UNITED STATES OF AMERICA, Appellee, v. JOSÉ GONZÁLEZ, Defendant, Appellant.
No. 01-2247
United States Court of Appeals For the First Circuit
November 22, 2002
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge]
Before Boudin, Chief Judge, Torruella and Howard, Circuit Judges.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom Guillermo Gil, former United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief for appellee.
The pertinent facts, derived from the plea agreement, can be stated briefly. On April 27, 1999, Gonzalez and another individual were rescued from a speed boat that was two-thirds submerged on the high seas off the coast of the British Virgin Islands. Summoned by the rescuing vessel, the U.S. Coast Guard responded and on inspection found that the speed boat carried numerous bales of cocaine. Defendant and his companion were indicted for possessing the cocaine, with intent to distribute it, aboard “a vessel without nationality” in violation of
That statute makes possession of cocaine with intent to distribute a federal crime where possession occurs either on board a “vessel of the United States” or on board a “vessel subject to jurisdiction of the United States“;
(A) a vessel aboard which the master or person in charge makes a claim of registry, which claim is denied by the flag nation whose registry is claimed;
(B) any vessel aboard which the master or person in charge fails, upon request of an officer of the United of States empowered to enforce applicable provisions United States law, to make a claim of nationality or registry for that vessel; and
(C) a vessel aboard which the master or person in charge makes a claim of registry and the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.
Gonzalez moved to dismiss the indictment on the ground that the speed boat was not a “vessel without nationality” because, inter alia, no claim of registry was requested by an officer of the United States. The United States resisted the motion on various grounds directed to showing that the speed boat was a stateless vessel. In due course, a magistrate judge recommended denial of the motion and the district court agreed. Suffice it to say that the issue is complicated.
Faced with an adverse ruling by the district court, Gonzalez negotiated a guilty plea. On February 23, 2001, a plea agreement was filed, with аn agreed-upon sentence of 72 months, in which Gonzalez admitted the offense with which he was charged. In a change of plea proceeding, Gonzalez then expressly pled to the
Ordinarily a guilty plea, entered unconditionally--that is, without reserving an issue or issues for appeal--establishes guilt and forfeits all objections and defenses. United States v. Cordero, 42 F.3d 697, 699 (1st Cir. 1994). There are a few exceptions to this principle. One applies where the claim on appeal is that the district court lacked subject matter jurisdiction over the case, that is to say, where the defendant says that the subject matter of the case falls outside the category of cases that the court is authorized to try. E.g., Cordero, 42 F.3d at 699; United States v. Doyle, 348 F.2d 715, 718-19 (2d Cir. 1965) (Friendly, J.).
One may ask why this exception exists when so many other objections and defenses in criminal cases, including constitutional issues and prior рrofessions of innocence, are readily forfeited through a knowing and voluntary plea of guilty. The answer is that courts treat their responsibility to stay within their grant of authority as a matter of extreme importance. United States Catholic Conf. v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 77 (1988). In fact, a court is expected to raise the subject-matter jurisdiction objection on its own motion at any stage and even if no party objects.
Article III gives to the federal judicial branch authority--that is, subject matter jurisdiction--over all cases arising under the laws of the United States; and by statute Congress has given the federal district courts this authority over federal criminal cases in the first instance.
Thus, unless Congress provided otherwise, subject matter jurisdiction existed in the present case because Gonzalez was charged in district court under section 1903, which is a federal criminal statute. By the same token, the stateless vessel issue was forfeited by an unconditional guilty plea--again, unless Congress provided otherwise. This was certainly this court‘s view prior to
In 1996, Congress amended the Maritime Act. It did so among other things by expanding the definition of what constitutes a stateless vessel,
Jurisdiction of the United States with respect to vessels subject to this chapter is not an element of any offense. All jurisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge.
Nothing in the wording of the statute suggests such an intention. The term “jurisdiction” is notoriously malleable and is used in a variety of contexts (e.g., personal jurisdiction) that have nothing whatever to do with the court‘s subject matter
In other words, Congress asserted its own authority to regulate drug trafficking on some ships but not all ships and, in this context, used the word “jurisdiction” loosely to describe its own assertion of authority to regulate; it does the same thing whenever it fixes an “affects interstate commerce” or “involved a federally insured bank” as a condition of the crime. See note 1 above. But such conditions have nothing whatever to do with the subject matter of the federal district court; they are routine questions as to the reach and application of a criminal statute.
Nor does legislative history suggest that Congress had in mind the court‘s subject matter jurisdiction or that it meant to prevent a guilty plea from being given its normal effect. The legislative history does not refer to subject matter jurisdiction or reveal any purpose to limit guilty pleas. On the contrary, the general purpоse of the amendments was to facilitate prosecutions or, as the President‘s signing statement put it, to “strengthen[] the
One way in which the statute did this was to remove from the jury and confide to the judge an issue that had nothing to do with whether the defendant did possess drugs with an intent to distribute. To make the vessel‘s status an issue that could never be the subject of an effective and binding guilty plea would greatly complicate proceedings rather than facilitate the enforcement of the drug laws. It would mean in practical terms that the district judge would have to try the issue every time in order to put it completely to rest.
