UNITED STATES of America, Appellee, v. Persis TRINIDAD, Defendant, Appellant.
No. 15-1576
United States Court of Appeals, First Circuit.
October 14, 2016
In the end, James‘s arguments as to federal marijuana sentencing policy are more appropriately directed at the Executive and Legislative branches. “Relief in cases such as this—if there is any—must come, in the first instance, in the exercise of restraint and wisdom in the charging decision of the prosecutor, or in the exercise of the clemency power; both are executive not judicial functions and leave us powerless to intercede to grant relief.”16 Paladin, 748 F.3d at 454,
III. Conclusion
For the reasons given, we affirm.
Persis Trinidad was convicted of violating the Maritime Drug Law Enforcement Act (“MDLEA“) after his vessel was intercepted by United States authorities. Trinidad appeals the District Court‘s application of a sentencing enhancement to him.1 That enhancement applies if the defendant “acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer” on a vessel carrying controlled substances.
Juan A. Albino González and Albino & Assoc. Law Office, PC, San Juan, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
Before HOWARD, Chief Judge, TORRUELLA and BARRON, Circuit Judges.
I.
On or about September 27, 2014, Trinidad and Algemiro Coa-Peña were intercepted in a 30-foot “go-fast type vessel” by the United States Coast Guard, approximately 80 nautical miles south of Lea Beata, Dominican Republic.2 The vessel bore no indicia of nationality.
Trinidad and Coa-Peña told the Coast Guard that the vessel was coming from Colombia, and one of the men claimed Colombian nationality for the vessel. After the Government of Colombia indicated that it could neither confirm nor deny registry
On January 8, 2015, Trinidad pleaded guilty to one count of possession with intent to distribute cocaine, in violation of provisions of the MDLEA. See
The parties agreed to a total offense level of 31, unless Trinidad complied with the requirements set forth in
The pre-sentence report (“PSR“) put together by the probation office calculated a total offense level of 33. The PSR calculated that level by taking into account the parties’ stipulated base offense level and by adding the two-level “pilot-navigator enhancement” set forth in
The District Court calculated a total offense level of 31 and sentenced Trinidad to a term of imprisonment of 108 months, at the low end of the applicable Guidelines range. In so doing, the District Court adopted both the two-level safety-valve reduction and the two-level pilot-navigator enhancement. The District Court applied the enhancement because it found that Trinidad navigated the vessel under the circumstances.
Trinidad appeals the application of the pilot-navigator sentencing enhancement to him.
II.
We review the District Court‘s interpretation and application of this sentencing enhancement de novo and the District Court‘s underlying “factual findings, which must be supported by a preponderance of the evidence, for clear error.” United States v. Lopez, 299 F.3d 84, 87 (1st Cir. 2002). The government‘s sole argument to us is that the District Court did not err in finding that the enhancement applies because Trinidad acted as a navigator. We agree.
The undisputed record shows that Trinidad took turns steering the vessel with Coa-Peña, the only other passenger on board; that the vessel was traveling from Colombia to the Dominican Republic; that he and Coa-Peña “set sail . . . utilizing Global Positioning Devices“; and that the vessel was intercepted after twenty-four hours on the high seas. Given these facts, the District Court reasonably concluded that Trinidad must have been responsible for ensuring that the boat stayed on course for some not insubstantial portion of the trip.
Further supporting the District Court‘s assessment of Trinidad‘s onboard role—and reliance on instrumentation in guiding the boat‘s course—is the portion of the colloquy at sentencing in which Trinidad‘s counsel did not contest the notion that Trinidad had relied on the GPS to keep the boat on course. In that exchange, Trinidad‘s counsel, in trying to explain that Trinidad‘s role was too minimal to make him a navigator, remarked, “If you tell him look at the GPS or the (Remarks in Spanish)—we‘re going 280 east for example.” At that point, the District Court stated: “You have given it in. The moment that you use the compass, if you will, or you‘re using the GPS as you mention, you are navigating.” So, while Trinidad contends that, in order to be deemed a navigator, he must have been, at points, “in charge of navigating the vessel and directing it to its ultimate destination,” we conclude that the District Court reasonably found Trinidad was in charge of doing just that during some not insubstantial portions of the trip.
