United States v. Vilches-Navarrete

America, UNITED STATES

Appellee, Segundo VILCHES-NAVAR

Luis

RETE, Defendant, Appellant. 06-1942.

No. Appeals, Court of

First Circuit. Sept.

Heard 2007. April

Decided McGuinness,

J. Michael with whom The brief, McGuinness Law Firm was on for appellant. Bauzá-Almonte, E.

Mariana Assistant Attorney, whom with Rosa Rodriguez-Velez, Emilia United States At- torney, PéreznSosa, and Nelson Assistant Chief, Attorney, Appellate Division, brief, were on appellee. for TORRUELLA, LYNCH, Before and HOWARD, Judges. Circuit TORRUELLA, Judge, opinion Circuit court except 11(A); as to Part 11(A).1 dissenting Part Appellant Segundo Luis Vilches-Navar- (“Vilches”) (1) rete pos- was convicted of: Judges Lynch 11(A). opin- Howard write the Part See at 19. infra ion of the court as to the issue considered flag. approached Honduran As the USCG five kilo- intent to distribute session cocaine, in performed violation it inspection, or more visual made grams Act Drug Law Enforcement the Maritime Berkley radio contact with the crew. was 70503;2 (“MDLEA”), 46 U.S.C. of his suspicious of answers some to dis- conspiracy possess with intent that the questions. He vessel had noted kilograms of co- than five more tribute side; furthermore, along rub marks 70506(b) caine, in violation of U.S.C. rocking slowly back and forth. Berk- appre- Vilches was multiple grounds. on sign very heavy ley knew this be a trafficking drugs in interna- hended Additionally, the load. Babouth had by the United States Coast tional waters antennae, unusually large number indic- (“USCG”). he makes appeal, On Guard great equip- ative of deal electronic argues that the arguments. He numerous ment board for a of this nature. and that MDLEA unconstitutional factors, Berkley Based on these believed He jurisdiction. also court lacked district suspicion approach he had reasonable refusal challenges the district court’s approached As the Ba- the vessel. he evidence, grant a motion to suppress bouth, flag, converting he the USCG raised dismiss, sufficiency of the as as the well a the Wave Ruler into law enforcement which he was convicted. upon evidence Berkley a report vessel. also faxed his unreason- He claims that sentence was USCG, duty officer on Southern in the the numerous errors able and that District, up call phone and followed with a right to a fair trial. prejudiced case his requesting consideration, the USCG contact we his After careful affirm by imposed permission sentence government conviction and the Honduran for the district court. the Babouth. Thereaf- board search ter, government granted the Honduran Background3

I. verbally, and later fol- permission, first a routine January during On official, lowed written communica- Sea, drug in the eastern Caribbean patrol tion. Berkley, Adam Lieutenant Nolen USCG miles fifty Babouth was nautical boarding deployed team on the whose north, Grenada, traveling in a west of Royal Ship, the Auxiliary Fleet’s British Puerto northwesterly direction towards Ruler, a received information from Wave inter- Rico and St. Croix when USCG a patrol maritime aircraft about vessel drug it. is a known cepted This area cargo A in international waters. interest Petty Michael trafficking north had smaller vessels area. Officer heading it, Acevedo, which raised sus- coming alongside familiar Christopher who was continued picion of the USCG. The USCG history drug traf- and its with the area to monitor the vessel. with the the Babouth ficking, boarded both the Government permission of using British morning, next Vilches, captain. Aceve- Honduras and its ship’s helicopter, the identified USCG Babouth, for the duration vessel, do remained on the vessel flying which was conviction, as the district 3. We recite the facts found 2. At the time of Vilches’s court, support See 1903(a). with record consistent app. at 46 U.S.C. MDLEA was Romain, has been recodified at The MDLEA since Cir.2004); v. Vilches- see also United States §§ U.S.C. 70506-70507. (D.P.R. Navarrete, F.Supp.2d 63-64 2006) (district findings). court's factual search and was the officer ed that Vilches did utilize the charts and charge. the GPS. Upon inspection, Berkley noticed that day, inspection the third On another much free board. He

the Babouth had too space-accounta- team came complete rusty also noticed that the vessel was and bility inspection. The concrete blocks on poor repair. The looked to be in Babouth board, which Vilches had described as ex- commonly by drug drums used also had tremely sturdy, apart as fell the officers traffickers, fuel con- including 500-gallon inspection tried to move them. The team of, strongly tainer that smelled and con- lading found that the bill ship’s like, gasoline. tained what looked Vilches cargo ship’s conflicted with the invoice. septic told officers that it was a tank could not provide satisfactory Vilches inspected for the toilets. The officers explanation for discrepancy even tank, and observed that did not lead to a though ship’s forms carried his seal toilet to the back of over but the boat and signature. addition, Acevedo asked the side. why they traveling had been so registra- Acevedo asked Vilches for the slowly a cargo since vessel would want to tion documents and manifest of the Ba- cargo quickly. deliver its Vilches blamed bouth. turned over briefcase engine prob- the slowness the vessel on for the ship, provided with documents He hy- lems. claimed that there was a prepared with an Acevedo affidavit jacket draulic leak water stating the registration Trinidad had Acevedo, qualified mechanic, pump. in- Acevedo, however, been lost. found the spected engine hydraulic the and found no briefcase; registration in vessel’s Vilches’s jacket lines used for the of the water expired it had on December pump. safety a inspection After and a search 5, 2005, By February the Babouth was for the weapons, officers looked for indica- waters, in U.S. a and task force boarded being tors that the vessel was utilized for the vessel and continued the search. smuggling They contraband. found fresh- Vilches consented to the For search. safe- areas, concrete, painted ly spilled bag reasons, ty was taken to mix, welds, and all concrete fresh of which Juan, USCG’s station San Puerto Rico. compartments. are indicators hidden 7, 2005, February On still while searching sweep team also found other items port, the Babouth at the one of the Bar their suspicion which raised about the con- members, bouth’s crew Luis Fernando tents of the purpose vessel and the real (“Piedrahita”), Piedrahita-Calle communi- being Berkley which it was used. and by speak cated note that he wanted Acevedo found communication devices at the DEA. ship’s bridge, similar to those Acevedo drug had in other seen seizure cases at Piedrahita met with the officers and told sea. drugs them where were hidden and how the plan smuggle drugs The Babouth contained was execut- navigational Agents ed. plot charts reboarded the Babouth global without marks and a and (“GPS”) system by went the area positioning identified Piedrahita. was not attitude, being used. Vilches’s coopera- Vilches claimed that he did which had been tive, them experi- changed use because he was an the agents once returned assertion, receiving enced mariner. Despite after the note from Piedrahita. Babouth, while on board the Acevedo not- agents part As the searched the back and Chávez recounted that at around mid- vessel, assertive Vilches became night January on called Vilches their search. agents about questioned they him and told him that were instructions, Following Piedrahita’s point drug pick-up, for the prearranged hatch under found a well-hidden agents drugs had not bringing the boat but to ten floor. Under about six the linoleum motorboat, later, arrived. an hour About ammonia, sand, sawdust, inches of radio, which Vilches was in contact with In- manhole cover. officers found bolted up to the hull of came the Babouth manhole, found several white they side the on the boat the bales of people passed for co- positive which burlap sacks tested crew, drugs up to the crew. The entire thirty-five agents recovered caine. Vilches, exception with the who was cocaine, weighing approximately bales of vessel, loading piloting participated in Earlier, a canine had de- kilograms.4 drugs. thirty-five A bales total of later odor the area tected narcotic The motorboat then left. were loaded. identified Piedrahita. the ba- Chávez testified the crew hid empty in an water tank under the floor les and Trial A. Indictment of the The crew then informed Babouth. job complete. that the Vilches on the drugs found the After the USCG but sailing, continued was soon thereafter boat, charged Vilches was arrested and intercepted by the USCG. the intent to distrib- possession with with ute of the MDLEA under only Vilches was the defense witness. possess intent to conspiracy with captain of the Ba- being He admitted 70506(b). July bouth, under On any distribute knowledge but denied joined mo- making a co-defendant’s Vilches denied drugs board. any dismiss suppress any phone tions to evidence and satellite calls and denied denied knowledge coming alongside the indictment. The district court of boat no Babouth. He claimed that there was the motions. pallets, discrepancy as to the number of (“Chávez”), one Mardonio Chávez-Senti in on the despite quantity the difference co-defendants, pled guilty and of Vilches’s Though he lading and invoices. bill of testified at trial on behalf of the Govern- them, knowing denied admitted to Vilches provided conspir- ment. He details of the knowing how contact either Sandoval acy day that the Babouth was and of book, however, His address Lamberti. intercepted the USCG. men; for both had contact information yellow. highlighted their names were Chávez, testimony, his According to Ms falsi- confronted with Vilches was also engineer, met with Pedro naval mechanical license, gave for which he navigation fied Lara, Valleadares, Ruiz, and Antonio Aldo satisfactory explanation. no Sandoval, participate in agreed and José $30,000. drug trafficking venture for 29 dismissal for Vilches moved a Rule Pro- joined them Rules of Criminal He testified that under Federal run; the Govern- the conclusion of help prepare drug Haiti to for the cedure at the conclusion up again at pick Haiti Tortola to ment’s case and Babouth left for court denied The district his own case. drugs. $16,000 (depending per kilogram that the substance in and The DEA confirmed sale). ninety- cocaine with a the bales in fact location of $2,500 percent purity, valued between one jury PSR, both motions. The found Vilches Consistent with the the district court guilty on counts. He did not calculated Vilches’s both move sentence be- tween 292 and 365 months. Taking into set aside verdict. advisory

