US v. Trinidad
Filing
OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and David J. Barron, Appellate Judge. Published. [15-1576]
Case: 15-1576
Document: 00117067280
Page: 1
Date Filed: 10/14/2016
Entry ID: 6040032
United States Court of Appeals
For the First Circuit
No. 15-1576
UNITED STATES OF AMERICA,
Appellee,
v.
PERSIS TRINIDAD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
Juan A. Albino González and Albino & Assoc. Law Office, PC
on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.
October 14, 2016
Case: 15-1576
Document: 00117067280
Page: 2
BARRON, Circuit Judge.
Date Filed: 10/14/2016
Entry ID: 6040032
Persis Trinidad was convicted
of violating the Maritime Drug Law Enforcement Act ("MDLEA")
after his vessel was intercepted by United States authorities.
Trinidad
appeals
the
District
sentencing enhancement to him.1
Court's
application
of
a
That enhancement applies if the
defendant "acted as a pilot, copilot, captain, navigator, flight
officer, or any other operation officer" on a vessel carrying
controlled substances.
U.S.S.G. §2D1.1(b)(3)(C).
We conclude
that the District Court did not err in ruling that Trinidad
acted as a "navigator" within the meaning of the enhancement.
I.
On or about September 27, 2014, Trinidad and Algemiro
Coa-Peña were intercepted in a 30-foot "go-fast type vessel" by
the United States Coast Guard, approximately 80 nautical miles
1
Apparently content with the “benefit of his bargain,”
United States v. Saxena, 229 F.3d 1, 6 (1st Cir. 2000), Trinidad
does not challenge the validity of his plea agreement, and so
does not challenge the Coast Guard's determination that his
vessel
was
a
"vessel
without
nationality,"
46
U.S.C.
§ 70502(c)(1)(A), which the MDLEA defines as a "vessel aboard
which the master or individual in charge makes a claim of
registry and for which the claimed nation of registry does not
affirmatively and unequivocally assert that the vessel is of its
nationality," id. at § 70502(d)(1)(C).
We thus have no reason
to question that determination.
Moreover, because Trinidad
makes no argument that his guilty plea is invalid, he also makes
no argument that his plea agreement must be vacated because
Congress exceeded its constitutional authority under Article I
in enacting the MDLEA.
As we have made clear that such a
challenge would not implicate our subject-matter jurisdiction,
we do not address that issue either.
E.g., United States v.
Nueci-Peña, 711 F.3d 191, 196-97 (1st Cir. 2013).
- 2 -
Case: 15-1576
Document: 00117067280
Page: 3
Date Filed: 10/14/2016
south of Lea Beata, Dominican Republic.2
Entry ID: 6040032
The vessel bore no
indicia of nationality.
Trinidad and Coa-Peña told the Coast Guard that the
vessel was coming from Colombia, and one of the men claimed
Colombian nationality for the vessel.
Colombia
indicated
that
it
could
After the Government of
neither
confirm
nor
deny
registry of the vessel, the Coast Guard determined that the
vessel was one without nationality within the meaning of the
MDLEA, 46 U.S.C. § 70502(c)(1)(A), and boarded the vessel.
Coast
Guard
found
approximately
144
kilograms
of
The
cocaine
onboard.
On January 8, 2015, Trinidad pleaded guilty to one
count
of
possession
violation
of
with
intent
provisions
of
to
the
distribute
cocaine,
MDLEA.
See
U.S.C. §§ 70503(a)(1), 70504(b)(1), 70506(a), and 70506(b).
in
46
In
so doing, Trinidad admitted that he and Coa-Peña took turns
driving the vessel.
"set
sail
for
Trinidad also admitted that he and Coa-Peña
the
Dominican
Republic
utilizing
Global
Positioning Devices that were provided to them."
The parties agreed to a total offense level of 31,
unless
Trinidad
complied
with
the
2
requirements
set
forth
in
"Because this appeal follows a guilty plea, we draw the
facts from the plea agreement, the change-of-plea colloquy, the
unchallenged
portions
of
the
presentence
investigation
report . . . , and the transcript of the disposition hearing."
United States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013).
- 3 -
Case: 15-1576
Document: 00117067280
Page: 4
Date Filed: 10/14/2016
Entry ID: 6040032
U.S.S.G. §2D1.1(b)(17) (the so-called "safety-valve reduction"),
in which case the parties agreed that the total offense level
would be 29.
The agreed-upon offense level did not include the
two-level sentencing enhancement for Trinidad's "act[ing] as a
pilot, copilot, captain, navigator, flight officer, or any other
operation
officer
aboard
any
craft
or
vessel."
U.S.S.G. §2D1.1(b)(3)(C).
The pre-sentence report ("PSR") put together by the
probation office calculated a total offense level of 33.
The
PSR calculated that level by taking into account the parties'
stipulated
base
offense
level
and
by
two-level
enhancement"
§2D1.1(b)(3)(C).
The PSR did not account for the two-level
the
probation
officer
forth
the
"pilot-navigator
safety-valve reduction.
set
adding
in
U.S.S.G.
The PSR added the enhancement because
determined
that
Trinidad
"acted
as
a
navigator" in the course of committing the underlying offense.
Trinidad objected to the enhancement on the grounds that he was
neither the captain nor the navigator of the vessel, as Trinidad
only took turns steering the vessel and did not himself handle
the vessel's GPS system.
The District Court calculated a total offense level of
31
and
sentenced
Trinidad
to
a
term
of
imprisonment
of
108
months, at the low end of the applicable Guidelines range.
In
so doing, the District Court adopted both the two-level safety-
- 4 -
Case: 15-1576
Document: 00117067280
Page: 5
Date Filed: 10/14/2016
Entry ID: 6040032
valve reduction and the two-level pilot-navigator enhancement.
