UNITED STATES OF AMERICA v. JHONATHAN ALFONSO, a.k.a. Jhonathan Alfonzo; UNITED STATES OF AMERICA v. JOSE MIGUEL ROSARIO-ROJAS; UNITED STATES OF AMERICA v. JOSE JORGE KOHEN
No. 22-10576
United States Court of Appeals For the Eleventh Circuit
June 14, 2024
[PUBLISH]
versus
JHONATHAN ALFONSO, a.k.a. Jhonathan Alfonzo,
Defendant-Appellant.
Appeals from the United States District Court for the Southern District of Florida
D.C. Docket No. 1:21-cr-20306-CMA-1
No. 22-10589
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MIGUEL ROSARIO-ROJAS,
Defendant-Appellant.
Appeals from the United States District Court for the Southern District of Florida
D.C. Docket No. 1:21-cr-20306-CMA-3
No. 22-10590
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
JOSE JORGE KOHEN,
Defendant-Appellant.
Appeals from the United States District Court for the Southern District of Florida
D.C. Docket No. 1:21-cr-20306-CMA-2
Before BRANCH, LUCK, Circuit Judges, and BERGER,* District Judge.
BRANCH, Circuit Judge:
The United States Coast Guard seized the Appellants on a vessel bearing no indicia of nationality in what is known as the Dominican Republic‘s Exclusive Economic Zone (“EEZ“). When the Coast Guard boarded the vessel, no one claimed to be the vessel‘s master, but the crew asserted that the vessel was of Colombian nationality. Colombia, however, was unable to confirm or deny registry of the vessel, which rendered the vessel a “vessel without nationality”1 and subject to the jurisdiction of the
Once drugs were discovered on the vessel, the Appellants were arrested, brought to the United States, and prosecuted and convicted of violations of the MDLEA. They argue on appeal that Congress exceeded its authority under the Felonies Clause of the Constitution, and that the MDLEA is unconstitutional both facially and as applied to them for several reasons. In order to address their claims, we must decide, as a matter of first impression, whether the EEZ—the waters extending 200 nautical miles seaward of and adjacent to the territorial sea of a nation—is part of the “high seas,” such that Congress has the authority under the Felonies Clause to punish drug-trafficking crimes that occur in the EEZ. Additionally, we address the Appellants’ contention that Congress exceeded its authority under the Felonies Clause by defining “a vessel without nationality“—i.e., a stateless vessel—under the MDLEA to include
After review and with the benefit of oral argument, we conclude that the EEZ is part of the “high seas” and thus within Congress‘s authority under the Felonies Clause. We also conclude that the Appellants cannot show that there is any plain error with regard to the MDLEA‘s definition of a vessel without nationality as including vessels where registry is asserted but cannot be confirmed or denied by the foreign country.4 Accordingly, we affirm.
In 2021, the Coast Guard stopped a go-fast vessel bearing no indicia of nationality approximately 69 nautical miles off the coast of the Dominican Republic in the Dominican Republic‘s EEZ. The Appellants here, Jhonathan Alfonso, Jose Jorge Kohen, and Jose Miguel Rosario-Rojas, were aboard the go-fast vessel. Alfonso made a verbal claim of Columbian nationality for the vessel, but Colombia could not confirm or deny registry of the vessel, which rendered the vessel stateless and subject to the jurisdiction of the United States under the MDLEA, pursuant to
Alfonso, Kohen, and Rosario-Rojas were arrested, brought to the United States, and indicted on two counts: conspiracy to possess a controlled substance aboard a vessel, in violation of
The defendants jointly moved to dismiss the indictment on several grounds. As pertinent to this appeal, they argued that the MDLEA was unconstitutional as applied to them because they were arrested in the EEZ, which they asserted is not part of the “high seas” as defined by customary international law. Therefore, because the EEZ was not part of the “high seas,” their conduct fell
The government opposed the motion, arguing that although a coastal nation has special economic rights in the EEZ adjacent to its territorial waters, the EEZ is still part of the “high seas” within the meaning of the Felonies Clause.
