United States v. Reyes-Valdivia ( 2019 )

United States Court of Appeals
For the First Circuit
No. 16-2089
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFRI DÁVILA-REYES,
Defendant, Appellant.
No. 16-2143
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ D. REYES-VALDIVIA,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Thompson, Circuit Judges.
Thomas F. Klumper, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and John A. Mathews II, Assistant United States
Attorney, were on brief, for appellee.
Franco L. Pérez-Redondo, Research and Writing Specialist,
with whom Eric Alexander Vos, Federal Public Defender, Vivianne M.
Marrero, Assistant Federal Public Defender, and Liza L. Rosado-
Rodríguez, Research and Writing Specialist, were on brief, for
appellant Jose D. Reyes-Valdivia.
Raymond L. Sánchez-Maceira on brief for appellant Jeffri
Dávila-Reyes.
September 3, 2019
LIPEZ, Circuit Judge. These consolidated appeals arise
from the U.S. Coast Guard's interdiction of a small speed boat in
the western Caribbean Sea and the subsequent arrest and indictment
of the three men on board the boat for drug trafficking under the
Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. §§ 70501-
70508. In a motion to dismiss the indictment, appellants José
Reyes-Valdivia and Jeffri Dávila-Reyes challenged the
constitutionality of the MDLEA. They argued that the statute,
which in certain circumstances allows U.S. law enforcement to
arrest foreign nationals for drug crimes committed in
international waters, exceeds Congress's authority under Article
I of the Constitution and violates the Due Process Clause. The
district court denied the motion to dismiss. Both appellants then
pleaded guilty pursuant to plea agreements in which each waived
his right to appeal if sentenced in accordance with his agreement's
sentencing recommendation provision.
On appeal, appellants renew their constitutional
objections to their prosecution. However, their primary argument
-- that their vessel was not properly deemed stateless -- founders
on our governing precedent concerning the protective principle of
international law. That principle, as applied by our court,
permits prosecution under the MDLEA even of foreigners on foreign
vessels. That precedent may only be reconsidered by the en banc
court. We as a panel may not do so. Hence, we affirm both
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appellants' convictions. Reyes-Valdivia also asserts sentencing
error, but we find no abuse of discretion in the sentence imposed.
I.
We draw the following facts from appellants' change of
plea colloquies and the uncontested portions of their Presentence
Investigation Reports ("PSRs"). See United States v. Vélez-
Luciano, 814 F.3d 553, 556 (1st Cir. 2016). While patrolling
waters approximately 30 nautical miles southeast of San Andrés
Island, Colombia,1 U.S. Coast Guard officers observed a small
vessel moving at a high rate of speed. When the occupants of the
vessel became aware of the Coast Guard boat nearby, they began
throwing packages and fuel barrels overboard. The Coast Guard
officers approached the boat and began to question its occupants,
the two appellants and a third co-defendant. The "master"2 of the
vessel "claimed Costa Rican nationality for the vessel," but did
not provide any documentation of Costa Rican registry. The Coast
Guard then contacted the government of Costa Rica, which neither
confirmed nor denied the registry of the vessel. The Coast Guard
1 San Andrés Island, although part of Colombia, is located
off the coast of Nicaragua.
2 The term "master" is synonymous with "captain." It is a
legal term of art meaning "he [or she] to whom are committed the
government, care, and direction of the vessel and cargo."
Kennerson v. Jane R., Inc., 274 F. Supp. 28, 30 (S.D. Tex. 1967).
The government did not specify which of the three men the Coast
Guard identified as the "master" of the vessel.
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officers thus determined that, pursuant to § 70502(d)(1)(C) of the
MDLEA,3 the boat was "without nationality" and subject to U.S.
jurisdiction, and they proceeded to board and search it. The
officers did not find any contraband, but a chemical test found
traces of cocaine. Based on that evidence, the Coast Guard
detained the three men -- all citizens of Costa Rica -- and took
them to the U.S. Naval Base at Guantánamo Bay, Cuba, and then
eventually to Puerto Rico.
All three defendants were charged with two counts of
trafficking cocaine in violation of the MDLEA. Reyes-Valdivia and
Dávila-Reyes moved to dismiss the indictment for lack of
jurisdiction, arguing that the MDLEA, particularly
§ 70502(d)(1)(C), is unconstitutional. In their view,
§ 70502(d)(1)(C) exceeds Congress's authority under Article I of
the Constitution, and it violates the Due Process Clause of the
Fifth Amendment because it is unconstitutionally vague, subject to
arbitrary enforcement, and criminalizes conduct that has no nexus
with the United States. The district court denied the motion.
Reyes-Valdivia and Dávila-Reyes both subsequently agreed
to plead guilty to one count of possession with intent to
3This provision defines a "vessel without nationality" as
one "aboard which the master or individual in charge makes a claim
of registry and for which the claimed nation of registry does not
affirmatively and unequivocally assert that the vessel is of its
nationality." 46 U.S.C. § 70502(d)(1)(C).
