Apologies for the hiatus, MDLEA fans! Life’s been a whirlwind lately with work commitments, the holidays, and other adventures keeping me on my toes. But here I am, back and ready to dive into a few MDLEA cases. Also, happy new year to all of you—may it bring joy, success, and countless opportunities your way!
In a highly anticipated decision, on 5 October 2023, the First Circuit affirmed the defendants’ convictions in United States v. Dávila-Reyes, 84 F.4th 400 (1st Cir. 2023). The lengthy decision addresses multiple issues we’ve discussed on this blog, but, unfortunately, left some of the more contentious issues for another time. Nevertheless, let’s jump in. The relevant facts for the First Circuit’s analysis came from the facts adopted during the defendants’ pleas:
A U.S. Coast Guard … Boarding Team approached the vessel and commenced Right to Approach … questioning. The master claimed Costa Rican nationality for the vessel but provided no registration paperwork and there was no indicia of nationality on the vessel. The government of Costa Rica was approached and responded that it could neither confirm nor refute the registry of the suspect vessel. The vessel was determined to be one without nationality.
Dávila-Reyes, 84 F.4th at 406. Of note, the certification from the United States Department of State read that “the master made a claim of Costa Rican nationality . . . and that Costa Rica, when contacted, ‘could not confirm the vessel’s registry.’”
As many of our readers know, the defendants challenged the Constitutionality of the MDLEA in that they argued that the Felonies Clause does not empower Congress to criminalize drug trafficking by foreign nationals on foreign vessels outside the “territorial jurisdiction” of the United States. Similarly, the defendants argued that § 70502(d)(1)(A) and § 70502(d)(1)(C) are void for vagueness because neither provision explains the steps that a nation must take either to “den[y]” or “affirmatively and unequivocally assert that the vessel is of its nationality.”
This case has a long procedural background including multiple appeals to the First Circuit. The most recent being the January 2022 First Circuit decision often cited by MDLEA defendants, which vacated the Dávila-Reyes defendants’ convictions and dismissed the charges against them because, as ruled by the court at the time, Congress lacks the power under the Felonies Clause to criminalize a foreign national’s drug trafficking in international waters unless the United States’ assertion of regulatory jurisdiction over that foreign national would be permissible under international law. In the January 2022 decision, the court reasoned that “a vessel cannot be deemed stateless under international law merely because, as § 70502(d)(1)(C) provides, a foreign nation whose nationality the vessel’s master claims for the vessel ‘fail[s] to supply an ‘affirmative and unequivocal’ confirmation of nationality.’“ Dávila-Reyes, 84 F.4th at 409 (citing U.S. v. Dávila-Reyes, 23 F.4th 153, 186-95 (1st Cir.)). As such, since the defendants’ convictions depended on solely the application of Section 70502(d)(1)(C) to deem the vessel “without nationality,” Congress exceeded its authority to criminalize defendants’ conduct.1In other words, “a vessel deemed to be ‘without nationality’ under § 70502(c)(1)(A) solely by application of § 70502(d)(1)(C) is not stateless under international law.” Id. That decision, however, as we’ve noted numerous times on this blog, was withdrawn. See U.S. v. Dávila-Reyes, 38 F.4th 288 (1st Cir. 2022).
The court’s decision summarized here was issued following another round of oral arguments and briefing, and addressed two pivotal questions: “Did the defendants’ guilty pleas waive the various challenges that they seek to have us address? Insofar as we conclude that the defendants’ guilty pleas did not, we then also confront one further threshold question: What standard of review applies to each of the challenges that the defendants bring on appeal?”
Concerning the defendants challenge to the subject matter jurisdiction of the court, the First Circuit noted that the operative provision concerning jurisdiction is Section 70503(e), which provides that the type of vessel that an individual must be “on board” to violate the MDLEA under § 70503(a) is a “covered vessel[,]” and that pursuant to Section 70503(e)(1) a “covered vessel” includes “a vessel subject to the jurisdiction of the United States[.]” The Court then stated that if Congress wanted to limit the subject matter jurisdiction of the courts in the MDLEA, it would have done so by “expressly referring to cases or controversies heard by the courts themselves[]” when drafting the statute. Dávila-Reyes, 84 F.4th at 412 (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006)). With that reasoning, the First Circuit concluded that:
This past legislative practice is telling because the provision at issue here does not refer to courts having “jurisdiction” over “actions,” “suits,” or their equivalent. It refers only to a “vessel” being “subject to … jurisdiction” and to “the United States” — rather than a court — having “jurisdiction” over the vessel. Thus, § 70503(e)(1) does not by using the term “jurisdiction” impose a limitation on the Article III subject matter jurisdiction of courts. It instead defines the scope of the regulatory jurisdiction that Congress is asserting through the MDLEA. Section 70503(b) supports the same understanding. That section, titled “Extension beyond territorial jurisdiction,” (emphasis added), clarifies that the substantive prohibition that is set forth in § 70503(a) — the provision that invokes the phrase “covered vessel” — “applies even though the act is committed outside the territorial jurisdiction of the United States” (emphasis added). Because the phrase “jurisdiction of the United States” in § 70503(b) clearly is not referring to the jurisdiction of a court, we see no reason to read that same phrase in § 70503(e)(1) to be doing so.
