Opinion
Criminal No. 17-577 (FAB)
2022-08-01
UNITED STATES of America, Plaintiff, v. José SERRANO, [5], et al., Defendants.
Antonio L. Perez-Alonso, AUSA, John P. Hutchins, III - Closed, AUSA, Jonathan Edward Jacobson, AUSA, Max J. Perez-Bouret, AUSA, Vanessa Elsie Bonhomme, United States Department of Justice United States Attorney's Office District of Puerto Rico, San Juan, PR, for Plaintiff. Marie L. Cortes-Cortes, San Juan, PR, for Defendant Gustavo Barbosa-Rodriguez. Jose G. Perez-Ortiz, San Juan, PR, for Defendant Eduardo Peterson-Manuel. Julio Cesar Alejandro-Serrano, Toa Baja, PR, for Defendant Jose E. Serrano.
Antonio L. Perez-Alonso, AUSA, John P. Hutchins, III - Closed, AUSA, Jonathan Edward Jacobson, AUSA, Max J. Perez-Bouret, AUSA, Vanessa Elsie Bonhomme, United States Department of Justice United States Attorney's Office District of Puerto Rico, San Juan, PR, for Plaintiff.
Marie L. Cortes-Cortes, San Juan, PR, for Defendant Gustavo Barbosa-Rodriguez.
Jose G. Perez-Ortiz, San Juan, PR, for Defendant Eduardo Peterson-Manuel.
Julio Cesar Alejandro-Serrano, Toa Baja, PR, for Defendant Jose E. Serrano.
MEMORANDUM AND ORDER
BESOSA, District Judge.
Defendants José Serrano ("Serrano") and Eduardo Peterson-Manuel ("Peterson") move to dismiss the second-superseding indictment. (Docket Nos. 47 and 49) Their motion to dismiss is not, however, ripe for adjudication.
I. Background
Beginning in June 2014, defendants Serrano, Peterson, and others ("defendants") purportedly "planned and financed" a shipment of cocaine from Colombia to Portugal. (Docket No. 47 at p. 3) These acts (i.e. retaining a boat and acquiring the cocaine) occurred in Colombia. Id. Law enforcement officers gathered information regarding this drug-trafficking venture by wiretap.
Serrano and Peterson allege that the "DEA was listening." (Docket No. 47 at p. 3) The record does not establish, however, which law enforcement agency obtained and executed the wiretap warrant.
The scheme to transport cocaine ended on October 23, 2014. Id. at p. 2. Her Majesty's Ship Argyll located the Odyssee II 130 miles southwest of Bermuda. Id. A United States Coast Guard Enforcement Detachment ("USCG LEDET") arrested two crew members and recovered "contraband." Id. The United Kingdom of Great Britain and Northern Ireland confirmed the vessel's registry and waived jurisdiction on October 23 and 24, respectively. See Docket No. 52, Ex. 1 (The Department of State Certification for the Maritime Drug Law Enforcement Act Case Involving Sailing Vessel Odyssee II (United Kingdom) Federal Drug Identification Number (FDIN) 2014896019) ("Department of State Certification"). Subsequently, Colombia extradited Serrano and Peterson to the United States. (Docket No. 45)
On March 19, 2019, a grand jury returned a two-count second-superseding indictment charging Serrano, Peterson, Gustavo Barbosa-Rodríguez ("Barbosa"), and others with conspiracy to possess with intent to distribute a controlled substance aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1) and 70506(b) (count one), and possession with intent to distribute a controlled substance aboard a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. § 70503(a)(1) and 18 U.S.C. § 2 (count two). (Docket No. 38) The Court stayed this action pending disposition of United States v. Dávila-Reyes, 23 F.4th 153 (1st Cir. 2022). On July 19, 2022, the Court vacated the stay and ordered the United States to file the Maritime Drug Law Enforcement Act ("MDLEA") Certification as to all defendants in this case. (Docket No. 68)
Defendant(s) charged in the second-superseding indictment remain at large. (Docket No. 38 at p. 1) Accordingly, the docket is sealed. (Docket No. 39) The information set forth in this Memorandum and Order is available to the public.
II. The Motion to Dismiss
Serrano and Peterson move to dismiss the second-superseding indictment, contending that (1) the MDLEA does not apply to "acts performed by Colombian nationals from within Colombia," (2) jurisdiction rests with the United Kingdom, not the United States, and (3) the failure to "provide a certification as to how, and when the consent from the flag nation was obtained" is fatal to this prosecution. (Docket No. 47 at pp. 21, 24 and 30)
Precedent from sister jurisdictions suggests that the MDLEA extends to extraterritorial conspiracies (i.e. defendants who plan drug-trafficking ventures but never leave the country of origin). See United States v. Ballestas, 795 F.3d 138, 145 (D.C. Cir. 2015) (holding that the "MDLEA's conspiracy provision reaches [the defendants’] extraterritorial conduct [in Colombia]"); United States v. Alarcón Sánchez, 972 F.3d 156, 165 (2d Cir. 2020) ("Persons who knowingly and intentionally join in [an MDLEA] conspiracy need not themselves be on board the covered vessel to be guilty under section 70506") (citation omitted); United States v. Carvajal, 924 F. Supp. 2d 219, 239 (D.D.C. 2013) (holding that the MDLEA "prohibits [acts committed inside Colombia] because the Defendants conspired with the crew to distribute a controlled substance on board a stateless vessel"); United States v. Cardona-Cardona, 500 F. Supp. 3d 123, 133 (S.D.N.Y. 2020) (rejecting the defendant's argument that "foreign land-based conspiratorial conduct cannot serve as the basis for a prosecution under Section 70506(b)"); United States v. Aragón, Case No. 15-292, 2017 WL 2889499, at *4-5, 2017 U.S. Dist. LEXIS 103871, at *14 (S.D.N.Y. July 5, 2017) (citing Ballestas, holding that the MDLEA applied to a defendant who planned a drug-trafficking venture in Colombia); United States v. Salcedo-Ibarra, Case No. 07-049, 2009 WL 1953399, at *3, 2009 U.S. Dist. LEXIS 62096, at *7-8 (M.D. Fla. July 6, 2009) ("Simply put, for purposes of jurisdiction under the MDLEA, there can be no meaningful distinction between those individuals found ‘on board’ stateless vessels laden with cocaine and those who planned, organized or funded those ventures.").
The motion to dismiss is not, however, ripe for adjudication without a response from the United States. Accordingly, the United States shall respond to Serrano and Peterson's motion to dismiss no later than August 15, 2022 . (Docket No. 67) The response shall address (1) the arguments raised in the defendants’ motion to dismiss, (2) whether the First Circuit Court of Appeals has affirmed the extraterritorial application of the MDLEA regarding acts committed exclusively within a foreign country, (3) whether the Due Process Clause of the Fifth Amendment requires the United States to establish a nexus between the defendants and this country, and (4) whether the Department of State Certification and/or the extradition authorization from Colombia is a sufficient waiver of jurisdiction with respect to Serrano and Peterson. See 46 U.S.C. § 70502(d)(2).
III. Conclusion
For the reasons set forth above, the United States shall respond to Serrano and Peterson's motion to dismiss no later than August 15, 2022 , the date of the next status conference.
IT IS SO ORDERED .