United States v. Christopher Patrick Campbell ( 2014 )

Case: 12-13647 Date Filed: 02/20/2014 Page: 1 of 23
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13647
Argument Calendar
________________________
D.C. Docket No. 4:11-cr-10021-JEM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER PATRICK CAMPBELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 20, 2014)
Before PRYOR, JORDAN, and FAY, Circuit Judges.
PRYOR, Circuit Judge:
Two changes in law—a statutory change and a decisional change—require
us to reconsider whether the admission of a certification of the Secretary of State to
establish extraterritorial jurisdiction for a prosecution of drug trafficking on the
Case: 12-13647 Date Filed: 02/20/2014 Page: 2 of 23
high seas violates a defendant’s right to confront the witnesses against him at trial.
U.S. Const. Amend. VI. In United States v. Rojas, we held that the admission at
trial of a certification to establish jurisdiction over a Panamanian vessel laden with
cocaine and seized on the high seas did not violate the Confrontation Clause of the
Sixth Amendment. 53 F.3d 1212, 1216 (11th Cir. 1995). After we decided Rojas,
Congress amended the Maritime Drug Law Enforcement Act to provide that
“jurisdictional issues arising under this chapter are preliminary questions of law to
be determined solely by the trial judge,” and that the “[j]urisdiction of the United
States with respect to a vessel subject to this chapter is not an element of an
offense.” Pub. L. 104-324, § 1138, 110 Stat. 3901, 3988-89 (1996) (codified as
amended at 46 U.S.C. § 70504(a)). Also after we decided Rojas, the Supreme
Court overruled its decision in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531
(1980), and held that the Confrontation Clause bars the admission of a testimonial
statement by “a witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross-examination.”
Crawford v. Washington, 541 U.S. 36, 53–54, 124 S. Ct. 1354, 1365 (2004). In the
light of these changes in law, we reach the same decision we reached in Rojas, but
for a different reason. Because the certification proves jurisdiction, as a diplomatic
courtesy to a foreign nation, and does not prove an element of a defendant’s
2
Case: 12-13647 Date Filed: 02/20/2014 Page: 3 of 23
culpability, we conclude that the pretrial admission of the certification does not
violate the Confrontation Clause.
I. BACKGROUND
On October 26, 2011, the United States Coast Guard observed a vessel in the
international waters off the eastern coast of Jamaica. While the Coast Guard was
pursuing the vessel, the three individuals aboard the vessel discarded dozens of
bales into the water, which the Coast Guard later determined to be approximately
997 kilograms of marijuana. The vessel lacked all indicia of nationality: it
displayed no flag, port, or registration number. Glenroy Parchment identified
himself as the master of the vessel and claimed the vessel was registered in Haiti.
The Coast Guard then contacted the Republic of Haiti to inquire whether the vessel
was of Haitian nationality. The government of Haiti responded that it could neither
confirm nor deny the registry. The other two individuals aboard the vessel,
Christopher Patrick Campbell and Pierre Nadin Alegrand, as well as Parchment
later admitted that they knew they were illegally transporting marijuana.
After a federal grand jury indicted Campbell, Alegrand, and Parchment
under the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70501 et seq., for
conspiracy to possess and for possession with intent to distribute 100 kilograms or
more of marijuana, id. §§ 70503(a)(1), 70506(a), 70506(b); 21 U.S.C.
3
Case: 12-13647 Date Filed: 02/20/2014 Page: 4 of 23
§ 960(b)(2)(G), Campbell filed a motion to dismiss for lack of jurisdiction on three
grounds: (1) that admission of a certification of the Secretary of State to prove a
response to a claim of registry, see 46 U.S.C. § 70502(d)(2), would violate
Campbell’s right under the Confrontation Clause and that there was insufficient
evidence to prove that Campbell was aboard a vessel subject to the jurisdiction of
the United States; (2) that the Act violated Campbell’s right to due process of law
under the Fifth Amendment because he had no contacts with the United States; and
(3) that Congress exceeded its constitutional power to define and punish felonies
committed on the high seas when it enacted the Act. Campbell conceded that our
precedents foreclosed his last two arguments, but he stated his intent to preserve
his objections for further review.