The District Court applied the enhancement because it found that
Trinidad navigated the vessel under the circumstances.
Trinidad
appeals
the
application
of
the
pilot-
navigator sentencing enhancement to him.
II.
We
application
District
review
of
the
this
Court's
District
sentencing
underlying
Court's
interpretation
enhancement
"factual
de
findings,
novo
which
and
and
the
must
be
supported by a preponderance of the evidence, for clear error."
United States v. Lopez, 299 F.3d 84, 87 (1st Cir. 2002).
The
government's sole argument to us is that the District Court did
not err in finding that the enhancement applies because Trinidad
acted as a navigator.
We agree.
The undisputed record shows that Trinidad took turns
steering the vessel with Coa-Peña, the only other passenger on
board;
that
Dominican
the
vessel
Republic;
was
traveling
that
he
from
and
Colombia
Coa-Peña
to
the
"set
sail . . . utilizing Global Positioning Devices"; and that the
vessel was intercepted after twenty-four hours on the high seas.
Given these facts, the District Court reasonably concluded that
Trinidad must have been responsible for ensuring that the boat
stayed on course for some not insubstantial portion of the trip.
- 5 -
Case: 15-1576
Document: 00117067280
Page: 6
Date Filed: 10/14/2016
Entry ID: 6040032
Trinidad does contend that he did not "use" the GPS,
and that he therefore cannot be said to have been navigating.
But the District Court reasonably concluded that Trinidad must
have relied on the GPS to keep the boat on course.
Unlike on
land, the District Court noted, Trinidad could not have been
instructed to "[j]ust keep going straight."
Thus, the District
Court did not clearly err in determining that, even if Trinidad
did
not
himself
set
or
calibrate
the
GPS
device,
it
was
impossible to conclude that he "[got] on a boat," was told "that
way," and went.
"That's not the way it goes.
God knows where.
You will end up
It's a big ocean up there."
Further supporting the District Court's assessment of
Trinidad's onboard role -- and reliance on instrumentation in
guiding the boat's course -- is the portion of the colloquy at
sentencing
in
which
Trinidad's
counsel
did
not
contest
the
notion that Trinidad had relied on the GPS to keep the boat on
course.
explain
In that exchange, Trinidad's counsel, in trying to
that
Trinidad's
role
was
too
minimal
to
make
him
a
navigator, remarked, "If you tell him look at the GPS or the
(Remarks in Spanish) -- we're going 280 east for example."
At
that point, the District Court stated: "You have given it in.
The moment that you use the compass, if you will, or you're
using the GPS as you mention, you are navigating."
So, while
Trinidad contends that, in order to be deemed a navigator, he
- 6 -
Case: 15-1576
Document: 00117067280
Page: 7
Date Filed: 10/14/2016
Entry ID: 6040032
must have been, at points, "in charge of navigating the vessel
and directing it to its ultimate destination," we conclude that
the District Court reasonably found Trinidad was in charge of
doing just that during some not insubstantial portions of the
trip.
We therefore agree that, on this record, Trinidad, who
was an experienced fisherman, acted as a navigator during the
journey from Colombia to the Dominican Republic. See The Oxford
English Dictionary 259 (2d ed. 1989) (defining "navigate" to
mean, among other things, "to sail, direct, or manage (a ship)"
and
"to
plot
and
spacecraft)");
The
supervise
Random
the
House
course
of
(an
Dictionary
of
aircraft
the
or
English
Language 1282 (2d ed. 1987) (defining "navigate" to mean, among
other
things,
course");
"to
Webster's
direct
or
manage
Third
New
Int'l
(a
ship . . .)
Dictionary
1509
on
its
(1981)
(defining "navigate" to mean, among other things, "to steer,
direct, or manage in sailing: conduct (a boat) upon the water by
the art or skill of seamen").3
3
The definition of the term "navigate" found in the Sea
Talk Nautical Dictionary is not inconsistent with the District
Court's decision to apply the pilot-navigator enhancement. The
District Court's statements during the plea colloquy reflect the
District Court's conclusion that Trinidad must have adjusted the
course of the vessel by "employing the elements of position,
course, and speed" provided to him by the pre-programmed GPS,
and thus that Trinidad must have "determin[ed] [his] position,
course, and speed" using the GPS, and adjusted the course of the
- 7 -
Case: 15-1576
Document: 00117067280
Page: 8
Date Filed: 10/14/2016
Entry ID: 6040032
In so concluding, we reject Trinidad's contention that
a person can only qualify as a navigator if he or she knows how
to program or adjust a GPS -- or other navigational device -and not if he merely relies on it to keep the boat on course.
Nothing in the text or commentary of the enhancement supports
such
a
restricted
definition
of
the
term
"navigator."
Cf.
United States v. Cruz-Mendez, 811 F.3d 1172, 1176 (9th Cir.
2016) (explaining that appropriate application of the "pilot"
portion of the enhancement is "not dependent on a finding of any
particular formal training"); United States v. Cartwright, 413
F.3d 1295, 1296-99 (11th Cir. 2005) (per curiam) (reviewing the
defendant's actions on board the vessel, rather than the extent
of his knowledge or training, in applying the "captain" portion
of the enhancement).
We also reject Trinidad's contention that he did not
act as a navigator because he was a subordinate to the other man
on the vessel.
By its own terms, the enhancement reaches anyone
who "act[s] as a navigator," just as it reaches captains and copilots alike.
even
assuming
U.S.S.G. §2D1.1(b)(3)(C) (emphasis added).
that
Trinidad
did
not
bear
Thus,
"ultimate
responsibility" for the vessel's safe passage, as he contends,
that fact would not preclude the conclusion that he "act[ed] as
vessel
accordingly.
Sea
Talk
Nautical
Dictionary,
http://www.seatalk.info (last visited September 13, 2016).