Admittedly two circuits have treated the amendment as making vessel status an issue of district court subject matter jurisdiction, although only one involved the forfeiture issue. See United States v. Bustos-Useche, 273 F.3d 622, 626 (5th Cir. 2001); United States v. Tinoco, 304 F.3d 1088, 1105 (11th Cir. 2002). But neither decision made a detailed examination of the problem; both leapt, we think too quickly, from the bare reference to jurisdiction to the assumption that Congress was talking about the subject matter jurisdiction of the court.
To sum up, the unconditional guilty plea forfeited Gonzalez’ claim that the speed boat was othеr than a stateless vessel. Although the result would likely be the same even if we reached the merits (as the concurring opinion forcefully suggests) the question whether such a claim can be forfeited is an important recurring issue that needs to be resolved. Having resolved it in favor of forfeiture, it is enough to hold that Gonzalez had no more than an arguable claim which he bargained away in favor of an agreed-upon sentence.
Affirmed.
- Concurring opinion follows -
I. Background
On April 27, 1999, the captain of a sailing vessel rescued González and Manuel Polanco, both Dominican Republic nationals, from a go-fast boat3 that was two-thirds submerged on the high seas approximately eighteen nautical miles southwest of the British Virgin Islands. González requested а hammer from his rescuer and used it to attempt to make holes in the hull of the boat. Noting this suspicious behavior, the captain videotaped González and reported the incident to the Coast Guard. González and Polanco claimed that two English citizens had also been aboard the vessel when it began to sink.
The Coast Guard arrived at the partially submerged vessel to conduct a search and rescue mission for the reportedly missing
Having determined that the vessel was a hazard to navigation, the Coast Guard obtained permission to sink it. After about fifteen minutes of firing at the boat, Coast Guard personnel returned to the vessel. At this time, a hatch that had previously been inaccessible was open, and a package of cocaine was discovered. In all, Coast Guard personnel сonfiscated 233 kilograms of cocaine before the vessel sank.
On April 30, 1999, González and Polanco were deported from the British Virgin Islands and were arrested, and subsequently indicted, upon arrival in San Juan, Puerto Rico.
On November 29, 1999, González and Polanco moved to dismiss their indictment for lack of jurisdiction. The district court denied the motion, to which defendants timely objected. González entered an unconditional guilty plea, from which he now appeals.
A. Availability of Appeal
The MDLEA makes it a crime for any person on board “a vessel subject to the jurisdiction of the United States . . . to knowingly or intentionally manufacturе or distribute, or to possess with intent to manufacture or distribute, a controlled substance.”
The majority holds that González‘s unconditional guilty plea has waived this challenge. I disagree. González‘s unconditional guilty plea admitted only the elements of the charged offense. See United States v. Broce, 488 U.S. 563, 570 (1989). As such, he waived all appeals other than jurisdictional defects. See Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Cordero, 42 F.3d 697, 698-99 (1st Cir. 1994). A jurisdictional defect “calls into doubt a court‘s power to entertain a matter,” Cordero, 42 F.3d at 699, thus depriving the federal court of jurisdiction. A jurisdictional defect may be raised by the party or sua sponte by the court at any point in the litigation. See Freytag v. Commissioner, 501 U.S. 868, 896-97 (1991) (Scalia, J.,
Although determining whether an issue is jurisdictional and thus appealable is not always easy, here, the plain language of the statute provides the answer. In 1996, Congress added the following to the MDLEA: “Jurisdiction of the United States with respect to vessels subject to this chapter is not an element of any offense. All jurisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge.”