account the guidelines and the 3353(a) factors, § the district court sen- Sentencing B. tenced Vilches to 365 months for each Pre-Sentencing Report Vilches’s count, to concurrently. be served (“PSR”) grouped the two counts and calcu- court prior drug-relat- noted Vilches’s thirty-eight lated base offense ed level convictions were indicative of his recidi- 2Dl.l(c)(l). vism. The court found pursuant § Tak- that “a sentence at to U.S.S.G. top guideline range of the the appro- ing into captain account Vilches’s role as priate and the reasonable sentence.” Babouth, the PSR added two levels imposed court an additional sentence of pursuant 2Dl.l(b)(2), § U.S.S.G. concurrent five-year supervised terms of total forty. Although offense level of a mandatory special release and monetary record, a prior had PSR calcu- assessment, upon and motion declined to history points, lated zero criminal resulting reconsider the sentence. I, history in a category criminal of because his fell convictions outside of the time limit Vilches appeals challenges and con- 4A1.2(e)(l). for inclusion. See U.S.S.G. MDLEA, stitutionality of the the district advisory guideline The PSR calculated jurisdiction, court’s the district court’s re- range of 365 months. The PSR evidence, fusal to suppress the sufficiency statutory included the minimum term of evidence, of the and the reasonableness of years ten and maximum of life. It sentence, noted his argues for reversal based that Vilches is a Chilean citizen with no on a totality errors. We address these legal challenges status the United States turn.

he would face proceedings upon removal

completion objections of his sentence. No II. Discussion were filed to the PSR. Constitutionality A. of the MDLEA At the sentencing hearing May held on again, Once we are asked to decide requested Vilches’s counsel constitutionality jurisdictional ele the court take into account the 18 U.S.C. ment of the MDLEA. See United States factors, sentencing argued Gil-Carmona, Cir. months, that a 292 sentence of the bottom 2007). The MDLEA makes it a for crime of range, the Guidelines would be adequate any person subject board “a vessel to considering age. Vilches’s Counsel argued jurisdiction States,” of the United 46 higher crime, that a sentence for Vilches’s 70503(a)(1), § “knowingly U.S.C. to in or violence, which did not involve “could be tentionally distribute, manufacture or interpreted as punishment because he ex- possess with intent to manufacture or dis right jury ercised his trial.” When tribute, substance,” a controlled 46 U.S.C. court, Vilches addressed the he insisted he 70503(a). § subject A juris “vessel to the was innocent. The Government at- called diction of the United States” includes a history tention to Vilches’s and character- registered foreign “vessel a nation § istics under requested a sen- flag where the nation has consented or at top tence of the guideline range, 365 objection waived to the enforcement of months. United States law the United States.”

9 70502(c)(1)(C).5 ruling constitutionality frain from on the of § Id. at this because the of this posture statute Although concurrence feels com- us to this require pass upon case does not issue, of this the doctrine to resolve pelled I re- we should not reach the requires us to issue.6 believe constitutional avoidance MDLEA, 1996, Separation Christian Coll. v. Ams. United Congress amended the for State, 464, 474, Inc., Act of Church 454 U.S. Guard Authorization with the Coast of 752, (1982))); 104-324, 1996, 1138(a)(5), 102 S.Ct. 70 L.Ed.2d 700 Elk § 110 No. Pub.L. Newdow, 3901, Sch. v. 542 U.S. jurisdiction Grove Dist. over ves Stat. and deemed Unified 1, 2301, 11, (2004); 124 159 S.Ct. L.Ed.2d 98 preliminary question law. See 46 of sels 403, 417, Christopher Harbury, v. U.S. ("Jurisdiction 536 of the United U.S.C. 70504 2179, (2002); 122 S.Ct. 153 L.Ed.2d 413 subject to this respect to vessels States with Represen Dep’t v. Commerce U.S. House any All chapter is not an element of offense. of of tatives, 316, 765, 343-44, 525 U.S. 119 S.Ct. arising chapter jurisdictional issues under Jones, (1999); 142 797 Clinton v. 520 L.Ed.2d be deter preliminary questions of law to are 1636, 11, 681, 117 U.S. 690 n. S.Ct. 137 solely by judge."). Since the mined the trial (1997) (quoting Army L.Ed.2d Rescue v. 945 amendment, judges on the task of have taken 549, Angeles, Mun. Court Los 331 U.S. 570 subject determining of whether a "vessel [is] of 1409, 34, (1947)); 67 n. S.Ct. 91 L.Ed. 1666 jurisdiction Id. of the United States." Ass’n, Lyng Cemetery v. Nw. Indian Protective 70503(a)(1); States v. see also United 1319, 439, 445, U.S. 485 108 S.Ct. 99 L.Ed.2d Cardales, 548, n. Cir. 554 3 (1988) ("A longstanding 534 fundamental and ("The 1999) has been amended MDLEA since principle judicial requires of restraint jurisdiction its ele one of eliminate as reaching questions courts avoid constitutional ments, making question it a threshold necessity deciding in advance of the them.” resolve."). trial court to (citing Berthold Three Tribes Ft. Affiliated P.C., 138, Eng’g, U.S. not decide v. Wold 467 6. The maxim that courts should Reservation 2267, 157, (1984))); 104 when this can be avoided S.Ct. 81 L.Ed.2d 113 constitutional issues Nelson, 846, 854, Rocky 105 embed Jean v. 472 U.S. S.Ct. is as old as the Mountains and 2992, (1985); v. legal long. As 664 for about as L.Ed.2d ded in our culture 84, 1785, Locke, S.Ct. early Supreme Court said that 471 U.S. as Bernard, (1985); Court, [deciding Oil Co. v. the exercise of L.Ed.2d 64 "[i]n Gulf 89, 99, laws], L.Ed.2d constitutionality by two 452 U.S. 101 S.Ct. ... is bound Beazer, one, (1981); rules, City v. rigidly Transit Auth. it has adhered: N.Y. which 568, 582, 99 S.Ct. 59 L.Ed.2d anticipate question of constitution never to Connecticut, (1979); necessity deciding 367 U.S. Culombe v. al in advance of the law other, 568, 636, it; 81 S.Ct. 6 L.Ed.2d a rule of never formulate (1961) (the legal required by prin Court should "declare law broader than constitutional specific applied.” ciples only in context factual it precise facts to which be situations, expounding ... more avoid Liverpool,N.Y. & Phila. S.S. Co. Comm’rs of 33, 39, given necessary for the decision of Emigration, than is 113 U.S. 5 S.Ct. C.J., case”) (Warren, concurring); (1885). Val clearly Tenn. rule is L.Ed. 899 The first Auth., ("The ley applicable 297 U.S. here. See United States Resen diz-Ponce, governance developed, for its own Court (2007) (" confessedly jurisdiction, a within its 'It is not the habit the cases 166 L.Ed.2d 591 it avoided of rules under which has questions a constitu series of the Court decide large passing upon part all the constitu absolutely necessary tional nature unless " pressed upon for deci questions (quoting the case.' Ashwander tional decision of 347, J., Auth., 288, 347, sion.”) (Brandéis, concurring); id. at 56 Valley 297 U.S. Tenn. ("The (Brandeis, J., 466, pass upon a will not 56 S.Ct. 466 Court S.Ct. 80 L.Ed. 688 although properly pre question Religion constitutional concurring))); v. Freedom From Hein — record, 2553, present Found., Inc., -, if there is also sented 127 S.Ct. U.S. may 2562, (2007) ("[Federal ground case upon which the some other L.Ed.2d 424 168 disposed has found most passing upon be of. This rule 'refrai[n] courts ... must from Thus, can be application. if case constitutionality ... varied of an act unless grounds, of two one involv proper performance decided on either obliged of to do so in the " question, other Valley Forge ing a judicial (quoting constitutional our function.' 10 constitutionality Lynch express opinion