- 8 -
Case: 15-1576
Document: 00117067280
a navigator."
enhancement
Id.
can
Page: 9
Date Filed: 10/14/2016
Entry ID: 6040032
And to the extent Trinidad contends that the
only
be
authority, he is also wrong.
applied
to
persons
with
special
See United States v. Guerrero, 114
F.3d 332, 346 & n.16 (1st Cir. 1997), cert. denied 522 U.S. 870
& 522 U.S. 924 (1997).
III.
For the reasons given, we affirm.
-Dissenting Opinion Follows-
- 9 -
Case: 15-1576
Document: 00117067280
TORRUELLA,
Page: 10
Circuit
Date Filed: 10/14/2016
Judge.
(Dissenting).
Entry ID: 6040032
The
sole
issue raised by appellant's counsel before the trial court, and
now before this court, is an objection to the sentencing court's
enhancement of appellant's sentence pursuant to its finding that
he
was
a
"navigator"
§2D.1(b)(3)(C).4
within
the
meaning
of
U.S.S.G.
Because I disagree with the majority opinion's
overly-broad reading of this term, I must respectfully dissent.
If I did not feel bound by my prior decision in United
States v. Bravo, 489 F.3d 1 (1st Cir. 2007), however, there
would be additional grounds which would lead me to further part
from my brethren in affirming appellant's conviction.
longer
support
the
approach
taken
by
this
and
I can no
our
sister
circuits in embracing the sweeping powers asserted by Congress
and the Executive under the Maritime Drug Law Enforcement Act
("MDLEA"), and I am of the view that the district court acted
without jurisdiction over appellant.5
My concerns are of a fundamental nature and deal with
the power of this court, or rather the lack of power of this
court, to penalize appellant for the crimes which he allegedly
committed against the United States.
That is, first, whether
4
Which applies if the defendant "acted as a pilot,
copilot, captain, navigator, flight officer, or any other
operation officer" on a vessel carrying controlled substances.
U.S.S.G. §2D1. 1(b)(3)(c).
5
Cf., United States v. Cardales-Luna, 632 F.3d 731, 739
(1st Cir. 2011) (Torruella, J., dissenting).
- 10 -
Case: 15-1576
Document: 00117067280
Page: 11
Date Filed: 10/14/2016
Entry ID: 6040032
the United States has the power to arrest appellant under the
circumstances of this case and involuntarily render him into the
territory of the United States.
Second, whether the United
States has the power to retroactively apply to him the criminal
laws of the United States for conduct which previous to his
arrest and rendition was not subject to those laws, and which
only comes into play by the actions of the United States in
arresting appellant in international waters and rendering him
into United States territory.6
I.
To
fully
consider
the
issues
raised
by
appellant's
conviction, a more detailed fleshing of the record is required
than appears in the majority opinion.7
Appellant
alleged
violations,
Persis
a
Trinidad
46-year-old
was,
native
at
and
the
time
of
the
citizen
of
the
Dominican Republic, who lived in the seaside village of Playa
6
These are matters that can be raised motu proprio by the
court at any stage of the proceedings, and I hereby raise them.
See Cardales-Luna, 632 F.3d at 740 (Torruella, J., dissenting)
(citing United States v. Madera–López, 190 F. App'x 832, 834
(11th Cir. 2006)). As in Cardales-Luna, I believe that we must
address jurisdictional deficiencies as great as this one
whenever they present themselves. Id. at 750-51.
7
As with the majority opinion, I take my recount of the
relevant facts "from the plea agreement, the change-of plea
colloquy,
the
unchallenged
portions
of
the
presentence
investigation report.
. . ., and the transcript of the
disposition hearing," supra note 2, at *3, as well as from his
co-defendant's pre-sentence report.
- 11 -
Case: 15-1576
Document: 00117067280
Page: 12
Date Filed: 10/14/2016
Entry ID: 6040032
Las Galeras, Samana, in the northern part of the island, where
he eked out a living as a fisherman earning about $150 a month.
Although his record shows that he had a sixth-grade education,
Trinidad nevertheless expressed being illiterate, a fact that
can be confirmed from his "signature" on the plea agreement and
other court documents.
Furthermore, his primary language is
Spanish and he has no fluency in English.
Sometime in August,
2014, Trinidad was approached by a Colombian who went by the
first
name
of
Andrés,
who
bought
some
fish
from
him.
The
following day, Andrés hired him for a fishing trip, during which
he asked Trinidad if he was interested in another job, earning
more
money.
Upon
inquiring
as
to
the
nature
of
the
job,
Trinidad was told it would require his going to Colombia and
bringing
back
narcotics
by
sea
to
Santo
Domingo,
Dominican
Republic, for which he would be paid $20,000. Andrés informed
Trinidad
that
he
would
help
him
get
his
Dominican
Republic
passport and would pay for his airfare to Colombia. Thereafter,
Trinidad accepted the offer.
On September 16, 2014, Andrés picked up Trinidad at
Playa Las Galeras and drove him to Santo Domingo where he gave
him
2,600
Dominican
pesos
(RD$)
for
passport
fees,
approximately RD$1,500 more for government processing.
and
Andrés
then helped Trinidad with the passport process and subsequently
went with him to the Avianca Airline's office where Andrés paid
- 12 -
Case: 15-1576
Document: 00117067280
Page: 13
Date Filed: 10/14/2016
Entry ID: 6040032
for Trinidad's airline ticket to Barranquilla, Colombia and then
gave the ticket to Trinidad.
Andrés then gave Trinidad RD$3,600
for his transportation to Punta Cana International Airport and
$500 to cover miscellaneous expenses.
went
to
Colombia,
the
airport,
and
there
took
the
connected
On that same day Trinidad
Avianca
to
a
flight
flight
to
to
Bogotá,
Barranquilla,
Colombia.
