US v. Carrasco-Carrasco

Filing 920101201

Opinion

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var WPFootnote1 = 'The area is outside Dominican territorial waters and considered\
the "high seas" for purposes of the Coast Guard\'s enforcement\
jurisdiction, 14 U.S.C. § 89(a) (2006); 33 C.F.R. § 2.32(c) (2009),\
although within the Dominican Republic\'s exclusive economic zone, id.\
§ 2.30(b).\
'

var WPFootnote2 = 'The same prohibition applies to such conduct by anyone onboard\
"a vessel of the United States," id. § 70503(a)(1), or "any vessel if\
the individual is a citizen of the United States or a resident alien\
of the United States," id. § 70503(a)(2); but neither of these\
conditions was satisfied in this case.\
'

var WPFootnote3 = 'The term "claim of nationality or registry" in subsection (d)\
is defined in subsection (e) such that it\
\
             includes 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.\
\
46 U.S.C. § 70502(e).\
'

var WPFootnote4 = '"Jurisdiction" in this context refers to the enforcement reach\
of the statute--not federal court subject-matter jurisdiction, which\
extends to any federal felony. United States v. González, 311 F.3d\
440, 443 (1st Cir. 2002), cert. denied, 540 U.S. 826 (2003). That\
reach was limited by Congress to minimize conflict with foreign\
nations who might also assert rights to regulate. See United States\
v. Vilches-Navarrete, 523 F.3d 1, 22 (1st Cir.) (separate opinion of\
Lynch & Howard, JJ.), cert. denied, 129 S. Ct. 208 (2008).\
'

var WPFootnote5 = 'See Vilches-Navarrete, 523 F.3d at 20-22 (separate opinion of\
Lynch & Howard, JJ.) (holding it constitutional for Congress to\
allocate jurisdiction question to the judge); accord United States v.\
Tinoco 304 F.3d 1088, 1111 (11th Cir. 2002), cert. denied, 538 U.S.\
909 (2003). But see United States v. Perlaza, 439 F.3d 1149, 1167\
(9th Cir. 2006). In criminal cases, jury fact-finding and the\
beyond-reasonable-doubt standard generally go hand in hand. Sullivan\
v. Louisiana, 508 U.S. 275, 278 (1993).\
'

var WPFootnote6 = 'See also Anderson, Jurisdiction over Stateless Vessels on the\
High Seas: An Appraisal Under Domestic and International Law, 13 J.\
Mar. L. & Com. 323, 341 (1982). On the traditional right to approach\
a suspect vessel to verify its nationality, see 1 Oppenheim, supra,\
§ 266, at 604.\
'

var WPFootnote7 = 'The word can also mean "alongside of," especially in nautical\
contexts, and the defendants were arguably alongside of the yola when\
they declined to make a claim of nationality. See Webster\'s Third\
New International Dictionary of the English Language 4 (2002); The\
Random House Dictionary of the English Language 5 (2d ed. unabr.\
1987). \
'

var WPFootnote8 = 'The defendants argue on appeal that ion scans are unreliable\
"[a]s a matter of law" and offend due process, but they provide no\
citation or developed argument, so the objection is waived. United\
States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.\
1082 (1990).\
'

var WPFootnote9 = ' Nations may also prescribe law with respect to a narrow class\
of universally condemned activities, such as piracy. Restatement\
(Third) § 404.\
'

var WPFootnote10 = ' A number of sources say that vessel nationality provides the\
exclusive basis for exercising prescriptive jurisdiction over a\
vessel on the high seas. See Convention on the High Seas art. 6,\
Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82; McCulloch v. Sociedad\
Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963); R.R.\
Churchill & A.V. Lowe, The Law of the Sea 208 (3d ed. 1999). \
However, Congress, in enacting the Marijuana on the High Seas Act,\
apparently viewed vessel nationality as a supplement to the\
traditional bases of prescriptive jurisdiction. The Restatement\
concurs in that view. See Restatement (Third) § 402 reporters\' note\
4 (characterizing vessel nationality as "an addition to the general\
bases of jurisdiction set forth in this section").\
'

var WPFootnote11 = ' Although Congress could enact criminal laws that go beyond the\
limitations of international law, see, e.g., Curtis A. Bradley,\
Universal Jurisdiction and U.S. Law, 2001 U. Chi. Legal F. 323, 331\
(2001), its intention at the time, as indicated above, apparently was\
to stay within those limits. Cf. United States v. Hensel, 699 F.2d\
18, 27 (1st Cir. 1983) ("Congress wished to authorize the search of\
vessels on the high seas to the extent such searches conformed to\
international law, but there is no indication that it wished to go\
further."). \
'

