Here is a holding you don’t see every day. In a rare and lengthy (20+ pages) ruling, U.S. v. Menas Asprilla, et al., No. 22-20013-CR, 2023 WL 3496459 (S.D. Fla. May 17, 2023), a district court in the Southern District of Florida dismissed an indictment due to the Government’s failure to establish subject-matter jurisdiction. The court’s ruling centered on the Coast Guard boarding team’s failure to ask the defendants about their claim of nationality for the vessel during the interdiction. This case stands in slight contrast to a recent case we examined, U.S. v. Liver Gruezo, No. 22-11342, 2023 WL 2706261 (11th Cir. Mar. 30, 2023), where the court chose not to dismiss the indictment despite discrepancies in two Coast Guard reports. In U.S. v. Menas Asprilla, however, the court displayed a firm stance against the Government’s (mainly the Coast Guard’s boarding team’s) perceived lack of experience and seemingly incomplete approach to conducting law enforcement operations on the high seas.
On 24 December 2021, a Coast Guard cutter based out of Puerto Rico, CGC Winslow Griesser, interdicted a go-fast vessel (GFV) on the high seas approximately 150 miles north of Santo Domingo, Dominican Republic. Four individuals were found on board and 700 kilograms (sixteen bales) of cocaine were pulled from a nearby jettison field. Eleven days later, the four defendants were brought to Florida and eventually indicted for charges under the MDLEA. During discovery, the Government produced multiple statements from the Coast Guard’s original case package, but none of them contained information about whether “the master or individual in charge” of the interdicted vessel made “a claim of nationality or registry for that vessel[]” upon request, which is required to deem a vessel stateless under the MDLEA. As a result, the defendants moved to dismiss (“MTD”) the charges, citing (among other things) the Government’s failure to establish our subject-matter jurisdiction.
Two weeks later and four months after the interdiction, the Government (likely prompted by the MTD) produced two new statements from the Coast Guard boarding team, “which now included the crucial detail” about why the vessel was treated as stateless. In particular, as noted by the court, the statements were exactly the same as the statements provided in original case package, but a single paragraph—notably the CG boarding team member (“BTM”) who was responsible for translating—was changed to include the following information:
I asked everyone as a group, “who is the master” in Spanish and no one onboard wanted to make a claim as the master of the vessel. At least 2 persons on board simply said that nobody was the master. Additionally, no one on board the panga made a claim of nationality for the vessel. They were asked as a group first when we pulled alongside. The person that I observed operating the vessel said that they were originally from Dominican Republic but did not make a claim of nationality when asked specifically if he wanted to. The question was asked “would anyone like to make a claim of nationality for the vessel.” This was asked in Spanish “Alguien en el bote desea hacer un reclamo de nacionalidad.” The persons on board claimed they did not speak English. I also asked where they from are [sic], in Spanish this is “De donde son ustedes.” To this question the person operating the vessel said that they were from Dominican Republic.
U.S. v. Menas Asprilla, et al., No. 22-20013-CR, 2023 WL 3496459, at *9 (S.D. Fla. May 17, 2023). To resolve the MTD, the court held a hearing, and ultimately dismissed the indictment for the following reason:
Recognizing the Government’s preliminary obligation to establish MDLEA jurisdiction—and given our own preliminary obligation to resolve this jurisdictional question—we set (way back in March of 2022) an evidentiary hearing. That hearing took place yesterday, on May 31, 2022—and lasted some five hours. But, at that hearing, the Government failed to produce even a single witness who could establish that the Defendants were asked to “make a claim of nationality or registry for th[eir] vessel”—an oversight the Government’s lawyer readily conceded. That’s really the end of that.
U.S. v. Menas Asprilla, et al., No. 22-20013-CR, 2023 WL 3496459, at *7 (S.D. Fla. May 17, 2023). Furthermore, concerning the additional information provided by the Government in the subsequent Coast Guard statement, the court noted that the BTM’s Spanish question, “Alguien en el bote desea hacer un reclamo de nacionalidad?” does not carry the intended meaning of “would anyone like to make a claim of nationality for the vessel?” Rather, the BTM’s question translates to, “Does anyone on the boat wish to make a claim of nationality?” The court held that the latter question is insufficient to establish jurisdiction under 46 U.S.C. § 70502(d)(1)(B). The Government quickly moved for reconsideration and a second hearing was set by the court.
