United States v. Nueci-Pena , 711 F.3d 191 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 10-2281
UNITED STATES,
Appellee,
v.
FRANCISCO NUECI-PEÑA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Before
Howard, Lipez and Thompson,
Circuit Judges.
Vivianne M. Marrero-Torres, Assistant Federal Defender, for
appellant, with whom Hector L. Ramos-Vegas, Assistant Federal
Defender, and Hector Guzman-Silva, Federal Defender, were on brief.
Justin Reid Martin, Assistant United States Attorney, for
appellee, with whom Nelson Pérez-Sosa, Assistant United States
Attorney, Appellate Chief, and Rosa Emilia Rodríguez-Velez, United
States Attorney, were on brief.
March 19, 2013
THOMPSON, Circuit Judge. A massive drug interdiction on
the high seas by the United States Coast Guard ("the Coast Guard")
ended with the arrest and indictment of multiple defendants,
including Appellant Francisco Nueci-Peña ("Nueci"). Nueci was
sentenced to twenty-four years in prison after being convicted of
possession with the intent to distribute over 1140 pounds of
cocaine and heroin while on board a vessel in violation of the
Maritime Drug Law Enforcement Act, 46 U.S.C. § 70501 et seq.
("MDLEA"). On appeal, Nueci says his conviction cannot stand,
arguing that Congress has no authority under Article 1, Section 8,
Clause 10 of the United States Constitution to criminalize drug
trafficking on board a vessel in international waters under the
MDLEA without requiring a nexus between the conduct and the United
States, and that the admission of certain certifications to support
the jurisdiction determination violated his Sixth Amendment right
to confrontation. After careful consideration, we affirm.
BACKGROUND1
On February 23, 2007, the Coast Guard detected a
suspicious go-fast vessel in Carribean waters. After the vessel
twice attempted to evade authorities, the Coast Guard managed to
stop and board the vessel to verify its nationality. Nueci,
identifying himself as the master of the ship, said that the vessel
1
United States v. Mitchell-Hunter, 663 F.3d 45 (1st Cir.
2011), a related case involving co-defendant Javier
Mitchell-Hunter's appeal, recites similar facts.
-2-
was Colombian. Consistent with operational procedures, the Coast
Guard contacted Colombian authorities for confirmation. The
Colombian Navy, however, could neither confirm nor deny that the
vessel was registered in Colombia. The Coast Guard, therefore,
determined that the vessel was "without nationality" and subject to
the jurisdiction of the United States under the MDLEA. The Coast
Guard proceeded to search the vessel and discovered 396 kilograms
of cocaine and 123 kilograms of heroin on board.
All six passengers on the vessel, including Nueci, were
arrested and subsequently charged with aiding and abetting (Count
I) and conspiracy (Count II) in the possession with intent to
distribute at least five kilograms or more of cocaine and one
kilogram or more of heroin on board a vessel subject to the
jurisdiction of the United States (that is, a vessel without
nationality), in violation of the MDLEA, 46 U.S.C. §§ 70503(a)(1),
70504(b)(1), and 70506(b). They pled not guilty.
On October 23, 2007, on the eve of trial, Nueci moved to
dismiss for lack of jurisdiction over the vessel, a motion joined
by other co-defendants. In their motion, the defendants argued
that the direct use of gunfire by the Coast Guard violated Article
12 of the Agreement Between the Government of the United States of
America and the Government of the Republic of Colombia to Suppress
Illicit Traffic by Sea, T.I.A.S. No. 12835. The defendants further
asserted that at the time of the interdiction Nueci claimed the
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vessel was registered in Venezuela, not Colombia. In support of
that assertion, the defendants said that three of them had
overheard Nueci telling the officer, who was part of the Coast
Guard boarding team, that the vessel was Venezuelan. They added
that FBI Special Agent Benjamin C. Walker, who was not part of that
boarding team, stated in an affidavit in support of the complaint
against the defendants that Nueci had claimed Venezuelan registry.