merits of the of this law and Howard and no at this time on this matter. because has not demonstrated that I plain the district court committed error. of The standard review for a defendant’s reaching of this disagree thus rights claim that his constitutional were concurring opinion by Judges by congressional issue violated removal of 546, (D.C.Cir. C.I.A., question statutory general of construction or 319 F.3d 548 man v. law, 2003); SOB, only Benton, County the Court will decide the latter.” Inc. v. 317 of omitted)); 856, (citations (8th Cir.2003); Arms, F.3d 858 Olympic Ala. State Fed’n Labor of 450, 461, 1384, 384, Buckles, (6th 325 U.S. 65 S.Ct. 301 F.3d 388 Cir. McAdory, et v. al. v. (1945); 2002); 638, Elkins, Spector 89 L.Ed. 1725 300 F.3d Motor Serv. v. United States v. 101, 105, 152, (6th Cir.2002); Suerte, McLaughlin, 323 U.S. 65 S.Ct. 647 United v. States (1944) (“If 366, Cir.2002); (5th 89 L.Ed. there is one 291 101 doctrine F.3d 368 Koch v. 162, Vt., Brattleboro, deeply any more rooted than other 287 F.3d 166 Town of (2d Cir.2002); process adjudication, of constitutional it is Univ. Great Falls v. of N.L.R.B., ought questions 1335, (D.C.Cir. pass that we not to of 278 F.3d 1340-44 constitutionality adjudication 2002); 1314, ... unless such F.C.C., F.3d 278 Grid Radio v. unavoidable.”); States, (D.C.Cir.2002); 250 Mitchell, v. Blair United 1322 Coleman v. 273, 279, 468, 417, (6th Cir.2001); U.S. 39 S.Ct. 63 L.Ed. 979 268 432 F.3d Allstate Ins. Cir.2001); (1919) ("Considerations propriety, 143, of (2d as well Serio, 261 F.3d 149-50 Co. v. long-established practice, as demand that we I v. Int’l Inc. Borden Ladner Gervais IS passing upon 548, refrain from (7th constitutionali- LLP, Cir.2001); 256 F.3d 552 ty Congress obliged of an act of unless to do 980, Creek, City v. 250 F.3d Adams Battle of performance judicial proper so in the of our (6th Cir.2001); Reno, 986 372, 239 F.3d Eldred v. function.”); Light v. States, 220 U.S. (D.C.Cir.2001); 378 United States v. 523, 538, 485, (1911); 31 S.Ct. 55 L.Ed. 570 618, (7th Westmoreland, 240 F.3d 629 Cir. Co., 213 Siler v. Louisville & Nashville R.R. 2001); Corr., Wyzykowski Dep’t 226 F.3d v. of 451, 29 53 L.Ed. 753 1213, (11th Cir.2000); 1219 Fla. Ass'n Re of (1909); 283, States, Facilities, Burton v. United v. Dep’t hab. Inc. State Fla. of 295, 243, (1905). 25 S.Ct. 49 L.Ed. 482 1208, Servs., 225 F.3d Health & Rehabilitative courts, one, (11th Cir.2000); including The circuit Hawk, have 14 1227 n. Kalka v. 90, (D.C.Cir.2000); repeatedly Supreme heeded the Court’s com 215 F.3d 97 Bell Atlantic Md., mandating unnecessary mand avoidance Md., 212 George's County, Inc. v. Prince 863, (4th rulings. Cir.2000); constitutional See Fox F.3d 865 Derby Television West v. Stations, Comm'n, 1358, 260, v. 489 Inc. Fed. Commc'ns 206 F.3d Sch. Dist. No. Unified 444, (2d Cir.2007) (" (10th Cir.2000); F.3d 462 Kaluna, 'A fundamental 1367 v. 1188, longstanding principle judicial (9th Cir.1999); re 192 F.3d 1197 Kelly v. 192, Marcantonio, requires straint reaching that courts avoid 187 F.3d 197 Cir. 1999); questions constitutional advance of ne Osage Osage Tribal Council ex rel. ” cessity deciding (quoting Lyng, Labor, them.' 485 187 Dep't Tribe Indians v. U.S. 445, 1319)); 1174, (10th Cir.1999); atU.S. F.3d 1180 n. 1 United States v. Nelson 39, Coker, (1st Cir.2005). 641, (6th Cir.1999); Miller, 433 F.3d 50-51 170 F.3d 648 v. alone, 763, Cisneros, every Within the last decade circuit has 169 F.3d 768 wisely (D.C.Cir. See, 1999). followed the Court's lead. e.g., Pa. 156, Cortés, (3d arguments 508 F.3d 162 Prison Soc. v. Bickel's in favor of constitution Cir.2007); Florida, today they 451 F.3d al avoidance are no less true Neumont v. than (11th Cir.2006); forty-five years ago. were over generally, Bechtel v. Com See Bickel, Inc., (2d Techs., petitive 448 F.3d Alexander M. Dangerous The Least Cir.2006); Bickel, Walters, (1962); 433 F.3d Lee v. Alexander M. Branch The Su (9th Cir.2005); Court, Scoppetta, preme Nicholson v. Term—Foreword: Pas (2d Cir.2003); Virtues, (1961). 15 Harv. L.Rev. 40 United States v. sive See Lamont, (9th Cir.2003); Mikva, 330 F.3d also Abner J. Why Judges Should Not Heck, (7th Cir.2003); 50 Stan. L.Rev. Advicegivers, Doe Be Sunstein, (1998); E.P.A., City Court, Cass R. Abilene v. Supreme (5th Cir.2003); Campanelli Leaving Things Allstate Ins. 1995 Term—Forward: Unde Life (9th Co., Cir.2003); (1996). cided, 322 F.3d 110 Harv. L.Rev. 6 Still- Department of the United from the the Seal States charged of a offense element' the harmless of State which stated that Government ordinarily consideration jury’s States, granted had the United 527 of Honduras Neder v. United error. See to U.S. law permission 144 L.Ed.2d 35 States enforce Babouth, however, (1999). the its the Here, apply plain against cargo, we and States v. object people to the on board. See United did error because Vilches (1st Guerrero, n. 9 Cir. in the dis- 114 F.3d constitutionality of the statute 1997) (“We Brown, the 1996 acknowledge that States trict court. See United Cir.2007). (1st § the provide amendments to that Under 510 F.3d standard, Secretary State’s certification ‘conclu prove Vilches must error plain consent.”). (3) “(1) sively’ foreign that error, proves that is and nation’s plain, rights,” substantial affects object Vilches did not the Govern (1st Cir.2003) 341 F.3d Connolly, arguments jurisdiction at regarding ment’s Downs-Moses, (quoting United States object suggests trial. His failure to alone Cir.2003)) (internal (1st 253, 263 329 F.3d plain. that the asserted error was not Cf. omitted), that marks and quotation Gil-Carmona, fact, 497 F.3d at 55. fairness, in- “seriously impaired error trial, opportunity ques had the judicial pro- tegrity, public reputation with presentation tion the Government’s States v. (quoting Id. ceedings.” merely jurisdiction, he chose regard to but Cir.2003) (in- (1st Matos, question long how it took between omitted)). quotation ternal marks flag the Honduran Berkley time saw to board the permission when he received Gil-Carmona, the district court Like in beyond a record establishes “[T]he vessel. jury was clearly shows that record jurisdiction that over reasonable doubt evidence that the Babouth presented with Id. Even [§ 70504].” vessel existed under subject jurisdiction Unit- presented jury expressly if had been trial, Berkley ed States. At testified jurisdiction, question any rea with the apprehended the Babouth was while found Vilches jury sonable would have waters, requested he and was international any It error guilty. cannot be said permis- written both verbal and granted jurisdic question failing submit District, sion, USCG, through Seventh jury “seriously impaired tion to the of Honduras board by the Government fairness, public reputation of integrity, or pursuant the Babouth search States v. judicial proceedings.” United Drugs Operations Honduran-U.S. Counter Duarte, Cir.2001); agreement. See Certification bilateral cf. Neder, Gil-Carmona, 55; 497 F.3d at Law Enforcement Act Drug the Maritime no There was U.S. at 119 S.Ct. 1827. (Hon- Babouth Involving the Vessel Case plain error. duras). offi- The MDLEA allows for U.S. foreign searches on cials conduct Jury Instruction on Jurisdiction B. for-