Upon his arrival at the Barranquilla airport, Trinidad
was met by a Colombian couple, who took him to a hotel (at an
unknown
location)
September 23, 2014.
in
Barranquilla,
where
he
stayed
until
On this date another Colombian picked him
up and transported him to a second hotel in Barranquilla (also
at an unknown location), where he sojourned for one more night.
While
at
this
second
hotel,
Trinidad
met
Algemiro
Coa-Peña
("Coa-Peña"), who was to be his companion on the return sea
voyage to the Dominican Republic, as well as his eventual codefendant
in
this
case.
Coa-Peña
is
a
native
of
Cartagena,
Colombia and a citizen of the Republic of Colombia.
At some time on the 24th, Andrés picked up Trinidad
and took him to a store to purchase two pairs of pants for him.
Later that night took him to a small pier near the hotel where a
so-called "go-fast" boat was docked.8
8
Andrés told Trinidad that
"This is a small boat, customized with additional engines
and fuel tanks for added speed and range.
Experience tells us
- 13 -
Case: 15-1576
Document: 00117067280
Page: 14
Date Filed: 10/14/2016
Entry ID: 6040032
the narcotics would be transported to the Dominican Republic
aboard that vessel.
Trinidad observed that the boat had twelve
blue fuel drums aboard, and saw unidentified Colombian personnel
load the boat with six bales, which were placed in the forward
part of the vessel.
pier,
whereupon
handed
two
At some point, Coa-Peña arrived at the
two
unidentified
Global
individuals
Positioning
System
showed
("GPS")
up
and
handheld
instruments to Coa-Peña and Trinidad, and proceeded to program
the instruments with the coordinates of the destination in the
Dominican
Republic
where
the
drugs
were
to
be
delivered.
Although they attempted to instruct Trinidad and Coa-Peña on the
use of the GPS's, it was Coa-Peña who eventually handled them
because of Trinidad's apparent inability to familiarize himself
with their use at that time.
Soon
Barranquilla,
Republic.
thereafter,
Colombia
Coa-Peña
destined
for
and
Santo
Trinidad
Domingo,
left
from
Dominican
During the trip towards the Dominican Republic, both
took turns steering the vessel, with Coa-Peña "handling" the
GPS.9 On September 26, 2014, the voyage was proceeding normally
that such boats play a large role in the drug trade."
United
States v. González, 311 F.3d 440, 444 n.3 (1st Cir. 2002)
(Torruella, J., concurring).
9
Considering that the GPS's had been already set up,
presumably the "handling" would have only required looking at
the instrument's screen, which would indicate the direction to
follow, something akin to looking at your watch to see the time
- 14 -
Case: 15-1576
Document: 00117067280
Page: 15
Date Filed: 10/14/2016
Entry ID: 6040032
until the boat reached an area approximately 80 miles south of
Isla Beata, Dominican Republic.
was
still
in
international
At this point, while the vessel
waters,
the
vessel's
experienced trouble and the boat came to a stop.
engines
Shortly after,
the disabled vessel was approached by a U.S. Coast Guard cutter,
which, with the aid of a marine patrol aircraft, had for some
time
been
tracking
the
vessel
Trinidad
and
Coa-Peña
were
travelling on, as well as another "suspicious" boat, as they
headed in a northerly course towards the Dominican Republic.
boarding
team
from
the
cutter
soon
approached
the
A
disabled
vessel, which as previously indicated, was dead in the water.
The
other
"suspicious
vessel"
was
nowhere
in
sight,
having
disappeared into the expanse of the sea.
The boarding team reported coming upon a 30-foot "gofast" boat, with no markings or indicia of nationality, and
aboard which were two persons later identified as Trinidad and
Coa-Peña.
Neither claimed to be the master of the vessel, but
one of them orally claimed Colombian nationality for the vessel.
Both indicated that their last port of call was in Colombia, and
that their next port of call was Santo Domingo.
Several bales
of cargo could be observed in the forward section of the boat.
or looking at the GPS screens on the phone or dashboard of an
automobile.
- 15 -
Case: 15-1576
Document: 00117067280
Page: 16
Date Filed: 10/14/2016
Entry ID: 6040032
The Coast Guard put in effect their protocol under the
U.S.-Colombia
whereby
the
bilateral
government
agreement
of
Colombia
on
maritime
was
smuggling,10
contacted
to
request
confirmation or denial of the registry of the suspect vessel in
Colombia.
government
On
the
next
day,
responded
that
it
September
could
neither
27,
the
confirm
Colombian
nor
deny
registry of the vessel in Colombia (unsurprisingly, given the
dearth of information available at that point), whereupon the
Coast Guard's Seventh District Commander granted permission to
the cutter's boarding crew to consider the vessel as one without
nationality, and to conduct a boarding under U.S. law.
The
boarding party then conducted a field test of the substances
found in the bales located on the bow section of the intercepted
vessel, which yielded a positive result for the presence of
cocaine.
Upon
this
discovery,
Trinidad
and
Coa-Peña
were
formally detained.
On
board
the
intercepted
vessel
were
found
144.9
kilograms of cocaine packed in bricks inside six bales, which
were moved to the Coast Guard cutter as the detained boat could
not be safely towed and had to be purposely sunk to prevent it
from becoming a hazard to navigation.
10
Trinidad and Coa-Peña
See Agreement between the Government of the United
States of America and the Government of the Republic of Colombia
to Suppress Illicit Traffic by Sea, U.S.-Colom., Feb. 20, 1997,
T.I.A.S. No. 12,835.
- 16 -
Case: 15-1576
were
Document: 00117067280
brought
aboard
the
Page: 17
U.
S.