That the Colombian authorities could neither confirm nor deny the
vessel's registry in the end, the defendants argued, meant nothing
since the United States authorities had requested a consent waiver
from the wrong country. Defendants insisted that since no contact
had been made with the Venezuelan government to verify that claim
of registry, the United States never had jurisdiction over the
vessel and, consequently, over them. The defendants claimed that,
as a result, the United States had not established jurisdiction
under the MDLEA over the vessel.
Confronted with the motion to dismiss for lack of
jurisdiction less than two weeks before Nueci's trial was set to
begin, the district judge pushed back the trial and referred the
motion to a magistrate judge in mid-November 2007.2 In its
opposition to the defendants' motion to dismiss, the government
rehashed what happened when the Coast Guard boarded the vessel:
2
Although the defendants initially requested an evidentiary
hearing, the parties subsequently agreed it was unnecessary.
-4-
that Nueci, who claimed to be the person in charge on the vessel,
told an officer, who was part of the Coast Guard boarding team,
that the vessel was Colombian. The government pointed to the
"Certification For the Maritime Drug Law Enforcement Act Case
Involving the Go-Fast Vessel (Without Nationality)" attached to its
opposition, which recounts that the vessel had no "marking or
indicia of nationality" and "was not displaying any registry
numbers, a hailing port, or flying a national flag, and had no
documentation or registry papers" at the time of the interdiction.
The Certification showed that in accordance with the "Operational
Procedures for Boarding and Search of Vessels Suspected of Illicit
Traffic by Sea Related to Narcotics and Psychotropic Substances,"
the Coast Guard inquired via fax with the Colombian Navy to verify
Nueci's claim of registry, but Colombia could neither confirm nor
deny that claim. Consequently, the government noted, the United
States determined the vessel was without nationality, or
"stateless," in accordance with 46 U.S.C. § 70502(d)(1)(c) and
subject to its jurisdiction. In response to the defendants'
argument that the United States should have asked Venezuela, not
Colombia, whether the vessel was registered there, the government
asserted that any confusion about the vessel's registry was created
by the defendants themselves. The government acknowledged Nueci
had claimed at one point that the vessel had departed near the
Venezuelan/Colombian border and that the drug trafficking venture
-5-
was organized in Venezuela (which the government suggests could
have been why Agent Walker indicated that Nueci had claimed
Venezuelan registry when he was not actually present at the
interdiction). But, the government argued, at the time of the
interdiction the vessel flew no flag, had no markings, had no
registration documentation, and defendants have offered no proof
that the vessel was Venezuelan. The government further argued that
subject matter jurisdiction was not an element of the offense under
the MDLEA and that defendants had no standing to challenge
compliance with the treaty they claimed the United States violated
in using gunfire to stop the vessel.
The government later filed a supplemental response to the
defendants' motion to dismiss. In that response, the government
detailed the Coast Guard's more recent contact with Venezuelan
authorities -- contact initiated to determine whether the vessel
was indeed registered there as Nueci claimed. The government
attached to its motion the "Supplemental Certification For The
Maritime Drug Law Enforcement Act Case Involving the Go-Fast Vessel
(Without Nationality) Federal Drug Identification Number (FDIN) –
2007987278" issued on January 15, 2008. The supplemental
certification not only details the contact with the Colombian
authorities concerning the vessel's registry (included in the
original certification), but also addresses Nueci's claim of
Venezuelan registry. In accordance with Article 3 of the Agreement
-6-
Between the Government of the United States of America and the
Government of the Republic of Venezuela to Suppress Illicit Traffic
in Narcotic Drugs and Psychotropic Substances by Sea, the Coast
Guard requested the Venezuelan Coast Guard to confirm or deny that
Nueci's vessel interdicted on February 23, 2007 was registered in
Venezuela. Venezuela could not say the vessel was registered
there. The government asserted that regardless of Nueci's claim of
registry, because neither Venezuela nor Colombia claimed the
vessel, the vessel was "stateless" and the United States' exercise
of jurisdiction was proper under the MDLEA.