flagged permission vessels 70502(c)(2)(A), the district court’s argues eign state. See 46 U.S.C. (B).7 erroneous because jury dis- instruction was presented Government province of containing invaded the “improperly trict court with documentation means, by proved conclusively certifi- by foreign objection waiver of 7. "Consent or Secretary of United States of State or Secre- nation to the enforcement cation 70502(c)(2)(A). may ... be obtained law the United States tary’s designee.” 46 U.S.C. radio, telephone, or or electronic similar jury and instructions the Ap- determinations violated district court asked wheth- Normally, prendi principle.”8 this issue any objections er there were in- to the subject would be to de novo review. See struction. Vilches’s counsel said no. Bravo, (1st United States v. plain There was no error.

Cir.2007). Vilches, however, made no ob- below, jection and we review a claim of Suppress C. Motions to and Dismiss properly preserved error not below for Cotton, plain error. See United States v. “We apply a mixed standard of re 625, 627-29, view to the district court’s denial of L.Ed.2d (holding that a defen- suppression motion, reviewing the court’s object dant’s Apprendi failure to error findings of fact for clear error and the review); at trial requires plain error Unit- application of the law to de those facts Portes, ed F.3d Bravo, (citing novo.” 489 F.3d at 8 Tino Cir.2007). 1116). co, 304 F.3d at provides “[jjurisdic- The MDLEA that arising argues

tional that chapter issues under this are his Fourth preliminary questions of rights law be deter- Amendment were violated because solely by mined trial judge.” 46 the suspicion lacked USCG reasonable 70504(a). U.S.C. The district court cor- search Babouth. Vilches further argues rectly jury “[j]uris- instructed the that the that Rule of the Federal Rules diction of the respect United States with to Criminal Procedure were violated because subject vessels chapter is not an it took five days get for the USCG to any element of jury offense.” Id. its port Babouth San Juan.9 instruction, plainly the district court said: further contends that he was you “I’m instructing aas matter of erroneously denied a suppression hearing law the motor vessel subject Babouth was and unconstitutionally that this error pre- jurisdiction of the United States.” cluded him properly from and developing This was a correct statement of the law. supporting suppress. his motion Vilch- Guerrero, (“Unit- See 340 n. 9 argues es also that the district court erred jurisdiction ed States over is no vessels holding that he standing lacked to chal- offense, longer an element of an but rath- lenge constitutionality stop er, preliminary question of law for the seizure. Vilches argues further that the Tinoco, trial judge”); United States v. (11th Cir.2002) warrantless (“The detention of his person stat- days several utory constituted a de facto arrest language of the MDLEA now unam- scope and that biguously jurisdictional mandates the detention that the requirement only any be unreasonable. We are question treated as unconvinced subject jurisdiction arguments matter for the court Vilehes’s take them decide.”). At the jury conclusion turn. Supreme Apprendi provides Court held in "any person making New 9. The rule Jersey, 530 U.S. arrest without warrant shall take the arrest- (2000), L.Ed.2d 435 "[o]ther than the fact person unnecessary delay ed without before conviction, prior any of a fact that increases magistrate.” the nearest available federal penalty beyond prescribed for a crime 5(a). Fed.R.Crim.P. statutory maximum must be submitted to a jury, beyond proved a reasonable doubt.” Id. at 120 S.Ct. 2348.

