Opinion
Criminal No. 21-481 (FAB)
2023-08-17
UNITED STATES of America, Plaintiff, v. Disosión BOLIBANTO-ESPINAYO [1], et al., Defendants.
Antonio J. Lopez-Rivera, AUSA, Maria L. Montanez-Concepcion, AUSA, Jordan H. Martin, AUSA, United States Attorneys Office District of Puerto Rico, San Juan, PR, for Plaintiff. Federal Public Defender Office, Public Defender, San Juan, PR, Cherrelle T. Herbert, Public Defender, Federal Public Defenders' Office District of Puerto Rico, San Juan, PR, Carmen Coral Rodriguez-Morales, Public Defender, Federal Public Defender's Office, Hato Rey, PR, for Defendant Disosión Bolibanto-Espinayo. Marta T. Rey-Cacho, San Juan, PR, for Defendant Uraldo Cervante. Marie L. Cortes-Cortes, San Juan, PR, for Defendant Joseph DeLeon.
Antonio J. Lopez-Rivera, AUSA, Maria L. Montanez-Concepcion, AUSA, Jordan H. Martin, AUSA, United States Attorneys Office District of Puerto Rico, San Juan, PR, for Plaintiff. Federal Public Defender Office, Public Defender, San Juan, PR, Cherrelle T. Herbert, Public Defender, Federal Public Defenders' Office District of Puerto Rico, San Juan, PR, Carmen Coral Rodriguez-Morales, Public Defender, Federal Public Defender's Office, Hato Rey, PR, for Defendant Disosión Bolibanto-Espinayo. Marta T. Rey-Cacho, San Juan, PR, for Defendant Uraldo Cervante. Marie L. Cortes-Cortes, San Juan, PR, for Defendant Joseph DeLeon.
MEMORANDUM AND ORDER
BESOSA, District Judge.
Defendants Disosión Bolibanto-Espinayo ("Bolibanto") and Uraldo Cervante ("Cervante") (collectively, "defendants") move to dismiss the indictment. (Docket No. 69.) For the reasons set forth below, the defendants' motion to dismiss is DENIED.
I. Background
This action concerns an alleged attempt to import cocaine into the United States. Drug Enforcement Administration Special Agent Lorena Jiménez ("Jiménez") prepared an affidavit in support of the criminal complaint. (Docket No. 1, Ex. 1.) The following allegations derive from Special Agent Jiménez's affidavit.
On November 28, 2021, law enforcement officers onboard Dutch Ship HNLMS HOLLAND observed a go-fast vessel approximately 52 nautical miles north of La Guajira, Colombia. Id. at p. 2. Subsequently, USCG Cutter WILLIAM TRUMP located the go-fast vessel, which displayed no indicia of nationality. Id. at p. 3. The vessel attempted to evade interdiction, but "went dead in the water" after the United States Coast Guard ("USCG") "employed warning shots." Id. The USCG then apprehended the vessel, identifying the occupants as Bolibanto, Cervante, and Joseph Deleón ("Deleón"). Id. at p. 2. "None of [the defendants] claimed to be the master/person-in-charge of the vessel nor claimed any nationality for the vessel." Id. at p. 3.
The packages onboard the defendants' go-fast vessel contained 53 packages of cocaine, weighing approximately 1,855 kilograms at sea. Id. The USCG detained the defendants. Id. Bolibanto, Cervante, and Deleón appeared before Magistrate Marcos E. López on February 23, 2022 for their preliminary hearings. (Docket Nos. 11 and 12.)
On December 15, 2021, a grand jury returned a two count indictment charging the defendants 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. 9.)
The United States and Deleón entered into a plea agreement. (Docket No. 80.) Deleón's change of plea hearing occurred on July 13, 2023. (Docket No. 81.)