Following an evidentiary hearing, the district court denied the motion to dismiss, concluding that the court had subject matter jurisdiction under the MDLEA. The district court explained that courts have recognized that a nation‘s territorial waters extend up to twelve nautical miles from the nation‘s coast and that the waters seaward of the territorial sea are the “high seas.” The district court noted that the defendants cited no case where a court had held that the EEZ was not part of the “high seas” and stated that it “[would] not be the first.”
Alfonso, Kohen, and Rosario-Rojas subsequently each pleaded guilty to Count One—conspiracy to possess with intent to distribute five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States. In exchange for their pleas, the government agreed to dismiss Count Two. Notably, at no point in the proceedings below did the defendants argue that Congress exceeded its authority under the Felonies Clause by defining a “vessel without nationality” under
II. Standards of Review
Generally, the district court‘s denial of a motion to dismiss an indictment is reviewed only for an abuse of discretion. United States v. McPhee, 336 F.3d 1269, 1271 (11th Cir. 2003). But when, as here, the motion to dismiss is based on subject matter jurisdictional grounds our review is de novo. Id.; see also United States v. Cabezas-Montano, 949 F.3d 567, 588 & n.13 (11th Cir. 2020) (explaining that we review de novo issues of subject matter jurisdiction, including whether “the statutory requirements of MDLEA subject matter jurisdiction are met“). Likewise, “[w]e review de novo a district court‘s interpretation of a statute and whether a statute is constitutional.” Cabezas-Montano, 949 F.3d at 586 n.10. “The government bears the burden of establishing that the statutory requirements of MDLEA subject-matter jurisdiction are met.” Id. at 588.
Finally, when a defendant raises a constitutional challenge for the first time on appeal, we review only for plain error. See United States v. Valois, 915 F.3d 717, 729 n.7 (11th Cir. 2019) (“We ordinarily review de novo the constitutionality of a statute, because it presents a question of law, but we review for plain error where a
III. Discussion
A. Whether the district court erred in concluding that it had subject matter jurisdiction because the EEZ is part of the “high seas”
We start with a discussion of the MDLEA and several relevant maritime law concepts to provide context for the parties’ arguments and the discussion that follows.
The MDLEA makes it a crime to “knowingly or intentionally . . . possess with intent to manufacture or distribute, a controlled substance” on board “a [covered] vessel subject to the jurisdiction of the United States,”
As mentioned previously,
The EEZ sits just beyond a nation‘s territorial waters but within 200 miles of the coastal baseline. See United States v. Rioseco, 845 F.2d 299, 300 n.1 (11th Cir. 1988) (describing the EEZ as “a 200 nautical mile zone extending from a coastal State‘s baseline in which the coastal State has priority of access to living resources and exclusive right of access to non-living resources“); United Nations
The scope of Congress‘s authority under the Felonies Clause (i.e., whether Congress can define and punish conduct that occurs in an EEZ) is informed by the meaning of “high seas” when the Framers ratified and adopted the Constitution. See N.Y. State Rifle & Pistol Ass‘n, Inc. v. Bruen, 597 U.S. 1, 25–26 (2022) (explaining that when assessing the scope of constitutional rights we must consult the historical understanding of the right); McDonald v. City of Chicago, 561 U.S. 742, 828 (2010) (Thomas, J., concurring) (“When
Accordingly, to understand the meaning of the term “high seas” at the Founding, we turn to the history of maritime sovereignty. Throughout much of the sixteenth and seventeenth centuries, the sea was largely viewed as common property subject to unilateral appropriation by any nation—rendering the boundaries within the sea fluid at best. See Thomas W. Fulton, The Sovereignty of the Sea 357, 538–55 (1911), available at https://perma.cc/HE4Y-WMA3; Bernard G. Heinzen, The Three-Mile Limit: Preserving the Freedom of the Seas, 11 Stan. L. Rev. 598, 598 (1959). As a result, nations made wide and conflicting claims of sovereignty over the seas.7 Fulton, supra, at 538–55; Heinzen, supra, at 600–01.
