Opinion
CASE NO. 15cr2586-GPC
03-10-2016
UNITED STATES OF AMERICA, Plaintiff, v. JARIS JESUS TORRES-ITURRE (1); JOSE UBER ESTUPINAN-CARABAI (2); ASCENCION ROJAS-BOLANOS (3), Defendants.
ORDER DENYING DEFENDANTS' MOTION TO DISMISS INDICTMENT FOR LACK OF JURISDICTION
[Dkt. No. 34.]
On January 8, 2016, Defendant Jose Uber Estupinan-Carabali ("Defendant" or "Estupinan") filed a motion to dismiss the indictment for lack of jurisdiction. (Dkt. No. 34.) On January 12, 2016, Defendant Jaris Jesus Torres-Iturre ("Torres") filed a motion for joinder. (Dkt. No. 38.) At the hearing held on January 22, 2016, Defendant Ascencion Rojas-Bolanos ("Rojas") moved orally to join in the motion.
The government filed an opposition. (Dkt. No. 42.) Defendant filed a reply on January 21, 2016, and the government filed a sur-reply on January 22, 2016. (Dkt. Nos. 46, 47.) A hearing was held on January 22, 2016. (Dkt. No. 54.) Patrick Bumatay, Esq. appeared on behalf of the government. (Id.) Ellis Johnston, Esq. appeared on behalf of Defendant Estupinan, Robert Garcia, Esq. appeared on behalf of Defendant Torres, and John Lemon, Esq. appeared on behalf of Defendant Rojas. (Id.) At the hearing, the Court granted Torres and Rojas' motions for joinder in the motion, and denied the motion to dismiss based on lack of jurisdiction. For purposes of the record, the Court presents a more detailed analysis of its reasoning on its ruling denying Defendants' motion to dismiss.
At the hearing, the Court did not consider the reply or sur-reply since it was filed without leave of Court and without sufficient notice to the Court to review. However, for purposes of this order, the Court considers these documents.
Background
On September 5, 2015, a military patrol aircraft ("MPA") spotted a suspected go-fast vessel ("vessel") traveling in a northerly direction about 128 nautical miles southwest of the Costa Rica/Panama border, in international waters in the Eastern Pacific Ocean. The MPA continued to observe the vessel which was observed jettisoning objects overboard. During this observation, the United States Coast Guard ("USCG") Cutter Bertholf was notified and diverted to intercept the vessel. The Bertholf launched its helicopter and two small boat teams. One small boat team returned to the Bertholf after having experienced a breakdown.
Go-fast vessels are boats that travel at high rates of speed and are preferred vehicles for drug and alien smuggling operations. United States v. Perlaza, 439 F.3d 1149, 1153 n.2 (9th Cir. 2006).
The MPA directed the helicopter to the vessel. The helicopter hailed the vessel, which failed to stop. The helicopter was authorized to utilize and employed three stitches of warning shots. After determining that the warning shots were ineffective, the helicopter employed five precision shots to the engine which caused the vessel to stop. Once stopped, a USCG team from the Bertholf arrived on-scene in a small boat and observed the three Defendants aboard the vessel. Defendant Torres claimed to be the master of the vessel and made a verbal claim of Ecuadorian nationality for the vessel. Defendants claimed Colombian nationality for themselves. Torres stated that he and the crew had initially been contracted as fisherman and were later forced at gunpoint to transport the contraband.
The USCG team searched the vessel and found no contraband. The small boat team recovered thirteen (13) bales of suspected contraband from the debris fields where Defendants were seen jettisoning the packages. The 13 recovered bales contained bricks that consisted of about 711 kilograms of a white powdery substance that field-tested positive for cocaine.
On September 5, 2015, pursuant to an agreement between the United States and Ecuador, the United States requested that the government of Ecuador confirm the vessel's registry, and if confirmed, grant authorization to stop, board and search the vessel. On the same day, the government of Ecuador responded that it could neither confirm nor refute the vessel's registry. The government determined the vessel to be without nationality or stateless pursuant to 46 U.S.C. § 70502(d)(1)(C) and subject to United States jurisdiction pursuant to 46 U.S.C. § 70502(c)(1)(A).