The district court referred the motion to a magistrate judge, who held a
hearing about whether the certification of the Secretary of State established
jurisdiction. At the hearing, the United States introduced into evidence the
certification of the Secretary of State, which included the statement of Commander
Daniel Deptula of the United States Coast Guard that he had contacted the
Republic of Haiti to inquire whether the vessel was registered there and that Haiti
responded that it could neither confirm nor deny the registry of the vessel.
Campbell objected to the admission of the certification on the ground that it
4
Case: 12-13647 Date Filed: 02/20/2014 Page: 5 of 23
violated his right under the Confrontation Clause, but the magistrate judge
overruled the objection because the certification was “self-authenticating” and
“whether there should be further proof beyond the State Department document is
really a separate question and does not go to the admissibility of the certification.”
The magistrate judge issued a report and recommendation that the certification of
the Secretary of State established extraterritorial jurisdiction over the vessel and
that the Act was constitutional both on its face and as applied to Campbell. The
district court adopted the report and recommendation.
Campbell waived his right to a trial by jury in a written statement signed by
him, his counsel, the prosecutor, and the district court judge, and at a bench trial,
the parties stipulated to the material facts. But Campbell maintained at trial that the
stipulation about the communication between Commander Deptula and Haiti
proved only the representation by the Coast Guard that a Haitian official could
neither confirm nor deny the registration of the vessel and not that the
communication from a Haitian official actually occurred. Campbell acknowledged
that the district court had already determined its jurisdiction based only on the
certification of the Secretary of State, but he argued “that there was nobody from
Haiti that actually signed a certificate or provided any documents.” The district
court found Campbell guilty on both the conspiracy and possession counts.
5
Case: 12-13647 Date Filed: 02/20/2014 Page: 6 of 23
II. STANDARDS OF REVIEW
We review questions of law de novo and findings of fact for clear error. For
example, we review “de novo a district court’s interpretation and application of
statutory provisions that go to whether the court has subject matter jurisdiction. . . .
The district court’s factual findings with respect to jurisdiction, however, are
reviewed for clear error.” United States v. Tinoco, 304 F.3d 1088, 1114 (11th Cir.
2002) (internal quotation marks omitted). “We review de novo the legal question of
whether a statute is constitutional.” Id. at 1099. And we review constitutional
objections de novo. United States v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004).
III. DISCUSSION
The Constitution empowers Congress “[t]o define and punish Piracies and
Felonies committed on the high Seas, and Offences against the Law of Nations.”
U.S. Const. Art. I, § 8, cl. 10. The Supreme Court has interpreted that Clause to
contain three distinct grants of power: to define and punish piracies, to define and
punish felonies committed on the high seas, and to define and punish offenses
against the law of nations. United States v. Bellaizac–Hurtado, 700 F.3d 1245,
1248 (11th Cir. 2012). This appeal involves a conviction for an offense defined by
an act of Congress under the second grant of power.
6
Case: 12-13647 Date Filed: 02/20/2014 Page: 7 of 23
Congress enacted the Maritime Drug Law Enforcement Act to prohibit any
person from “knowingly or intentionally . . . possess[ing] with intent to
manufacture or distribute, a controlled substance on board . . . a vessel subject to
the jurisdiction of the United States.” 46 U.S.C. § 70503(a)(1). In 1996, Congress
amended the Act to provide that “[j]urisdiction of the United States with respect to
a vessel subject to this chapter is not an element of an offense.” 46 U.S.C. §
70504(a). The section continues that “[j]urisdictional issues arising under this
chapter are preliminary questions of law to be determined solely by the trial
judge.” Id.
The Act declares “a vessel without nationality” as subject to the jurisdiction
of the United States and defines a stateless vessel as including “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(c)(1)(A), (d)(1)(C). Congress made
clear that the Act “applies even though the act is committed outside the territorial
jurisdiction of the United States.” Id. § 70503(b). The Act permits several methods
for obtaining a response from a foreign nation to a claim of registry and provides
that a certification of the Secretary of State is conclusive proof of a response to a
claim of registry by a foreign nation: “The response of a foreign nation to a claim
7
Case: 12-13647 Date Filed: 02/20/2014 Page: 8 of 23
of registry under paragraph (1)(A) or (C) may be made by radio, telephone, or
similar oral or electronic means, and is proved conclusively by certification of the
Secretary of State or the Secretary’s designee.” Id. § 70502(d)(2). The Act does not
require the certification of the Secretary of State to include the details of how an
official received or from whom the official received the response to a claim of
registry from a foreign nation.