13 in presence port at the San Juan was Alleged Amendment es’s Fourth 1. con- completely involuntary because he Violation dock- to the search and USCG’s sented before, “the have said we As in ing the Babouth San Juan. apply not to ac does Fourth Amendment against aliens of the United States tivities Verdugo-Urquidez But even if Bravo, 489 F.3d waters.” international in standing to apply, does not Vilches lacks Verdugo- 8; States v. see also United It is “well challenge search. settled 259, 267, 110 S.Ct. 494 Urquídez, U.S. a fails demonstrate that defendant who (“There 1056, 222 L.Ed.2d 108 privacy in legitimate expectation a Fourth Amend no indication that the ... not the item will area searched or seized contemporaries understood ment was illegal an to claim that ‘standing’ have activities of the apply the Framers seizure occurred.” search or United in aliens against directed States (1st United Mancini, 104, v. 8 F.3d 107 States wa territory or in international foreign Cir.1993) Illinois, v. U.S. (citing Rakas ters.”). Chilean, and he was Vilches 421, 128, 138-48, L.Ed.2d 387 99 S.Ct. He was residing in United States. (1978)). showing, In to make such order ap waters when he was international had must show that he both Vilches The court by the district proached USCG. privacy that subjective expectation of dismissed Vilches’s Fourth properly objec society accepts expectation as claim pertaining Amendment tively v. reasonable. Green California in international waters. actions wood, USCG’s (1988); v. United States L.Ed.2d 30 cf. ex properly district court also Cir.1992). (1st Scott, reasoning it dis same when tended the proving expec a reasonable The burden Amendment claim Fourth missed Vilches’s lies with Vilches. privacy tation of United of the Babouth at on the search based (1st Sánchez, 943 F.2d States v. Verdugo-Urquidez, In port San Juan. Cir.1991). demonstrate Vilches must the defen Supreme Court held item privacy both the expectation rights not have constitutional dant did place and the searched. United seized in the presence on his based Salvucci, 83, 93, 100 States only at protections because constitutional (1980). 2547, 65 L.Ed.2d 619 S.Ct. within the terri to aliens who “come tach showing make that here. cannot developed tory of the United States exigen circumstances country.” “[T]he this connections with substantial setting people afford the maritime 110 cies of Verdugo-Urquidez, 494 U.S. privacy expectation lesser no such on vessel Vilches can claim homes, obviating usual their than in Verdugo- Like connections.” “substantial of a war requirements amendment in Califor fourth imprisoned who was Urquídez, Green, rant.” United States significant volun previous nia and had “no Cir.1982). (1st id., As the Government States,” tary connection United expecta had no reasonable argues, Vilches brought compartment in the secret conducting privacy safe tion of purposes the sole found. drugs were in which captained. “[T]his the vessel he search of Cf. Cardona-Sandoval, involuntary— States but presence sort —lawful Cir.1993) “substantial (distinguishing any to indicate substan is not of the sort freighters” cargo ships and such as country.” Id. vessels with our tial connection fish- craft used for pleasure from “a small case, say Vilch- we are unable ing” captain expec- any where had reasonable search was valid event “authority because the privacy). tation of USCG’s under 14 89(a) stop U.S.C. and board a vessel high on the subjective quite Even if Vilches had a seas is broad.”10 Cardo (internal nar-Sandoval, 6 at foot expectation privacy, objec of it not an was omitted). case, In in those facts’ order unnecessary inferences from evidentiary hearing since police a basis for review the establish in no material facts that were there were (internal citations Id. 653 1273-74; actions.” id. at United dispute. See States omitted). requisite (1st Cir.1993) had the The USCG McGill, 223, 11 225 v. F.3d suspicion. reasonable (“[E]videntiary on motions are hearings rule.”). exception, not the Furthermore, court as the district found, permission his to the “gave Vilches Arrest Vilches’s any space team ‘to on the boarding access ” Vilches-Navarrete, challenge to his arrest is 413 Vilches’s vessel.’ There was no unreason and at the without merit. F.Supp.2d at 72. Both sea Juan, delay arrest and Vilches consented to the able between the Vilch port in San appearance magistrate boarding of the and the es’s initial before Babouth USCG’s day the same point judge. At no did he Vilches was arrested search of the vessel. vessel, drugs boarding of the USCG discovered object to the Babouth, 7, vessel, February was taking or of the 2005. He of the search magistrate judge “It is ... well settled taken before follow vessel to San Juan. Furthermore, day. the short interval specifically ing established ex that one of the first re between when the USCG boarded Amendment] to the ceptions [Fourth the Babouth and the travel time probable inspected a warrant and quirements of both Babouth arrived San Juan pursu that is conducted before the cause is search See not result a custodial detention. v. Busta did ant to consent.” Schneckloth 1311, Baker, 2041, F.2d monte, 641 36 United States v. 412 (“routine (9th Cir.1981) (1973); Coast Guard see also United States L.Ed.2d 854 Cir.2002). (1st not cus Meléndez, boarding does create a of vessels F.3d v. El situation”); v. above, United States Additionally, mentioned Hondu todial as cf. Cir.1985) (1st kins, n. 3 sailed, 774 F.2d ras, flag Babouth under whose (“It in that a routine recognized both at well to the search the boat consented flag boarding an American territory. spection and sea and U.S. give high on the seas does ship vessel of the motion to Accordingly, denial detention.”). one to a custodial rise suppress is affirmed. time was arrested day between the mag before brought when he was Suppress Hearing 2. Motion to reasonable, and the dis judge was istrate an evi granting “The test his motion properly court denied trict hearing in a criminal case dentiary [is] dismiss. a suf defendant make substantive: did the showing that material ficient threshold Sufficiency of the Evidence D. dispute?” in doubt or United facts were (1st sufficiency Panitz, We review v. States Cir.1990). novo. See United States claim de showing. such evidence made no Carucci, ticipation in conspiracy.” Cir. 364 F.3d 2004). if, Gómez-Pabón, affirm a “af We will conviction (1st Cir.1990). light evidence in the assaying above, ter all the As clear we made government, and tak most amiable proved beyond the Government a reason- favor, ing all reasonable inferences its “subject able doubt that the Babouth find, beyond a rational factfinder could jurisdiction States.” doubt, prosecution reasonable that the suc 70503(a)(1). ques- 46 U.S.C. There is no cessfully proved the essential elements dispute tion or that the found USCG co- O’Brien, the crime.” caine, substance, undoubtedly a controlled (1st Cir.1994). “All ‘reason on the Babouth. The Government also evidentiary able inferences’ are be proved “knowingly at trial that Vilches verdict,’ harmony ‘in with drawn intentionally possessed the controlled sub- credibility’ ‘all issues of are to be resolved stance intent to distribute it.” light govern ‘in the most favorable Guerrero, 114 F.3d at 339. ” ment.’ v. Washington, specifically Chávez testified to the de (1st Cir.2006) (quoting United conspiracy. tails of the See United States Casas, (1st v. States 356 F.3d Cardales, (1st 554-55 Cir. .2004)). Cir 1999). Chávez testified to Vilches’s in argues that no rational tri

Vilches conspiracy. volvement Specifically, of fact er could have found all Haiti, once departed the Babouth Vilches posses essential elements of the crimes of was in constant contact with the owner of sion with intent to distribute cocaine and the drugs, Félix sailing, Lamberti. While conspiracy possess with intent to dis Vilches informed they Chávez when that tribute. He claims the Government predetermined reached the meeting place points offered “thin of purported isolated receiving for the drugs. Vilches is the one evidence,” circumstantial which under who received the call from the motorboat scrutiny easily explained are A away. re carrying drugs giving was its loca presented view of the evidence at trial tion. Vilches ordered that the Babouth indicates otherwise. speed reduce its drugs so the could be loaded onto boat. After the load crew Conspiracy hatch, ed the cocaine and hid it under a they