The word “jurisdiction” can be confusing, but there is support for the reading that jurisdiction over the vessel is a subject matter jurisdiction determination. First, while it is true that the district courts have jurisdiction, “exclusive of the courts of the States, of all offenses against the laws of the United States,”
This differs from laws where Congress attaches a “jurisdictional” element to enable it to act under its enumerated powers. For example, in many cases, Congress can only criminalize activities that substantially affect interstate commerce, so statutes often include a statement limiting their reach as such. See, e.g.,
Second, the “elements” of a crime traditionally include the actus reus, causation, and mens rea. See Black‘s Law Dictionary 520 (6th ed. 1990). Whether or not a vessel is “subject to the jurisdiction of the United States” does not go to any of these traditional elements. For example, in Ford v. United States, 273 U.S. 593 (1927), the defendants were charged with сarrying liquor during the Prohibition era on the high seas, in violation of a treaty between the United States and Great Britain. Id. at 601. The defendants contended that they were not within the zone of the treaty. Id. at 604. The Court held this was a jurisdictional issue for the judge to decide because “[t]he issue whether the ship was seized within the prescribed limit did not affect the question of the defendants’ guilt or innocence. It only affected the right of the court to hold their persons for trial.” Id. at 606. Similarly, whether a vessel is within the jurisdiction of the United States for purposes of the MDLEA is a proper question for the judge, as it bears upon the right of thе court to entertain the claim. See Tinoco, 2002 U.S. App. LEXIS 18479, at *59 (“[T]he § 1903 jurisdictional requirement is not an essential ingredient or an essential element of the MDLEA substantive offense“); see also
Third, the legislative history of the 1996 MDLEA amendments does not conflict with my interpretation. The limited legislative history suggests that the 1996 amendments were made to “expand the Government‘s рrosecutorial effectiveness in drug smuggling cases.” H.R. Conf. Rep. No. 104-854, at 142 (1996), reprinted in 1996 U.S.C.C.A.N. 4294, 4337; accord Statement by President William J. Clinton, October 19, 1996, reprinted in 1996 U.S.C.C.A.N. 4341, 4341 (stating that the amendments “strengthen[] the hand of prosecutors in drug smuggling cases,” and clarify United States jurisdiction over vessels in international waters.). Removing jurisdiction as an element of the crime may ease prosecution under the MDLEA. For example, in Smith, 282 F.3d at 758, the defendant appealed his conviction under the MDLEA because the jury was not required to find that he was on a vessel subject to the jurisdiction of the United States. Id. at 765. The court held that the district court properly determined that the United States had jurisdiction over the area where the vessel was found,
Finally, I note that this is not the first time we have considered this issue, although we have never conclusively decided it. See Cardales, 168 F.3d at 554 n.3 (noting that jurisdiction is no longer an element of the MDLEA); United States v. Guerrero, 114 F.3d 332, 340 n.9 (1st Cir. 1997) (same).7 Also, two other circuits
To summarize, I believe that by the 1996 amendment, whether or not a vessel is subject to the jurisdiction of the United Stаtes is not an element of the offense under the MDLEA, but a question of subject matter jurisdiction for the court to decide. It goes to the power of the court to hear the case, and such a jurisdictional determination cannot be waived by a guilty plea.
B. Statelessness Analysis
Since I believe the statelessness of the vessel is a jurisdictional determination, I review González‘s challenge de novo. Seahorse Marine Supplies, Inc. v. Puerto Rico Sun Oil Co., 295 F.3d 68, 73 (1st Cir. 2002). Reviewing this issue on appeal is not complicated, as the record contains all facts relevant to whether or not the vessel was stateless.
a “vessel without nationality” includes:
(A) a vessel aboard which the master or person in charge makes a claim of registry,8 which claim is denied by the flag nation whose registry is claimed;
(B) any vessel aboard which the master or person in charge fails, upоn request of an officer of the United States empowered 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 person in charge makes a claim of registry and the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.
González‘s argument must fail. The statute does not provide an exhaustive list of the ways that a vessel can be determined to be stateless, but uses the word “includes,” and lists three examples. An expansive reading furthers the Congressional intent of reaching the widest range of drug smuggling cases possible under international law. If Congress had intended to рrovide an exclusive list, it could have used the phrase “only includes,” as it did in the following subsection.
Although I have not found any cases with facts similar to the present case, that is, where no one was aboard the vessel when it was approached, I do not think it is a stretch to say that an unoccupied vessel completely lacking in evidence of registry or nationality is a stateless vessel. See L. Oppenheim, 1 International Law, 595-96 (H. Lauterpacht 8th ed. 1955) (noting that a stateless vessel is one sailing under the flags of two or more states, or under no flag at all). The United States is a party to the Convention on the High Seas, a codification of the customary laws of the high seas, which requires all ships to sail under a
González argues that the Coast Guard, knowing he was being treated in the British Virgin Islands, should have attempted to question him or Polanco about the vessel‘s nationality and/or registry. González insists that a vessel can only be deemed stateless following such an inquiry. I disagree. The MDLEA‘s examples of when a vessel is without nationality all presume the presence of a master or person in charge. See
III. González‘s Other Claims
González challenges the sufficiency of the evidence and raises a Fourth Amendment challenge. Because these are not jurisdictional attacks, they are clearly foreclosed by González‘s unconditional guilty plea. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.“); see also Cordero, 42 F.3d at 698 (“[A]n unconditional guilty plea effectuates a waiver of any and all independent non-jurisdictional lapses that may have marred the case‘s progress up to that point . . .“).
IV. Conclusion
I believe that González‘s only viable claim on appeal is whether the district court had subject matter jurisdiction to accept his guilty plea. I find that jurisdiction was present because González was aboard a “vessel without nationality” for purposes of the MDLEA, and therefore concur in the judgment of the court.