Campbell challenges his convictions on five grounds, four of which attack
the constitutionality of the Act. First, Campbell argues that the admission of the
certification of the Secretary of State to establish extraterritorial jurisdiction
violated his right under the Confrontation Clause. Second, Campbell contends that
the pretrial determination of jurisdiction under the Act violated his rights under the
Fifth and Sixth Amendments to have a jury determine that issue. Third, Campbell
argues that the certification of the Secretary of State provided insufficient evidence
for the district court to determine that it had jurisdiction. Fourth, Campbell argues
that Congress lacked the power under the Felonies Clause to define his conduct as
a criminal offense. Fifth, Campbell argues that his conviction violated his right to
due process under the Fifth Amendment because he had no contacts with the
United States. These arguments fail.
8
Case: 12-13647 Date Filed: 02/20/2014 Page: 9 of 23
A. The Confrontation Clause Does Not Bar the Admission of a Certification of the
Secretary of State To Establish Extraterritorial Jurisdiction.
Campbell argues that the admission of the certification of the Secretary of
State without the ability to cross-examine a Haitian witness violated his right under
the Confrontation Clause, but that argument fails. The Confrontation Clause does
not bar the admission of hearsay to make a pretrial determination of jurisdiction
when that hearsay does not pertain to an element of the offense. Because the
stateless nature of Campbell’s vessel was not an element of his offense to be
proved at trial, the admission of the certification did not violate his right to
confront the witnesses against him.
The Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him
. . . .” U.S. Const. Amend. VI. In Crawford, the Supreme Court ruled that the
Confrontation Clause bars the admission of a testimonial statement by “a witness
who did not appear at trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination.” 541 U.S. at 53–54, 124 S. Ct.
at 1365 (emphasis added). The Supreme Court explained that a testimonial
statement “is typically a solemn declaration or affirmation made for the purpose of
establishing or proving some fact,” such as an affidavit, custodial examination, or
prior testimony at a preliminary hearing. Id. at 51, 124 S. Ct. at 1364 (internal
9
Case: 12-13647 Date Filed: 02/20/2014 Page: 10 of 23
quotation marks omitted). But the Supreme Court has never extended the reach of
the Confrontation Clause beyond the confines of a trial. See Bullcoming v. New
Mexico, --- U.S. ---, 131 S. Ct. 2705, 2713 (2011) (“As a rule, if an out-of-court
statement is testimonial in nature, it may not be introduced against the accused at
trial unless the witness who made the statement is unavailable and the accused has
had an opportunity to confront that witness.” (emphasis added)); Michigan v.
Bryant, --- U.S. ---, 131 S. Ct. 1143, 1162 (2011) (“[W]hen a court must determine
whether the Confrontation Clause bars the admission of a statement at trial, it
should determine the primary purpose of the interrogation by objectively
evaluating the statements and actions of the parties to the encounter, in light of the
circumstances in which the interrogation occurs.” (emphasis added) (internal
quotation marks omitted)); Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S. Ct.
989, 999 (1987) (opinion of Powell, J.) (“The opinions of this Court show that the
right to confrontation is a trial right, designed to prevent improper restrictions on
the types of questions that defense counsel may ask during cross-examination.”);
California v. Green, 399 U.S. 149, 157, 90 S. Ct. 1930, 1934–35 (1970) (“Our own
decisions seem to have recognized at an early date that it is this literal right to
‘confront’ the witnesses at the time of trial that forms the core of the values
furthered by the Confrontation Clause.” (emphasis added)); Barber v. Page, 390
10
Case: 12-13647 Date Filed: 02/20/2014 Page: 11 of 23
U.S. 719, 725, 88 S. Ct. 1318, 1322 (1968) (“The right to confrontation is basically
a trial right.” (emphasis added)).
In Rojas, we rejected a challenge, under the Confrontation Clause, to the
introduction of a certification of the Secretary of State under the Act, 53 F.3d at
1216, but we decided that issue before Congress made the determination of
extraterritorial jurisdiction a pretrial issue of law for the district court and before
the Supreme Court decided Crawford. Our decision in Rojas relied on the pre-
Crawford standard that permitted the admission of hearsay if it was sufficiently
reliable. Id.; Roberts, 448 U.S. at 66, 100 S. Ct. at 2539, abrogated by Crawford,
541 U.S. at 61–62, 124 S. Ct. at 1370–71. And Congress amended the Act to
provide that extraterritorial jurisdiction is “not an element of an offense,” but is
instead a “preliminary question[] of law to be determined solely by the trial judge.”