The term "'vessel without nationality' includes . . . (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)(C).
The term "'vessel subject to the jurisdiction of the United States' includes--(A) a vessel without nationality. . . ." 46 U.S.C. § 70502(c)(1)(A).
Defendants arrived in San Diego, California on September 26, 2015. On October 6, 2016, Defendants were indicted on two counts for conspiracy to distribute cocaine on board a vessel in violation of 46 U.S.C. §§ 70503, 70506(b), and conspiracy to distribute cocaine intended for unlawful importation in violation of 21 U.S.C. §§ 959, 960, and 963.
On October 8, 2015, Defendants pleaded not guilty to the two count indictment. On January 8, 2016, Defendant Estupinan filed a motion to dismiss indictment for lack of jurisdiction. On January 22, 2016, the Court granted Torres and Rojas' motions for joinder in Estupinan's motion.
Discussion
Defendants move to dismiss the indictment arguing that the United States lacks constitutional jurisdiction over them because the government has not met its evidentiary burden that the vessel the Defendants were on was stateless. The government responds that the motion should be denied as premature because the status of the vessel is a question of fact for the jury.
The Maritime Drug Law Enforcement Act ("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 subject to the jurisdiction of the United States . . . ." 46 U.S.C. § 70503(a)(1). This provision applies "even though the act is committed outside the territorial jurisdiction of the United States." Id. § 70503(b). If the MDLEA is applied extraterritorially, then both statutory and constitutional jurisdiction must be satisfied. United States v. Perlaza, 439 F.3d 1149, 1160 (9th Cir. 2006).
Under the MDLEA, a vessel "subject to the jurisdiction of the United States" includes (1) a vessel without nationality; (2) a vessel assimilated to a vessel without nationality; (3) a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States; (4) a vessel in the customs waters of the United States; (5) a vessel in the territorial waters of a foreign nation if the nation consents to the enforcement of United States law by the United States; and (6) a vessel in the contiguous zone of the United States that is entering the United States, has departed the United States, or is a hovering vessel. 46 U.S.C. § 70502(c)(1). The court has statutory jurisdiction over a defendant if the government satisfies at least one of these requirements. Perlaza, 439 F.3d at 1160.
Relevant to this case, a "vessel without nationality" includes the following,
(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;46 U.S.C. § 70502(d).
(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.
The government asserts statutory jurisdiction based on a "vessel without nationality" or "stateless vessel" where 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." See id. Defendants do not challenge whether the government can establish statutory jurisdiction because they assert that issue must be presented at trial. (Dkt. No. 34-1 at 4.)
A "vessel without nationality" is also common referred to as a "stateless vessel." United States v. Perlaza, 439 F.3d 1149, 1160 (9th Cir. 2006).
As to constitutional jurisdiction, due process requires the government to show that there exists "'a sufficient nexus between the conduct condemned and the United States' such that the application of the statute would not be arbitrary or fundamentally unfair to the defendant." Perlaza, 439 F.3d at 1160 (quoting United States v. Medjuck, 156 F.3d 916, 918 (9th Cir. 1998)). The constitutional nexus requirement is not an express element of the crime but is a "judicial gloss applied to ensure that a defense is not improperly haled before a court for trial." United States v. Zakharov, 468 F.3d 1171, 1177 (9th Cir. 2006) (quoting United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998)). However, there is one exception to the constitutional jurisdiction requirement where "[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." Perlaza, 439 U.S. at 1161 (quoting United States v. Moreno-Morillo, 334 F.3d 819, 829 (9th Cir. 2003)). Therefore, once a vessel is found to be "stateless" the court's jurisdiction inquiry is complete. Id. at 1161; see also Moreno-Morillo, 334 F.3d at 829 ("the determination of statelessness is essential to and all but dispositive of the purely legal issue of personal jurisdiction"). However, if a vessel is determined to be registered in a foreign nation, then the court determines whether there is sufficient nexus between the vessel and the United States. Perlaza, 439 F.3d at 1167; see also Zakharov, 468 F.3d at 1177 (it is this "court's longstanding rule that the constitutional nexus inquiry is a matter for the court's determination"); Moreno-Morrillo, 334 F.3d at 827-28; Medjuck, 156 F.3d at 918; Klimavicius-Viloria, 144 F.3d at 1257. The issue in this case is whether the judge or the jury determines whether the vessel is stateless for purposes of constitutional jurisdiction.
