United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
G. GARDEPHE, U.S.D.J.
Catano Aragon, Biojo Torres Robinson Gabriel, Jorge Caveza
Valencia, Jhon Carlos Hurtado Rendon, Rafael Uribe, Carlos
Alberto Salinas Diaz, Luis Fernando Uribe Franco, and Daniel
German Alarcon Sanchez are charged with (1) conspiracy to
manufacture and distribute, and possess with intent to
manufacture and distribute, five kilograms and more of
cocaine while aboard a vessel subject to United States
jurisdiction, in violation of the Maritime Drug Law
Enforcement Act (the "MDLEA" or the
"Act"), 46 U.S.C. §§ 70503, 70504(b)(1),
70506(b), 18 U.S.C. § 3238, and 21 U.S.C. §
960(b)(1)(A); and (2) manufacturing and distributing, and
possessing with intent to manufacture and distribute, five
kilograms and more of cocaine while aboard a vessel subject
to United States jurisdiction, in violation of 46 U.S.C.
§§ 70503(a)(1), 70504(b)(1), 70506(a), 18 U.S.C.
§ 3238 & 2, and 21 U.S.C. §
960(b)(1)(A). (See S6 Indictment (Dkt. No. 82))
The charges against the Defendants arise from an April 14,
2015 encounter between a U.S. Navy frigate and the
Defendants' vessel - the El Vacan - 135 nautical miles
off the coast of Costa Rica. (Cmplt. (Dkt. No. 1) ¶
6(b); Wolf Decl., Ex. G (Checklist) (Dkt. No. 96-7))
Uribe, Aragon, Sanchez, Salinas Dias, and Gabriel have moved
to dismiss the Superseding Indictment on a variety of
theories. (See Notice of Motion (Dkt. Nos. 70, 88,
165, 183; Dec. 9, 2016 Gabriel Ltr. (Dkt. No. 182))
Defendants contend that
(1) this prosecution under the MDLEA violates the Due Process
Clause of the Fifth Amendment, because the Government has not
established a sufficient nexus between Defendants'
conduct and the United States;
(2) the Government violated the MDLEA by not providing the
Ecuadorian authorities with sufficient information to
determine whether Defendants' vessel was registered in
(3) prosecution of the Defendants not aboard the El
Vacan violates the Due Process Clause, because these
defendants have no connection with the United States;
(4) the 1996 amendment to the MDLEA violates Defendants'
Fifth and Sixth Amendment rights, because jurisdiction must
be determined by a jury rather than by a court;
(5) the S6 Indictment is not sufficiently specific;
(6) the Government has no proof that controlled substances
were being transported on the El Vacan;
(7) the Government violated Defendants' Due Process
rights when it scuttled the El Vacan; and
(8) the presentment of the Defendants aboard the vessel was
unreasonably delayed under Fed. R. Crim. P. 5.
(See Uribe Br. (Dkt. No. 72) at 2; Aragon Br. (Dkt.
No. 89) at 7, 22-24, 27-28, 32; Uribe Reply Br. (Dkt. No.
April 2015, as the result of a Department of Homeland
Security investigation of a Colombian drug cartel's
transfer of funds to New York City, an undercover agent
received information that a shipment of cocaine would be
transported from Colombia to Australia on April 14, 2015.
(Cmplt. (Dkt. No. 1) ¶ 6(a)) Homeland Security provided
this information to the Coast Guard. (Id.)
April 14, 2015, at about 8:10 a.m., a helicopter assigned to
a U.S. Navy frigate was patrolling an area about 135 nautical
miles off the coast of Isla de Coco, Costa Rica, when Navy
personnel observed the El Vacan - a
"go-fast" fiberglass boat - in transit.
(Id. ¶ 6(b); Wolf Decl., Ex. G (Checklist)
(Dkt. No. 96-7) at 1) Packages were initially observed on the
deck of the vessel, but as the helicopter approached the
vessel it stopped, and its occupants began throwing the
packages overboard. (Cmplt. (Dkt. No. 1) ¶ 6(b)) After
the packages were thrown overboard, the vessel began moving
again. QA ¶ 6(c)) Personnel in the Navy
helicopter directed the vessel to stop, but it sped away.