46 U.S.C. § 70504(a).
Although these changes in law mean that Rojas no longer controls this issue,
the admission of the certification of the Secretary of State did not violate
Campbell’s right under the Confrontation Clause. In United States v. Tinoco, we
held that Congress was entitled to remove the jurisdictional requirement from
consideration by the jury because that requirement “does not raise factual questions
that traditionally would have been treated as elements of an offense under the
11
Case: 12-13647 Date Filed: 02/20/2014 Page: 12 of 23
common law,” such as the actus reus, causation, and the mens rea elements. 304
F.3d at 1108. Instead, the jurisdictional requirement serves as a “diplomatic
courtesy to foreign nations and as a matter of international comity.” Id. Proof of
jurisdiction “does not affect the defendant’s blameworthiness or culpability, which
is based on the defendant’s participation in drug trafficking activities, not on the
smoothness of international relations between countries.” Id. at 1109; see also
United States v. Rendon, 354 F.3d 1320, 1327 (11th Cir. 2003) (reiterating that
extraterritorial jurisdiction is not an element of the offense). And, unlike some
federal crimes in which the jurisdictional element provides Congress with the
authority to proscribe the offense under Article I, the Act makes the determination
of jurisdiction a discretionary “statutory hurdle[] to a court’s subject matter
jurisdiction.” Tinoco, 304 F.3d at 1104 n.18; see also id. at 1110 n.21 (explaining
that many federal criminal statutes, such as the Hobbs Act, 18 U.S.C. § 1951(a),
and the Travel Act, id. § 1952(a), “require[] a particularized, case-by-case factual
finding that some product or activity of the defendant relate in some way to
interstate commerce”). This jurisdictional requirement “is unique because it is not
meant to have any bearing on the individual defendant, but instead is meant to bear
only on the diplomatic relations between the United States and foreign
governments.” Id. at 1109. The Confrontation Clause protects a defendant’s trial
12
Case: 12-13647 Date Filed: 02/20/2014 Page: 13 of 23
right to confront testimony offered against him to establish his guilt, and the
Supreme Court has never extended the reach of the Confrontation Clause beyond
the confines of a trial. And, because a pretrial determination of extraterritorial
jurisdiction does not implicate the Confrontation Clause, we need not decide
whether the certification of the Secretary of State is testimonial in nature. Cf.
United States v. Mitchell–Hunter, 663 F.3d 45, 52 (1st Cir. 2011) (expressing
doubt that a certification of the Secretary of State is testimonial hearsay because
“an objective State Department designee would not expect that the certifications
would be used at trial, as they are relegated by statute to the pretrial jurisdiction
determination”); United States v. Angulo–Hernández, 565 F.3d 2, 12 (1st Cir.
2009) (questioning whether a certification of the Secretary of State under the Act is
testimonial within the meaning of the Confrontation Clause).
Our analysis aligns with other authorities too. For example, faced with the
same issue raised by Campbell, the First Circuit held that, “in this non-trial
context, where evidence does not go to guilt or innocence, the Confrontation
Clause does not apply.” United States v. Nueci–Peña, 711 F.3d 191, 199 (1st Cir.
2013) (internal quotation marks omitted); see also Mitchell–Hunter, 663 F.3d at
51. And both this Court and other courts have declined to extend the right to
confront witnesses to other pre- and post-trial proceedings that do not concern the
13
Case: 12-13647 Date Filed: 02/20/2014 Page: 14 of 23
adjudication of a defendant’s guilt or innocence. See, e.g., United States v. Powell,
650 F.3d 388, 392–93 (4th Cir. 2011) (holding that the Confrontation Clause does
not apply at sentencing and noting that all other federal circuit courts that hear
criminal appeals agree); United States v. Cantellano, 430 F.3d 1142, 1146 (11th
Cir. 2005) (holding that, even after Crawford, the confrontation right does not
apply at a non-capital sentencing hearing); United States v. Smith, 79 F.3d 1208,
1210 (D.C. Cir. 1996) (holding that the confrontation right does not apply at a
pretrial detention hearing because the purpose is to determine whether accused
may remain at large, and it “is neither a discovery device for the defense nor a trial
on the merits”); United States v. Andrus, 775 F.2d 825, 836 (7th Cir. 1985)
(holding that the Sixth Amendment does not provide a confrontation right at a
preliminary hearing); LaChappelle v. Moran, 699 F.2d 560, 564–65 (1st Cir. 1983)
(holding that the confrontation right does not apply at an in camera conference to
determine the reason a witness refuses to answer a question because such a judicial
proceeding “is not a stage of the trial at which an accused must be present”);
United States v. Harris, 458 F.2d 670, 677–78 (5th Cir. 1972), (holding that the
confrontation right does not apply at a preliminary hearing); see also Wolff v.