Date Filed: 10/14/2016
Coast
Guard
cutter
Entry ID: 6040032
and
then
transported aboard the cutter to Mayaguez, Puerto Rico, which,
according
to
the
Government's
euphemistic
statement
in
the
indictment, "was where the defendants first entered the United
States after commission of the . . . offense" (emphasis added),
a contention which in itself raises some interesting issues,11
which will be presently discussed.
Appellant pled guilty to Count One of the Indictment
which charged possession with the intent to distribute more than
five
kilograms
of
cocaine
on
board
a
vessel
subject
to
the
jurisdiction of the United States, that is, a vessel without
nationality, for which he was sentenced to imprisonment for a
period of 108 months.12
II.
The
admitted
as
majority
part
of
opinion
his
plea
argues
that
agreement
because
that
he
Trinidad
took
turns
"conning the vessel" with Coa-Peña, that he therefore meets the
11
Commission of what offense?
12
Against whom?
And when?
The district court calculated that Trinidad had a total
offense level of 31.
This number was reached by taking the
offense level agreed to as part of the plea agreement (31),
subtracting two points because Trinidad complied with the
requirements
for
the
safety-valve
reduction
(U.S.S.G.
§2D1.1(b)(17))
and
adding
two
points
for
the
navigator
enhancement (U.S.S.G. §2D1.1(b)(3)(C)).
Without the navigator
enhancement Trinidad's total offense level would have been 29,
which
carried
a
recommended
range
of
87-108
months'
imprisonment.
- 17 -
Case: 15-1576
Document: 00117067280
definition
of
a
Page: 18
"navigator."13
Date Filed: 10/14/2016
In
making
this
Entry ID: 6040032
argument
the
majority cites English dictionaries that equate "navigate" with
"to steer."
Supra at *7.
I take issue with what in my view is an obviously
unjust result.
The majority's opinion relies on an overly broad
way of reading this term.
To be a navigator contains its own
particular subset of skills that are more easily summarized by
the term "navigator" than merely driving a boat.
Although the
majority cites common dictionaries of the English language to
equate "navigate" with "steer," much more telling, in my view,
is the definition of "navigate" found in nautical dictionaries.
Here the definition is "[t]o safely operate a vessel employing
the elements of position, course and speed" and "[t]o determine
position,
course
"Navigate",
and
speed
Sea
http://www.seatalk.info/
using
Talk
(last
instruments."
Nautical
visited
13
Oct. 6,
Definition
of
Dictionary,
2016).
This
Because this statement was agreed to as part of the plea
agreement I am setting aside serious concerns that may be raised
about the source of this information. Trinidad was interrogated
by Homeland Security Agents who "provided Miranda Warnings to
the Defendant." One wonders what meaning Miranda warnings might
have to a poor fisherman from the Dominican Republic. One also
wonders if the Dominican consulate in Puerto Rico was contacted
and informed that a citizen of the Dominican Republic, who
surely
may
not
understand
his
rights
under
the
U.S.
Constitution, was being held and interrogated without counsel
being present. See Vienna Convention on Consular Relations art.
36, Apr. 24, 1963, 21 U.S.T. 77. This is only one of the
numerous problems that might arise when foreign nationals are
pulled into the United States for criminal prosecution.
- 18 -
Case: 15-1576
Document: 00117067280
Page: 19
definition
embraces
the
notion
navigate"
actually
requires
Date Filed: 10/14/2016
that
in
extra
nautical
abilities
Trinidad.
above
GPS.
suggest
that
the
very
terms
to
"position, course and speed using instruments."
recited
Entry ID: 6040032
"to
determine
Yet the facts
opposite
was
true
of
He specifically did not understand how to use the
It had to be set up for him and it is undisputed that Coa-
Peña managed those instruments throughout the trip.
To assume a broader definition of "navigator" suggests
that the sheer act of driving somehow enhances the individual's
criminal conduct.
But would we ever suggest that suburban or
rural drug dealers should receive an enhanced sentence simply
because
they
drive
a
car
to
the
location
of
their
drug
transactions rather than walk or take public transportation as
their more urban counterparts might?
Persis Trinidad was a
fisherman who knew how to engage in his trade, which was coastal
fishing on a yola (a small open skiff propelled by oars or an
outboard motor).
2 (1st Cir. 2010).
See United States v. Matos-Luchi, 627 F.3d 1,
He was offered more money than he could make
in ten years of fishing to help manage the boat between Colombia
and
the
Dominican
Republic.
During
the
voyage
he
may
have
periodically looked at the screen of the handheld GPS he was
provided with by his Colombian cohorts, but this is no more an
exceptional skill or action than if he had been driving most
modern cars which have GPS in their dashboard.
- 19 -
Id.
Nothing in
Case: 15-1576
Document: 00117067280
Page: 20
Date Filed: 10/14/2016
Entry ID: 6040032
this behavior suggests extra-culpability or a justifiable basis
for enhancement.
"mule,"
nothing
commercial
If the truth be said he was a water borne
more
airlines,
than
the
common
transporting
"mules"
contraband
in
that
and
sit
on
in
their
bodies, for which they are not penalized additionally as has
been done with Trinidad.
III.
My
departure
from
the
majority's
opinion
is
not
limited to their reading of the term "navigator," however.
The
Maritime Drug Enforcement Act (MDLEA), codified as amended at 46
U.S.C.
§§ 70501-08,
has
been
used
to
expand
United
States
criminal jurisdiction well beyond U.S. borders to include people
and acts that have no connection whatsoever with the United
States.
powers
This extraterritorial exercise is far in excess of any
either
permitted
by
international
law
or
granted
by
Congress to the Executive branch.
Considering
that
Trinidad
is
an
illiterate,
non-
English speaking Dominican citizen, with no record of his having
ever resided or even visited the United States, without any
prior criminal past and unaware of U.S. criminal law until he
was captured in the high seas, the question arises whether he
can be charged with retroactively violating U.S. law upon his
forced
rendition
into
U.S.
territory.