Vilches that a container, 500-gallon A which large Vilch- obviously in engaged was that the vessel tank, septic also es claimed to be was Appellant and that each illegal activity, the Upon inspection, the USCG. found criminal enter ready to assist the was it indicating evidence that Bravo, USCG found (quoting F.3d at 9 prise.” as a Jiménez-Pérez, gasoline contained was not used 869 F.2d States v. Guerrero, septic Additionally, the Babouth’s (1st tank. 9, 11 Cir.1989)); at navigational did not dis- GPS and charts participation in the (“proof of sufficient Despite it, play ship’s prior the course. crime, knowledge as of is re as well that he was a sea- explanation Vilches’s the defendant’s ‘mere quired to convict: soned mariner and did not need use the criminal ac presence’ the scene of charts, witnessed GPS and officers tivity enough”). challenge is Vilches’s Vilches use them later. sufficiency support evidence only weight ing convictions attacks his registration, which Vilch- The Babouth’s evidence; here. that insufficient lost, later discovered es claimed he was that the circum He fails demonstrate by agents during his search. briefcase the Government offered stantial evidence Furthermore, navigational license Vilches’s meet the we inadequate is somehow test in- The Government also was fraudulent. was substantial laid out Bravo. There hired was troduced evidence Vilches establishing each element of evidence Sandoval, present at the meet- who was conspiracy convictions. possession and drug hired for ing in Chávez was which unavailing. are arguments His Vilches testified smuggling venture. give captain, he was the one came as the The reason the Babouth orders; nothing on the boat they could occur is that detect- attention the USCG attempted to Vilches coming under the without his orders. alongside ed vessels trial; explain away suspicions pre- cover of darkness. Government him. The cir- jury chose not to believe evidence that USCG found sented overwhelmingly evidence of the size cumstantial suspicious because record, prior weighs against pre- including Vilches. evidence cussed his criminal than sented at trial is more sufficient his 1981 with in- possession conviction jury’s distribute, conviction, verdict. sustain tent to his posses- where he received months for E. Sentence marijuana. sion The district court did previous challenges to sen- not count Vilches’s convictions to- We “review history of law—de tencing process ie., errors wards his criminal because their — Rivera, novo.” 448 F.3d dates but found them United States to be indicative of (1st Cir.2006) (citing his recidivism. See 18 U.S.C. Robinson, 3553(a)(2)(B) § Cir. (giving judges latitude to 2005)). challenges ie., “Reasonableness imposes adequate that “afford sentences — challenges judgment conduct”). to errors re- Finally, deterrence criminal —are ... viewed with ‘some deference [assum- the district court considered the fact that ing plausible explanation defensi- Vilches had used a different name ” (quoting ble overall result.’ Id. past. Given the district court’s consider- Jiménez-Beltre, States v. ation of the factors and its rea- (1st Cir.2006)); see also Gall v. Unit- sentence, soned articulation for the Vilch- — States, -, ed es’s 365-month sentence reasonable. (2007) (“On 602, 169 L.Ed.2d 445 abuse- reasoning persua- The district court’s was review, Appeals of-discretion the Court of explicit, sive and and the result prop- have given should due deference to the er. The district is af- court’s sentence District Court’s reasoned and reasonable firmed. 3553(a) factors,

decision that the on the sentence.”). whole, justified the Totality F. Errors argues that the 365-month argues under “cumula imposed sentence on him was a “de facto doctrine,” errors, tive error “[[Individual life sentence.” He argues sen in insufficient themselves to necessitate a tence was unreasonable under United trial, may new in the aggregate have a Booker, States v. 543 125 debilitating Sepúlveda, more effect.” 15 738, 160 (2005), L.Ed.2d 621 because it was F.3d at 1195-96. Vilches asserts in not predicated on the factors listed in case, prejudiced this the numerous errors 3553(a). question § The for this court is rights his to a fair trial and violated due whether the district court’s conclusion is process the Fifth and under Sixth Amend supported by explanation “a reasoned ments. find these arguments We uncon plausible a [and] outcome.” Jiménez-Bel vincing. For the reasons elaborated tre, 519; 440 F.3d at see also United above, we find that even if there were Zapete-García, States v. F.3d 60- errors —a we question need not answer — (1st Cir.2006). they were harmless. Vilches’s claim nec The imposed essarily district court a 365-month fails. See United States v. Flem (1st after noting Cir.2005) sentence that the Guidelines n. mi (“[BJecause advisory are and after considering sen- we have found that none of 3553(a). tencing § factors listed in complaints [the defendant’s] individual re conduct, district court noted Vilches’s in- prejudice sulted in substantial and that his cluding knowledge drug merit, of the smug- completely most are we without re gling operation despite ject his assertion of the final contention that his conviction ignorance. The district court also dis- was tainted cumulative error.” (quoting DeMasi, Cir.2006); v. United States Morales- 40 F.3d States (1st Cir.2006). (internal (1st Cir.1994))) quotation Rodriguez, 467 F.3d omitted).

marks 70503(a)(1), § an indi- Under U.S.C. intentionally or “may knowingly vidual not III. Conclusion distribute, possess manufacture or above, we explained reasons For the distribute, intent a to controlled substance and sentence. affirm Vilches’s conviction ... a on board vessel of the United States subject jurisdiction a of the Affirmed. or vessel 1996, Congress moved United States.” HOWARD, Judges, Circuit LYNCH and disagreement among lower to end the concurring part court in of the opinion the determination courts as whether part. jurisdiction subject that vessel was committed United States was opinion Torruella’s join Judge We jury judge. Congress did so in- or a 11(A) (“Constitutionality Part as to except explicitly providing that serting provision MDLEA”). separately write We prelimi- is a jurisdiction under statute of 46 constitutionality U.S.C. address the nary question judge for the and is an 70504(a), Torruella’s question Judge § the crime that must be submit- element of opinion bypasses. statute, jury. ted to the 46 U.S.C. is constitutional that there no holdWe 70504(a), “[jurisdiction provides infirmity Congress’s explicit allocation respect a vessel the United States with question of whether of the subject chapter to this is not element of “subject jurisdiction arising issues an offense. Jurisdictional to the court rather than United States” ques- are chapter preliminary under this That allocation was well jury for decision. determined solely by tions of law be Congress. power within the judge.” trial challenge not raise a Vilches did upheld the con To one circuit has date constitutionality the dis to the statute’s stitutionality provision. of this plain and so review for trict court our (11th Tinoco, JG-24, Inc., 478 error. United States Cir.2002). provi circuit has held the One (1st Cir.2007). To establish States v. sion unconstitutional. United error, that plain must demonstrate (9th Perlaza, 1149, 1167 Cir. 439 F.3d (2) “(1) error; was was the error there 2006). (3) plain; [his] the error affected substan sought case, Guard adversely In this the Coast and the rights; tial error to the fairness, from Honduras board public permission integrity, impacted the Babouth, flying a Hondu- which was judicial proceedings.” Unit reputation of a 221, flag. prosecution ran The submitted Riggs, 224 ed States v. 287 F.3d Cir.2002). Secretary from of State as the certificate the this claim at We resolve received no that the United States grounds verification step the that there first permission from Honduras.11 See, such e.g., at all. United States error subject not to 34, (1st Cir.2007); vessel was argues that the 43 Arango, the and 255, jurisdiction of United States 264 the Vargas, 471 United States 70502(c)(2)(B), conclusively of the "proved by certification § con- 11. Under 46 U.S.C. Secretary's desig- Secretary of State or the foreign enforcement of of a nation sent is nee." law the United States 20 to make the re- United is an government failed States” not essential element 70503(a)(1) § of several reasons.