We therefore agree that, on this record, Trinidad, who was an experienced fisherman, acted as a navigator during the journey from Colombia to the Dominican Republic. See The Oxford English Dictionary 259 (2d ed. 1989) (defining “navigate” to mean, among other things, “to sail, direct, or manage (a ship)” and “to plot and supervise the course of (an aircraft or spacecraft)“); The Random House Dictionary of the English Language 1282 (2d ed. 1987) (defining “navigate” to mean, among other things, “to direct or manage (a ship . . .) on its course“); Webster‘s Third New Int‘l Dictionary 1509 (1981) (defining “navigate” to mean, among other things, “to steer, direct, or manage in sailing: conduct (a boat) upon the water by the art or skill of seamen“).3
In so concluding, we reject Trinidad‘s contention that a person can only qualify as a navigator if he or she knows how to program or adjust a GPS—or other navigational device—and not if he merely relies on it to keep the boat on course. Nothing in the text or commentary of the enhancement supports such a restricted definition of the term “navigator.” Cf. United States v. Cruz-Mendez, 811 F.3d 1172, 1176 (9th Cir. 2016) (explaining that appropriate application of the “pilot” portion of the enhancement is “not dependent on a finding of any particular formal training“); United States v. Cartwright, 413 F.3d 1295, 1298-99 (11th Cir. 2005) (per curiam) (reviewing the defendant‘s actions on board the vessel, rather than the extent
We also reject Trinidad‘s contention that he did not act as a navigator because he was a subordinate to the other man on the vessel. By its own terms, the enhancement reaches anyone who “act[s] as a navigator,” just as it reaches captains and copilots alike.
III.
For the reasons given, we affirm.
TORRUELLA, Circuit Judge (Dissenting).
The sole issue raised by appellant‘s counsel before the trial court, and now before this court, is an objection to the sentencing court‘s enhancement of appellant‘s sentence pursuant to its finding that he was a “navigator” within the meaning of
If I did not feel bound by my prior decision in United States v. Bravo, 489 F.3d 1 (1st Cir. 2007), however, there would be additional grounds which would lead me to further part from my brethren in affirming appellant‘s conviction. I can no longer support the approach taken by this and our sister circuits in embracing the sweeping powers asserted by Congress and the Executive under the Maritime Drug Law Enforcement Act (“MDLEA“), and I am of the view that the district court acted without jurisdiction over appellant.5
My concerns are of a fundamental nature and deal with the power of this court, or rather the lack of power of this court, to penalize appellant for the crimes which he allegedly committed against the United States. That is, first, whether the United States has the power to arrest appellant under the circumstances of this case and involuntarily render him into the territory of the United States. Second, whether the United States has the power to retroactively apply to him the criminal laws of the United States for conduct which previous to his arrest and rendition was not subject to those laws, and which only comes into play by the actions of the United States in arresting appellant in international waters and rendering him into United States territory.6
I.
To fully consider the issues raised by appellant‘s conviction, a more detailed
Appellant Persis Trinidad was, at the time of the alleged violations, a 46-year-old native and citizen of the Dominican Republic, who lived in the seaside village of Playa Las Galeras, Samana, in the northern part of the island, where he eked out a living as a fisherman earning about $150 a month. Although his record shows that he had a sixth-grade education, Trinidad nevertheless expressed being illiterate, a fact that can be confirmed from his “signature” on the plea agreement and other court documents. Furthermore, his primary language is Spanish and he has no fluency in English. Sometime in August, 2014, Trinidad was approached by a Colombian who went by the first name of Andrés, who bought some fish from him. The following day, Andrés hired him for a fishing trip, during which he asked Trinidad if he was interested in another job, earning more money. Upon inquiring as to the nature of the job, Trinidad was told it would require his going to Colombia and bringing back narcotics by sea to Santo Domingo, Dominican Republic, for which he would be paid $20,000. Andrés informed Trinidad that he would help him get his Dominican Republic passport and would pay for his airfare to Colombia. Thereafter, Trinidad accepted the offer.
On September 16, 2014, Andrés picked up Trinidad at Playa Las Galeras and drove him to Santo Domingo where he gave him 2,600 Dominican pesos (RD$) for passport fees, and approximately RD$1,500 more for government processing. Andrés then helped Trinidad with the passport process and subsequently went with him to the Avianca Airline‘s office where Andrés paid for Trinidad‘s airline ticket to Barranquilla, Colombia and then gave the ticket to Trinidad. Andrés then gave Trinidad RD$3,600 for his transportation to Punta Cana International Airport and $500 to cover miscellaneous expenses. On that same day Trinidad went to the airport, took the Avianca flight to Bogotá, Colombia, and there connected to a flight to Barranquilla, Colombia.
