Judge Besosa in the District of Puerto Rico issued two recent decisions that address, among other things, arguments against the Constitutionality of the MDLEA: (1) U.S. v. Hernandez-Gamboa, No. CR 21-323 (FAB), 2023 WL 5199393 (D.P.R. Aug. 14, 2023); and (2) U.S. v. Martinez-Felipe, et al., No. CR 20-359 (FAB), 2023 WL 5290124 (D.P.R. Aug. 17, 2023). In each case, the defendants made similar arguments regarding the process used by the government to verify registration of the interdicted vessels, whether U.S. v. Dávila-Reyes is still applicable, and the interchangeability of “registry” and “nationality” in the MDLEA. Before we dig into the legal issues, let’s look at the facts of each case.
In U.S. v. Hernandez-Gamboa, on 21 August 2021, a go-fast vessel (GFV) was spotted 45 nautical miles southwest of Isla Saona, Dominican Republic. Upon detection, several packages were jettisoned into the ocean. The packages were pulled out of the water, weighed 78 kilograms of cocaine, and tested positive for cocaine. During the right-of-visit (ROV) boarding, one defendant claimed Venezuela nationality for himself and the vessel. The government of the Bolivarian Republic of Venezuela, however, could neither confirm nor deny registry of the GFV, and the defendants were brought to the U.S. for prosecution under the MDLEA. After the defendants moved to dismiss the indictment, a certification from the Department of State stating the following was provided to the defendants: “[o]n or about April 26, 2022, … Venezuela replied that they waived their primary right to exercise jurisdiction over the vessel, cargo, and crew to the extent necessary for the enforcement of United States law.”
In U.S. v. Martinez-Felipe, on 10 October 2020, a GFV was spotted approximately 34 nautical miles northeast of Punta Cana, Dominican Republic. Upon detection, the occupants jettisoned several bales into the oceans, which sank and were not recovered. The USCG interdicted the GFV with during the ROV boarding three occupants and none of the occupants claimed to be the master of the vessel. All three individuals claimed Dominican Republic nationality for themselves and one of the defendants claimed Dominican Republic nationality for the vessel. The Dominican Republic could not, however, confirm or deny the vessel’s registration. During the law enforcement (LE) boarding, samples from the GFV and the defendants’ bodies tested positive for the presence of cocaine. As such, the defendants were transferred to Puerto Rico and eventually indicted for violations of the MDLEA. Defendants pled guilty, but the hearing was held in abeyance while the Court waited for the outcome of the First Circuit’s U.S. v. Dávila-Reyes appeal. Thereafter, the Department of State provided a certification stating that the “Government of the Dominican Republic replied that the claimed registry and nationality of the vessel is denied.”1I did not include this in the body of the post, but I think this issue is going to keep coming up so I’ll address it here. Judge Besosa had to determine whether it’s a problem that the basis of jurisdiction went from 46 U.S.C. § 70502(d)(1)(C) to 46 U.S.C. § 70502(d)(1)(A) after the Department of State provided its certification. Judge Besosa—and I agree—believes this is not an issue since “[t]his modification has no bearing on the indictment, or on the posture of this litigation. In fact, the MDLEA states explicitly that jurisdiction “is not an element of an offense” proscribed by that statute. 46 U.S.C. § 70504(a).” Martinez-Felipe, 2023 WL 5290124, at *7. Defendants then moved to dismiss the indictment.
As mentioned above, the defendants in each of these cases made similar arguments, some of which are summarized below. One issue that Judge Besosa addressed in both cases was whether “registry” and “nationality” of a vessel are synonymous under the MDLEA. In resolving this issue, he used the same reasoning and holding—tailored to the specific facts of each case:
The defendants’ argument that “nationality is separate and distinct from a claim of registry” is a non sequitur. According to [the defendants in both cases], “some countries link nationality to registration, while others obviate the need for registration by extending nationality automatically to ships owned by its nationals.” The registration requirements mandated by the [claimed flag state] is of no concern to this Court. The relevant authority is the MDLEA, not the maritime laws and customs of other countries. The MDLEA refers to nationality and registration in the disjunctive. For instance, the MDLEA provides that a “claim of nationality or registry for the vessel is made by the master or individual in charge at the time of the enforcement action.” 46 U.S.C. § 70502(b)(2)(B) (emphasis added). Indeed, the “MDLEA treats the terms ‘nationality’ and ‘registry’ as interchangeable throughout § 70502.”
Hernandez-Gamboa, 2023 WL 5199393, at *5 (internal case citations omitted); Martinez-Felipe, 2023 WL 5290124, at *4 (internal case citations omitted). As a result of nationality and registry being synonymous under the MDLEA, Judge Besosa determined that dismissal of the indictment was inappropriate on that basis.