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distribute five or more kilograms of cocaine in violation of the
MDLEA. See 46 U.S.C. § 70503(a)(1).4 The plea agreements for both
men calculated a total offense level of 27, based on a base offense
level of 30 and a three-level deduction for acceptance of
responsibility. See U.S.S.G. §§ 2D1.1(a); 3E1.1(a)-(b). The
parties' recommended sentences depended on the court's eventual
finding of the Criminal History Category ("CHC"), with the
statutory minimum of 120 months' imprisonment to be recommended
unless the court found CHC VI (the highest level) applicable. In
a supplement to Reyes-Valdivia's plea agreement, the parties
agreed to recommend a 57-month term if he qualified for the "safety
valve" exception to the mandatory minimum. See 18 U.S.C.
§ 3553(f)(1)-(5); U.S.S.G. § 5C1.2.5 Both men agreed to waive
appellate review if sentenced in accordance with the sentencing
recommendation provisions.
The PSRs calculated the total base offense levels
consistently with the plea agreements and assigned Reyes-Valdivia
4
The third defendant also pleaded guilty to this count and
was sentenced to a 57-month term of imprisonment. He did not file
an appeal.
5
Section 3553(f) allows a court to disregard the mandatory
minimum sentence for certain drug offenses when the defendant has
met specified requirements, including having a limited criminal
history and truthfully providing the government with all
information about the offense.
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a CHC of I and Dávila-Reyes a CHC of III, triggering the 120-month
recommendation or, for Reyes-Valdivia, a 57-month term if he were
found eligible for the safety valve. However, Reyes-Valdivia's
PSR also concluded that he should be given a two-level enhancement
for being the "captain" of the vessel. See U.S.S.G.
§ 2D1.1(b)(3)(C). After Reyes-Valdivia informally objected to the
enhancement, the Probation Officer filed an addendum to the PSR
stating that Reyes-Valdivia had told federal agents upon his
arrival in Puerto Rico that he was the vessel's captain. Reyes-
Valdivia then filed a written objection to the PSR in which he
argued, inter alia, that the captain enhancement was inapplicable
because he did not possess the "specialized skills" it required.
Consistent with the plea agreements, the parties jointly
recommended a sentence of 120 months for Dávila-Reyes and a
sentence of 57 months for Reyes-Valdivia. The court sentenced
Dávila-Reyes to 120 months, but sentenced Reyes-Valdivia to 70
months based on its finding that both the safety valve and the
captain enhancement applied. Reyes-Valdivia's motion for
reconsideration was denied. Both Reyes-Valdivia and Dávila-Reyes
then appealed.
II.
The government contends that Reyes-Valdivia and Dávila-
Reyes each waived his right to appeal in two distinct ways: by the
express appellate waiver provisions in their plea agreements and
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by entry of unconditional guilty pleas to drug trafficking in
violation of the MDLEA. With respect to Reyes-Valdivia, the
government is wrong in arguing that he is barred by his plea
agreement. As described above, the district court declined to
follow the parties' recommended term of 57 months and instead
sentenced him to a 70-month term of imprisonment. Because Reyes-
Valdivia's sentence exceeded the recommendation, the waiver
provision plainly does not apply.6
Dávila-Reyes, however, received a 120-month sentence
that aligns with the recommendation in his plea agreement. He
argues that, despite the enforceable waiver, we should exercise
our inherent authority to consider his claims to avoid "a
miscarriage of justice." United States v. Teeter, 257 F.3d 14,
25-26 (1st Cir. 2001). He contends that his appeal raises
"important questions of law and [of] first impression" -- including
the constitutionality of § 70502(d)(1)(C) of the MDLEA -- and that
preventing him from presenting that challenge would be unjust.
We agree that the constitutional issues Dávila-Reyes
raises are significant and that the other factors allowing us to
6
The government contends that Reyes-Valdivia is nonetheless
bound by the waiver provision because he failed to explain in his
opening brief why it is inapplicable. However, it is apparent on
the face of the plea agreement that Reyes-Valdivia was not
sentenced in accordance with the sentencing recommendation
provision, and he was not obligated to make that obvious point in
his opening brief. See United States v. Colón-Rosario, 921 F.3d
306, 310-11 (1st Cir. 2019).
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exercise our discretion to disregard the appellate waiver also are
present to the necessary degree. See, e.g., United States v.
Ortiz-Vega, 860 F.3d 20, 27-28 (1st Cir. 2017). Particularly
important is the lack of prejudice to the government, given Reyes-
Valdivia's presentation of the same issues as Dávila-Reyes. See
id. at 27. Indeed, if appellants request and obtain en banc
reconsideration of the precedent that currently forecloses their
constitutional claims, see infra, the potential for relief should
not depend on the happenstance that the district court added an
enhancement to Reyes-Valdivia's sentence. Thus, we exercise our
discretion to decline to enforce Dávila-Reyes's appellate waiver.
