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United States v. Aragon

United States District Court, S.D. New York

July 5, 2017

UNITED STATES OF AMERICA,
v.
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, Defendants.

          MEMORANDUM OPINION & ORDER

          PAUL G. GARDEPHE, U.S.D.J.

         Defendants 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).[1] (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))

         Defendants Uribe, Aragon, Sanchez, Salinas Dias, and Gabriel have moved to dismiss the Superseding Indictment on a variety of theories.[2] (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 Ecuador;
(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. 121))[3]

         BACKGROUND

         In 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.)

         On 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.)

         Videos 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.[4] (Id.)

         Navy 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. No. 70-6))

         Defendants 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."[5] (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.)

         A Law 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.[6] (Id. at 3)

         Pursuant 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)[7] 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."[8] (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.)

         U.S. 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)

         DISCUSSION

         I. THE MARITIME DRUG LAW ENFORCEMENT ACT ("MDLEA")

         Article 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).

         The 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 includes

(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 vessel; and
(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).

         "A claim of nationality or registry under [the MDLEA] includes only"

(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).

         II. DEFENDANTS' DUE PROCESS AND MPT.F. A-RELATED CLAIMS

         A. Due Process Claims of Defendants Onboard the El Vacan

         Defendants 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)

         1-Whether a Nexus with the United States Need Be Shown

         As a 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)).

         Defendants 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."

         Given 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 cases persuasive.

         2. Whether the El Vacan Was a "Stateless Vessel"

         Even if 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.[9] 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").

         Defendants 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)

         In 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' ...


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