Concerning the applicability of the First Circuit’s withdrawn decision in Dávila-Reyes, the court disposed of the defendants’ argument by simply stating that since Dávila-Reyes was withdrawn on July 5, 2022, it “is no longer binding on” the district courts. Judge Besosa noted that oral argument occurred over ten months ago, on 18 October 2022, and that “[a] disposition has yet to issue[.]” Nevertheless, “the impending en banc decision cannot shield [the defendants] from prosecution.” Hernandez-Gamboa, 2023 WL 5199393, at *7; Martinez-Felipe, 2023 WL 5290124, at *5.
The Court next addressed the defendants’ Constitutional challenges to the MDLEA. In both cases, the defendants argued that the “‘MDLEA’s amorphous’ verification procedure provides insufficient notice to ‘people navigating the high seas.’” Judge Besosa did not agree that the MDLEA is vague, again using the same holding in each decision:
“This procedure, however, is not ambiguous: The master of the vessel makes a claim of registry; the USCG requests that officials from the purported flag state confirm or deny registration; these officials tender a response; the Secretary of State or his or her designee then memorializes this response in a certification.”
Hernandez-Gamboa, 2023 WL 5199393, at *6; Martinez-Felipe, 2023 WL 5290124, at *5.
Finally, Judge Besosa tackled defendants’ arguments concerning whether a nexus to the U.S. is required for the U.S. government to enforce the MDLEA. In doing so, he reviewed various cases—including precedent from the First Circuit—that held the “territorial principle” stands for the proposition that a “state has jurisdiction to prescribe and enforce a rule of law in the territory of another state to the extent provided by international agreement with the other state.” Hernandez-Gamboa, 2023 WL 5199393, at *6 (quoting U.S. v. Robinson, 843 F.2d 1 (1st Cir. 1988)2See U.S. v. Robinson, 843 F.2d 1 (1st Cir. 1988) (Breyer, J.) (addressing the constitutionality of the Marihuana on the High Seas Act (“MHSA”), a drug-trafficking statute with extraterritorial reach.)). In other words, jurisdiction can be established by consent of the flag state, which, in turn, satisfies U.S. due process requirements and “obviat[es] an obligatory nexus to the United States.” Id. at *5 (citing U.S. v. Cardales, 168 F.3d 548, 551 (1st Cir. 1999)3In supporting this position, Judge Besosa noted that in Cardales, “[i]n dictum, the First Circuit Court of Appeals observed that: The question of whether Congress intended to override international law is not presented here. To the extent that international law requires a nexus to the United States, that nexus requirement is not overridden by the MDLEA, but instead is satisfied by the foreign flag nation’s authorization to apply U.S. law to the defendants and by the congressional finding that drug trafficking aboard vessels threatens the security of the United States. Id. at 553 n.2.”). Accordingly, extraterritorial jurisdiction under the MDLEA is proper pursuant to the territorial principle.
Although this blog post turned out to be longer than initially anticipated, I believe it holds value—whether as a recap or a reminder of key MDLEA concepts—by addressing recurrent issues in their different manifestations. Despite a period of relative inactivity in terms of MDLEA decisions, it’s encouraging to see a few emerging now, especially considering that we are all still waiting for First Circuit’s decision in Dávila-Reyes. Regardless, the motions and the decisions are making for some great before-bed reading!
You can read U.S. v. Hernandez-Gamboa and U.S. v. Martinez-Felipe in their entirety here and here, respectively.
- 1I did not include this in the body of the post, but I think this issue is going to keep coming up so I’ll address it here. Judge Besosa had to determine whether it’s a problem that the basis of jurisdiction went from 46 U.S.C. § 70502(d)(1)(C) to 46 U.S.C. § 70502(d)(1)(A) after the Department of State provided its certification. Judge Besosa—and I agree—believes this is not an issue since “[t]his modification has no bearing on the indictment, or on the posture of this litigation. In fact, the MDLEA states explicitly that jurisdiction “is not an element of an offense” proscribed by that statute. 46 U.S.C. § 70504(a).” Martinez-Felipe, 2023 WL 5290124, at *7.
- 2See U.S. v. Robinson, 843 F.2d 1 (1st Cir. 1988) (Breyer, J.) (addressing the constitutionality of the Marihuana on the High Seas Act (“MHSA”), a drug-trafficking statute with extraterritorial reach.)
- 3In supporting this position, Judge Besosa noted that in Cardales, “[i]n dictum, the First Circuit Court of Appeals observed that: The question of whether Congress intended to override international law is not presented here. To the extent that international law requires a nexus to the United States, that nexus requirement is not overridden by the MDLEA, but instead is satisfied by the foreign flag nation’s authorization to apply U.S. law to the defendants and by the congressional finding that drug trafficking aboard vessels threatens the security of the United States. Id. at 553 n.2.”