Nor do appellants' guilty pleas foreclose their right to
challenge the constitutionality of the MDLEA. The Supreme Court
recently held in Class v. United States that "a guilty plea by
itself" does not bar "a federal criminal defendant from challenging
the constitutionality of the statute of conviction on direct
appeal." 138 S. Ct. 798, 803 (2018). In their briefing and oral
argument, appellants present claims that are permissible under
Class. Although they conceded through their guilty pleas that the
MDLEA, by its terms, allows the government to prosecute them under
U.S. law, they argue that Congress lacked authority to enact the
applicable provisions. In other words, appellants accepted that
their convictions were "proper" under the statute, but nonetheless
unconstitutional. Such claims may proceed notwithstanding an
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unconditional guilty plea. See United States v. Aybar-Ulloa, 913
F.3d 47, 51 (1st Cir. 2019), petition for reh'g en banc filed,
No. 15-2377 (Jan. 23, 2019); cf. United States v. Miranda, 780
F.3d 1185, 1194 (D.C. Cir. 2015) (noting that Congress would want
the "'[j]urisdiction of the United States with respect to a
vessel,' [46] U.S.C. § 70504(a), to be insulated from waiver or
forfeiture by a defendant" because "[t]he requirement aims to
protect the interests of foreign nations, not merely the interests
of the defendant").
III.
Appellants' primary constitutional challenge targets a
section of the MDLEA that allows U.S. authorities to deem a vessel
"without nationality" -- i.e., "stateless" -- when certain
conditions are met. See 46 U.S.C. § 70502(d)(1). It is undisputed
in this case that the "vessel without nationality" provision of
the MDLEA was enacted pursuant to Congress's authority to "define
and punish . . . Felonies committed on the high Seas" ("the
Felonies Clause"). U.S. Const. art. I, § 8, cl. 10; see United
States v. Cruickshank, 837 F.3d 1182, 1187 (11th Cir. 2016)
(stating that the MDLEA "was enacted under Congress's authority
provided by the Felonies Clause"); United States v. Matos-Luchi,
627 F.3d 1, 3 (1st Cir. 2010) (stating that, in criminalizing drug
trafficking in the MDLEA, Congress was "[i]nvoking its
constitutional power" under the Felonies Clause). Appellants
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argue that Congress's authority under the Felonies Clause is
limited by the principles of international law, and they maintain
that, under that law, their vessel cannot be deemed stateless.
Specifically, they contend that the definition of a stateless
vessel relied upon by the government to support jurisdiction over
their boat improperly disregards a master's verbal claim of
nationality or registry based on mere inaction by the named
country, i.e., its failure to confirm or deny "that the vessel is
of its nationality." 46 U.S.C. § 70502(d)(1)(C). Thus, they say,
their arrests and prosecution were unconstitutional.
Under our caselaw, however, appellants' prosecution does
not depend on their vessel having been properly deemed stateless.
Even if their challenge to the MDLEA's statelessness definition
were successful, appellants would still confront our precedent
holding that the MDLEA is consistent with the "protective
principle" of international law, which permits a nation "to assert
jurisdiction over a person whose conduct outside the nation's
territory threatens the nation's security." United States v.
Cardales, 168 F.3d 548, 553 (1st Cir. 1999) (quoting United States
v. Robinson, 843 F.2d 1, 3 (1st Cir. 1988) (Breyer, J.)).
In Cardales, we stated that the protective principle may
be triggered in cases brought under the MDLEA "because Congress
has determined that all drug trafficking aboard vessels threatens
our nation's security." Id. (emphasis added). In so concluding,
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we relied on a provision of the MDLEA stating, in pertinent part:
"Congress finds and declares that [] trafficking in controlled
substances aboard vessels is a serious international problem, is
universally condemned, and presents a specific threat to the
security and societal well-being of the United States." 46 U.S.C.
§ 70501. Our court, albeit in mostly split panels, has
subsequently accepted as governing precedent the view expressed in
Cardales that the protective principle can be applied to drug
trafficking in violation of the MDLEA. See, e.g., Aybar-Ulloa,
913 F.3d at 56 (majority opinion); United States v. Vilches-
Navarrete, 523 F.3d 1, 21-22 (1st Cir. 2008) (separate opinion of
Lynch and Howard, JJ.); United States v. Bravo, 489 F.3d 1, 7-8
(1st Cir. 2007); but see, e.g., Aybar-Ulloa, 913 F.3d at 58-59
(Torruella, J., joining in part and dissenting in part).7
Significantly for the case before us, Cardales invoked
the protective principle with respect to foreigners on a foreign
vessel, initially spotted about 150 miles south of Puerto Rico.
See 168 F.3d at 551. The captain of the boat, which was boarded
by Coast Guard officers over the captain's objection, claimed it
7Although our court discussed the protective principle at
some length in Robinson, we ultimately sidestepped questions
surrounding the principle's scope because the vessel's flag nation
had consented to U.S. jurisdiction. See 843 F.2d at 3-4. We
recognized in Robinson, however, that "any assertion of
jurisdiction under the protective principle must be 'reasonable.'"
Id. at 3 (citing Restatement (Revised) § 403; Brown, "Protective
Jurisdiction," 34 Am. J. Int'l L. 112, 114 (1940)).