(Id.) The pilot then fired warning shots, and the
vessel stopped. (Id.)
shot from the helicopter were introduced by the parties in
connection with the motions to dismiss. (Swergold Decl., Ex.
D (Video of El Vacan) (Dkt. No. 105-5)) The video -
and photographic images captured from the video (Wolf Decl.,
Ex. D (Photographs of El Vacan) (Dkt. No. 96-4) -
shows a small green and blue, double-engine
"go-fast" vessel in the open sea carrying four men.
The port and starboard sides show the name of the vessel -
the "El Vacan" - and three stars, along
with a decorative X-shape towards the rear. (Id.) A
small flag - either a decal or an image painted on the hull -
is visible at the rear of the vessel, near the engines. No
registry number is visible. (Id.)
personnel recovered twenty-six bales of what appeared to be
cocaine from the water. (Id. ¶ 6(d), (g)) The
bales weighed approximately 550 kilograms, and a sample from
one of the bales tested positive for cocaine, (Id.
¶ 6(g)) After pulling up alongside the El
Vacan, Navy personnel boarded the vessel and
recovered a GPS device and a cell phone. Id. ¶
6(e), (f)) These devices both showed trace amounts of cocaine
when scanned with a narcotics trace detector. (Id.)
No registration documents were provided concerning the
vessel, and Navy personnel found no such documents onboard.
(Notice of Motion, Ex. F (State Dept. Certification) (Dkt.
Aragon, Gabriel, Valencia, and Rendon were onboard the
vessel, and each claimed to be Colombian citizens. (Cmplt.
(Dkt. No. 1) ¶ 6(h)) Defendant Rendon told members of
the boarding team that the El Vacan was of
Ecuadorian nationality and had a home port of "Puerto
Manta." (Id.) The boarding team
"observe[d][, however, ] that there were no registry
numbers on the hull of the [v]essel, and that there was a
Colombian flag painted on the stern[, ] ... which [Rendon]
claimed to be an Ecuadorian flag." (Id.)
Enforcement Case Package Checklist (the
"Checklist") was apparently prepared by the
boarding team contemporaneously with the interdiction of the
vessel. (See Wolf Decl. (Dkt. No. 96) ¶ 22) In the
Checklist, the boarding team documents its approach to the El
Vacan. (Wolf Decl., Ex. G (Checklist) (Dkt. No. 96-7)) The
Checklist states that the name on the hull of the vessel is
the El Vacan, and that the "Hailing Port on
Hull" is "Puerto Esmeralda, Ecu[adorJ."
(Id. at 2) The Checklist further states that the
"Flag State" of the vessel is Ecuador; that a flag
state claim was made both verbally and by display of a flag;
that no registry numbers are visible on the hull; and that no
flag was being flown on the vessel. Id. at 2-3) The
Checklist notes, however, that an Ecuadorian flag is painted
on the starboard and portside aft portion of the
vessel. (Id. at 3)
to a treaty between the United States and Ecuador, the Coast
Guard contacted Ecuadorian authorities at 11:55 a.m. and
requested confirmation or denial as to the nationality of the
El Vacan. (Cmplt. (Dkt. No. 1) ¶ 6(i); Notice
of Motion, Ex. E (Dkt. No. 70-5); Wolf Decl., Ex. H
(Timeline) (Dkt. No. 96-8)) At 12:20 p.m., the Ecuadorian
Coast Guard acknowledged receipt of the request and stated
that it would respond in thirty minutes with "Form
3." (Notice of Motion, Ex. C (Dkt. No. 70-3); Wolf
Decl., Ex. H (Timeline) (Dkt. No. 96-8) The Ecuadorian
Coast Guard stated that it needed additional information,
however, including "photos of the panga, and the names
and ids of the crew of the panga." (Notice of
Motion, Ex. C (Dkt. No. 70-3) At 12:50 p.m., the Ecuadorian
Coast Guard responded on the Form 3 by marking with an
"X, " the box stating that nationality of the
vessel "Can neither be Confirmed nor Denied."
(Notice of Motion, Ex. D (Dkt. No. 70-4); Wolf Deck, Ex. H
(Timeline) (Dkt. No. 96-8)) The Ecuadorian officials again
requested photographs of the vessel, noting that "there
are boats registered with the same name." (Id.)