Dávila-Reyes, 84 F.4th at 412 (internal citations omitted and emphasis in original). Consequently, “the MDLEA’s statutory text provides no support for the conclusion that Congress intended the phrase ‘subject to the jurisdiction of the United States’ in § 70503(e)(1) to impose a limitation on the subject matter jurisdiction of courts.” Id. at 413.
Next, regarding defendant’s contention that the Felonies Clause does not give Congress the power to criminalize drug trafficking by persons on a vessel on the high seas if the United States would not have regulatory jurisdiction over those persons under international law, the court essentially addressed two arguments by the defendants.
First, the defendants argued that since a vessel may not be deemed stateless under international law when the foreign nation that the vessel’s master has claimed that it belongs to fails to “affirmatively and unequivocally assert that the vessel is of” that nation, their indictment must be dismissed because that provision—i.e. Section 70502(d)(1)(C)—is the one relied upon by the government to establish that the vessel was subject to the jurisdiction of the United States in their case. In other words, Section 70502(d)(1)(C) is not a valid way of determining that a vessel is stateless under international law. The court disagreed, reasoning that the indictment “makes no reference to [Section 70502(d)(1)(C),]” but instead simply states that the defendants were aboard a “vessel subject to the jurisdiction of the United States” as such vessel is defined in Section 70502(c)(1)(A). Since Section 70502(c)(1)(A) defines a vessel subject to the jurisdiction of the United States as a “vessel without nationality” and under U.S. v. Matos-Luchi, 627 F.3d 1 (1st Cir. 2010), the examples provided in Section 70502(d)(1) are not exhaustive—i.e. a vessel may be determined to be “without nationality” by the methods in Section 70502(d)(1) or through any means permitted under international law—the government was not limited to Section 70502(d)(1)(C) to establish that defendants’ vessel was without nationality and defendants’ Felonies Clause-based challenge failed. Dávila-Reyes, 84 F.4th at 416-417.
Second, the defendants argued that even if the indictment was not dependent on § 70502(d)(1)(C), their convictions still violate the Felonies Clause for multiple other reasons. This argument is a bit more complex, but the court was able to sidestep some of the more complicated issues by reviewing under plain error. Dávila-Reyes, 84 F.4th at 418. In light of the standard of review, the Court ruled that the defendants “failed to satisfy the second prong of the plain error standard with respect to that aspect of the challenge, given [the Court’s] reasoning in Matos-Luchi about when a vessel may be deemed to be ‘without nationality’ under the MDLEA and stateless for international law purposes.” Id (citations omitted).
Specifically, the First Circuit noted that in Matos-Luchi, the court held that under international law, every vessel must sail under one state’s flag for legal protection and that a vessel can claim nationality by flying a nation’s flag or carrying papers showing it to be registered with that nation. Even when a vessel fails to fly a flag or carry registration papers, “a vessel may also traditionally make an oral claim of nationality when a proper demand is made” pursuant to international law. However, Matos-Luchi stressed that simply claiming nationality isn’t enough; the vessel must claim it and provide evidence of the claimed nationality. Dávila-Reyes, 84 F.4th at 419–20 (quoting Matos-Luchi, 62 F.3d at 5) (“… [i]t is not enough that a vessel have a nationality; she must claim it and be in a position to provide evidence of it.”). The First Circuit ruled that the MDLEA “energetically” follows this approach, recognizing that almost every vessel has ties to some country. Consequently, under § 70502(c)(1)(A) and international law, the government determines a vessel’s nationality based on whether it flies a flag or has registration papers, “or its master is prepared to make an affirmative and sustainable claim of nationality.” Id. (emphasis in original). As a result, since the defendants did not argue that Matos-Luchi was wrongly decided nor did they argue at the trial court “that the facts that they admitted to in pleading guilty could not suffice under Matos-Luchi to render their vessel stateless under international law[,]” their Felonies Clause-based challenge was unsuccessful. Dávila-Reyes, 84 F.4th at 421.
As a result, the First Circuit determined that the trial court’s (Judge Besosa in the District of Puerto Rico) determination that the vessel on which defendants traveled was a “vessel without nationality” and was stateless under international law was not plainly erroneous, and the defendants’ judgments were affirmed. As mentioned in the beginning of this post, the First Circuit noted that despite affirming the defendants’ convictions they did so “on narrow, record-based grounds that bypass many of the broader questions of international and federal constitutional law that the defendants [asks the Court] to resolve. Because those questions touch on sensitive issues of U.S. foreign relations and national power that have implications far beyond this specific statutory context, it is prudent for [the Court] to resolve them only in a case that, unlike this one, requires that we do so.” Dávila-Reyes, 84 F.4th at 402.
- 1In other words, “a vessel deemed to be ‘without nationality’ under § 70502(c)(1)(A) solely by application of § 70502(d)(1)(C) is not stateless under international law.”