UNITED STATES OF AMERICA v. LUIS MARIN; UNITED STATES OF AMERICA v. LUIS CHAVEZ
No. 22-50154, No. 22-50155
United States Court of Appeals for the Ninth Circuit
January 17, 2024
Argued and Submitted July 19, 2023 Pasadena, California
FOR PUBLICATION
Dana M. Sabraw, Chief District Judge, Presiding
OPINION
Filed January 17, 2024
Before: Jacqueline H. Nguyen and Danielle J. Forrest, Circuit Judges, and Richard D. Bennett,* Senior District Judge.
Opinion by Judge Nguyen
SUMMARY**
Criminal Law
The panel affirmed two defendants’ convictions for violating
Defendants were arrested after the U.S. Coast Guard interdicted their speedboat, which was carrying at least 1,000 kilograms of cocaine, on the high seas off the coast of Ecuador. The vessel carried no nationality flag, but both defendants made a verbal claim of Ecuadorian nationality for the vessel. The Ecuadorian government neither confirmed nor denied nationality. The United States treated the vessel as stateless (i.e. without nationality) and exercised jurisdiction. Under
Defendants challenged the government‘s jurisdiction, arguing the provision under which jurisdiction was exercised is unconstitutional because (1) Congress‘s authority to “define and punish . . . Felonies committed on the high Seas,”
Without deciding whether the Felonies Clause is constrained by international law, the panel held that the definition of “vessel without nationality” under
COUNSEL
Kenneth J. Troiano (argued), Kenneth J. Troiano Attorney at Law, San Diego, California; Martin G. Molina (argued), Law Office of Martin G. Molina, San Diego, California; for Defendant-Appellant.
Mark R. Rehe (argued), Nicole Bredariol, and P. Kevin Mokharti, Assistant United States Attorneys; Daniel E. Zipp, Assistant United States Attorney, Appellate Section Chief, Criminal Division; Randy S. Grossman, United States Attorney; United
OPINION
NGUYEN, Circuit Judge:
Luis Marin and Luis Chavez (“defendants“) appeal their convictions for violating
Defendants challenge the government‘s jurisdiction, arguing the provision under which jurisdiction was exercised is unconstitutional because: first, Congress‘s authority to “define and punish . . . Felonies committed on the high Seas,”
I. Background
On March 18, 2021, the U.S. Coast Guard interdicted a go-fast vessel1 on the high seas, about 655 nautical miles west of the Galapagos Islands, Ecuador. The vessel did not display any flags or indicia of nationality. Prior to boarding, Coast Guard officers saw visible packages on deck. Marin and Chavez were the only men on board, and they both identified themselves as master of the vessel and verbally claimed Ecuadorian nationality for the vessel. One of them spontaneously stated that there were drugs in the cargo hold.
The Coast Guard officers initiated a “forms exchange” under a bilateral United States-Ecuador agreement, whereby they contacted Ecuadorian authorities to confirm or deny registry of the vessel under their nationality. See United States v. Alarcon Sanchez, 972 F.3d 156, 160 (2d Cir. 2020). Ecuadorian authorities at first
The Coast Guard officers then received a second response from Ecuadorian authorities stating that they could neither “confirm nor deny nationality of the vessel.” The Coast Guard proceeded to treat the vessel as stateless and arrested Marin and Chavez. The officers removed over 1,000 kilograms of cocaine from the vessel.
Marin and Chavez were indicted for conspiracy to distribute cocaine while on board a covered vessel, in violation of
On January 20, 2022, before defendants were sentenced, the First Circuit, in a now-withdrawn opinion, held that
On April 21, 2022, in reliance on Davila-Reyes, Marin filed a motion to withdraw his guilty plea, which Chavez joined. The district court denied defendants’ motion to withdraw their guilty pleas but invited them to renew the issue at sentencing by way of a motion to dismiss for lack of subject-matter jurisdiction. Defendants did so, and on June 30, 2022, the district court denied the motions to dismiss. The district court held that Congress‘s power to legislate under the Felonies Clause is not constrained by international law. It did not decide the second question—whether
The district court sentenced each defendant to 72 months of imprisonment, followed by 5 years of supervised release.3
Less than a week after defendants were sentenced, the First Circuit withdrew its panel opinion in Davila-Reyes after voting to rehear the case en banc. 38 F.4th 288 (1st Cir. 2022). Subsequently, in an en banc decision, the First Circuit affirmed the convictions on narrow grounds, holding that the government could have asserted jurisdiction because the vessel “was not
II. Jurisdiction and Standard of Review
We have jurisdiction under
III. Discussion
The Constitution empowers Congress “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”
Relevant here is the Felonies Clause, which provides the basis for the MDLEA. See United States v. Shi, 525 F.3d 709, 721 (9th Cir. 2008) (holding that a federal statute is a valid exercise of the Felonies Clause if it “proscribes felony offenses and expressly applies to international waters“). The MDLEA makes it unlawful for an individual to “knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance” on board “a vessel of the United States or a vessel subject to the jurisdiction of the United States.”
Defendants argue that Congress‘s Felonies-Clause power is bounded by international law jurisdictional principles, and the definition under the MDLEA goes beyond what international law deems a stateless vessel (i.e., a vessel without nationality).
Without deciding whether the Felonies Clause is constrained by international law, we hold that the definition of “vessel without nationality” under
A. Our prior decisions upholding the constitutionality of the MDLEA do not answer the issue defendants raise.
Although we have previously upheld the constitutionality of the MDLEA, those cases do not dictate the results here, as the government suggests, because we have not previously addressed the precise issues defendants raise.
