United States v. Kurdyukov ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20356
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
SERGIY KURDYUKOV; OLEG KHMYZNIKOV; SERGIY KRUGLYAK,
Defendants-Appellants
Appeal from the United States District Court
for the Southern District of Texas
No. H-99-CR-371-1
August 15, 2002
Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
The Defendants-Appellants Sergiy Kurdyukov (“Kurdyukov”), Oleg
Khmyznikov (“Khmyznikov”), and Sergiy Kruglyak (“Kruglyak”) appeal
from their convictions for possession with intent to distribute
five kilograms or more of cocaine and conspiracy to possess with
intent to distribute five kilograms or more of cocaine in violation
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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of the Maritime Drug Law Enforcement Act (“MDLEA”). See 46 U.S.C.
App. § 1903. The convictions of the appellants arose from the
United States Coast Guard’s discovery of approximately 8500 pounds
of cocaine aboard the M/V China Breeze (“China Breeze”) on May 27,
1999.1 We previously addressed an appeal of another defendant
concerning the discovery of cocaine on the China Breeze in United
States v. Bustos-Useche, 273 F.3d 622 (5th Cir. 2001), cert.
denied, 122 S. Ct 1947 (2002).
The Defendants-appellants raise seven issues on appeal.
First, Kruglyak and Khmyznikov contend the evidence at trial was
insufficient to support the jury’s finding that they knew the cargo
on the China Breeze that was on-loaded at sea was a controlled
substance. Second, Kruglyak and Khmyznikov claim that the district
court erred in finding that the jurisdictional requirements of 46
U.S.C. App. § 1903(c)(1)(C) were satisfied. Third, Kurdyukov
contends that the application of § 1903 to foreign nationals
outside the United States territorial jurisdiction is beyond the
reach of the United States Constitution. Fourth, Kurdyukov
contends that the United States does not have authority to act
under § 1903(c)(1)(C) unless there is a showing of a nexus between
1
Kurdyukov was the Captain or “master” of the vessel.
Kruglyak was the second officer and navigator. Khmyznikov was the
third officer and navigator. Kruglyak’s responsibilities included
the position and courses of the ship. Khmyznikov’s
responsibilities included writing entries in the logbook and
preparing security papers for the ship.
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the crew members and the United States. Fifth, Kurdyukov contends
that the warrantless search of the China Breeze violated the Fourth
Amendment, necessitating exclusion at trial of evidence seized from
the vessel. Sixth, Kurdyukov contends that the district court’s
instruction that the China Breeze was subject to the jurisdiction
of the United States constituted an impermissible mandatory
presumption. Finally, Kurdyukov contends that his 304 month
sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000).
We find each of Defendant-appellants’ arguments to be without
merit for the following reasons and therefore AFFIRM the
convictions. We address each argument in turn.
I. ANALYSIS
A. Sufficiency of the Evidence
Kruglyak and Khmyznikov concede that sufficient evidence
exists to prove that they knew the cargo onboard the China Breeze
to be something illegal, but contend that insufficient evidence
exists to prove that they knew the cargo was a controlled
substance. In reviewing this “sufficiency” challenge, we ask
whether, viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could properly find that
appellants knew the China Breeze was carrying a controlled
substance. See U.S. v. Williams, 264 F.3d 561, 576-77 (5th Cir.
2001). After reviewing the record evidence, we conclude that there
is sufficient evidence from which a rational jury could properly
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conclude that Kruglyak and Khmyznikov knew the China Breeze was
carrying a controlled substance.
At the outset, we note there was no evidence produced at trial
which indicated that cocaine itself was ever visible to Kruglyak
and Khmyznikov. However, substantial circumstantial evidence
existed to prove that Kruglyak and Khmyznikov knew the cargo being
carried by the China Breeze was a controlled substance.
First, the confidential informant testified that Kurdyukov
told him that the crew knew they were transporting drugs during the
first two voyages. In addition, the confidential informant
testified that Kurdyukov told him that the crew on the final voyage
was “just as safe and sure like it was on the last one.” This
testimony indicated that the crew knew they were transporting drugs
during the final voyage as well. Second, the evidence showed that
Kruglyak and Khmyznikov participated in the actual on-loading and
off-loading of large quantities of cocaine at sea on seven separate
occasions from June 1998 to May 1999. Third, the evidence showed
that the bales were loaded on the high sea off the coast of
Colombia and packaged in waterproof containers.2 An experienced
DEA officer testified that this procedure was typical of loading
2
It is telling that during the first two voyages the China
Breeze carried no legitimate cargo but still journeyed great
distances to points off the coast of Colombia where the cargo was
on-loaded. Kruglyak and Khmyznikov argue that as Ukrainians they
did not know, as do almost all Americans, that Colombia is one of
the world’s largest producers of cocaine. However, the veracity of
their testimony could surely be questioned by the jury.
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illegal controlled substances.