Coast Guard officials concluded that the El Vacan
"was without nationality in accordance with 46 U.S.C.
§ 70502(d)(1)(C), rendering the vessel subject to the
jurisdiction of the United States pursuant to 46 U.S.C.
§ 70502(c)(1)(A)." (Notice of Motion, Ex. F (State
Dept. Certification) (Dkt. No. 70-6)) The occupants of the El
Vacan were placed under arrest at 3:00 p.m. (Wolf
Dec!., Ex. G (Checklist) (Dkt. No. 96-7) at 7-8) The U.S.
Navy then scuttled the El Vacan, because it
constituted a navigational hazard. (Id. at 9)
THE MARITIME DRUG LAW ENFORCEMENT ACT
I, Section 8 of the Constitution - the "Define and
Punish Clause" - grants Congress authority to,
"define and punish piracies and felonies committed on
the high seas, and offenses against the law of nations.
..." The Supreme Court has read this clause to grant
Congress the authority to define and punish piracy, felonies
on the high seas, and offenses against the law of nations.
See United States v. Smith, 18 U.S. 153, 158-59
(1820). In enacting the MDLEA, Congress invoked "its
constitutional power '[t]o define and punish Piracies and
Felonies committed on the high Seas." United States
v. Matos-Luchi 627 F.3d 1, 3 (1st Cir. 2010) (quoting
U.S. Const, art. I § 8, cl. 10).
MDLEA makes it unlawful to "knowingly or
intentionally" "manufacture or distribute, or
possess with intent to manufacture or distribute, a
controlled substance" on board "a vessel of the
United States or a vessel subject to the jurisdiction of the
United States, " or to conspire to do the same. 46
U.S.C. §§ 70503(a), 70506(b). The Act defines a
"vessel subject to the jurisdiction of the United
States" to include a "vessel without
nationality." 46 U.S.C. § 70502(c)(1)(A). A
"vessel without nationality" under the MDLEA
(A) a vessel aboard which the master or individual in charge
makes a claim of registry that is denied by the nation whose
registry is claimed;
(B) a vessel aboard which 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
(C) a vessel aboard which the master or individual in charge
makes a claim of registry and for which the claimed nation of
registry does not affirmatively and unequivocally assert that
the vessel is of its nationality.
46 U.S.C. § 70502(d)(1)(A)-(C).
claim of nationality or registry under [the MDLEA] includes
(1) possession on board the vessel and production of
documents evidencing the vessel's nationality as provided
in article 5 of the 1958 Convention on the High Seas;
(2) flying its nation's ensign or flag; or
(3) a verbal claim of nationality or registry by the master
or individual in charge of the vessel.
46 U.S.C. § 70502(e)(1)-(3). The Act further states that
"[t]he response of a foreign nation to a claim of
registry ... is proved conclusively by certification of the
Secretary of State or the Secretary's designee." 46
U.S.C. § 70502(d)(2).
DEFENDANTS' DUE PROCESS AND MPT.F. A-RELATED
Due Process Claims of Defendants Onboard the El
argue that - in charging them with violations of the MDLEA -
the Government has violated the Fifth Amendment's Due
Process Clause, because there is no nexus between
Defendants' alleged unlawful conduct and the United
States. (See Uribe Br. (Dkt. No. 72) at 5; Aragon Br. (Dkt.
No. 89) at 7; Sanchez Br. (Dkt. No. 168) at 25)
a Nexus with the United States Need Be Shown
general matter, "[i]n order to apply extraterritorially
a federal criminal statute to a defendant consistently with
due process, there must be a sufficient nexus between the
defendant and the United States, so that such application
would not be arbitrary or fundamentally unfair.""
United States v. Yousef. 327 F.3d 56, 111 (2d Cir.
2003) (quoting United States v. Davis, 905 F.2d 245,
248-49 (9th Cir. 1990)).
argue that the Constitution's Define and Punish Clause
does not permit the assertion of jurisdiction in this case.
(See Sanchez Br. (Dkt. No. 168) at 8; U.S. Const,
art. I, § 8, cl. 10) In arguing that application of the
MDLEA is constitutional under the circumstances of this case,
the Government relies on Congress's power under the
Constitution to "define and punish . . . felonies
committed on the high seas."
that the Felonies Clause "does not explicitly require
[that] a nexus between the unlawful conduct committed on the
high seas and the United States be established before
Congress can punish that conduct, " United States v.