The magistrate judge recommended the defendants' motion
to dismiss be denied. Emphasizing that the list of mechanisms for
establishing that a vessel is without nationality was not meant to
be exhaustive and may be supplemented by looking to international
law, the judge found the vessel would not have been authorized to
fly the Venezuelan flag under international law since Venezuela was
unable to trace the registry of the vessel. He therefore concluded
Nueci's vessel was without nationality and subject to the United
States' jurisdiction under "46 U.S.C. § 70502(d)(1) as supplemented
by international law." The magistrate judge quickly disposed of
the violation of international law claim, finding that there was no
evidence the vessel was registered in Colombia and defendants had
failed to explain how the treaty had been triggered without such
registry. The magistrate judge further concluded that even if the
-7-
treaty applied in Nueci's case, Nueci had no standing to raise a
claim for failure to comply with international law and that such
failure does not divest a court of jurisdiction. See 46 U.S.C. §
70505. The district judge approved and adopted the report and
recommendation in full in an order issued on April 9, 2008. After
rescheduling the trial multiple times -- mostly due to the parties'
motions to continue -- she set the trial date for September 17,
2008.
Days before trial, two co-defendants moved to change
their pleas and the court terminated the September trial date and
referred the motions to the magistrate judge. Two additional co-
defendants moved to change their pleas around this time. The
magistrate judge granted the co-defendants' motions and recommended
the district judge accept their guilty pleas; the judge adopted
those recommendations and subsequently sentenced each of those
defendants.
In the thick of that activity, co-defendant Mitchell-
Hunter moved to supplement the previous motion to dismiss. He
argued that the commander's certifications -- regarding
jurisdiction prepared by the Secretary of State's designees as
proof that both Colombia and Venezuela did not object to the
exercise of jurisdiction over the defendants' vessel -- were
testimonial hearsay, and that under Crawford v. Washington, 541
U.S. 36 (2004), their use in the pretrial jurisdiction
-8-
determination, without an opportunity for cross-examination,
constituted a violation of his Sixth Amendment right to
confrontation. The district judge referred the matter to the
magistrate judge who recommended denying the motion. The
magistrate judge found inter alia that the right to confrontation
was a trial right and, therefore, inapplicable to the pretrial
jurisdiction determination. While Nueci had not moved to join the
motion to dismiss, he moved to join Mitchell-Hunter's timely filed
objections to the magistrate's report and recommendation. The
district judge overruled those objections and agreed with the
magistrate judge that the Confrontation Clause and Crawford did not
apply before trial and found no other reason for dismissal under
the MDLEA. Mitchell-Hunter changed his plea to guilty, which the
district court accepted, and Nueci proceeded to trial, set for June
11, 2010.
The day before trial Nueci moved for an order declaring
he had preserved his jurisdictional challenges.3 He moved to
preserve three issues: (1) "the constitutionality of allowing
certificates as proof of a statement of no objection"; (2) "the
constitutionality of having the jurisdictional issue decided by the
Court and of not having the jury decide an element of the crime";
and (3) "the constitutionality of being tried under this statute
3
Mitchell-Hunter pled guilty shortly after joining Nueci's
motion to preserve certain jurisdictional challenges.
-9-
[the MDLEA] which criminalizes activities on the high seas with no
requirement that the acts be directed towards the United States,
and in particular, whether it is constitutional to exercise
jurisdiction over a person in this manner." Though the district
judge determined that the first issue had been previously raised,
she could not find in the record when he had ever raised the latter
two issues.4 Understandably puzzled by a request to preserve
arguments she was "not aware" Nueci had ever raised before, the
district judge ordered him to "provide the specific information
regarding the presentation of these two issues." Instead of
complying fully with the order, Nueci clarified his challenge to
the MDLEA was based on the statute's provision which "exempts the
government from having to demonstrate a 'nexus' between the offense
and the United States merely because the vessel . . . was deemed
stateless." He argued that the statute's lack of a nexus
requirement exceeds Congress's power to define and punish piracies
and felonies on the high seas. As the district judge correctly
concluded, however, Nueci merely gave an "explanation of the
[motion's last two] constitutional issues, without referring the
Court to the instances, if any, where each of them had been raised
before." Nor could the district judge find any motions where those
4
While Nueci's motion regarding the preservation of his
jurisdictional challenges cited his objections to the magistrate
judge's supplemental report and recommendation, those objections
said nothing about these particular constitutional issues.