"Prior to 1996, there was a consensus among the circuits that 'the jurisdictional requirement in section 1903(a) is an element of the crime charged and therefore must be decided by the jury.'" Moreno-Morillo, 334 F.3d at 828 (quoting United States v. Medjuck, 48 F.3d 1107, 1110 (9th Cir. 1995)). In 1996, Congress amended the MDLEA to state that "[j]urisdiction of the United States with respect to a vessel . . . is not an element of an offense. Jurisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge." 46 U.S.C. § 70504(a).
Now codified as 46 U.S.C. § 70503(a).
Subsequent to the amendment, the Ninth Circuit, in analyzing statutory jurisdiction, concluded that whether a go-fast vessel intercepted in extraterritorial waters is stateless is a factual issue that must be resolved by a jury. Perlaza, 439 F.3d at 1167. In coming to this holding, the Ninth Circuit noted the statutory language of § 1903(f), now codified as 46 U.S.C. § 70504(a), in conjunction with a defendant's rights under the Fifth and Sixth Amendments. Id. at 1166. In light of the Fifth and Sixth Amendments, facts underlying the existence of statutory jurisdiction although "'not formally identified as elements of the offense charged' must be submitted to the jury and proved beyond a reasonable doubt." Id.
The Ninth Circuit held that the district court erred in determining that the go-fast was a stateless vessel based on the disputed facts. Perlaza, 439 F.3d at 1165.
In Zakharov, the Court reaffirmed the principles in Perlaza stating that despite the MDLEA amendment," 46 U.S.C. § 70504(a), "contested facts underlying the existence of statutory jurisdiction must be resolved by a jury." United States v. Zakharov, 468 F.3d 1171, 1176 (9th Cir. 2006). The Zakharov court noted that Perlaza's holding that contested jurisdictional issues must be resolved by a jury was limited to an analysis of statutory jurisdiction. Id. at 1176 n. 2. If facts underlying statutory jurisdiction are not disputed, the issue does not need to be presented to the jury. Id. at 1176 n. 3.
In this case, Defendants agree that the statutory jurisdiction issue, whether the vessel is stateless, must be raised at trial. However, application of the exception to constitutional jurisdiction, whether the vessel is stateless, necessarily requires a determination whether the vessel is stateless and such an inquiry, as held by Perlaza, must be presented to the jury. The disputed issue of whether the vessel is stateless is a question of fact for the jury that must be determined before the question of constitutional jurisdiction is addressed.
According to Defendants, Perlaza holds that the district court must decide the issue of statelessness, and if the court finds that the government can establish statelessness, then the court must then allow the jury to reconsider whether the government established statelessness. The Court disagrees with Defendants' interpretation and concludes that such a holding is not asserted in Perlaza. --------
Here, while Defendants claim that the underlying facts are not disputed, the facts are disputed. Defendants argue that the Secretary of State's certificate does not identify which U.S. official contacted Ecuador or who from Ecuador that U.S. official communicated with, how they communicated, and what was said. It is further claimed that the certificate does not indicate if the U.S. official accurately communicated the relevant identifying information about the vessel to the government of Ecuador and whether important identifying information was inadvertently excluded. In addition, it appears that the Ecuadorian government requested additional information from U.S. authorities, such as photographs, specifics about the crew, their destination and serial numbers on the motor, that were never provided by the U.S. authorities. In response, the government asserts it produced ample evidence of the vessel's statelessness by producing the email communications and "Forms" exchanges between the two countries. The parties present disputed facts as to whether the vessel is stateless, and thus, this issue must be determined by a jury. See Perlaza, 419 F.3d at 1167.
Conclusion
Based on the above, the Court DENIES Defendants' motion to dismiss the indictment.
IT IS SO ORDERED. DATED: March 10, 2016
/s/_________
HON. GONZALO P. CURIEL
United States District Judge