quired showing argument that it was. The his contention that we address 70504(a) First, § is constitutional under because, by is unconstitutional Supreme teaching Court’s McMil- a assigning judge, issue the statute Pennsylvania lan. The statute at issue violates his Fifth and Sixth Amendment provided anyone there that convicted of subject a certain felonies was a every to have criminal to mandato- rights element ry years’ minimum of five impris- sentence by jury beyond a offense decided reason- (and if sentencing judge onment not disagree. doubt. We This issue is able found, jury) by preponderance requi- an crime in the not element evidence, person visibly possessed that the may by a judge. site sense and be decided committing a firearm while the offense. Congress enjoys latitude in deter McMillan, 81, 477 U.S. at S.Ct. 106 2411. mining what facts constitute elements of Supreme upheld Court this allocation jury crime which must tried be before factors, of functions on the basis of several beyond proved a reasonable doubt and 86-90, id. see 106 noting S.Ct. that See, e.g., Staples which do not. v. United lay any ‘bright it was unable “to down line’ States, 114 S.Ct. U.S. concluding Pennsylvania’s test” but (1994) (noting 128 L.Ed.2d 608 the Mandatory Sentencing Minimum Act “falls “definition of the elements of a criminal permissible on the side of the constitution- offense is entrusted the legislature, par line,” al id. at 2411. S.Ct. crimes, ticularly in the case federal point Court did out that the statute did not solely any presumption against are create which creatures statute” defen- innocence, finding dant’s States, visible (quoting Liparota v. United possession not penalty did increase the 419, 424, U.S. S.Ct. L.Ed.2d subject which the defendant was but rath- (1985)) (internal quotation mark omit er cabined the court’s within discretion ted)); Pennsylvania, McMillan v. statutory range, Pennsylvania and that did 79, 86, 106 S.Ct. L.Ed.2d appear existing not to be restructuring (1986) (“[W]e should hesitate to conclude crime in order to evade the constitutional process that due pur bars State from requirement proof beyond reasonable suing its chosen course the area of 86-90, doubt.13 Id. All defining prescribing penal crimes and of these apply equally considerations ties.”). Congress’s “subject decision that This discretion about allocation of func- jurisdiction” issue is not an element judge jury subject tions between 70503(a)(1) may be decided Apprendi Jersey, some limits. See v. New judge: presumption of a defendant’s affected; not underlying innocence is (2000).12 Congress L.Ed.2d 435 acted well subject does determination defen- within constitutional in boundaries deter- to an penalty; dant increased is and there mining question that the of whether a ves- no Congress attempting evidence that jurisdiction “subject sel is to the of the to evade rights.14 defendants’ constitutional Apprendi govern 12. possession does not be- as an element of various crimes. provision cause this does not McMillan, 90, increase the 477 U.S. at 106 S.Ct. 2411. statutory penalty pre- but rather serves as a requisite guilt. good 14.McMillan remains law after the Su- preme holding Apprendi. Apprendi, Court’s in 13. The also Court noted that it was irrelevant legislatures that other state had treated visible jurisdiction subject is to the of the United Second, legisla- whether determining a transgressed constitutional States thus does not relate to whether have tees crime, defining of a proscribed elements the actus boundaries defendant committed great weight given has Supreme the Court mens possessed necessary reus or the rea. particular cate- treatment of to the historic As not meet the common law such does the This is true whether gories of facts. of definition an element. see, sentencing, e.g., allocation concerns Supreme Court’s in Ford v. decision 545, States, 536 U.S. 560-

Harris v. United States, 47 S.Ct. United (2002) 153 L.Ed.2d 524 S.Ct. (1927), strong provides 71 L.Ed. 793 his (considering practice in deter- historical support question torical that the of wheth increasing a minimum that facts mining jurisdiction subject er a to the of vessel is jury), to a need not be submitted sentence the not an a United States is element of crime, see, statutory of a or the elements Ford, involving a the crime vessel. Gaudin, e.g., United a charged defendants were with Prohibi 2310, 132 L.Ed.2d transport conspiracy liquor tion-era into (“We practice that historical do doubt a treaty the States in violation of the means is relevant what Constitution between the and Great Brit by ... and it concepts jury such as trial ain. Id. at 531. The S.Ct. Su practice we precisely that have is historical the preme Court held that whether vessel jury concluding relied on the must elements.”). within zone covered the was seized find all juris subject treaty and therefore the determina- practice Under historical not an diction of the United States was to the subject tion whether a vessel decide; “The jury issue a needed to issue would not jurisdiction the United States ship within the whether was seized element of offense. At be essential question affect prescribed limit did not law, the elements an offense common It defendants’ or innocence. guilt reus, cau- “each the actus part included right to hold only affected the court sation, govern- and the mens rea” persons their for trial.” Id. to obtain ment to establish order needed Tinoco, a conviction. (6th Law (citing Dictionary Black’s Third, argument that this ed.1990)). 70503(a)(1) Section criminalizes question is not an “subject jurisdiction” manufacture, knowing or intentional 70503(a)(1) crime is element of distribution, possession with intent or Congress did by the fact strengthened a on board controlled substance distribute provision in the not need to include subject Whether vessel was vessel. subject be to the MDLEA that the vessel has no jurisdiction of the United States jurisdiction States. Under manufac- on whether defendants bearing of international “protective principle” distributed, tured, possessed intent or commit law, Congress can crimes punish a controlled substance distribute of whether high regardless seas ted on they or inten- knowingly did so whether subject jurisdiction of whether vessel tionally. question 2348; comparable no his- There was McMillan s. 530 at 487 n. see U.S. States, increasing submitting practice of facts 536 U.S. torical also Harris v. United (2002) jury, mandatory to so the minimum the 524 the S.Ct. 153 L.Ed.2d 122 facts.”). those Apprendi did not extend to do undermine rule ("Apprendi's conclusions not 22 Tinoco, (“[T]he protective prin- ty.

United States. Under See at 1108 jurisdiction pre- ciple, jurisdictional state has requirement “[a] was inserted attaching legal scribe a rule of conse- law into the statute as a diplomatic courtesy to quences territory to conduct its outside a foreign and as of nations matter interna- security that its as a or the threatens state comity....”). put tional To concept functions, operation its governmental of terms, misleading different “It is ... provided generally recog- conduct is foreign consider an [a nation’s] consent nized as a crime under the law of states offense; rather, element of the it is a reasonably developed sys- that have legal diplomatic requisite illustrating the inter- Gonzalez, tems.” United States v. 776 partnership national that ensures the rule (11th Cir.1985) (quoting F.2d 940 n. 11 Gonzalez, on high law seas.” (Second) Foreign Rela- Restatement omitted). (emphasis F.2d at 940 33(1)) § tions Law the United States acknowledge We that one cir (internal omitted); quotation marks see cuit question differently. has decided the (Third) also Restatement Foreign Rela- The Ninth Circuit held Perlaza that tions (restating pro- Law & cmt. f 70504(a)’s jurisdictional allocation of the principle). tective In United States v. judge issue to the is unconstitutional based Cardales, (1st Cir.1999), F.3d primary First, two rationales. court “application noted that court that many reasoned because courts MDLEA defendants is consistent thought, had congressional before the clar protective principle with the of internation- jury ification that a required al law Congress because has determined jurisdiction question, determine the drug all trafficking that aboard vessels Congress not arrange could alter that security.” threatens our nation’s Id. at Perlaza, 553; Gonzalez, Second, ment. accord United States v. Cir.2002) (Torruella, J., juris Perlaza reasoned that because the (because concurring judgment) inquiry in the questions, dictional involves factual protective principle applies, “the MDLEA that meant it an had to be element require jurisdictional does not statement crime. Id. disagree points. We on both place it within Congress’s regulatory Congress ordinarily defines crimes can jurisdictional power. The statement of the clarify alter statutes to judicial overrule MDLEA is not therefore an essential ele- See, opinions. e.g., Cleveland crime, may ment of the as it be in other States, 12, 19-20, 121 statutes that lack authority.”). outside If L.Ed.2d (describing how “subject the statute need not have had to Congress amended the federal mail fraud jurisdiction” all, component at compo- expand given statute to the coverage to it nent is not an essential element of the Court). congressional A decision crime Congress unless so intends. on how to define elements of crime is dispositive. fact, usually Staples, See ready there explanation 604-05, presence S.Ct. 1793. Judicial “subject jurisdic- interpre provision statute, given to explana- tion” in the an tations allocations of functions tion which judge jury reinforces between under one the conclusion that version finding of a not jurisdiction as to statute do determine constitu later, element Congress tionality of the crime. of a inserted revised version which requirement subject Congress vessel be has made a different allocation. jurisdiction Moreover, rationale, United States into as to the second it is the statute as a diplomatic matter of comi- juries well established need not decide