We have noted that “[a]s an exercise of congressional power pursuant to Article I, Section 8, Clause 10, this court clearly has held that the MDLEA is constitutional.” United States v. Moreno-Morillo, 334 F.3d 819, 824 (9th Cir. 2003) (citing United States v. Davis, 905 F.2d 245, 248 (9th Cir. 1990)). In Moreno-Morillo, the vessel was deemed stateless because the Colombian government neither confirmed nor denied that the ship was Colombian. Id. at 831. Defendants argued that the MDLEA was unconstitutional because drug-trafficking is “not among the felonies and piracies on the high seas that Congress is empowered to define.” Id. at 824. We rejected this argument, holding that the prohibition of possession of drugs with intent to distribute on certain vessels was within Congress‘s “power to ‘define and punish piracies and felonies committed on the high seas.‘” Id. (quoting United States v. Aikins, 946 F.2d 608, 613 (9th Cir. 1990)).
The government acknowledges that Moreno-Morillo did not address the same challenge to
The government also highlights that we held in Davis that “compliance with international law does not determine whether the United States may apply the [MDLEA] to [defendant‘s] conduct.” Davis, 905 F.2d at 248. But Davis addressed a different question than the one presented here. In Davis, we upheld the constitutionality of the MDLEA‘s extraterritorial application to the defendant because that application satisfied the “[o]nly two restrictions . . . on giving extraterritorial effect to Congress’ directives“: (1) Congress must “make clear its intent to give extraterritorial effect to its statutes,” and (2) application of the statute to the acts in question must not violate due process. Id. (citations omitted). We rejected the defendant‘s argument that compliance with international law determines whether the United States may apply the MDLEA to his conduct, as “[i]nternational law principles, standing on their own, do not create substantive rights or affirmative defenses
Unlike in Davis, defendants do not argue here that “[i]nternational principles, standing on their own . . . create substantive rights or affirmative defenses.” Id. at 248 n.1. Rather, they argue that Congress‘s powers to enact laws pursuant to the Felonies Clause is constrained by international law, and further that the MDLEA‘s definition of statelessness is inconsistent with international law—issues which we have never before addressed.5 We turn, then, to the merits of defendants’ argument.
B. Section 70502(d)(1)(C)‘s definition of a “vessel without nationality” is not inconsistent with international law.
As defendants acknowledge, international law allows jurisdiction over stateless vessels. See, e.g., United States v. Rubies, 612 F.2d 397, 403 (9th Cir. 1979) (“In the interest of order on the open sea, a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the open sea is freedom for such vessels only as sail under the flag of a State.“) (quoting 1 L.F.L. Oppenheim, International Law § 546 (7th ed. 1948)); United States v. Aybar-Ulloa, 987 F.3d 1, 7-8 (1st Cir.). While “foreign flag vessels are generally accorded the right of undisturbed navigation on the high seas,” Rubies, 612 F.2d at 402, stateless vessels are “international pariahs,” United States v. Caicedo, 47 F.3d 370, 372 (9th Cir. 1995). Stateless vessels “represent ‘floating sanctuaries from authority’ and constitute a potential threat to the order and stability of navigation on the high seas.” United States v. Marino-Garcia, 679 F.2d 1373, 1382 (11th Cir. 1982) (quoting Herman Meyers, The Nationality of Ships 318 (1967)). “By attempting to shrug the yoke of any nation‘s authority, they subject themselves to the jurisdiction of all nations.” Caicedo, 47 F.3d at 372.
A ship can only sail under the flag of one country. U.N. Convention on the Law of the Sea art. 92(1), opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994) (“UNCLOS“);6 Convention on the High Seas art. 6(1), opened for signature Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82 (entered into force Sept. 30, 1962) (“GCHS“);7 Aybar-Ulloa, 987 F.3d at 5 (“[E]very vessel must sail under the flag of one, and only one, state.“). Each country is responsible for determining “the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag.” GCHS, art. 5(1). And each country “must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” Id.
Defendants argue that outside of these circumstances, the United States may not broaden the definition of a stateless vessel. But under the Lotus principle:
Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, [international law] leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.
. . .
[A]ll that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.
S.S. Lotus (1927), PCIJ (Ser. A) No. 9, at 19. Understanding the purpose of international law to be “regulat[ing] the relations between . . . co-existing independent communities,” the Permanent Court of International Justice (“PCIJ“) found “no rule of international law” regarding the specific jurisdictional question there at issue, and thus concluded the disputed exercise of criminal jurisdiction was not “contrary to the principles of international law.” Id. at 18, 30-31. Here, “no rule of international law” addresses whether a state may consider a vessel to be without nationality and exercising jurisdiction in the circumstances set forth in
Defendants argue that there is a rule of international law which
Defendants argue that the United States can simply seek the permission of the claimed flag state if it can neither confirm nor deny the claimed nationality of the vessel, but that is a policy decision for Congress to make, not one that is required by international law. It is not our role to create new international legal principles by inference, as defendants attempt to do by arguing that “[b]y implication, [a vessel] is not stateless under any other circumstance[s]” than the ones already defined by international law.11 Our conclusion is buttressed by the numerous district courts that have all rejected challenges like the one here since the now-withdrawn Davila-Reyes decision was issued. See, e.g., United States v. Pierre, No. 21-CR-20450, 2022 WL 3042244, at *10 (S.D. Fla. Aug. 1, 2022) (collecting cases).
Because there is no rule of international law speaking to this jurisdictional question, the United States does “not overstep the limits which international law places upon its jurisdiction,” S.S. Lotus (1927), PCIJ (Ser. A) No. 9, at 19, in choosing to treat vessels as stateless where the claimed nation responds that it can neither confirm nor deny the registry. We therefore need not address defendants’ argument that Congress‘s powers to enact laws pursuant to the Felonies Clause is constrained by international law to conclude that defendants’ challenge to
AFFIRMED.