Upon his arrival at the Barranquilla airport, Trinidad was met by a Colombian couple, who took him to a hotel (at an unknown location) in Barranquilla, where he stayed until September 23, 2014. On this date another Colombian picked him up and transported him to a second hotel in Barranquilla (also at an unknown location), where he sojourned for one more night. While at this second hotel, Trinidad met Algemiro Coa-Peña (“Coa-Peña“), who was to be his companion on the return sea voyage to the Dominican Republic, as well as his eventual co-defendant in this case. Coa-Peña is a native of Cartagena, Colombia and a citizen of the Republic of Colombia.
At some time on the 24th, Andrés picked up Trinidad and took him to a store to purchase two pairs of pants for him. Later that night took him to a small pier near the hotel where a so-called “go-fast” boat was docked.8 Andrés told Trinidad that the narcotics would be transported to the Dominican Republic aboard that vessel. Trini-
Soon thereafter, Coa-Peña and Trinidad left from Barranquilla, Colombia destined for Santo Domingo, Dominican Republic. During the trip towards the Dominican Republic, both took turns steering the vessel, with Coa-Peña “handling” the GPS.9 On September 26, 2014, the voyage was proceeding normally until the boat reached an area approximately 80 miles south of Isla Beata, Dominican Republic. At this point, while the vessel was still in international waters, the vessel‘s engines experienced trouble and the boat came to a stop. Shortly after, the disabled vessel was approached by a U.S. Coast Guard cutter, which, with the aid of a marine patrol aircraft, had for some time been tracking the vessel Trinidad and Coa-Peña were travelling on, as well as another “suspicious” boat, as they headed in a northerly
course towards the Dominican Republic. A boarding team from the cutter soon approached the disabled vessel, which as previously indicated, was dead in the water. The other “suspicious vessel” was nowhere in sight, having disappeared into the expanse of the sea.
The boarding team reported coming upon a 30-foot “go-fast” boat, with no markings or indicia of nationality, and aboard which were two persons later identified as Trinidad and Coa-Peña. Neither claimed to be the master of the vessel, but one of them orally claimed Colombian nationality for the vessel. Both indicated that their last port of call was in Colombia, and that their next port of call was Santo Domingo. Several bales of cargo could be observed in the forward section of the boat.
The Coast Guard put in effect their protocol under the U.S.-Colombia bilateral agreement on maritime smuggling,10 whereby the government of Colombia was contacted to request confirmation or denial of the registry of the suspect vessel in Colombia. On the next day, September 27, the Colombian government responded that it could neither confirm nor deny registry of the vessel in Colombia (unsurprisingly, given the dearth of information available at that point), whereupon the Coast Guard‘s Seventh District Commander granted permission to the cutter‘s boarding crew to consider the vessel as one without nationality, and to conduct a boarding under U.S. law. The boarding party then conducted a field test of the substances found in the bales located on the bow section of the intercepted vessel,
On board the intercepted vessel were found 144.9 kilograms of cocaine packed in bricks inside six bales, which were moved to the Coast Guard cutter as the detained boat could not be safely towed and had to be purposely sunk to prevent it from becoming a hazard to navigation. Trinidad and Coa-Peña were brought aboard the U.S. Coast Guard cutter and then transported aboard the cutter to Mayaguez, Puerto Rico, which, according to the Government‘s euphemistic statement in the indictment, “was where the defendants first entered the United States after commission of the . . . offense” (emphasis added), a contention which in itself raises some interesting issues,11 which will be presently discussed.
Appellant pled guilty to Count One of the Indictment which charged possession with the intent to distribute more than five kilograms of cocaine on board a vessel subject to the jurisdiction of the United States, that is, a vessel without nationality, for which he was sentenced to imprisonment for a period of 108 months.12
II.
The majority opinion argues that because Trinidad admitted as part of his plea agreement that he took turns “conning the vessel” with Coa-Peña, that he therefore meets the definition of a “navigator.”13 In making this argument the majority cites English dictionaries that equate “navigate” with “to steer.” Supra at 115.