Cervante moved to dismiss the indictment for lack of jurisdiction on June 30, 2023. (Docket No. 69.) The Court subsequently granted Bolibanto's motion to join. (Docket Nos. 73 and 74.) The United States responded, the defendants replied, and the United States filed a sur-reply. (Docket Nos. 78, 90 and 92.)
II. Federal Rule of Criminal Procedure 12
Pursuant to Federal Rule of Criminal Procedure 12(b)(2), a "motion that the court lacks jurisdiction may be made at any time while the case is pending." Fed. R. Crim. P. 12(b)(2). On a motion to dismiss, the allegations contained in the indictment are accepted as true. See United States v. Bohai Trading Co., Inc., 45 F.3d 577, 578 n.1 (1st Cir. 1995).
The federal judicial authority extends "to all Cases, in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties made." U.S. CONST. art. III, § 2. This Court possesses subject matter jurisdiction in a criminal action when the indictment charges "that the defendant committed a crime described in Title 18 or in one of the other statutes defining federal crimes." United States v. González, 311 F.3d 440, 442 (1st Cir. 2002); see 18 U.S.C. § 3231 ("The district courts of the United States shall have original jurisdiction, exclusive of courts of the States, of all offenses against the laws of the United States."). The defendants assert that this Court lacks subject matter jurisdiction pursuant to Article I, Section 10 of the United States Constitution. (Docket No. 26.)
A. The Maritime Drug Law Enforcement Act
Congress enacted the Maritime Drug Law Enforcement Act in 1986 to diminish the operations of international drug trafficking organizations. These evasive entities "constantly refine their methods for transporting illegal narcotics from country to country." United States v. Carvajal, 924 F. Supp. 2d 219, 224 (D.D.C. 2013); see Lt. CDR Aaron J. Casavant, In Defense of the U.S. Maritime Drug Enforcement Act: A Justification for the Law's Extraterritorial Reach, 8 HARV. NAT'L SEC. J. 191, 199-200 (2017) (noting that Congress endeavored to "counter the traffickers' 'mothership' strategy, target[ting] the larger vessels sailing just outside U.S. territorial seas that were sending smaller, faster vessels to bring contraband ashore."). Consequently, the MDLEA is an expansive statute. It provides that "an individual [on board a vessel subject to the jurisdiction of the United States] may not knowingly or intentionally:"
(1) manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance;48 U.S.C. §§ 70503(a)(1)-(2). "[J]urisdictional issues arising under the [MDLEA] are preliminary questions of law to be determined solely by the trial judge," and do not constitute an element of the offense. 46 U.S.C. § 70504; see United States v. Gil-Martínez, 980 F. Supp. 2d 165, 168 (D.P.R. 2013) (Besosa, J.).
(2) destroy (including jettisoning . . .), or attempt or conspire to destroy, property that is subject to forfeiture under section 511(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970.
Vessels without nationality are subject to the MDLEA. Stateless vessels include, but are not limited to:
(A) a vessel abroad 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)(1)(A)-(C) (emphasis added). To facilitate expeditious consent and waiver, the MDLEA provides that the flag state may provide registry information "by radio, telephone, or similar oral or electronic means." 46 U.S.C. § 70502(d)(2).
(B) a vessel abroad 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 (hereinafter, "subsection (B)");
(C) a vessel abroad 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 (hereinafter, "subsection (C)")
Every vessel is required to "sail under the flag of one State only and, save in exceptional cases . . . shall be subject to its exclusive jurisdiction on the high seas." Convention on the High Seas, art. 6, Apr. 29, 1958, 13 U.S.T. 2312, 450 U N.T.S. 82.
III. Discussion
The defendants argue that this prosecution is precluded by United States v. Dávila-Reyes, 23 F.4th 153 (1st Cir. 2022) (reh'g en banc granted, opinion withdrawn, 38 F. 4th 288 (1st Cir. 2022)). (Docket No. 68.) They seek refuge in inapplicable precedent.