However, in the eighteenth century, the concept that a nation could exercise sovereignty over waters within the range of
Although the exact boundary of a cannon shot—be it one or three miles—may have been up for debate, it was generally understood that the “high seas” were the waters beyond a nation‘s territorial sea and that the “high seas” were not subject to the sovereignty of any nation. See, e.g., 1 William Blackstone, Blackstone‘s Commentaries with Notes of Reference to the Constitution & Laws of the Federal Government of the United States; and of the Commonwealth of Virginia *111–12 (1803) (referring to “[t]he main or high seas” as “begin[ning] at the low-water mark“); William Rawle, A View of the Constitution of the United States 107 (2d ed. 1829) (“After the territorial boundaries of a nation are left, the sea becomes the common property of all nations, and the rights and privileges relative thereto being regulated by the law of nations and treaties, properly belong to the national jurisdiction.“); id. (“By the high seas we are to understand not only the ocean out of sight of land, but waters on the sea coast beyond the boundaries of low water mark, although in a roadstead or bay, within the jurisdiction or limits of one of the states or of a
The first official international recognition of the EEZ appears in the 1982 UNCLOS treaty, which defines the EEZ as the area of water just beyond a nation‘s territorial waters but within 200 miles of the coastal baseline. See UNCLOS, supra, arts. 55, 57;
Nothing about the modern EEZ as defined by customary international law disturbs in any way the Founding era concept of the term “high seas” that informed the original meaning of the Felonies Clause. Accordingly, we conclude, as a matter of first impression, that the EEZ is part of the “high seas” for purposes of the Felonies Clause in Article I of the Constitution.10
In support of their argument that Congress‘s authority is limited by customary international law, the Appellants mainly rely on our decision in Bellaizac-Hurtado, which addressed Congress‘s authority under the Offences Clause (not the Felonies Clause) to proscribe drug trafficking committed in the territorial waters of another country. 700 F.3d at 1248–49. Their reliance is misplaced. In Bellaizac-Hurtado, we concluded that the MDLEA was unconstitutional under the Offences Clause as applied to the defendants who had committed their drug trafficking offense within the territorial waters of Panama. Id. at 1247, 1258. After examining Supreme Court precedent and the text, history, and structure of the Offences Clause, we concluded that “[t]he power granted to Congress in the Offences Clause is limited by customary international law.” Id. at 1249. In relevant part, we reasoned that the meaning of the phrase “define . . . offenses against the laws of nations” during the Founding period “would not have been understood to grant Congress the power to create or declare offenses against the law of nations, but instead to codify and explain offenses that had already been understood as offenses against the law of nations.” Id. at 1249–50. Thus, we held that “we look to
We decline their invitation. Our holding in Bellaizac-Hurtado that the Offences Clause—“Congress shall have Power . .
waters seaward of the territorial sea baseline.
(b) For the purposes of section 2 of the Act of February 19, 1895, as amended (
33 U.S.C. 151 ) and the Inland Navigational Rules Act of 1980 (33 U.S.C. Chapter 34 ), high seas means the waters seaward of any lines established under these statutes, including the lines described in part 80 of this chapter and46 CFR part 7 .(c) For the purposes of
14 U.S.C. 522 ,14 U.S.C. 545 ,33 U.S.C. 409 , and33 U.S.C. 1471 et seq. , high seas includes the exclusive economic zones of the United States and other nations, as well as those waters that are seaward of territorial seas of the United States and other nations.(d) Under customary international law as reflected in the 1982 United Nations Convention on the Law of the Sea and without prejudice to high seas freedoms that may be exercised within exclusive economic zones pursuant to article 58 of the United Nations Convention on the Law of the Sea, and unless the context clearly requires otherwise (e.g., The International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969, including annexes thereto), high seas means all waters that are not the exclusive economic zone (as defined in § 2.30), territorial sea (as defined in § 2.22), or internal waters of the United States or any other nation.