Trinidad commit this alleged U.S. crime?
- 20 -
When
and
where
did
Can it be said that
Case: 15-1576
Document: 00117067280
there
was
any
U.S.
vessel
he
was
navigating
stretch
that
would
Page: 21
crime
be
Date Filed: 10/14/2016
committed
was
by
Trinidad,
intercepted?
difficult
to
That
swallow.
Entry ID: 6040032
before
would
Thus
we
the
be
a
must
assume, that if there was a U.S. crime committed, it was only
after he was physically apprehended in the high seas.
Prior to
that Trinidad could not have infringed any U.S. law, and if he
did commit any crime for which he could be charged, it would
have been against the laws of Colombia and/or the Dominican
Republic.
This raises the question of how Trinidad's conduct
before he was apprehended (which conduct could not then have
been a U.S. crime) can become a U.S. crime by the United States
Government capturing Trinidad at a time when he had committed no
crime against the United States.
This enigma is at the heart of
the attempt by the United States to exercise universal criminal
jurisdiction
through
means
repeatedly
and
soundly
rejected
pursuant to customary international law.
This
conundrum
arises
because
of
definition Congress has given to statelessness.14
14
the
expansive
There are two
Because I take issue with whether Trinidad's boat was
actually stateless I am setting aside the question of what type
of jurisdiction the Constitution and international law would
allow the United States to exercise on stateless vessels.
A
common view is that "stateless vessels do not fall within the
veil
of
another
sovereign's
territorial
protection"
and
therefore "all nations can treat them as their own territory and
subject them to their laws."
United States v. Moreno-Morillo,
334 F.3d 819, 828 (9th Cir. 2003) (quoting United States v.
Caicedo, 47 F.3d 370, 373 (9th Cir. 1995)). Although this view
- 21 -
Case: 15-1576
Document: 00117067280
problems
with
the
Page: 22
MDLEA's
Date Filed: 10/14/2016
treatment
of
stateless
Entry ID: 6040032
vessels.
First, its definition of when a vessel is actually stateless far
exceeds anything that exists or is allowed by international law.
Second,
the
degree
and
type
of
proof
the
MDLEA
accepts
for
statelessness risks violating international and domestic law.
The MDLEA uses the statelessness of a vessel as the hook by
which it allegedly acquires jurisdiction over a vessel and its
crew, allowing it to retroactively apply U.S. criminal laws to
said persons irrespective of their nationality, the place where
the
alleged
crimes
were
committed,
or
the
lack
of
any
U.S.
connection or impact of the charged conduct.
A.
Defining when a Vessel is Stateless
According to the MDLEA a vessel without nationality is
one "aboard which the master or individual in charge" either
"makes a claim of registry that is denied by the nation whose
registry
is
claimed,"
"fails
.
.
.
to
make
a
claim
of
nationality or registry for that vessel," or "makes a claim of
registry and for which the claimed nation of registry does not
recognizes that in exercising jurisdiction the United States is
not infringing on the rights of another nation to legislate for
the boat in question, this still raises due process and
jurisdictional concerns regarding the people on the boat.
For
this reason I agree with those commentators who have found that
"[t]he better view appears to be that there is a need for some
jurisdictional nexus in order that a State may extend its laws
to those on board a stateless ship and enforce the laws against
them." R.R. Churchill & A.V. Lowe, The Law of the Sea 214 (3d
ed. 1999).
- 22 -
Case: 15-1576
Document: 00117067280
Page: 23
Date Filed: 10/14/2016
Entry ID: 6040032
affirmatively and unequivocally assert that the vessel is of its
nationality."
46 U.S.C. § 70502(d)(1)(A)-(C).
It is this last
provision that is at issue here.15
When Trinidad's boat was intercepted by the U.S. Coast
Guard,
Trinidad
and
Coa-Peña
were
questioned
as
to
the
nationality of the boat and Coa-Peña answered that the ship was
Colombian.
stateless
Nevertheless,
by
the
United
the
vessel
States
in
after
question
Colombian
was
deemed
authorities
responded to the inquiry by U.S. authorities to the effect that
Colombian registry could be "neither confirm[ed] nor den[ied]."
On the basis of this noncommittal statement, based upon the
flimsy information available at the time, the Coast Guard was
authorized pursuant to the U.S.'s self-promoting legislation to
assume jurisdiction over the vessel and its crew, and to apply
U.S. criminal laws to them.
46 U.S.C. § 70502(d)(1)(C).
Of
course, we do not know what information was actually provided by
the Coast Guard to the Colombian authorities, nor do we know
what
Colombia's
answer
would
have
been
had
all
the
circumstantial evidence described previously, pointing to a non-
15
There are other grounds for allegedly exercising
jurisdiction in the legislation, including "a vessel registered
in a foreign nation if that nation has consented or waived
objection to the enforcement of United States law by the United
States." 46 U.S.C. § 70502(c); but see Cardales-Luna, 632 F.3d
at 740 (Torruella, J., dissenting).
Those grounds are not at
issue here.
- 23 -
Case: 15-1576
Document: 00117067280
Page: 24
Date Filed: 10/14/2016
Entry ID: 6040032
U.S. nationality of the vessel and its crew, been available and
provided to Colombia.
Under international law, however, the acquisition of
jurisdiction
in
this
case
on
the
basis
of
"statelessness"
because of Colombia's failure to make an unequivocal assertion
of nationality within the twenty-four hours or so given is a
gross
overstepping
of
jurisdictional
boundaries.