-10-
specific issues had been raised. She therefore found the
constitutionality of allowing certificates as proof of a statement
of no objection as the only issue that had been preserved for
appeal purposes and otherwise noted Nueci's motion to preserve the
other issues.
On June 24, 2010, the jury found Nueci guilty on both
counts in the indictment. The district court denied his motion for
acquittal and his renewed two-sentence motion to dismiss the
indictment for lack of jurisdiction. Nueci received 24 years
imprisonment and 5 years supervised release. He moved for
reconsideration of the sentence, arguing that the sentence was
procedurally and substantively unreasonable given the disparity
between his sentence and that of each of his co-defendants, among
other reasons. The judge denied that motion too. Nueci's appeal
followed.
DISCUSSION
A. Constitutional Challenge to the MDLEA
On appeal, Nueci argues the MDLEA is unconstitutional
because it exceeds Congressional authority "[t]o define and punish
Piracies and Felonies committed on the high Seas . . . ." ("the
Piracies and Felonies Clause") under Article I, Section 8, Clause
10 of the Constitution.
As a threshold matter, Nueci says that de novo review
applies to his constitutional challenge on appeal. We, however,
-11-
ordinarily review legal and constitutional claims de novo only when
they are properly preserved. United States v. Neto, 659 F.3d 194,
200 (1st Cir. 2011). Nueci failed to preserve his constitutional
challenge by failing to properly raise it in the district court.5
Nueci's motion to dismiss for lack of jurisdiction before trial was
not based on a challenge to Congress's authority under the Piracies
and Felonies clause to punish drug trafficking under the MDLEA;
rather it was based on Nueci's claim that he had said the vessel
was of Venezuelan, not Colombian, registry and since the United
States had not (at that time) contacted Venezuela to confirm it,
the United States never had jurisdiction over the vessel and,
consequently, over the defendants.
His motion the day before trial for an "order deeming
jurisdictional issues preserved" listed as one of those issues:
"the constitutionality of being tried under this statute [the
MDLEA] which criminalizes activities on the high seas with no
requirement that the acts be directed towards the United States,
and in particular, whether it is constitutional to exercise
jurisdiction over a person in this manner." When ordered to
indicate when Nueci had previously raised that argument, Nueci
instead filed a further explanation of his argument that the MDLEA
is an unconstitutional exercise of Congressional authority under
5
The government erroneously asserts that de novo review
applies as well.
-12-
the Piracies and Felonies Clause. As the district judge aptly
concluded, however, Nueci had never before raised that argument.
Ignoring his failure to properly preserve the
constitutional challenge he now raises on appeal, Nueci seems to
suggest that his constitutional claim goes to whether the district
court had jurisdiction to sentence him for violating a law he says
is unconstitutional; that is, if the MDLEA's lack of nexus
requirement exceeds Congressional authority under the Piracies and
Felonies Clause, the district court lacked jurisdiction over Nueci,
or so the argument goes. To the extent Nueci contends that a
challenge to the constitutionality of the MDLEA inherently involves
a challenge to subject matter jurisdiction and that subject matter
jurisdiction can be raised at any time, regardless of whether it
was raised below, we have previously rejected the assertion that a
constitutional challenge to the MDLEA always "implicates the
subject matter jurisdiction of the court." United States v.
Cardales-Luna, 632 F.3d 731, 737 (1st Cir. 2011). "'If a challenge
to the constitutionality of an underlying criminal statute always
implicated subject-matter jurisdiction, then federal courts, having
an obligation to address jurisdictional questions sua sponte, would
have to assure themselves of a statute's validity as a threshold
matter in any case.'" Id. (quoting United States v. Baucum, 80
F.3d 539, 541 (D.C. Cir. 1996)).