I take issue with what in my view is an obviously unjust result. The majority‘s opinion relies on an overly broad way of reading this term. To be a navigator contains its own particular subset of skills that are more easily summarized by the term “navigator” than merely driving a boat. Although the majority cites common dictionaries of the English language to equate “navigate” with “steer,” much more telling, in my view, is the definition of “navigate” found in nautical dictionaries. Here the definition is “[t]o safely operate a vessel employing the elements of position, course and speed” and “[t]o determine position, course and speed using instruments.” Definition of “Navigate“, Sea Talk Nautical Dictionary, http://www.seatalk.info/ (last visited Oct. 6, 2016). This definition embraces the notion that in nautical terms “to
To assume a broader definition of “navigator” suggests that the sheer act of driving somehow enhances the individual‘s criminal conduct. But would we ever suggest that suburban or rural drug dealers should receive an enhanced sentence simply because they drive a car to the location of their drug transactions rather than walk or take public transportation as their more urban counterparts might? Persis Trinidad was a fisherman who knew how to engage in his trade, which was coastal fishing on a yola (a small open skiff propelled by oars or an outboard motor). See United States v. Matos-Luchi, 627 F.3d 1, 2 (1st Cir. 2010). He was offered more money than he could make in ten years of fishing to help manage the boat between Colombia and the Dominican Republic. During the voyage he may have periodically looked at the screen of the handheld GPS he was provided with by his Colombian cohorts, but this is no more an exceptional skill or action than if he had been driving most modern cars which have GPS in their dashboard.
III.
My departure from the majority‘s opinion is not limited to their reading of the term “navigator,” however. The Maritime Drug Law Enforcement Act (MDLEA), codified as amended at
Considering that Trinidad is an illiterate, non-English speaking Dominican citizen, with no record of his having ever resided or even visited the United States, without any prior criminal past and unaware of U.S. criminal law until he was captured in the high seas, the question arises whether he can be charged with retroactively violating U.S. law upon his forced rendition into U.S. territory. When and where did Trinidad commit this alleged U.S. crime? Can it be said that there was any U.S. crime committed by Trinidad, before the vessel he was navigating was intercepted? That would be a stretch that would be difficult to swallow. Thus we must assume, that if there was a U.S. crime committed, it was only after he was physically apprehended in the high seas. Prior to that Trinidad could not have infringed any U.S. law, and if he did commit any crime for which he could be charged, it would have been against the laws of Colombia and/or the Dominican Republic. This raises the question of how Trinidad‘s conduct before he was apprehended (which conduct could not then have been a U.S. crime) can become a U.S. crime by the United States Government capturing Trinidad at a time when he had committed no crime against the United States. This enigma is at the heart of the attempt by the United States to exercise universal criminal jurisdiction through means repeatedly
This conundrum arises because of the expansive definition Congress has given to statelessness.14 There are two problems with the MDLEA‘s treatment of stateless vessels. First, its definition of when a vessel is actually stateless far exceeds anything that exists or is allowed by international law. Second, the degree and type of proof the MDLEA accepts for statelessness risks violating international and domestic law. The MDLEA uses the statelessness of a vessel as the hook by which it allegedly acquires jurisdiction over a vessel and its crew, allowing it to retroactively apply U.S. criminal laws to said persons irrespective of their nationality, the place where the alleged crimes were committed, or the lack of any U.S. connection or impact of the charged conduct.
A. Defining when a Vessel is Stateless
According to the MDLEA a vessel without nationality is one “aboard which the master or individual in charge” either “makes a claim of registry that is denied by the nation whose registry is claimed,” “fails . . . to make a claim of nationality or registry for that vessel,” or “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.”
When Trinidad‘s boat was intercepted by the U.S. Coast Guard, Trinidad and Coa-Peña were questioned as to the nationality of the boat and Coa-Peña answered that the ship was Colombian. Nevertheless, the vessel in question was deemed stateless by the United States after Colombian authorities responded to the inquiry by U.S. authorities to the effect that Colombian registry could be “neither confirm[ed] nor den[ied].” On the basis of this noncommittal statement, based upon the flimsy information available at the time, the Coast Guard was authorized pursuant to the U.S.‘s self-promoting legislation to assume jurisdiction over the vessel and its crew, and to apply U.S. criminal laws to them.