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was a Venezuelan vessel. Id. at 551-52. The Venezuelan government
later confirmed that the vessel was registered there, and it
authorized U.S. intervention. Id. at 552.
Although Venezuela's consent played a large role in the
panel's rejection of the defendants' due process challenge to their
prosecution, which was based on the lack of a nexus between their
criminal conduct and the United States, see id. at 552-53, consent
appeared to play no role in the panel's brief discussion of the
protective principle as an alternative rationale for upholding
U.S. jurisdiction over the defendants, see id. at 553. In a single
paragraph, the panel described the principle and noted that
Congress's specific finding of a security threat to the United
States in § 70501 was "[c]onsistent with this principle." Id. As
we observed in Aybar-Ulloa, "[t]here is no indication in this
aspect of Cardales's reasoning that its broad assertion regarding
the United States' entitlement to assert protective jurisdiction,
under international law, was limited only to cases in which the
flag nation has consented to the United States' assertion of
jurisdiction over a vessel and those on board it." 913 F.3d at
56. Rather, the Cardales panel seemingly treated the congressional
declaration of a security threat as adequate on its own to support
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protective jurisdiction over the vessel under international law.
See id.8
Accordingly, even if appellants' vessel possessed Costa
Rican nationality, as they claim, appellants would nonetheless be
subject to U.S. jurisdiction under our circuit's view of the
protective principle. See Vilches-Navarrete, 523 F.3d at 5
(Honduran flagged vessel); Cardales, 168 F.3d at 552 (Venezuelan
registry). Notwithstanding Cardales and the cases reiterating its
approach, appellants urge us to reject the protective principle as
a proper basis for U.S. jurisdiction over their vessel. That
entreaty, however, can only be made to the en banc court. Based
on our precedent, we must affirm appellants' convictions.
IV.
Reyes-Valdivia claims the district court committed
procedural sentencing error when it applied a two-level
enhancement based on his being the "captain" of the vessel. See
U.S.S.G. § 2D1.1(b)(3)(C) (requiring a two-level enhancement if
the defendant acted, inter alia, as a "pilot, copilot, captain,
[or] navigator . . . aboard any craft or vessel carrying a
8
In a footnote, the Cardales panel observed that "[t]o the
extent that international law requires a nexus to the United
States, that nexus requirement is not overridden by the MDLEA, but
instead is satisfied by the foreign flag nation's authorization to
apply U.S. law to the defendants and by the congressional finding
that drug trafficking aboard vessels threatens the security of the
United States." 168 F.3d at 553 n.2 (emphasis added).
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controlled substance"). He acknowledges that he stated at the
time of his arrest that he was the captain, but he asserts that
the evidence in fact shows that he shared the duties of steering
the vessel with others. Reyes-Valdivia highlights the
government's view, expressed at the sentencing hearing, that the
enhancement should not apply "[g]iven the nature of the ship, and
the fact that a captain of one of these boats could be one person
one minute and, literally, another person the other minute."
We review a district court's interpretation and
application of a sentencing enhancement de novo. See United States
v. Trinidad, 839 F.3d 112, 114 (1st Cir. 2016). The court's
underlying factual findings may be undone only if clearly
erroneous, id., and its judgment calls must be upheld absent an
abuse of discretion, United States v. Coleman, 854 F.3d 81, 85
(1st Cir. 2017).
The transcript of the sentencing hearing makes plain
that the district court understood the facts that prompted the
government to conclude that the captain enhancement was
unwarranted. The court acknowledged that Reyes-Valdivia may not
have been the master of the vessel, and that he may have said he
was the captain only to protect Dávila-Reyes (his cousin) from
exposure to more severe punishment resulting from Dávila-Reyes's
prior criminal activity. Nonetheless, Reyes-Valdivia not only
reported being the captain, but, as his counsel noted at the
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hearing, he admitted that "he did, in fact, steer along with the
other co-[d]efendants in this case." On this record, we cannot
conclude that the district court clearly erred in applying the
enhancement. See United States v. Cruz-Mendez, 811 F.3d 1172,
1175-76 (9th Cir. 2016) (joining other circuits, including the
First Circuit, in construing the pilot/captain enhancement broadly
to cover a defendant who shared piloting responsibilities); cf.
Trinidad, 839 F.3d at 116 (rejecting defendant's "contention that
he did not act as a navigator because he was a subordinate to the
other man on the vessel"); United States v. Guerrero, 114 F.3d
332, 346 (1st Cir. 1997) (rejecting defendant's argument that the
enhancement "only applies to offense participants in a position of
authority or command").
V.
We do not reach appellants' challenge to the
constitutionality of the MDLEA definition of a "vessel without
nationality." Under governing First Circuit precedent, the
protective principle of international law permitted the United
States to arrest and prosecute appellants even if, as they claim,
their vessel possessed Costa Rican nationality. Their argument
seeking to change that precedent must be presented to the court en
banc.
Accordingly, for the reasons given, we affirm the
judgments of conviction and Reyes-Valdivia's sentence.
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So ordered.