Nueci-Pena, 711 F.3d 191, 198 (1st Cir. 2013), most
circuits that have considered whether the MDLEA requires a
nexus to the United States have found that it does not.
See United States v. Campbell 743 F.3d 802, 812
(11th Cir. 2014); Nueci-Pena, 711 F.3d at 198;
United States v. Suerte, 291 F.3d 366, 375 (5th Cir.
2002); United States v. Martinez-Hidalgo
993 F.2d 1052, 1056 (3d Cir. 1993). This Court finds these
Whether the El Vacan Was a "Stateless
this Court were to conclude that a nexus with the United
States is ordinarily required to exercise jurisdiction under
the MDLEA, here the Government contends that the El Vacan was
a "stateless" vessel on the high
seas. Under such circumstances, due process is
not violated even where no nexus with the United States is
shown. '"[S]tateless vessels on the high seas are,
by virtue of their statelessness, subject to the jurisdiction
of the United States ... even absent proof that the
vessel's operators intended to distribute the cargo in
the United States."' United States v.
Henriquez. 731 F.2d 131, 135 (2d Cir. 1984) (quoting
United States v. Pinto-Mejia, 720 F.2d 248, 260-61
(2d Cir. 1983)); see also United States v. Perlaza,
439 F.3d 1149, 1161 (9th Cir. 2006) ("[i]f a vessel is
deemed stateless, there is no requirement that the government
demonstrate a nexus between those on board and the United
States before exercising jurisdiction over them");
United States v. Rendon, 354 F.3d 1320, 1325 (11th
Cir. 2003) ("Because stateless vessels do not fall
within the veil of another sovereign's territorial
protection, all nations can treat them as their own territory
and subject them to their laws."); United States v.
Dow et al, No. 16 Cr. 453 (RJS) (S.D.N.Y. June 1, 2017)
(Dkt. No. 97 at 12) ("Defendants sailed a vessel
'without nationality' and are alleged to have engaged
in 'self-evidently criminal' behavior - namely,
transporting mass quantities of cocaine over the high seas.
 Accordingly, it is clear that Defendants' prosecution
is not inconsistent with the Due Process Clause.")
(quoting United States v. Al Kassar, 660 F.3d 108,
119 (2d Cir. 2011)); United States v. Cuero, et al,
No. 15 Cr. 125 (PKC) (S.D.N.Y.May 16, 2017) (Dkt. No. 45) at
7 ("The Court need not engage in a nexus analysis under
Yousef because defendants' vessel was stateless.");
United States v. Prado, 143 F.Supp.3d 94, 98
(S.D.N.Y. 2015) (noting that "[t]he reasoning behind the
jurisdictional holdings of Henriquez and
Pinto-Mejia also informs, and in a sense modifies,
Yousef's due process nexus requirement in the case of
stateless vessels"); United States v. Greer.
956 F.Supp. 531, 535 (D. Vt. 1997) ("jurisdiction may be
asserted over a stateless vessel regardless of whether there
is a nexus with the United States").
argue, however, that the El Vacan was not a
stateless vessel, because (1) Rendon told Navy personnel that
the vessel was of Ecuadorian nationality; (2) the Ecuadorian
port of Puerto Esmeralda was inscribed on the hull; and (3)
the flag of Ecuador was painted on the hull of the boat.
(Uribe Br. (Dkt. No. 72) at 7; Aragon Br. (Dkt. No. 89) at
9-10, 19-21, 23 n.4, 27-28; DeBlasio Decl. (Dkt. No. 77)
¶¶ 7-8, 15)
Prado, however, the court rejected the defendant's
argument that a small flag painted on the hull of a go-fast
boat was sufficient to establish a claim of nationality under
the MDLEA. See Prado, 143 F.Supp.3d at 100. The
court found that "[t]he small emblem at the rear of
defendants' boat, even assuming it is an image of an
Ecuadorian flag, is not remotely large or prominent enough to
put a reasonable official on notice that Ecuador's
interests might be affected by the interdiction of
defendants' boat." Id. Moreover, given that
the vessel in Prado contained no registration
documents, and "the go-fast had minimal, if any,
identifying features, " the "defendants' ...