-13-
Because he failed to raise his argument before the
district court that Congress exceeded its authority under the
Piracies and Felonies Clause in enacting the MDLEA without
requiring a nexus between the conduct and the United States, the
proper standard of review is plain error. See United States v.
Acevedo-Maldonado, 696 F.3d 150, 156 (1st Cir. 2012) (plain error
review applies where defendant failed to raise Confrontation Clause
objection at trial). To establish plain error, Nueci must show
"(1) error, (2) that is plain, and (3) that affects substantial
rights." Johnson v. United States, 520 U.S. 461, 467 (1997)
(internal quotation marks, alterations and citation omitted);
United States v. Borrero-Acevedo, 533 F.3d 11, 15 (1st Cir. 2008).
If all three elements are satisfied, "'an appellate court may then
exercise its discretion to notice a forfeited error, but only if
(4) the error 'seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.'" Borrero-Acevedo, 533
F.3d at 15 (quoting Johnson, 520 U.S. at 467).
The MDLEA makes it unlawful for an individual to
"knowingly or intentionally manufacture or distribute, or possess
with intent to manufacture or distribute, a controlled substance on
board . . . a vessel of the United States or a vessel subject to
the jurisdiction of the United States." 46 U.S.C. § 70503(a)(1).
That prohibition "applies even though the act is committed outside
the territorial jurisdiction of the United States." Id. §
-14-
70503(b). A vessel "subject to the jurisdiction of the United
States" includes "a vessel without nationality." Id. §
70502(c)(1)(A). "A vessel without nationality" in turn is defined,
as relevant here, as "a vessel 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." Id. §
70502(d)(1)(C).6 The MDLEA does not require a nexus between a
defendant's conduct and the United States. See id. § 70502(c).
Focusing on that, Nueci contends the Piracies and Felonies Clause
does not authorize Congress to punish drug trafficking on the high
seas under the MDLEA without requiring a nexus between the unlawful
conduct and the United States. We need not delve into the merits
of Nueci's argument because even assuming his conviction under the
MDLEA was error on that basis, the error was certainly not plain.
Looking first to the language of the Piracies and
Felonies Clause, we note the Clause does not explicitly require a
nexus between the unlawful conduct committed on the high seas and
the United States be established before Congress can punish that
conduct. See U.S. Const. art. I, § 8, cl. 10. In addition, on
6
Section 70502(e) defines "a claim of nationality or registry"
as including only: "(1) possession on board the vessel and
production of documents evidencing the vessel's nationality as
provided in article 5 of the 1958 Convention on the High Seas; (2)
flying its nation's ensign or flag; or (3) a verbal claim of
nationality or registry by the master or individual in charge of
the vessel."
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more than one occasion, we have noted that Congress was "[i]nvoking
its constitutional power '[t]o define and punish Piracies and
Felonies committed on the high seas'" in making drug trafficking
unlawful under the MDLEA. United States v. Matos-Luchi, 627 F.3d
1, 3 (1st Cir. 2010); Mitchell-Hunter, 663 F.3d at 49 n.3 ("The
MDLEA is derived from Congress's power [under the Piracies and
Felonies Clause]."). The Third and Fifth Circuits have similarly
observed that Congress derived its authority to enact the MDLEA
from the Piracies and Felonies Clause. United States v.
Ledesma-Cuesta, 347 F.3d 527, 531-32 (3d Cir. 2003); United States
v. Suerte, 291 F.3d 366, 376-77 (5th Cir. 2002); United States v.
Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993).
While those cases did not examine in depth the scope of
Congress' authority under the Piracies and Felonies Clause to enact
the MDLEA, at least one circuit court to have addressed the
specific challenge Nueci raises here -- that the Piracies and
Felonies Clause does not authorize Congress to enact the MDLEA,
which punishes conduct without a connection to the United States --
has rejected it. See, e.g., United States v. Estupinan, 453 F.3d
1336, 1338-39 (11th Cir. 2006) (holding Congress did not exceed
its authority under the Piracies and Felonies Clause by enacting
the MDLEA without requiring a jurisdictional nexus).