Their reliance on subsection (d) is misplaced. As discussed above, we do not look to present day customary international law to determine the meaning of “high seas” in the Felonies Clause. Furthermore,
subsection (c) expressly includes the EEZ as part of the “high seas” definition. See
Finally, we note that we are not the only circuit to conclude that the EEZ is part of the “high seas.” In United States v. Beyle, 782 F.3d 159, 166 (4th Cir. 2015), the Fourth Circuit rejected a nearly identical argument to the one raised here and held that the “high seas” encompasses the EEZ. Specifically, Beyle‘s vessel was “thirty to forty nautical miles from the Somali coast” in the EEZ when the crimes occurred, and he insisted that “UNCLOS treat[ed] the EEZ as a distinct quasi-territorial entity and that the high seas do not begin until two hundred nautical miles from land,” such that the United States did not have subject matter jurisdiction. Id. at 162, 167. The Fourth Circuit rejected this argument, reasoning that the “high seas” encompasses all waters outside the territorial sea, including the EEZ. Id. at 166. In rejecting Beyle‘s reliance on UNCLOS, the Fourth Circuit reasoned as follows:
While it is true that the part of UNCLOS that is titled “High Seas” concerns the waters extending beyond the borders of the EEZ, see UNCLOS, supra, art. 86, almost all of the treaty‘s high-seas provisions apply with equal force inside the EEZ as they do outside it, see id. art. 58(1)-(2). The EEZ bordering a particular nation‘s territorial sea is merely a part of the high seas where that nation has special economic rights and jurisdiction. UNCLOS grants coastal nations certain rights to natural resources within the EEZ, as well as jurisdiction over marine scientific research and
protection and preservation of the marine environment. Id. art. 56(1)(a), (b); see also Titanic, 171 F.3d at 965 n. 3 (noting that the EEZ grants “exclusive control over [certain] economic matters . . . but not over navigation“).
Any allocation of economic rights, however, is a far cry from conferring on a nation the exclusive authority endemic to sovereignty to define and punish criminal violations. In effect, Beyle would have us use UNCLOS‘s grant of certain specific enumerated rights as a wedge to dramatically expand Somalia‘s plenary control past the twelve-nautical-mile maximum. But Beyle points to no court that has declared that a nation‘s full sovereign rights extend two hundred nautical miles from the coast. We decline to credit such a sweeping interpretation.
Id. at 166–67. Thus, the Fourth Circuit‘s decision further reinforces our conclusion.
Moreover, although the Fourth Circuit is the only other circuit to have squarely addressed the same question we face here, we note that several of our sister circuits have also indicated, albeit in passing, that the EEZ is part of the “high seas.” See, e.g., United States v. Aybar-Ulloa, 987 F.3d 1, 3 n.1 (1st Cir. 2021) (en banc) (explaining that although the defendant‘s vessel appeared to be within the EEZ, “[b]ecause the right of freedom of navigation on the high seas applies in the EEZ, we proceed with reference to the rules of interdiction applicable on the high seas“); Alarcon Sanchez, 972 F.3d at 170 (concluding that “high seas” means the waters
Because the “high seas” includes EEZs, enforcement of the MDLEA in EEZs is proper, and the district court properly denied the Appellants’ motion to dismiss the indictment.
B. Appellants’ constitutional challenge to 46 U.S.C. § 70502(d)(1)(C) ‘s definition of a vessel without nationality
Next, the Appellants challenge the constitutionality of the MDLEA‘s definition of “a vessel without nationality” in
The MDLEA defines a “vessel subject to the jurisdiction of the United States” as including “a vessel without nationality“—i.e., a stateless vessel.
No one disputes that the Appellants’ vessel met the criteria of
To begin, we must determine the appropriate standard of review. “We ordinarily review de novo the constitutionality of a statute, because it presents a question of law, but we review for plain error where a defendant raises his constitutional challenge for the first time on appeal.” Valois, 915 F.3d at 729 n.7. The Appellants did not raise a constitutional challenge to
For the above reasons, the Appellants are not entitled to relief on any of their claims, and we affirm the Appellants’ convictions.
AFFIRMED.
Notes
UNCLOS, supra, pt. VII, § 1, art. 86.[t]he provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58.
(a) For purposes of special maritime and territorial jurisdiction of the United States as defined in
18 U.S.C. 7 , high seas means all
Putting aside the problems inherent in relying on a withdrawn opinion, Davila-Reyes II does not help the Appellants because it is not a decision from this Circuit or the Supreme Court, which is a necessary requirement to show error on plain error review. See United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005) (“When neither the Supreme Court nor this Court has resolved an issue, and other circuits are split on it, there can be no plain error in regard to that issue.” (quotations omitted)).
Aside from the fact that the Appellants cannot show plain error because there is no decision from this Court or the Supreme Court addressing this issue, we note that the Ninth Circuit recently rejected the argument that