-Concurring Opinion Follows-
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LIPEZ, Circuit Judge, concurring. I write separately to
explain why I believe our circuit's caselaw on the protective
principle of international law is flawed and to urge my colleagues
to reconsider that precedent en banc. The protective principle,
as we have described it, permits prosecutions under the Maritime
Drug Law Enforcement Act ("MDLEA") of foreigners on foreign vessels
without any affirmative showing that the targeted drug trafficking
impacts the United States or its citizens. That expansive reach
of the principle far exceeds the traditional depiction of its scope
as a proposition of international law. Indeed, such a broad view
of U.S. jurisdiction over vessels is at odds with our obligation
to respect every nation's authority over its own persons and
vessels.
Harmonizing our view of the protective principle with
international law would bring to the forefront appellants'
challenge to the MDLEA's "vessel without nationality" provision.
In other words, if we concluded that the protective principle does
not justify application of the MDLEA to drug trafficking carried
out by foreigners on foreign vessels, absent a demonstrated nexus
between the drug activity and U.S. security interests, we would
need to address whether appellants' vessel was one "without
nationality." That is so because the government has made no
showing of such a nexus. Although I will not delve into the
statutory issue here, I think it important to note that appellants
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present a forceful argument that Congress exceeded its authority
under Article I of the Constitution by expanding the definition of
a stateless vessel beyond the bounds of international law. See 46
U.S.C. § 70502(d)(1).
Discussion
A close review of the cases in which we have considered
the protective principle reveals that our court's approach to the
doctrine rests on shaky footing. I describe that precedent below,
explaining why its vulnerabilities warrant en banc reconsideration
of our application of the principle, under the MDLEA, to drug
trafficking aboard vessels in international waters.
A. The Protective Principle and the MDLEA
The "protective principle" is a long-recognized concept
of international law that permits a nation to punish
extraterritorial conduct that poses a risk to its security or other
important state interests. See, e.g., United States v. Robinson,
843 F.2d 1, 3 (1st Cir. 1988). The current version of the
applicable Restatement provision describes "Jurisdiction Based on
the Protective Principle" as follows:
International law recognizes a state's
jurisdiction to prescribe law with respect to
certain conduct outside its territory by
persons not its nationals that is directed
against the security of the state or against
a limited class of other fundamental state
interests, such as espionage, certain acts of
terrorism, murder of government officials,
counterfeiting of the state's seal or
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currency, falsification of official
documents, perjury before consular officials,
and conspiracy to violate immigration or
customs laws.
Restatement (Fourth) of Foreign Relations Law of the United States
§ 412 (2019).
The language of the MDLEA's declaration on drug
trafficking, asserting that trafficking of controlled substances
aboard vessels "presents a specific threat to the security and
societal well-being of the United States," 46 U.S.C. § 70501,9
tracks the Restatement provision, and it thus suggests a deliberate
desire by Congress to bring drug trafficking within the protective
principle. Significantly, the security risk as declared by
Congress is not expressly limited to drug activity with a
demonstrated impact on, or nexus to, the United States. Rather,
the broadly worded statement would on its face include within its
scope drug trafficking aboard a vessel halfway around the world,
without any showing that those drugs were headed toward the United
States or would otherwise affect the United States or its citizens.
See United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999)
9 Section 70501 states, in pertinent part: "Congress finds
and declares that [] trafficking in controlled substances aboard
vessels is a serious international problem, is universally
condemned, and presents a specific threat to the security and
societal well-being of the United States."
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(noting Congress's finding that "all drug trafficking aboard
vessels threatens our nation's security" (emphasis added)).10
The other circuits have not taken a uniform stance on
whether a direct nexus to the United States must be shown to
trigger the protective principle with respect to drug trafficking.
Compare, e.g., United States v. Perlaza, 439 F.3d 1149, 1162 (9th
Cir. 2006) (rejecting "the notion that [the] 'protective
principle' can be applied to 'prohibiting foreigners on foreign
ships 500 miles offshore from possessing drugs that . . . might be
bound for Canada, South America, or Zanzibar'" (quoting Robinson,
843 F.2d at 3) with United States v. Gonzalez, 776 F.2d 931, 939
(11th Cir. 1985) (stating that "[t]he protective principle does
not require that there be proof of an actual or intended effect
inside the United States" and concluding that "conduct may be
forbidden if it has a potentially adverse effect and is generally
recognized as a crime by nations that have reasonably developed
legal systems").
The debate over the nexus requirement for drug
trafficking in violation of the MDLEA could be framed as a debate
over the types of crimes properly within the scope of the
10
Although we have acknowledged that the assertion of
jurisdiction under the protective principle must be reasonable,
see Robinson, 843 F.2d at 3, we did not discuss reasonableness in
the post-Robinson cases adopting the protective principle and we
have not defined the limits of "reasonable" protective principle
jurisdiction.
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protective principle. A Reporters' Note to the Restatement
provision on protective jurisdiction observes that "no constituent
element of the offense and no actual or intended effect in the
territory of the regulating state need be shown." Restatement
(Fourth) of Foreign Relations Law § 412 n.1 (emphasis added).