In
international maritime law there is the long-established concept
of the law of the flag, a principle of customary international
law that is adhered to by the United States.16
Under the law of
the flag principle, a ship has the nationality of the country
whose flag it is entitled to fly.17
Central to this entire
regime is the principle that
[e]ach state under international law may
determine for itself the conditions on which
16
Customary international law is part of the federal
common law. Restatement (Third) of Foreign Relations Law § 111
(Am. Law Inst. 1987); see also Kadic v. Karadzic, 70 F.3d 232,
246 (2d Cir. 1995) (accepting "the settled proposition that
federal common law incorporates international law").
17
See United Nations Convention on the Law of the Sea art.
91, Dec. 10, 1982, 1833 U.N.T.S. 397 (UNCLOS). Although the
United States has not ratified UNCLOS, Article 91 is part of the
customary international law codified by UNCLOS, which is
recognized by this country.
United States v. Alaska, 503 U.S.
569, 588 n.10 (1992); see also Lauritzen v. Larsen, 345 U.S.
571, 584 (1953) ("Perhaps the most venerable and universal rule
of maritime law . . . is that which gives cardinal importance to
the law of the flag."); see also, United States v. Arra, 630 F.
2d 836, 840 (1st Cir. 1980) ("Vessels have the nationality of
the nation whose flag they are entitled to fly . . . ."
(emphasis added)).
- 24 -
Case: 15-1576
Document: 00117067280
Page: 25
Date Filed: 10/14/2016
Entry ID: 6040032
it will grant its nationality to a merchant
ship, thereby accepting responsibility for
it and acquiring authority over it. . . .
The
United
States
has
firmly
and
successfully maintained that the regularity
and validity of a registration can be
questioned only by the registering state.
Lauritzen, 345 U.S. at 584 (emphasis added).18
This means that once a claim of Colombian nationality
was made, it was up to Colombia to definitively decide whether
the boat was in fact Colombian, not for the United States to
unilaterally make that decision in a conclusive manner with the
scarcity
of
information
interception and arrest.19
available
to
it
at
the
time
of
It should be noted that under the
18
In support of this argument the Court cited the example
of The Virginius, a boat that claimed U.S. registry and was
seized by the Spanish while en route to Cuba.
Lauritzen, 345
U.S. at 584 n.17.
Although there were questions regarding the
validity of the registration, the United States took the
position that it was up to the courts of the United States to
determine its status. The Attorney General to the Secretary of
State, Dec. 17, 1873, Foreign Relations of the United States,
1874 (Washington, DC: GPO, 1874-75), XXXIV: 1113-5.
Spain
ultimately consented, and paid $80,000 in reparation to the
United States. Claims: The Case of the "Virginius," Feb. 27,
1875, 11 U.S.T.I.A. 544 1968.
19
I note that this is a question that does not admit an
easy answer.
Although a preliminary investigation into
Colombian law reveals that "[n]o ship shall have Colombian
nationality unless registered under the statute relating to
national merchant shipping" the boat at issue in this case is
not of a type or size normally associated with "merchant
shipping." U.N. Secretariat, Laws Concerning the Nationality of
Ships, U.N. Doc. ST/LEG/SER.B/5 at 25 (1955).
It is thus not
clear how or when Colombia extends its nationality to
recreational vehicles. See United States v. Matos-Luchi, 627
F.3d 1, 18 (1st Cir. 2010) (Lipez, J., dissenting) (arguing that
many states do not have formal registries for smaller vessels).
- 25 -
Case: 15-1576
MDLEA
Document: 00117067280
it
orally.
is
Page: 26
contemplated
that
Date Filed: 10/14/2016
nationality
can
be
Entry ID: 6040032
asserted
46 U.S.C. § 70502(e)(3) ("A claim of nationality or
registry" includes "a verbal claim of nationality or registry by
the master or individual in charge of the vessel").20
This is
particularly relevant when considering smaller boats of the type
found here because "[m]any states . . . do not issue documents
to ships with a tonnage below a given figure" and "a State may
not
require,
or
permit,
the
registration
of
ships
below
a
certain size . . . but may nonetheless regard such ships as
having its nationality if they are owned by its nationals."
Matos-Luchi, 627 F.3d at 18 (Lipez, J., dissenting) (quoting H.
Meyers, The Nationality of Ships 160 (1967) and R.R. Churchill &
A.V. Lowe, The Law of the Sea 213 n.19 (3d ed. 1999)).
Indeed,
the United States is an example of a nation that extends its
nationality to otherwise unregistered ships that are owned, in
whole or part, by one of its citizens.
46 U.S.C. § 70502(b)(2)
(defining a vessel of the United States in part as one "owned in
any
part
by
an
individual
who
is
a
citizen
of
the
United
In any event, this is a question to be resolved by Colombian
courts, not the uniquely unqualified courts of the United
States. See Lauritzen, 345 U.S. at 584.
20
Similarly, under the more recent Drug Trafficking Vessel
Interdiction Act of 2008 (DTVIA), which is applicable to
submersibles and submersible vessels, a valid claim of the
vessel's nationality can be made verbally by the vessel's master
or individual in charge. 18 U.S.C. § 2285(d)(3).
- 26 -
Case: 15-1576
Document: 00117067280
States,"
unless
said
Page: 27
vessel
has
Date Filed: 10/14/2016
been
granted
Entry ID: 6040032
nationality
by
another nation).
Given the facts of this case, I am unaware of anything
preventing further inquiry into such a crucial factor as was the
nationality of the vessel.
matter
was
not
raised
There is no apparent reason why this
or
pursued
representation were reached.
once
dry
land
and
legal
Cf. United States v. Greer, 285
F.3d 158, 175 (2d Cir. 2002) (jurisdictional element of the
MDLEA may be inquired into any time before trial); United States
v.
Bustos-Useches,
273
F.3d
622,
627
(5th
Cir.
2001)
(identifying legitimate deadline to consent to U.S. law any time
before trial).