McDonnell, 418 U.S. 539, 567–68, 94 S. Ct. 2963, 2980 (1974) (“[Confrontation
and cross-examination] are essential in criminal trials where the accused, if found
14
Case: 12-13647 Date Filed: 02/20/2014 Page: 15 of 23
guilty, may be subjected to the most serious deprivations. . . . But they are not
rights universally applicable to all hearings[,] . . . and it does not appear that
confrontation and cross-examination are generally required in [disciplinary
hearings in prisons].”); cf. United States v. Clark, 475 F.2d 240, 247 (2d Cir. 1973)
(holding that the confrontation right applies at a pretrial suppression hearing
because “the suppression hearing centers upon the validity of the search for and
seizure of evidence which the government plans to use later in seeking to prove
guilt”). We need not decide whether the Confrontation Clause could ever apply to
a pretrial determination and conclude only that it does not apply to this pretrial
determination of jurisdiction where the certification does not implicate either the
guilt or innocence of a defendant charged with an offense under the Act.
B. The Pretrial Determination of Jurisdiction Does Not Violate the Fifth or Sixth
Amendment.
Campbell argues that the Fifth and Sixth Amendments require a jury to
determine whether extraterritorial jurisdiction exists, but Campbell’s argument
fails for two reasons. First, Campbell waived his right to a jury trial in a signed,
written filing. Second, as explained in the preceding section, we have rejected the
argument that a jury must determine jurisdiction under the Act. See Rendon, 354
F.3d at 1327; Tinoco, 304 F.3d at 1109–10. Campbell acknowledges that these
precedents foreclose his argument. After all, the Supreme Court long ago held, in a
15
Case: 12-13647 Date Filed: 02/20/2014 Page: 16 of 23
case about a ship seized at sea for carrying contraband (liquor during Prohibition),
that a district court could decide before trial the jurisdictional issue about the
location of the vessel without submitting that issue to a jury. Ford v. United States,
273 U.S. 593, 606, 47 S. Ct. 531, 535 (1927). The Supreme Court explained that
the issue of jurisdiction “was necessarily preliminary to th[e] trial” because “[t]he
issue whether the ship was seized within the prescribed limit did not affect the
question of the defendants’ guilt or innocence. It only affected the right of the court
to hold their persons for trial.” Id.
C. The District Court Did Not Err When It Determined It Had Jurisdiction Based
on the Certification of the Secretary of State.
Campbell argues that the district court erred when it determined that
extraterritorial jurisdiction existed. He argues that the certification of the Secretary
of State lacked details about the communications between the Coast Guard and
Haiti and that the United States did not offer any testimony to corroborate the
certification. The district court did not err.
Campbell stipulated to the admission of the representations by the Coast
Guard in the certification, and the Act provides that the certification is conclusive
proof of a response to a claim of registry. The certification contained the
statements of Commander Deptula, who explained that he had asked the Haitian
government whether the suspect vessel was registered in Haiti and that Haiti
16
Case: 12-13647 Date Filed: 02/20/2014 Page: 17 of 23
responded that it could neither confirm nor deny the registry. The certification
therefore provided conclusive proof that the vessel was within the jurisdiction of
the United States under the Act.
D. The Act Is a Constitutional Exercise of Congressional Power under the Felonies
Clause.
Campbell argues that Congress exceeded its authority under the Felonies
Clause when it enacted the Act because his drug trafficking offense lacked any
nexus to the United States and because drug trafficking was not a capital offense
during the Founding era, but he acknowledges that his arguments are foreclosed by
our precedents. “[W]e have always upheld extraterritorial convictions under our
drug trafficking laws as an exercise of power under the Felonies Clause.” See
Bellaizac–Hurtado, 700 F.3d at 1257. And we have long upheld the authority of
Congress to “extend[] the criminal jurisdiction of this country to any stateless
vessel in international waters engaged in the distribution of controlled substances.”