However, the crimes the Restatement specifies in describing the
protective principle -- such as counterfeiting, espionage, and
perjury before consular officials -- by their nature directly
affect state interests wherever they occur. That is, the crimes
traditionally associated with the protective principle are those
that inherently include a "nexus" with the prosecuting country as
an element. That category of crimes is small, and drug trafficking
would not naturally fit within it. See id. cmts. a, b (describing
the limited scope of the protective principle); Eugene
Kontorovich, Beyond the Article I Horizon: Congress's Enumerated
Powers and Universal Jurisdiction Over Drug Crimes, 93 Minn. L.
Rev. 1191, 1229 (2009) (noting that the protective principle has
been invoked to "allow[] a state to punish extraterritorially 'a
limited class of offenses . . . directed against the security of
the state or other offenses threatening the integrity of
governmental functions'" (quoting Restatement (Third) of Foreign
Relations Law § 402 cmt. f (1987)); id. at 1230 ("Commentators
stress that the category of protective jurisdiction offenses is
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quite small, and none suggest drug smuggling as one of [the
offenses within it].").
Recognizing that drug trafficking does not fall within
the category of crimes permissibly triggering the protective
principle would not prevent the United States from criminalizing
some controlled-substance activity aboard vessels outside its
territorial jurisdiction. A different principle recognized under
international law is arguably a better fit for drug-trafficking
crimes, although that doctrine requires that a nexus be shown
between the conduct and the prosecuting country. A Restatement
provision titled "Jurisdiction Based on Effects" states:
"International law recognizes a state's jurisdiction to prescribe
law with respect to conduct that has a substantial effect within
its territory." Restatement (Fourth) of Foreign Relations Law
§ 409 (2018). This jurisdictional principle allows nations to
reach crimes other than those with a built-in nexus component --
i.e., crimes like counterfeiting and espionage, which fall within
the protective principle as traditionally understood -- and would
embrace drug trafficking that in fact "presents a specific threat
to the security and societal well-being of the United States." 46
U.S.C. § 70501.
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B. The Protective Principle: First Circuit Precedent
1. United States v. Robinson
Only once has a panel majority of our court grappled
with the international law implications of the protective
principle. In that case, Robinson, the Coast Guard stopped a
Panamanian ship about 500 nautical miles east of North Carolina,
and boarding officers found a substantial quantity of marijuana in
a fake fuel tank. 843 F.2d at 2. Writing for the panel, then-
Judge Breyer noted that the appellants questioned the United
States's justification for prosecuting drug crimes committed by
foreigners on foreign vessels who "might be bound for Canada, South
America, or Zanzibar." Id. at 3. He described as "forceful"
appellants' argument that multiple courts had wrongly used
international law principles to conclude that a predecessor
statute to the MDLEA permitted such drug prosecutions in the
absence of direct impact on the United States. Id.In raising doubts about such a broad application of the
protective principle, Judge Breyer pointed to a then-current
provision of the Restatement of Foreign Relations Law that
described the principle as "giv[ing] [a] state [the] power to
prescribe law protecting itself from actions taken abroad that
harm it." Id. (quoting Restatement (Revised) of Foreign Relations
Law § 402(3)). The emphasis in that description is Judge Breyer's.
He also quoted a comment to the same Restatement that similarly
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depicts the "protective principle [as] 'based on the effect . . .
[of an offshore] act upon or in a state's territory.'" Id.
(quoting § 402(3), cmt. f) (second alteration in Robinson). Again,
the emphasis is Judge Breyer's.
Robinson recognized the inherent tension that exists
when a nation seeking to prosecute crime on the high seas must
reconcile that objective with the bedrock principle of
international law that "all nations have an equal and untrammeled
right to navigate on the high seas." United States v. Marino-
Garcia, 679 F.2d 1373, 1380 (11th Cir. 1982) (citing Convention on
the High Seas, art. 2, Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No.
5200); see also id. (noting that "international law generally
prohibits any country from asserting jurisdiction over foreign
vessels on the high seas," and that "vessels are normally
considered within the exclusive jurisdiction of the country whose
flag they fly"). Cognizant of the need to respect the sovereign
interests of other nations, Congress has stated its intention "to
stay within the boundaries of international law" when
criminalizing maritime drug trafficking. United States v. Matos-
Luchi, 627 F.3d 1, 11 (1st Cir. 2010) (Lipez, J., dissenting); see
also S. Rep. 96-855 (1980), at 2 (reporting that the MDLEA's
predecessor legislation, the Marijuana on the High Seas Act, would
"give the Justice Department the maximum prosecutorial authority
permitted under international law"); 125 Cong. Rec. 20,083 (1979)
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(statement of Rep. Paul McCloskey) (explaining, in reference to
the same law, that it authorizes prosecution "to the broadest
extent possible under international law"). We also have
acknowledged that deference to other nations' interests is a
component of the MDLEA, observing that "Congress inserted the
requirement that a vessel be subject to the jurisdiction of the
United States . . . as a matter of diplomatic comity." United
States v. Vilches-Navarrete, 523 F.3d 1, 22 (1st Cir. 2008)
(separate opinion of Lynch & Howard, JJ.) (citing United States v.