23 tension rule (noting between Saucier components. factual questions all admissibility of evidence the doctrine of constitutional avoid- example, the For ance). seizures legality of searches and See, judges. e.g., Gau committed to are constitutionality of 46 U.S.C. 525-26, din, S.Ct. 2310 U.S. at 115 515 70504(a) recurring § is a issue which C.J., concurring). (Rehnquist, See, reaching has court avoided before. ques is of view Judge Torruella Gil-Carmona, 497 e.g., States v. avoided, citing the doctrine tion should be 52, Cir.2007); see 54 also Gonza The doctrine constitutional avoidance. of lez, (holding 311 at 443 that defen no bar avoidance is of constitutional argument pleading waived this dant the constitution reaching question doctrine, course, The avoidance guilty). 70504(a) in this case. The Su ality of more not meant thwart the even is treated has not constitutional preme Court governing judges all fundamental doctrine aas as rule but rather avoidance a strict majority holding that the view of the is the judges consideration prudential think it is important of the court. We case-by-case take into account should question pro now order to resolve Army v. Mun. Court basis. Rescue guidance judges clear to the district vide 549, 574, 67 S.Ct. Angeles, 331 U.S. Los litigants on how to han this circuit and to also, (1947); 1409, e.g., 91 1666 see L.Ed. Leon, 925, issue. 468 dle this U.S. Cf. Dist., v. Foothills Sch. Zobrest Catalina (“If the of a 104 S.Ct. 3405 resolution 1, 2462, 7-8, 125 113 S.Ct. 509 U.S. question Amendment is particular Fourth (1993) (majority 1 consti L.Ed.2d reaches ..., necessary guide future noth action constitu tutional issue over dissent’s reviewing from de ing prevent will courts particular, argument). avoidance tional question ciding turning before departed from the Supreme has Court issue.”). clearly question is good-faith error of harmless doctrine the contexts in this do think the raised case. We Illinois, see, 481 analysis, e.g., Pope is particularly difficult and so there issue is 1918, 497, 501-04, U.S. S.Ct. question because no reason avoid (1987), and the ex good-faith L.Ed.2d Indeed, is hard or the outcome close. see, rule, exclusionary e.g., ception precedent. Court Supreme mandated Leon, States v. (1984). 82 L.Ed.2d hold that constitutional We context, And, immunity in the qualified dispose plain inquiry error lower to reach the Court has told courts Judge step. join in the first We otherwise provide constitutional issues order opinion. Torruella’s See on constitutional issues. guidance Katz, 533 U.S. Saucier (2001); Coun 150 L.Ed.2d

S.Ct. Lewis,

ty Sacramento 140 L.Ed.2d n. (“[I]f

(1998) were policy avoidance ..., official

always standards of followed uncertain, to remain

conduct would tend and indi of both officials

to the detriment

viduals.”); Leval, Judg see Pierre N. also Dicta About

ing the Constituiion: Under

Dicta, L.Rev. 81 N.Y.U. notes the instant the tively expectation. reasonable The district Honduras, had consent from USCG the rightly “society court noted that would not country, to flag vessel’s board the Babouth justifiable expectation recognize priva of and to it port complete take to a U.S. cy in compartment a hidden for created possessed search. USCG also the express purpose of illicit hiding contra requisite and “reasonable articulable grant band. To hold otherwise would grounds suspecting for that the vessel or smugglers standing under the Fourth on those board engaging [we]re criminal solely they Amendment because were Green, activity.” 671 F.2d at 53. in hiding careful their illicit merchandise.” Vilches-Navarrete, Babouth, F.Supp.2d at As USCG’s 73- monitored it 74; Sarda-Villa, coming see also observed smaller vessels United States v. into (11th Cir.1985) (“[W]e night contact with it the before the USCG boarded following day the vessel. The are willing say society pre not USCG detected along port rub marks pared recognize justifiable expectation side of the but starboard, Babouth not its solely of privacy on the of appellants’ basis confirming suspicious their belief in activi- efforts to secret Drug the contraband. board, ty. On the USCG’s found even smugglers solely cannot standing assert on suspicious more evidence of activity. For they drugs basis that hid the well and example, there was a discrepancy between them.”). hoped no one would find As the pallets the number of the Babouth Supreme Court said Kyllo carrying and those that were slated States, 533 U.S. 121 S.Ct. delivery, and the GPS and navigational (2001), L.Ed.2d 94 “a Fourth Amendment charts had been erased. search does not occur ... unless ‘the indi subjective vidual expectation manifested a step Each of the USCG’s search was privacy object challenged of the based on “a corresponding level suspi search,’ ‘society and willing to recog [is] supported cion by specific facts.” Cardo ” expectation nize that as reasonable.’ na-Sandoval, Id. 6 F.3d at (quoting S.Ct. 2038 Berryman, 717 F.2d 651 California Ciraolo, 1809, Cir.1983), “although we said that en some (1986)). 90 L.Ed.2d 210 counters [with the do Government] not board, provides, 10. 14 U.S.C. in relevant ships examine the documents and part: examine, papers, inspect, and search may inquiries, The Coast Guard make ex- necessary the vessel and all use force to aminations, searches, seizures, inspections, compel compliance. When from such in- upon high and arrests seas and waters examination, quiries, inspection, or search jurisdic- over which the United States has appears that a breach of laws of the tion, detection, prevention, sup- for the rendering person liable to pression of violations laws the United committed, being, by arrest is or has been commissioned, purposes, States. For such any person, person such shall be immedi- warrant, petty may any officers time shore, ately pursued and arrested on or go any subject on board of appropriate other lawful be action shall tak- law, jurisdiction, operation any en. States, inquiries the United address to those necessary hearing A was not to address concerns at fourth amendment implicate suppression support of ar- issues because all, encounters short more intrusive motion, merely presented sus- of his justified reasonable rests must be degree the same statements USCG as picion proportional cannot be incho- did suspicion dispute intrusion. That Government had. Vilches ate, ‘specific and be based on but must Government’s version events and rational together ... articulable facts then. This upon instead relied makes

Notes

notes conviction for con drugs informed Vilches that the were spiracy requires proof beyond safely a reasonable on board. then Vilches ordered (1) doubt of three elements: the existence them to speed. resume their normal agreement of an to commit an unlawful Government met its burden. act; (2) knowledge join and intent to (3) 2. Possession agreement; knowing participation conspiracy. Se With respect possession charge, Cir.1993). púlveda, 15 F.3d again argues insuf- there was argues He that the Government’s evidence ficient knowingly pos- evidence that he at trial any was insufficient to establish sessed the narcotics found on the Babouth. disagree. three elements. We He maintains that the Government failed trial, At the Government established be- meet its burden of that he proving had yond a reasonable doubt “the existence of both knowledge and access to the nar- Patterson, a conspiracy, knowledge [Vilches’s] cotics. See United States (10th conspiracy, Cir.2006). voluntary par- and [Vilches’s] The facts— unlikely stop the Babouth would be Ms assertions above—belie recounted dark, ocean, in the middle of the innocence. any legitimate reason to take small boats light most favorable to Viewed alongside pre- also it. The Government verdict, is sufficient to sustain the evidence that the had unusu- sented evidence it is clear that jury’s verdict because ally equipment, excessive electronic which find that factfinder could reasonable condition; with its inconsistent elements the essential proved Government trafficking drug was consistent other which was accused. of crimes with Moreover, intercept- ventures. the USCG ed the in an area well-known for Babouth Evidence 3. Circumstantial drug trafficking. the Government’s Vilches claims was also evidence that on board There evidence does withstand circumstantial found Babouth officers indicators scrutiny should be discounted. Con activity supplies that were claims, of illicit trary the Government to Vilches’s possibility empty consistent with circumstantial evi introduced sufficient space behind false wall. USCG his support conviction. dence at trial drums, typical of those ..., fifty-gallon found “In cases the evidence circumstantial to refuel which could be used vessels sup if adequately convict is sufficient to transporting smaller vessels contraband. two-step ‘the inference’: ports requisite

Case Details

Case Name: United States v. Vilches-Navarrete

Court Name: Court of Appeals for the First Circuit

Date Published: Apr 10, 2008

Citation: 523 F.3d 1

Docket Number: 06-1942

Court Abbreviation: 1st Cir.