In Dávila-Reyes, the First Circuit Court of Appeals held that the phrase "vessels without nationality" is coextensive with the "international law definition of statelessness." 23 F.4th at 172. A defendant "claimed Costa Rican nationality for [his] vessel but did not provide any documentation to support that claim." Id. at 158. Costa Rica officials could neither confirm nor deny the vessel's registry. Id. at 159. Consequently, law enforcement officers determined that the vessel was "without nationality and subject to U.S. jurisdiction" pursuant to subsection (C). Id.
On appeal, the defendants argued that "their vessel was not properly deemed stateless." Id. at 170. The Dávila-Reyes court agreed, holding that subsection (C) is inconsistent with international law. Id. at 188. Pursuant to the latter, a master's verbal declaration of registry establishes a presumption of nationality. Id. at 188-89. ("Rejecting a verbal claim of nationality based on the lack of substantiating evidence [i.e. confirmation of registry from Costa Rica] negates that distinct method for claiming nationality recognized both by the MDLEA and by international law.").
The First Circuit Court of Appeals withdrew the Dávila-Reyes decision on July 5, 2022, however, to conduct an en banc review of subsection (C). United States v. Reyes-Valdivia, 38 F.4th 288 (1st Cir. 2022). Accordingly, Dávila-Reyes is no longer binding on this Court. See United States v. Escalona-Reid, 2022 WL 17541746, at *1, 2022 U.S. Dist. LEXIS 222556, at *3 (D.P.R. Dec. 8, 2022) ("So although we write in the shadow of Dávila-Reyes, it has no weight here.").
Oral argument occurred ten months ago, on October 18, 2022. Reyes-Valdivia, 38 F.4th 288. A disposition has yet to issue, placing subsection (C) and defendants facing prosecution pursuant to this provision in purgatory. In any event, the impending en banc decision cannot shield Cervante and Bolibanto from prosecution because the defendants refused to claim nationality for the vessel. Consequently, the drug-trafficking allegations in this case are based on subsection (B).
According to the defendants, discovery provided by the United States suggests that the vessel is registered in Colombia. (Docket No. 90.) They misconstrue the evidence. Cervante and Bolibanto received (1) the Statement of Seaman Erick Vázquez ("Vázquez") regarding Go Fast Vessel from [November 29, 2021] and (2) a USCG Alpha Report. (Docket No. 78, Exs. 1 and 2.) Seaman Vázquez's statement provides in pertinent part that:
Special Agent Jiménez's affidavit and Seaman Vázquez's statement set forth inconsistent dates of interdiction. The Court relies on the date set forth in the complaint and indictment (November 28, 2021). (Docket Nos. 1 and 9.)
Once on scene BM1 Gerald Sparkman instructed me to communicate with the 03 subjects on the [target of interest] to embark [on a small boat] for officer safety and safety of life at sea (SOLAS). Once the 03 subjects embarked [on the small boat] BM1 Sparkman instructed me to ask the crew member with green pants if he was the master. The subject confirmed that he was the master of the [target of interest] . . . I then asked him what his nationality was. [Bolibanto] states that his nationality was Colombian.(Docket No. 78, Ex. 1.) The Alpha Report is a one-page form with thirty questions. (Docket No. 78, Ex. 2.) The answers for "Registry Number" and "Nationality" are "N/A" and "No Claim," respectively. Id.
The defendants cite these documents, asserting that "Bolibanto as a master of the vessel did make a claim of nationality and the vessel is not a stateless vessel." (Docket No. 90 at p. 3.) They misconstrue the evidence. Seaman Vázquez stated that Bolibanto claimed Colombia nationality for himself. (Docket No. 78, Ex. 1.) His statement is devoid of any reference to claims of nationality for the defendants' vessel. Moreover, the Alpha Report and Seaman Vázquez's statement are consistent. Accordingly, the defendants' motion to dismiss is DENIED.
IV. Conclusion
For the reasons set forth above, the defendants' motion to dismiss is DENIED. (Docket No. 69.)
IT IS SO ORDERED.