var WPFootnote12 = '                  Other statutes criminalizing extraterritorial conduct have\
followed a similar approach. See, e.g., 18 U.S.C. § 2237 (failure to\
heave to, obstruction of boarding, providing false information); id.\
§ 2339B (providing material support to designated foreign terrorist\
organizations); id. § 2339C (financing terrorism).\
'

var WPFootnote13 = '                  Consent is a well-established basis of jurisdiction to\
prescribe under international law. See United States v. Robinson,\
843 F.2d 1, 4 (1st Cir. 1988).\
'

var WPFootnote14 = ' The statute provided that a "vessel without nationality"\
includes:\
\
             (A) a vessel aboard which the master or person in charge\
makes a claim of registry, which claim is denied by the\
flag nation whose registry is claimed; and\
             (B) any vessel aboard which the master or person in charge\
fails, upon request of an officer of the United States\
empowered to enforce applicable provisions of United States\
law, to make a claim of nationality or registry for that\
vessel.\
\
Pub. L. No. 99-640, 100 Stat. 3545. \
'

var WPFootnote15 = ' The new provision added to the definition "a vessel aboard\
which the master or person in charge makes a claim of registry and\
the claimed nation of registry does not affirmatively and\
unequivocally assert that the vessel is of its nationality."\
'

var WPFootnote16 = '                  Our court was not alone in that interpretation. "Prior to\
1996, there was a consensus among the circuits that \'the\
jurisdictional requirement . . . is an element of the crime charged\
and therefore must be decided by the jury.\'" United States v.\
Moreno-Morillo, 334 F.3d 819, 828 (9th Cir. 2003) (quoting United\
States v. Medjuck, 48 F.3d 1107, 1110 (9th Cir. 1995)); see also\
United States v. Bustos-Useche, 273 F.3d 622, 626 (5th Cir. 2001);\
United States v. Medina, 90 F.3d 459, 464 (11th Cir. 1996).\
'

var WPFootnote17 = ' Although vessel status is a substantive issue in that it\
relates to "the reach and application" of the statute, González, 311\
F.3d at 443, it is not an element of the offense. See 46 U.S.C. §\
70504(a); United States v. Vilches-Navarrete, 523 F.3d 1, 20 (1st\
Cir. 2008). \
'

var WPFootnote18 = '                  Other judge-determined issues are subject to higher and\
lower standards of proof. See, e.g., Huddleston v. United States,\
485 U.S. 681, 690 (1988) (noting that a court resolves a question of\
relevancy conditioned on fact by deciding "whether the jury could\
reasonably find the conditional fact"); United States v.\
Ruiz-Gaxiola, No. 08-10378, 2010 WL 3720211, at *5 (9th Cir. Sep. 24,\
2010) (holding that facts justifying forced administration of\
antipsychotic medication must be established by clear and convincing\
evidence).\
'

var WPFootnote19 = '                  The MDLEA provides that "[a] failure to comply with\
international law does not divest a court of jurisdiction and is not\
a defense to a proceeding under this chapter." 46 U.S.C. § 70505. \
That provision simply means that international law does not supply an\
independent basis for defending against an MDLEA prosecution. To the\
extent that international law informs the scope of the statute\
itself, it must necessarily be considered in determining whether a\
defendant\'s conduct falls within the statute. Cf. United States v.\
Alvarez-Machain, 504 U.S. 655, 666 (1992) (distinguishing between the\
invocation of international law as "an independent basis for the\
right respondent asserts not to be tried in the United States" and\
the invocation of international law to "inform the interpretation of\
the Treaty terms").\
'

var WPFootnote20 = '                   A vessel that has been granted the nationality of a\
particular country is often said to sail "under the flag" of that\
country (the "flag state") or to be entitled to "fly the flag" of\
that country. See, e.g., Convention on the High Seas art. 5, Apr.\
29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82. To prevent confusion with\
the national flag that is often flown from the stern of a ship, I\
avoid those metaphors in favor of the term "nationality."\
'

var WPFootnote21 = '                  One commentator colorfully illustrates this principle:\
"According to international law the flying of the national flag was\
never the cause of -- or the condition for -- [nationality]. When\
the last bunting on board was blown to tatters, this never had\
radical legal consequences, nor had the hoisting of the flag." \
Meyers, supra, at 162.\
'