United States v. Marino–Garcia, 679 F.2d 1373, 1383 (11th Cir. 1982). Moreover,
in United States v. Estupinan, we rejected an argument “that Congress exceeded its
authority under the Piracies and Felonies Clause in enacting the [Maritime Drug
Law Enforcement Act].” 453 F.3d 1336, 1338 (11th Cir. 2006).
We also have recognized that the conduct proscribed by the Act need not
have a nexus to the United States because universal and protective principles
17
Case: 12-13647 Date Filed: 02/20/2014 Page: 18 of 23
support its extraterritorial reach. See United States v. Saac, 632 F.3d 1203, 1209–
11 (11th Cir. 2011); Estupinan, 453 F.3d at 1338 (“[T]his circuit and other circuits
have not embellished the [Act] with the requirement of a nexus between a
defendant’s criminal conduct and the United States.” (internal quotation marks and
alterations omitted) (quoting Rendon, 354 F.3d at 1325)). The Felonies Clause
empowers Congress to punish crimes committed on the high seas. Saac, 632 F.3d
at 1210. And “inasmuch as the trafficking of narcotics is condemned universally by
law-abiding nations, we see no reason to conclude that it is ‘fundamentally unfair’
for Congress to provide for the punishment of persons apprehended with narcotics
on the high seas.” Estupinan, 453 F.3d at 1339 (internal quotation marks omitted).
Congress “may assert extraterritorial jurisdiction over vessels in the high seas that
are engaged in conduct that ‘has a potentially adverse effect and is generally
recognized as a crime by nations that have reasonably developed legal systems.’”
Tinoco, 304 F.3d at 1108 (quoting United States v. Gonzalez, 776 F.2d 931, 939
(11th Cir. 1985)). And “[t]he protective principle does not require that there be
proof of an actual or intended effect inside the Unites States.” Gonzalez, 776 F.2d
at 939. Congress also may assert extraterritorial jurisdiction because “the law
places no restrictions upon a nation’s right to subject stateless vessels to its
jurisdiction.” United States v. Ibarguen–Mosquera, 634 F.3d 1370, 1379 (11th Cir.
18
Case: 12-13647 Date Filed: 02/20/2014 Page: 19 of 23
2011) (internal quotation marks omitted). Stateless vessels, such as the one
Campbell boarded, are “international pariahs” that have “no internationally
recognized right to navigate freely on the high seas.” Marino–Garcia, 679 F.2d at
1382; see also United States v. Perlaza, 439 F.3d 1149, 1161 (9th Cir. 2006)
(discussing that for stateless vessels, no proof of nexus is required); Rendon, 354
F.3d at 1325 (“Because stateless vessels do not fall within the veil of another
sovereign’s territorial protection, all nations can treat them as their own territory
and subject them to their laws.” (internal quotation marks omitted)).
Campbell argues that Congress cannot proscribe drug trafficking on the high
seas under the Felonies Clause because only capital crimes were considered
felonies at the Founding, but we disagree. Although we have recognized that “there
is a dearth of authority interpreting the scope of Congress’s power under the
[Felonies] Clause,” Saac, 632 F.3d at 1209, the First Congress understood its
power under the Felonies Clause to include proscribing criminal conduct on the
high seas that did not warrant capital punishment. In the Crimes Act of 1790, the
First Congress made it a crime at sea to “entertain or conceal any such pirate or
robber, or receive or take into his custody any ship, vessel, goods or chattels,
which have been by any such pirate or robber piratically and feloniously taken”
and punished that conduct with “imprison[ment] not exceeding three years,” Ch. 9,
19
Case: 12-13647 Date Filed: 02/20/2014 Page: 20 of 23
§ 11, 1 Stat. 112, 114; imposed a three-year maximum sentence, if convicted, for
“any seaman or other person [who] commit[s] manslaughter upon the high seas,”
id. § 12, 1 Stat. at 115; and imposed a seven-year maximum sentence for intending
to “maim or disfigure” a person “upon the high seas, id. § 13, 1 Stat. at 115.
At the time of the Founding, there was “ambiguity in the meaning of [a]
felony.” Will Tress, Unintended Collateral Consequences: Defining Felony in the
Early American Republic, 57 Clev. St. L. Rev. 461, 465 (2009). “At common law,
[a felony was] an offense for which conviction result[ed] in forfeiture of the
defendant’s lands or goods (or both) to the Crown, regardless of whether any
capital or other punishment [was] mandated.” Black’s Law Dictionary 651 (8th ed.
