972 F.3d 156
2d Cir.2020Background
- DHS investigation uncovered a plan to ship ~550 kg of cocaine from Colombia to Australia; defendants Salinas Diaz and Alarcon Sanchez coordinated with a cooperating source and cartel associates.
- A U.S.-operated vessel (undercover) was to receive the drugs; instead, on April 14, 2015, a U.S. Navy helicopter spotted a go-fast, the El Vacan, ~135 nm off Costa Rica with bales jettisoned into the water.
- Boarding team found no visible registration, a small Ecuadorian flag decal, and crew who claimed Ecuadorian nationality and a Puerto Manta home port; nearly 550 kg of cocaine recovered. U.S. requested verification from Ecuador. Ecuador replied it could neither confirm nor deny the vessel’s nationality and asked for photos (which the U.S. did not provide). U.S. treated the El Vacan as stateless, arrested the four crewmembers, and sank the vessel as a hazard.
- Defendants were charged under the MDLEA, extradited to the U.S., pleaded guilty, and were sentenced (Alarcon Sanchez: 5 years; Salinas Diaz: 6 years). They appealed, arguing (among other things) that the government failed to prove statelessness and that the MDLEA cannot reach land-based conspirators or otherwise violates constitutional limits (Define and Punish Clause and Due Process).
- The Second Circuit affirmed: it found the government met the statutory procedures to show the El Vacan was a vessel without nationality, held the MDLEA’s conspiracy provision reaches land-based conspirators, upheld Congress’s authority under the Necessary and Proper/Define and Punish powers, and found no due-process violation on these facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of proof that El Vacan was "stateless" | Alarcon Sanchez: U.S. cut off verification process and failed to provide photos; Ecuador’s "could neither confirm nor deny" response was induced by inadequate inquiry. | Government: U.S. provided sufficient identifying information; Ecuador’s non-affirmative response satisfies §70502(d)(1)(C). | Court: U.S. met statutory requirements; Ecuador’s response established the vessel was without nationality. |
| Whether MDLEA §70506(b) reaches land-based conspirators | Alarcon Sanchez: Text limits liability to persons "on board a covered vessel." | Government: §70506(b) reaches conspirators whose object is an MDLEA offense; conspiracy liability is coterminous with the substantive statute. | Court: §70506(b) covers land-based co-conspirators; narrow reading would render the conspiracy provision redundant and frustrate Congressional purpose. |
| Constitutional authority under Define and Punish Clause | Alarcon Sanchez: Clause’s locational phrase "on the high Seas" limits Congress to punishing only those actually on the high seas. | Government: Necessary and Proper Clause permits punishing land-based conspirators integral to high-seas felonies. | Court: Extension to land-based conspirators is a rational means under the Necessary and Proper Clause and thus within Congress’s power. |
| Due Process / Nexus requirement for land-based defendants | Alarcon Sanchez: Due process requires a sufficient nexus to the U.S. before prosecuting land-based foreign conspirators under MDLEA. | Government: No extra nexus required because El Vacan was stateless; even if required, conspiracy here had clear U.S. nexus (U.S.-registered vessel involvement, passports/visas, harm to U.S. interests). | Court: Even assuming a nexus is required, defendants’ conduct supplied a sufficient nexus; prosecution was not arbitrary or fundamentally unfair. |
| Whether interdiction occurred on the "high seas" | Salinas Diaz: El Vacan was not on the high seas when stopped, so MDLEA cannot apply. | Government: El Vacan was 132 nm off Costa Rica, beyond territorial waters. | Court: "High seas" means waters beyond territorial limits; El Vacan was well beyond such limits. |
Key Cases Cited
- United States v. Prado, 933 F.3d 121 (2d Cir. 2019) (vacated MDLEA convictions where government could not demonstrate statelessness and plea colloquy omitted statelessness)
- United States v. Van Der End, 943 F.3d 98 (2d Cir. 2019) (guilty plea may be challenged on appeal where no factual basis shows vessel was subject to U.S. jurisdiction)
- United States v. Ballestas, 795 F.3d 138 (D.C. Cir. 2015) (MDLEA conspiracy provision reaches land-based conspirators; narrow reading would be redundant)
- United States v. Epskamp, 832 F.3d 154 (2d Cir. 2016) (extraterritorial criminal application requires a sufficient nexus to avoid arbitrariness)
- Pinkerton v. United States, 328 U.S. 640 (1946) (acts of one conspirator are attributable to co-conspirators)
- United States v. Comstock, 560 U.S. 126 (2010) (Necessary and Proper Clause permits means reasonably adapted to an enumerated power)
- Gonzales v. Raich, 545 U.S. 1 (2005) (rational-basis/means-ends inquiry under Necessary and Proper Clause)
- In re Air Crash Off Long Island, N.Y., on July 17, 1996, 209 F.3d 200 (2d Cir. 2000) ("high seas" means beyond a nation’s territorial waters)