Fourth, the evidence showed that Kruglyak and Khmyznikov
falsified the vessel’s log books and erased navigation charts in an
attempt to cover up the illegal activity. Fifth, the evidence
showed that Kruglyak and Khmyznikov received significant monetary
bonuses for their participation in the illegal activity. Sixth,
the length of the voyages, the large amount of drugs on board
(approximately 8500 pounds of cocaine), and the close relationship
between Kurdyukov, Kruglyak, and Khmyznikov lead to a finding of
guilty knowledge on the part of Kruglyak and Khmyznikov.3 See U.S.
v. Loalza-Vasquez, 735 F.2d 153, 158-59 (5th Cir. 1984). In sum,
the aforementioned facts taken in combination are more than
sufficient to support the jury’s finding that Kruglyak and
Khmyznikov knew the cargo being carried by the China Breeze was a
controlled substance. See U.S. v. Guerrero, 114 F.3d 332, 343 (1st
Cir. 1997).
B. Jurisdictional Requirements of section 1903(c)(1)(C)
Kruglyak and Khmyznikov argue that the district court failed
to satisfy the jurisdictional requirements of 46 U.S.C. app. §
1903(c)(1)(C) because Panama did not give consent to the
3
We also note that the district court properly instructed the
jury that evidence of deliberate ignorance can constitute evidence
of guilty knowledge. Here, the likelihood of criminal wrongdoing
was so high and the circumstances on the China Breeze were so
suspicious that a rational jury could properly find that
appellants’ failure to conduct further inquiry or inspection into
the cargo being carried amounted to deliberate ignorance.
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enforcement of United States law until after the cocaine was seized
on May 27, 1999. We addressed this exact argument in Bustos-
Useche. In Bustos-Useche, 273 F.3d at 627, we held that “the only
statutory prerequisite to the district court’s jurisdiction under
section 1903(c)(1)(C) is that the flag nation consent to the
enforcement of United States law before trial.” Accordingly,
because Panama consented to the enforcement of United States law
prior to Kruglyak and Khmyznikov’s trial, the jurisdictional
requirements of section 1903 were satisfied.
C. Application of § 1903 under the United States Constitution
Kurdyukov contends that application of the provisions of 46
App. U.S.C. § 1903 to foreign nationals outside the United States
territorial jurisdiction is beyond the reach of the United States
Constitution. We disagree. Article I, Section 8, clause 10 of the
Constitution provides Congress with the power “[t]o define and
punish Piracies and Felonies committed on the high seas, and
Offenses against the Law of Nations.” See also U.S. v. Martinez-
Hidalgo, 993 F.2d 1052, 1056 (3rd Cir. 1993), cert. denied, 510
U.S. 1048 (1994).
D. Nexus Requirement
Kurdyukov contends that the United States does not have
authority to act under section 1903(c)(1)(C) unless there is a
showing of a nexus between himself and the United States.
Kurdyukov further contends that no such nexus exists in this case.
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In United States v. Suerte, 291 F.3d 366 (5th Cir. 2002), we
addressed this “nexus” argument on virtually identical facts. In
Suerte, we held that, for extraterritorial application of the
MDLEA, the Due Process Clause of the Fifth Amendment does not
require a nexus between the foreign citizen and the United States,
where the flag nation of the vessel has consented or waived
objection to the enforcement of United States law by the United
States. Id. at 375. Consequently, Kurdyukov’s “nexus” argument is
foreclosed by our Suerte decision. A nexus between Kurdyukov’s
conduct and the United States is not required.
E. Fourth Amendment
Kurdyukov contends that the warrantless search of the China
Breeze violated the Fourth Amendment. The Supreme Court has
clearly stated that the Fourth Amendment does not apply to
activities of the United States directed against aliens in
international waters. See United States v. Verdugo-Urquidez, 494
U.S. 259, 264-75 (1990). Kurdyukov is a Ukrainian national and the
search of the China Breeze occurred in international waters.
Therefore, Kurdyukov cannot receive the protections of the Fourth
Amendment.
F. District Court’s Jury Instruction
The district court’s instruction to the jury that the China
Breeze was subject to the jurisdiction of the Unites States did not
constitute an impermissible mandatory presumption. In Bustos-
7
Useche, 273 F.3d at 626, we recognized that the addition of
subsection(f)to section 1903 eliminates jurisdiction as an element
of the offense and that all jurisdictional issues are preliminary
questions of law to be determined by the trial judge. Thus,
because the issue of jurisdiction was not an element of the
offense, the court’s instruction did not constitute an
impermissible mandatory presumption.
G. Alleged Aprendi error
Finally, Kurdyukov’s argument that the district court’s
imposition of a 304 month sentence violates Apprendi is without
merit. The indictment charged Kurdyukov with conspiracy to possess
with intent to distribute more than five kilograms of cocaine. The
jury convicted him of this offense. 46 App. § 1903(g)(1) provides
that any person who commits an offense in violation of the MDLEA
shall be punished in accordance with the penalties set forth in 21
U.S.C. § 960. According to 21 U.S.C. § 960(b)(1)(B), the penalty
range for an offense involving five kilograms or more of a mixture
or substance containing cocaine is ten years to life imprisonment.
Because the 304 month sentence does not exceed the statutory
maximum, there is no Apprendi error. See United States v. Keith,
230 F.3d 784, 787 (5th Cir. 2000), cert. denied, 531 U.S. 1182
(2001).
II. CONCLUSION
For the preceding reasons, the judgments of the district court
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concerning Kurdyukov, Kruglyak, and Khmyznikov are AFFIRMED in all
respects.
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