In April, we discussed the importance of checking case packages for accuracy to ensure they reflect what occurred during the boarding. Earlier this week, on 12 August 2024, District Judge María Antongiorgi-Jordán in the District of Puerto Rico addressed a similar issue in U.S. v. Thomas Chalwell, et al., No. CR 24-CR-00072, 2024 WL 3755034 (D.P.R. Aug. 12, 2024)(Slip Opinion).
This is the third motion addressing jurisdiction in this case. In the first motion to dismiss (MTD), the defendants argued that the government did not establish jurisdiction over their vessel under the MDLEA. The court denied that motion, determining that jurisdiction was established by a preponderance of the evidence. The defendants then filed a second MTD, challenging the government’s jurisdiction on constitutional grounds, which the court also denied. In the instant motion, the government requested a pre-trial determination of jurisdiction, citing the MDLEA’s provision that such issues are to be resolved solely by the trial judge.
The district court summarized the facts as the following: “…on June 16, 2022, the U.S. Coast Guard intercepted Defendants’ ‘go-fast’ vessel—which lacked navigational lights and any indicia of nationality—on the high seas, about 25 nautical miles from Saint Thomas, U.S. Virgin Islands. Defendant Chalwell, claiming to be the master of the boat, asserted British Virgin Islands nationality for himself and the vessel.” Thomas Chalwell, 2024 WL 3755034, at *2. A Department of State (DOS) certification stated that “BVI agreed and authorized the U.S. to enforce its laws against the crew …” and jurisdiction was conclusively proven under 46 U.S.C. § 70502(c)(1). Id.
When responding to the government’s motion, the defendants argued that jurisdiction could not be established because “the U.S Coast Guard boarding team never asked any questions as to nationality of the vessel itself … [and instead] [o]nly [inquired] about the 3 occupants.” Thomas Chalwell, 2024 WL 3755034, at *3. They contended that the Coast Guard’s “inquiry is necessary to determine which nation to contact for verification, or to deem the vessel ‘stateless’ if no response is given.” Since the Coast Guard allegedly did not make this inquiry, the defendants argued that the government cannot establish jurisdiction. Id.
The district court did not agree, citing to the case I previously briefed in April, U.S. v. Velez-Acosta, No. 22-13528, 2024 WL 806537 (11th Cir. Feb. 27, 2024)(despite a discrepancy between a boarding team member’s [BTM] testimony regarding no one on board the subject vessel answering the BTM’s question regarding nationality for the vessel and a right-of-visit form indicating that one of the defendants claimed Ecuadorian nationality, the district court concluded that either scenario sufficed to establish jurisdiction). The district court ruled that the facts in this case are similar to the 11th Circuit’s decision:
Analogously, here, when asked by Coast Guard officers, Defendant Chalwell claimed British Virgin Islands nationality for “himself and the vessel.” Thereafter, the BVI’s initial response consenting to the Coast Guard boarding and subsequent State Department certification—“conclusively” evidencing BVI’s waiver of jurisdiction—establish the Coast Guard’s ability to assert jurisdiction over Defendants and their vessel. At the same time, even if no one claimed nationality, under that scenario, the vessel would be rendered stateless under the MDLEA, and therefore “subject to the jurisdiction of the United States.”
Thomas Chalwell, 2024 WL 3755034, at *3-4 (internal citations omitted). In light of the precedent and persuasive authority, Judge Antongiorgi-Jordán held that the DOS certification provided by the government was sufficient to conclusively prove that the government of the BVI waived its primary right to exercise jurisdiction over defendants’ vessel, cargo, and crew in this case, and granted the government’s motion. Id., at *4.