1325 (11th Cir. 2012). “Under Fed. R. Crim. P. 12(b) an indictment may be dismissed where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have developed at trial.” United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987). Further, “[t]he sufficiency of a criminal indictment is determined from its face.” United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992). “The indictment is sufficient if it charges in the language of the statute.” Id. “Constitutional requirements are fulfilled ‘by an indictment that tracks the wording of the statute, as long as the language sets forth the essential elements of the crime.'” Id. at 308; see also United States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985). The indictment's allegations are assumed to be true and are viewed in the light most favorable to the Government. See Torkington, 812 F.2d at 1354.

b. MDLEA

The Felonies Clause of the U.S. Constitution grants Congress the power to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations[.]” U.S. Const. art. 1, § 8, cl. 10. Pursuant to the Felonies Clause, Congress enacted the MDLEA, which makes drug trafficking on certain vessels in the high seas subject to the jurisdiction of the United States. 46 U.S.C. §§ 70501 et seq. The MDLEA applies to all cases where the alleged trafficking occurs on a “vessel subject to the jurisdiction of the United States[.]” 46 U.S.C. § 70503(e)(1). The MDLEA further defines a vessel subject to the jurisdiction of the United States to include “(C) 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).

II. DISCUSSION

Defendants Hernandez Osorio and Carreno Fernandez now seek to dismiss the Indictment because (1) the MDLEA is unconstitutional as applied because the offense did not occur on the high seas; (2) the Government has not established that the GFV was without nationality; (3) the Netherlands conducted the law enforcement action rather than the United States; and (4) there is an absence of necessary nexus to the United States and due process and Constitutional violations. The Court considers each argument in turn.

a. Offenses Occurring on the High Seas

Defendant Hernandez Osorio argues that the United States' authority pursuant to the MDLEA is limited to offenses occurring on the high seas, and because these offenses took place within the Exclusive Economic Zone (“EEZ”) of Venezuela, they did not occur on the high seas. See ECF No. [18] at 2-10. Hernandez Osorio reiterates that the Felonies Clause grants Congress the authority to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations” U.S. Const. art. I, § 8, cl. 10. According to Hernandez Osorio, Congress's power to “define” offenses against the law of nations means that Congress has the power “to codify and explain offenses that had already been understood as offenses against the law of nations[,]” not to “create or declare offenses against the law of nations.” United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1249-50 (11th Cir. 2012). Following Hernandez Osorio's logic, the same reasoning and limitations should apply to Congress's power to “define” felonies on the high seas. See ECF No. [18] at 7. Thus, Hernandez Osorio submits that the “high Seas” referenced in the Felonies Clause should be construed according to the definition of the high seas under customary international law. See id. at 8. Further, Hernandez Osorio posits that

[u]nder customary international law as reflected in the 1982 United Nations Convention on the Law of the Sea . . . the high seas means waters that are not the exclusive economic zone ... territorial sea . or internal waters of the United States or any other nation.

33 C.F.R. § 2.32(d) (emphasis added). As such, Hernandez Osorio argues that because the alleged offenses took place within the EEZ of Venezuela, they did not occur on the high seas, and the Indictment must be dismissed. See ECF No. [18] at 10-11.

The Government...