If you’ve ever litigated an MDLEA case, you’ve likely seen the various reports (or case package) that the Coast Guard completes during the boarding. Well, sometimes there are discrepancies in those reports requiring factual findings by a court concerning the credibility of the boarding officer (“BO”). That’s exactly what happened in U.S. v. Liver Gruezo, 66 F.4th 1284 (11th Cir. 2023)1No. 22-11342, 2023 WL 2706261 (11th Cir. Mar. 30, 2023), after a defendant moved to dismiss the indictment for lack of jurisdiction stating that the Coast Guard failed to make all the necessary inquiries about the vessel’s nationality, as required by the MDLEA.
On 5 May 2021, a U.S. Marine Patrol Aircraft (“MPA”) detected a low-profile vessel north of Darwin Island, Ecuador, in international waters. The Coast Guard intercepted the vessel, and during right of visit questioning the master of the vessel failed to claim a nationality after being asked by the BO. As such, the vessel was treated as one without nationality and a full law enforcement (“LE”) boarding ensued, resulting in seizure of 1,390 kilograms of cocaine.
The discrepancy addressed by the lower court occurred during the Coast Guard’s right of visit questioning. More specifically, when the BO asked right of visit questions to determine the vessel’s nationality, another boarding team member (“BTM”) transcribed the responses in a document called a Victor Report. The BO testified that the purpose of a Victor Report is to determine the nationality of a vessel and to establish jurisdiction. The Victor Report in this case stated that there were no registration documents on the vessel and no registration number on the vessel’s hull.
On cross-examination, the BO testified that the boarding team had prepared a second report called the Alpha Report on the same day. According to the BO, the Alpha Report had a broader purpose and usually described the vessel’s entire construction, location, and other observations. Unfortunately, the Alpha Report erroneously listed the vessel’s nationality as Colombian, which the BO attributed to a transcription error or an “honest mistake.” The BO clarified that the initial reports were written on the vessel with a grease pen and were later re-written for better legibility. The version of the Alpha Report presented by the defense was the rewritten version.
After being indicted for violations of the MDLEA, the defendant moved to dismiss stating that the Coast Guard failed to contact Columbia to confirm nationality. An evidentiary hearing was held and a magistrate judge explained that “(1) although [the BO]’s testimony conflicted with the Alpha Report, that Report was created under unclear circumstances and (2) the magistrate judge ‘afford[ed] little weight to the Alpha Report, recognizing its potential for impeachment, but credit[ed] … [the BO]’s testimony.'” Additionally, the magistrate judge found that the BO “had provided credible testimony that when he asked the vessel’s master whether he claimed nationality for it, [the master of the vessel] replied ‘no.’” An appeal to Eleventh Circuit followed shortly after that decision.
When addressing the issue of whether the lower court has jurisdiction, the Eleventh Circuit merely cited to two important facts: (1) the defendant stipulated that the vessel had “no indicia of nationality visible[;]” and (2) that when the master of the vessel was asked “do you claim a nationality for the vessel and does this vessel have a nationality,” the master “made no claim of nationality for the [vessel].” The court stated that these facts “alone [are] sufficient for this Court to affirm the determination that the vessel was subject to the jurisdiction of the United States[]” since a vessel without nationality includes a vessel where the “master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel[.]” See 46 U.S.C. § 70502(c)(1)(A), (d)(1)(B).
Despite this simple holding, the Eleventh Circuit also addressed the arguments made in defendant’s motion to dismiss and found them all unpersuasive:
(1) the magistrate judge did not rely on defendant’s (and co-defendant’s) silence as evidence that the vessel lacked nationality. Rather, the magistrate judge “focused entirely on [defendant’s] actions, and the discrepancy between the Alpha Report and the Victor Report[;]”
(2) although there was a inconsistency between the Alpha Report and the Victor Report, the lower court found the BO’s testimony to be credible since he provided a reasonable explanation for the discrepancy between the two reports. Thus, the Eleventh Circuit was unwilling to reverse the court’s factual finding since it didn’t contradict the law nor was it so implausible that no reasonable factfinder could accept it; and
(3) the MDLEA treats the terms “nationality” and “registry” as interchangeable throughout § 70502. Therefore, § 70502(d)(1)(B) does “not require the Coast Guard to ask the master to make a claim of both nationality and registry for the vessel.”
So, what’s the take-away here? Make sure you double check those reports before finalizing them!
The full decision can be found here.
- 1No. 22-11342, 2023 WL 2706261 (11th Cir. Mar. 30, 2023)