The jurisdictional issue was not cast in stone
based only on the flimsy information available in situs at the
time
of
the
interception.
Considering
the
undisputed
circumstantial evidence surrounding this sea voyage (i.e., the
place where the vessel departed from, the nationality of the
personnel that dealt with this enterprise, the nationality of
half of the crew that by all appearances was the leading actor
aboard
the
vessel,
and
the
specific
claim
of
the
vessel's
Colombian nationality), it is difficult to deny the vessel's
Colombian
connection
and
nationality,
which
if
it
had
been
properly raised and established, should have deprived the court
- 27 -
Case: 15-1576
Document: 00117067280
Page: 28
Date Filed: 10/14/2016
Entry ID: 6040032
of jurisdiction and led to dismissal of the charges against
Trinidad.21
Nothing
in
the
MDLEA
dictates
a
contrary
result.
Although the MDLEA does define as a "vessel without nationality"
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," there is no indication of a timeline
according
to
which
the
claimed
nation
of
registry
"affirmatively and unequivocally" assert that nationality.
must
46
U.S.C. § 70502(d) (1)(C).
Moreover, although the MDLEA provides
an
for
evidentiary
mechanism
the
government
to
demonstrate
"[t]he response of a foreign nation to a claim of registry,"
this
provision
inquiry.
again
does
not
specify
a
timeline
for
the
46 U.S.C. § 70502(d)(2) (stating that the response
"may be made by radio, telephone, or similar oral or electronic
means,
and
is
proved
conclusively
by
certification
Secretary of State or the Secretary's designee").22
of
the
Given the
complex issues of international and municipal law that may be at
issue, the costs associated with maintaining a registry, and the
21
I am unaware of
establishment of nationality
evidence.
any rule that
by the use of
22
prohibits the
circumstantial
The record does not appear to include the required
certificate, presumably because Trinidad and Coa-Peña pled
guilty and did not challenge the jurisdiction of the court.
- 28 -
Case: 15-1576
Document: 00117067280
Page: 29
Date Filed: 10/14/2016
Entry ID: 6040032
small size of the boat in question in this case, how can it be
expected that an "unequivocal" assertion of nationality could be
made by Colombia in twenty-four hours?
circuit
of
definitive
countries
response,
taking
so
up
to
imposing
We have examples in this
five
an
days
to
arbitrary
provide
timeline
a
of
twenty-four hours is something not required by the MDLEA and
increases the likelihood of a grave violation of international
law.
United States v. Cardales, 168 F.3d 548, 551-52 (1st Cir.
1999) (On May 31, Venezuela was unable to say if a boat that
claimed Venezuelan registry was Venezuelan, but on June 5 "the
Venezuelan
government
notified
the
State
Department
that
the
[boat] was indeed of Venezuelan registry.").
This court is directed to avoid interpreting the MDLEA
in a way that would result in a violation of international law.
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18
(1804).
establish
Reading the MDLEA to permit the half-hearted attempt to
nationality
that
was
made
here
to
establish
statelessness in violation of international law is in direct
contradiction
to
construction.
(applying
Weinberger
Schooner
construction.").
this
longstanding
v.
Charming
Because
Rossi,
Betsy
nothing
as
in
notion
456
a
the
U.S.
"maxim
of
25,
of
statute
statutory
32
(1982)
statutory
denied
the
government or Trinidad's attorney the ability to conduct further
inquiry into the nationality of the vessel, it is incumbent on
- 29 -
Case: 15-1576
Document: 00117067280
Page: 30
Date Filed: 10/14/2016
Entry ID: 6040032
us to avoid reading into the statute a requirement that the
described verification was legally sufficient to establish the
statelessness of Trinidad's boat.
Trinidad's shipmate invoked Colombian nationality for
the
vessel,
and
Colombia
could
not
confirm
assertion within the short time provided.
or
deny
this
Colombia did not
grant U.S. authorities permission to subject the boat to U.S.
jurisdiction,
that,
and
pursuant
to
so
the
its
United
laws,
States
the
unilaterally
vessel
therefore subject to U.S. criminal laws.
was
decided
stateless
and
I cannot read the
MDLEA as permitting such a brazen expansion of U.S. jurisdiction
at the expense of international law.
B.
The Degree of Proof Necessary to Establish Statelessness
Finally, I further object to this circuit's treatment
of this question as one that may be answered by a preponderance
of the evidence.
Matos-Luchi, 627 F.3d at 5; see also United
States v. Vilches-Navarrete, 523 F.3d 1, 8-10 (1st Cir. 2008)
(Torruella, J., dissenting in part).
This is done by treating
the question of statelessness as one of jurisdiction, but as my
analysis above seeks to demonstrate, the status of Trinidad's
boat
goes
far
beyond
the
courts have jurisdiction.
question
of
whether
United
States
It goes to the very heart of whether
there has been any crime committed at all.
Matos-Luchi, 627
F.3d at 14 (Lipez, J., dissenting) ("[A] failure to prove that
- 30 -
Case: 15-1576
Document: 00117067280
Page: 31
Date Filed: 10/14/2016
Entry ID: 6040032
defendants' conduct occurred on board a covered vessel amounts
to a failure to prove that the defendants violated the MDLEA.").
If
Trinidad
cannot
face
any
criminal
penalty
at
all
in
the
absence of proof of his vessel's statelessness, how can proof of
his
vessel's
statelessness
possibly
preponderance of the evidence standard?
be
subjected
to
a
See United States v.
Perlaza, 439 F.3d 1149, 1167 (9th Cir. 2006) (holding that when
a
jurisdictional
inquiry
into
statelessness
turns
on
factual
issues, then it "must be resolved by a jury").
IV.
With
validates
the
due
respect,
blatant
I
violation
cannot
of
United States.
- 31 -
join
an
opinion
international
law
which
by
the
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?