Under international law, however, the acquisition of jurisdiction in this case on the basis of “statelessness” because of Colombia‘s failure to make an unequivocal assertion of nationality within the twenty-four hours or so given is a gross overstepping of jurisdictional boundaries. In international maritime law there is the long-established concept of the law of the flag, a principle of customary international law that is adhered to by the United States.16 Under the law of the flag principle, a ship has the nationality of the country whose flag it is entitled to fly.17 Central to this entire regime is the principle that [e]ach state under international law may determine for itself the conditions on which it will grant its nationality to a merchant ship, thereby accepting responsibility for it and acquiring authority over it. . . . The United States has firmly and successfully maintained that the regularity and validity of a registration can be questioned only by the registering state. Lauritzen v. Larsen, 345 U.S. 571, 584 (1953) (emphasis added).18
This means that once a claim of Colombian nationality was made, it was up to Colombia to definitively decide whether the boat was in fact Colombian, not for the United States to unilaterally make that decision in a conclusive manner with the scarcity of information available to it at the time of interception and arrest.19 It should be noted that under the MDLEA it is contemplated that nationality can be as-
Given the facts of this case, I am unaware of anything preventing further inquiry into such a crucial factor as was the nationality of the vessel. There is no apparent reason why this matter was not raised or pursued once dry land and legal representation were reached. Cf. United States v. Greer, 285 F.3d 158, 175 (2d Cir. 2002) (jurisdictional element of the MDLEA may be inquired into any time before trial); United States v. Bustos-Useche, 273 F.3d 622, 627 (5th Cir. 2001) (identifying legitimate deadline to consent to U.S. law any time before trial). The jurisdictional issue was not cast in stone based only on the flimsy information available in situs at the time of the interception. Considering the undisputed circumstantial evidence surrounding this sea voyage (i.e., the place where the vessel departed from, the nationality of the personnel that dealt with this enterprise, the nationality of half of the crew that by all appearances was the leading actor aboard the vessel, and the specific claim of the vessel‘s Colombian nationality), it is difficult to deny the vessel‘s Colombian connection and nationality, which if it had been properly raised and established, should have deprived the court of jurisdiction and led to dismissal of the charges against Trinidad.21
Nothing in the MDLEA dictates a contrary result. Although the MDLEA does define as a “vessel without nationality” one “aboard 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,” there is no indication of a timeline according to which the claimed nation of registry must “affirmatively and unequivocally” assert that nationality.
This court is directed to avoid interpreting the MDLEA in a way that would result in a violation of international law. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18, 2 L.Ed. 208 (1804). Reading the MDLEA to permit the half-hearted attempt to establish nationality that was made here to establish statelessness in violation of international law is in direct contradiction to this longstanding notion of statutory construction. Weinberger v. Rossi, 456 U.S. 25, 32, 102 S.Ct. 1510, 71 L.Ed.2d 715 (1982) (applying Schooner Charming Betsy as a “maxim of statutory construction.“). Because nothing in the statute denied the government or Trinidad‘s attorney the ability to conduct further inquiry into the nationality of the vessel, it is incumbent on us to avoid reading into the statute a requirement that the described verification was legally sufficient to establish the statelessness of Trinidad‘s boat.
Trinidad‘s shipmate invoked Colombian nationality for the vessel, and Colombia could not confirm or deny this assertion within the short time provided. Colombia did not grant U.S. authorities permission to subject the boat to U.S. jurisdiction, and so the United States unilaterally decided that, pursuant to its laws, the vessel was stateless and therefore subject to U.S. criminal laws. I cannot read the MDLEA as permitting such a brazen expansion of U.S. jurisdiction at the expense of international law.
B. The Degree of Proof Necessary to Establish Statelessness
Finally, I further object to this circuit‘s treatment of this question as one that may be answered by a preponderance of the evidence. Matos-Luchi, 627 F.3d at 5; see also United States v. Vilches-Navarrete, 523 F.3d 1, 8-10 (1st Cir. 2008) (Torruella, J., dissenting in part). This is done by treating the question of statelessness as one of jurisdiction, but as my analysis above seeks to demonstrate, the status of Trinidad‘s boat goes far beyond the question of whether United States courts have jurisdiction. It goes to the very heart of whether there has been any crime committed at all. Matos-Luchi, 627 F.3d at 14 (Lipez, J., dissenting) (“[A] failure to prove that defendants’ conduct occurred on board a covered vessel amounts to a failure to prove that the defendants violated the MDLEA.“). If Trinidad cannot face any criminal penalty at all in the absence of proof of his vessel‘s statelessness, how can proof of his vessel‘s statelessness possibly be subjected to a preponderance of the evidence standard? See United States v. Perlaza, 439 F.3d 1149, 1167 (9th Cir. 2006) (holding that when a jurisdictional inquiry into statelessness turns on factual issues, then it “must be resolved by a jury“).
With due respect, I cannot join an opinion which validates the blatant violation of international law by the United States.