Significantly, Nueci points us to no Supreme Court or circuit court
-16-
case, nor are we aware of any, holding otherwise.7 Given both our
sister circuits' view that the MDLEA is a constitutional exercise
of Congress' power under the Piracies and Felonies Clause and the
absence of Supreme Court precedent addressing the scope of that
power in this context, we cannot conclude that any jurisdictional
error under the MDLEA related to Nueci's conviction -- and we do
not suggest there was such error -- would constitute plain error.
B. Confrontation Clause Challenge
Next, Nueci contends that even assuming the government
could prosecute him under the MDLEA, the district court erred in
7
To support his argument, Nueci mistakenly asserts that the
early Supreme Court case United States v. Furlong, 18 U.S. 184(1820), held that Congress does not have the power to punish
felonies on the high seas that have no nexus to the United States.
That was not the Court's holding, however. Furlong, a case about
statutory interpretation, involved challenges to the convictions of
several defendants under a piracy statute, the Act for the
Punishment of certain Crimes against the United States, § 8, 1
Stat. 112 (1790) ("Act of 1790"). 18 U.S. at 185-93. The Court
held that the defendants' piratical conduct was prohibited by the
Act of 1790. Id. at 192-93. Even Furlong's dicta, stating the Act
of 1790 could not "extend [to] the punishment of murder" on the
high seas by a foreign crew member against another aboard a foreign
vessel because piracy (the crime covered by the statute) is the
"crime within the acknowledged reach of the punishing power of
Congress," id. at 193-97, does not stand for the broad proposition
that Congress cannot punish felonies such as drug trafficking on
the high seas that bear no connection with the United States under
the MDLEA.
Nueci's reliance on United States v. Smith, 18 U.S. 153(1820), is equally misplaced. The issue in Smith was whether the
Act of 1819's definition of piracy referencing the law of nations
was within Congress' power to define and punish piracies. 18 U.S.
at 158-60. Smith goes no further than holding that the Act of
1819's definition of piracy was a constitutional exercise of
Congress' power to define piracies and that piracy is defined by
the law of nations as "robbery upon the sea." Id. at 160-62.
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admitting as evidence the commander's certifications to establish
the vessel was subject to the jurisdiction of the United States.
Specifically, Nueci argues that the certifications are testimonial
in nature and by admitting them, his Sixth Amendment right to
confrontation was violated. The Confrontation Clause of the Sixth
Amendment to the Constitution provides that a criminal defendant
"shall enjoy the right . . . to be confronted with the witnesses
against him . . . ." U.S. Const. amend. VI. While Nueci concedes
that determinations of jurisdiction under the MDLEA are for judges
to make, Nueci argues that the right to confrontation should extend
to proceedings (before a judge) to determine jurisdiction under the
MDLEA.
Our recent decision in Mitchell-Hunter, 663 F.3d at
50-53, forecloses that argument. In that case, Nueci’s
co-defendant, Mitchell-Hunter, made the very argument Nueci now
advances on appeal: that it was a violation of the Sixth Amendment
right to confrontation for the district court to use the
certifications as evidence in the determination of jurisdiction
under the MDLEA. In rejecting the argument, we explained that
Crawford and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009),
the two cases upon which Nueci relies here, have not extended the
reach of the Confrontation Clause beyond the context of trial. See
Mitchell-Hunter, 663 F.3d at 52-53. We concluded, as we do here,
that "[i]n this non-trial context, where evidence does not go to
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guilt or innocence," the Confrontation Clause does not apply. Id.
at 53.8 Thus, Nueci's Confrontation Clause argument gets him
nowhere.
CONCLUSION
In the end, we affirm the district court, and Nueci's
conviction stands.
8
We made clear, however, that we were not going so far as to
hold that the Confrontation Clause could never apply to pretrial
determinations, just that it did not apply under these
circumstances. Id.-19-