Here’s a recent (sort of) case from the 11th Circuit that addressed MDLEA jurisdiction and evidentiary decisions made by a district court in the Middle District of Florida. The case is United States v. Velez-Acosta, No. 22-13528, 2024 WL 806537 (11th Cir. Feb. 27, 2024) and serves as a reminder of the importance of accuracy during MDLEA boardings.
The first issue addressed by the 11th Circuit concerned whether the district court had jurisdiction under the MDLEA. The court held that the district court did not err in finding that it had jurisdiction despite contradictory evidence presented during the case. Specifically, the right-of-visit form submitted by the government indicated that the defendants were asked to make a nationality claim for the vessel, and one of the defendants claimed Ecuadorian nationality. Conversely, during trial, a member of the Coast Guard’s boarding team (BTM) testified that they had inquired whether anyone on board the vessel wished to declare the vessel’s nationality, and none of the defendants responded to the BTM’s request. The 11 Circuit held that “Though these are inconsistent with each other, and the right-of-visit form appears to be inconsistent with the jurisdictional certification, each version of events is enough to establish jurisdiction.” Velez-Acosta, 2024 WL 806537, at *2.
The 11th Circuit then looked at the evidentiary decisions made by the district judge during trial. There were four evidentiary challenged raised by the defendants: the authenticity of one of the defendant’s Mexican passport; IONSCAN evidence; Joseph Brown’s expert testimony; and Steven Ray’s expert testimony.
Concerning the passport, the 11th Circuit held that it was properly authenticated since testimony established that it was the same document that was seized from the defendant during the boarding and “[i]t as not necessary that it be authenticated by a Mexican official.” Velez-Acosta, 2024 WL 806537, at *3. “Second, the district court did not plainly err in admitting the IONSCAN evidence as the defendants [did] not pointed to any rule or caselaw clearly establishing that IONSCAN evidence gathered in such circumstances is inadmissible. The proper remedy for their concerns regarding potential contamination of the tests—which they adopted at trial—was vigorous cross-examination and the presentation of contrary evidence.” Velez-Acosta, 2024 WL 806537, at *3 (citing Daubert, 509 U.S. at 596). Regarding both experts, the 11th Circuit ruled that they were properly qualified to testify as experts and “therefore permitted to rely upon facts which he had been made aware of for the case.” Accordingly, the district court’s decisions concerning the evidence during the trial were not made in error.
The 11th Circuit then addressed the sufficiency of the evidence. In that regard, the court held that the government presented sufficient evidence to obtain the defendants’ convictions:
First, the IONSCAN evidence showed that cocaine had been present aboard the Defendants’ vessel and the jury was entitled to rely on such evidence. Second, the reason the Defendants gave for their circumstances when apprehended by the Coast Guard (that they had been fishing in the Galapagos Islands and then robbed by pirates) was obviously false. Third, the length of the voyage, the fact that items containing contraband were jettisoned in view of the full crew, and testimony that the Defendants would huddle up before answering questions, entitled the jury to conclude that they comprised a conspiracy and aided and abetted each other in possessing the cocaine. Fourth, a reasonable jury could conclude beyond a reasonable doubt that the jettisoned contraband contained at least five kilograms of cocaine, given the testimony regarding the number of bales jettisoned, the average weight of bales, the usual minimum load for such a voyage, and the fact that two defendants lifted each bale.
Velez-Acosta, 2024 WL 806537, at *5. Thus, the Court held that considering all evidence in the government’s favor and drawing reasonable inferences, there was enough evidence to support the conspiracy charge under the MDLEA.
Lastly, the 11th Circuit held that the drug weight for sentencing purposes was accurately calculated. Relying on testimony from one of the witnesses established that six (6) bales of cocaine had been jettisoned. Since a bale of cocaine typically weighs between twenty (20) and forty (40) kilograms and vessels similar to the defendants’ vessel generally carry no less than two-hundred (200) kilograms, it was not an error for the district court to estimate a conversative amount of one-hundred and twenty (120) kilograms of cocaine (i.e. 20 kilograms * 6 bales).
Take-away: Double check the reports in the case package to make sure they accurately reflect what occurred during the boarding! Although the contradiction did not appear to be an issue in this case, accuracy should always be a primary goal of the boarding team!