Tinoco, 304 F.3d 1088, 1108 (11th Cir. 2002)); cf. Jesner v. Arab
Bank, PLC, 138 S. Ct. 1386, 1417 (2018) (Gorsuch, J., concurring)
("[W]hen the framers gathered to write the Constitution they
included among their chief priorities endowing the national
government with sufficient power to ensure the country's
compliance with the law of nations.").11
The discussion in Robinson was subsequently described by
the Ninth Circuit as having "called into question" the
11
To be sure, Congress in enacting the MDLEA apparently sought
to expand U.S. jurisdiction over drug trafficking beyond what was
contemplated by its predecessor statute, the Marijuana on the High
Seas Act. See S. Rep. No. 99-530, at 15 (1986) (observing that
"defendants in cases involving foreign or stateless vessel
boardings and seizures have been relying heavily on international
jurisdictional questions as legal technicalities to escape
conviction"). Nonetheless, as described above, Congress has
recognized that the United States must adhere to its
responsibilities to the international community when prosecuting
crimes on the high seas.
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"reasonableness of a broad reading of the 'protective principle.'"
Perlaza, 439 F.3d at 1162 (citing Robinson, among other cases).
The Robinson court ultimately sidestepped the questions
surrounding the scope of the principle, however, because it found
"another, different, but perfectly adequate basis in international
law for the assertion of American jurisdiction." 843 F.2d at 4.
The country of the vessel's nationality, Panama, had "agreed to
permit the United States to apply its law on her ship," and the
panel held that this acquiescence sufficed to support U.S.
prosecution of persons on the vessel under U.S. drug laws. Id.
2. United States v. Cardales
Despite the questions about the scope of the protective
principle raised in Robinson, and without addressing those issues,
we held in Cardales that "application of the MDLEA to the
defendants is consistent with the protective principle of
international law." 168 F.3d at 553. As our panel opinion
reports, the court in Cardales based that pronouncement on the
congressional finding that drug trafficking aboard vessels
"presents a specific threat to the security . . . of the United
States," id. at 553 (quoting 46 U.S.C. § 70501), and we have
accepted Cardales's view of the protective principle as our
governing precedent, see, e.g., United States v. Aybar-Ulloa, 913
F.3d 47, 56 (1st Cir. 2019) (citing Cardales), petition for reh'g
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en banc filed, No. 15-2377 (Jan. 23, 2019); Vilches-Navarrete, 523
F.3d at 22 (same) (separate opinion of Lynch & Howard, JJ.).
Whether Cardales deserves such acceptance, however, is
debatable. In Cardales, we upheld the defendants' convictions by
relying on the foreign government's consent to the application of
U.S. law to both the vessel and the vessel's crew. See Cardales,
168 F.3d at 551-52 (describing the consent of Venezuela, the
country of registration). Unlike in Robinson, our discussion
focused primarily on consent, and we only briefly addressed the
protective principle. See id. at 553. We ultimately rejected the
defendants' due process challenge to their prosecution under the
MDLEA because "due process is satisfied when the foreign nation in
which the vessel is registered authorizes the application of United
States law to the persons on board the vessel." Id. We further
explained:
When the foreign flag nation consents to the
application of United States law, jurisdiction
attaches under the statutory requirements of
the MDLEA without violation of due process or
the principles of international law because
the flag nation's consent eliminates any
concern that the application of United States
law may be arbitrary or fundamentally unfair.
Id. Our one-paragraph consideration of the protective principle
was offered as an additional basis for jurisdiction over the
vessel's occupants. Id.- 28 -
The Cardales panel did not consider whether due process
required a "domestic nexus requirement" in an MDLEA prosecution,
but we concluded that the government need not "prove a nexus
between a defendant's criminal conduct and the United States in a
prosecution under the MDLEA when the flag nation has consented to
the application of United States law to the defendants." Id. at
552-53. In a footnote, the panel observed that, even if
international law required a nexus, the requirement was satisfied
by Venezuela's consent and by Congress's "finding that drug
trafficking aboard vessels threatens the security of the United
States." Id. at 553 n.2 (referring to 46 U.S.C. § 70501).
Our extended discussion of the protective principle in
Robinson suggests a concern that a broad view of its scope may
transgress longstanding "limits [on] law enforcement on [the] high
seas." Robinson, 843 F.2d at 3. Against that backdrop, the
cursory treatment of the principle in Cardales and the expansive
approach adopted there -- applying the principle to cover even
foreigners on foreign vessels -- should give us pause.