2004); see also 4 William Blackstone, Commentaries *94 (1769) (“Felony, in the
general acceptation of our English law, comprize[d] every species of crime, which
occasioned at common law the forfeiture of lands or goods.”); Giles Jacob, A New
Law Dictionary (10th ed. 1782) (listing types of punishment for felonies at
common law, including death, loss of inheritance, and forfeiture of goods and
lands). “By the late seventeenth century, felony had come to mean any very serious
crime, especially those punishable by death.” Eugene Kontorovich, The “Define
and Punish” Clause and the Limits of Universal Jurisdiction, 103 Nw. U. L. Rev.
149, 160 (2009) (quoting Blackstone, supra, at *94); see also Jacob, supra
20
Case: 12-13647 Date Filed: 02/20/2014 Page: 21 of 23
(“Felony is diſtinguifhed from lighter offences, in that the puniſment of it is death:
but not always, for petit larceny is felony, . . . yet it is not puniſhed by death,
though it be loſs of goods . . . .”). And at the time of the Founding, felony was “a
multi-definitional term” with “so many meanings from so many parts of the
common law[] and so many statutes . . . that it is impossible to know precisely in
what sense we are to understand this word.” Tress, supra, at 463, 465 (quoting 6
Nathan Dane, Digest of American Law 715 (1823)); see 2 Timothy Cunningham, A
New and Complete Law Dictionary (3d ed. 1783) (explaining that, “by the law at
this day,” felonies included treason, murder, homicide, burning of houses,
burglary, robbery, rape, chance-medley, and petit larceny and that punishments for
felonies ranged from death and forfeiture of goods and chattels to terms of
imprisonment and hard labor). As James Madison explained, in defense of the
power of Congress to define felonies on the high seas, the term “felony” has a
“loose signification.” The Federalist No. 42, at 262 (James Madison) (Clinton
Rossiter ed., 1961); see also United States v. Smith, 18 U.S. (5 Wheat.) 153, 159
(1820) (acknowledging the “indeterminate” definition of felony under the Felonies
Clause). Campbell’s argument that only capital crimes were felonies at the time of
the Founding fails because the Founding generation would have understood the
term to include a broader range of crimes.
21
Case: 12-13647 Date Filed: 02/20/2014 Page: 22 of 23
Campbell cites United States v. Palmer, 16 U.S. (3 Wheat.) 610, (1818), to
support his argument that Congress may punish only capital offenses under the
Felonies Clause, but Palmer did not address this issue. In Palmer, the Supreme
Court upheld a law enacted by Congress under the Piracies and Felonies Clause
that prohibited “murder or robbery, or any other offence, which, if committed
within the body of a county, would by the laws of the United States, be punishable
with death.” Id. at 626–27. But the Court explained that “punishable with death”
served solely to identify which other crimes were included in the statute even
though not particularly recited. Id. at 628. Palmer did not address whether
Congress could exercise its power, under the Felonies Clause, to proscribe conduct
not punishable by death. Although Palmer did not address this issue, we have
repeatedly held that Congress has the power, under the Felonies Clause, to
proscribe drug trafficking on the high seas. See, e.g., Estupinan, 453 F.3d at 1339;
Rendon, 354 F.3d at 1326.
E. Campbell’s Conviction Did Not Violate His Right to Due Process.
Campbell argues that his convictions violated his right to due process
because his offense of drug trafficking lacked a nexus to the United States, but he
concedes that our precedents foreclose this argument too. We held in Rendon that
the Due Process Clause of the Fifth Amendment does not prohibit the trial and
22
Case: 12-13647 Date Filed: 02/20/2014 Page: 23 of 23
conviction of an alien captured on the high seas while drug trafficking, because the
Act provides clear notice that all nations prohibit and condemn drug trafficking
aboard stateless vessels on the high seas. 354 F.3d at 1326. And “this [C]ircuit and
other circuits have not embellished the [Act] with the requirement of a nexus
between a defendant’s criminal conduct and the United States.” Estupinan, 453
F.3d at 1338 (internal quotation marks and alterations omitted). Campbell’s
conviction did not violate his right to due process under the Fifth Amendment.
IV. CONCLUSION
We AFFIRM Campbell’s judgment of convictions.
23