At the second hearing, the BTM who spoke directly to the defendants in Spanish during the interdiction (i.e. the translator) was called as a witness. After testifying that he asked the defendants if anyone was the master of the vessel, the BTM stated the following in response to the prosecutor’s questioning:
Q: What was the next question that you asked?
A: If anyone wants to make a claim of nationality for themselves or for the vessel.
Q: Did you get an answer from any of the individuals on board to that question?
A: No. Just someone said that they were Dominican, but they did not make a claim of nationality for themselves or the vessel.
U.S. v. Menas Asprilla, et al., No. 22-20013-CR, 2023 WL 3496459, at *11 (S.D. Fla. May 17, 2023). Following the same reasoning above, the court noted two issues with the BTM’s MDLEA-questions posed to the defendants during the interdiction:
Two things here. One, [the BTM] asked his question in the disjunctive— which means that the Defendants wouldn’t have “failed” to respond if they had chosen to answer only one part of that disjunctive. So, for example, in response to the prompt “please give me your birthdate or your social security number,” it’s perfectly appropriate to say: “May 1, 1992.” That’s exactly what the Defendants did here.
Two, the Defendants would’ve answered [the BTM]’s question fully even if it hadn’t been posed in the disjunctive. Recall that, according to [the BTM], the answering Defendant said that “they were Dominican.” Given [the BTM]’s use of the plural form (“they”), we think it natural to infer that our interlocutor Defendant answered this question with the plural form (“we”). So, even if [the BTM] had asked something like “Would anyone like to make a claim of nationality for themselves and for the vessel,” the speaking Defendant’s use of the plural “we are Dominican” would have naturally suggested that both the Defendants and their vessel were Dominican.
Id., at *12 (emphasis in original). The court then focused on the BTM’s statement that was not provided in the original case package. In particular, the court stated that the second statement provided from the translator seemed to merely “cop[y], sometimes word for word,” information from “a higher-ranking officer (Lieutenant Karega)[,]” which originated from the prosecutor only due to having to respond to the defendant’s MTD and was not consistent with some of his testimony at the second hearing.
As a result, the court ultimately sided with the defendants and dismissed the indictment. The court primarily placed responsibility on the BTM who was responsible for directly communicating with the defendants:
All of which suggests that much of [the BTM]’s misremembrances can be attributed to a combination of inexperience (his first interdiction), fatigue (the long days over the Christmas holiday), and the unusual proximity between this interdiction and the one that followed it the next day. Did [the BTM] simply forget to ask our Defendants the MDLEA questions? Or did he, in the direct aftermath of his first high-speed chase, and on choppy evening seas, just ask the questions in a materially confusing way? We’ll never know—and needn’t speculate. What we can say is that, either way, the Government has failed to establish our subject-matter jurisdiction under the MDLEA.
Id., at *20. This is a rough decision for the Coast Guard and aligns with my advice to make sure case packages are detailed and accurate. Spending ample time on statements and other reports is of utmost importance when it comes to ensuring reliability and maintaining the integrity of the investigation. The Coast Guard case package is crucial documentation that outlines the details, observations, and findings of an interdiction. By dedicating sufficient time to crafting comprehensive statements, boarding teams can present a clear and factual account of the events. This not only enhances the credibility of the evidence, but also allows prosecutors to effectively build their case based on accurate information.
Take-away: So, what’s the take-away here? There is a difference between asking the nationality of the individuals on board the vessel and the nationality for the vessel under the MDLEA. Pursuant to § 70502(d)(1)(B), a vessel will only deemed stateless when the master or person in charge “failed” to answer a request for nationality of the vessel by an “officer of the United States[.]” Simply asking the nationality of the people on board the interdicted vessel is insufficient. Also, if you’re on the boarding team, make sure you spend time on your statement and include adequate details, especially the facts that establish jurisdiction. As demonstrated by this decision, statements (and the case package) provided by the boarding team is essential to the prosecution.
The full decision can be read here.