3. The Need to Revisit Cardales
The questions concerning the proper scope of the
protective principle that were bypassed in Robinson remain largely
unaddressed by our court. Indeed, as the protective principle is
depicted by the Restatement, see supra, the principle arguably
does not apply to drug trafficking at all. As described above,
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drug-trafficking offenses do not resemble the sorts of crimes
typically associated with the principle -- and the premise of "a
specific threat to the security and societal well-being of the
United States," 46 U.S.C. § 70501, is particularly inapt when there
is no evidence that the drugs at issue would reach the United
States or U.S. citizens. As Judge Torruella has observed, "drugs
not destined for United States markets do not fall into the
'limited class of offenses . . . directed at the security of the
State,' since that principle 'refers to the safety and integrity
of the state apparatus itself (its "government functions" or "state
interests"), not its overall physical and moral well-being.'"
United States v. Angulo-Hernández, 576 F.3d 59, 61 (1st Cir. 2009)
(Torruella, J., dissenting from the denial of en banc review)
(quoting Kontorovich, supra, at 1229-31). Nor does it seem
adequate, even if the protective principle can justify
jurisdiction over foreign individuals involved in drug trafficking
on foreign vessels, for Congress simply to invoke the principle
with an unsubstantiated "blanket assertion" of a threat. Aybar-
Ulloa, 913 F.3d at 58 (Torruella, J., joining in part and
dissenting in part) (discussing 46 U.S.C. § 70501).
Moreover, as Judge Torruella has emphasized, to accept
the pronouncement in the MDLEA that all drug trafficking poses a
security threat to the United States to justify reliance on the
protective principle -- without a "substantial showing of a nexus"
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-- "would render the protective principle coterminous with the
doctrine of universal jurisdiction." Id. at 59. The universal
jurisdiction doctrine permits "a nation [to] prosecute certain
serious offenses even though they have no nexus to its territory
or its nationals, and no impact on its territory or its citizens."
United States v. Cardales-Luna, 632 F.3d 731, 740 (1st Cir. 2011)
(Torruella, J., dissenting). However, few offenses qualify as
universal jurisdiction crimes -- only those considered "so serious
and on such a scale that they can justly be regarded as an attack
on the international legal order." Kontorovich, supra, at 1224
n.228 (quoting Anne-Marie Slaughter, "Defining the Limits:
Universal Jurisdiction and National Courts," in Universal
Jurisdiction: National Courts and the Prosecution of Serious
Crimes under International Law 178-79 (Stephen Macedo ed., 2004)).
The Restatement of Foreign Relations Law identifies the
crimes subject to universal jurisdiction as including "genocide,
crimes against humanity, war crimes, certain acts of terrorism,
piracy, the slave trade, and torture." Restatement (Fourth) of
Foreign Relations Law § 413.12 According to the Restatement, this
12
In full, section 413, titled "Universal Jurisdiction,"
provides:
International law recognizes a state's
jurisdiction to prescribe law with respect to
certain offenses of universal concern, such as
genocide, crimes against humanity, war crimes,
certain acts of terrorism, piracy, the slave
trade, and torture, even if no specific
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list is limited -- covering only "the most serious offenses about
which a consensus has arisen for the existence of universal
jurisdiction" -- because universal jurisdiction "departs from the
more typical requirement of a specific connection between the state
exercising jurisdiction and the person or conduct being
regulated." Id. n.1; see also United States v. Bellaizac-Hurtado,
700 F.3d 1245, 1259 (11th Cir. 2012) (Barkett, J., specially
concurring) (noting that the theories of jurisdiction other than
"universality" "permit nations to exercise jurisdiction over
offenses that implicate domestic interests -- that is, offenses
that occur within a nation's territory and those that occur outside
the territory but have effects within it" (emphasis added)). Our
precedent on the MDLEA has identified "[n]o source of customary
international law [that] has designated drug trafficking as being
subject to universal jurisdiction." Id. at 1260-61.
To be sure, "a global consensus about the negative
effects of drug trafficking" has developed over time, Aybar-Ulloa,
913 F.3d at 59 (Torruella, J., joining in part and dissenting in
part), and a close examination of international law norms in 2019
may suggest a different sensibility about the protective principle
or universal jurisdiction than Judge Breyer intimated in Robinson
connection exists between the state and the
persons or conduct being regulated.
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in 1988, see 843 F.2d at 3-4. Yet, it also may remain true that,
"unlike genocide" -- or crimes against humanity, torture, etc. --
"the international community has addressed drug trafficking at the
domestic, instead of international, level." Bellaizac-Hurtado,
700 F.3d at 1256 (Barkett, J., specially concurring).
Conclusion
Although appellants' challenge to their prosecution
under the MDLEA founders on the First Circuit's current approach
to the protective principle, there is a compelling argument that
our approach is neither deeply considered nor faithful to the
international law foundation on which it must rest. The need for
our country to respect the sovereignty of other nations is reason
enough to warrant careful reexamination of our precedent. The
individual interests of defendants such as Reyes-Valdivia and
Dávila-Reyes -- citizens of Costa Rica plausibly claiming Costa
Rican nationality for their vessel -- reinforce the importance of
revisiting caselaw that may erroneously allow their lengthy
imprisonment for violating U.S. law. Hence, if appellants submit
a petition for en banc rehearing, I urge my colleagues to grant it
without hesitation or delay.
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