var WPFootnote22 = '                  The majority\'s suggestion that the transfer of the crew by\
the Dominican Coast Guard may have constituted informal consent is\
interesting, but it is not an appropriate basis for affirming the\
judgment in this case. Consent was not charged in the indictment,\
argued below, or raised on appeal.\
'

var WPFootnote23 = '                  As it happens, the Dominican Republic has given the United\
States blanket authorization to board and search any Dominican vessel\
on the high seas "suspected of illicit traffic" in drugs. Agreement\
Between the Government of the United States of America and the\
Government of the Dominican Republic Concerning Maritime Counter-Drug\
Operations, U.S.-Dom. Rep., art. 10, Mar. 23, 1995, T.I.A.S. No.\
12620. However, the Dominican Republic has retained the "primary\
right" to prosecute the individuals on board such a vessel. Id. art.\
11.\
'

var WPFootnote24 = ' The majority also suggests that the defendants\' failure to\
make an "affirmative claim of nationality" is on its own enough to\
bring them within the scope of the MDLEA. That suggestion finds no\
support in the statute, which addresses the failure to claim\
nationality in a separate section that is inapplicable here. See 46\
U.S.C. § 70502(b)(2)(B).\
'

var WPFootnote25 = ' Officer Young further testified: "I asked who was the captain\
of the vessel they were on or the senior person, and they responded\
that there was no single person in charge. . . . Because I could not\
get one individual to make a claim for the vessel, I then questioned\
what was the nationality of the personnel. And they had all told me\
and informed me that they were from the Dominican Republic. I asked\
if the boat had come from the Dominican Republic as well, and they,\
in turn, agreed." \
'

var WPFootnote26 = ' The majority observes in a footnote that the dictionary\
definitions of "aboard" include "alongside of." As described infra,\
however, the international law context leaves no doubt that Congress\
had the ordinary usage of the word in mind. See infra. \
'

var WPFootnote27 = ' Article 22 of the Convention codifies the common law doctrine\
and states, in part:\
\
             1. Except where acts of interference derive from powers\
conferred by treaty, a warship which encounters a foreign\
merchant ship on the high seas is not justified in boarding\
her unless there is reasonable ground for suspecting:\
\
             (a) That the ship is engaged in piracy; or\
             (b) That the ship is engaged in the slave trade; or\
             (c) That, though flying a foreign flag or refusing to show\
its flag, the ship is, in reality, of the same nationality\
as the warship.\
\
             2. In the cases provided for in sub-paragraphs (a), (b)\
and (c) above, the warship may proceed to verify the ship\'s\
right to fly its flag. To this end, it may send a boat\
under the command of an officer to the suspected ship. If\
suspicion remains after the documents have been checked, it\
may proceed to a further examination on board the ship,\
which must be carried out with all possible consideration.\
\
A Coast Guard cutter is considered a "warship" for purposes of this\
provision. Postal, 589 F.2d at 871 n.13 (citing Convention on the\
High Seas art. 8(2)); United States v. Cortes, 588 F.2d 106, 110 (5th\
Cir. 1979). \
'

var WPFootnote28 = '   Officer Young testified that the yola was boarded pursuant\
to a right of visit.\
'

var WPFootnote29 = ' The majority\'s observation that Congress used the word\
"includes" when it listed specific instances of deemed statelessness\
does not help its argument that section 70502(d)(1) reaches the\
circumstances here. To construe the word "aboard" as the majority\
proposes is effectively to nullify a limitation on the scope of the\
statute as enacted. The rules of statutory construction do not\
permit us to rewrite the statute by ignoring a word chosen by\
Congress. See Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)\
("In construing a statute we are obliged to give effect, if possible,\
to every word Congress used.").\
'

var WPFootnote30 = ' Indeed, as noted supra, the United States has authority to\
search any Dominican vessel on the high seas suspected of involvement\
in drug trafficking. Because the Dominican Republic retains the\
right to prosecute individuals for such crimes, the United States\
presumably would transfer the custody of any arrested persons upon\
request from the Dominican government if the vessel were determined\
to be Dominican.\
'

var WPFootnote31 = ' Of course, federal officers may encounter scenarios in which\
an overly rigid reading of the statute would truly frustrate\
congressional purposes. See, e.g., Rosero, 42 F.3d at 174 ("By clear\
implication, . . . [the failure to claim nationality] provision\
applies when the master of a ship flees and leaves no one in\
charge . . . ."). This case does not present such a situation.\
'

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