United States v. Alfonso

104 F.4th 815

UNITED STATES of America, Plaintiff-Appellee, v. Jhonathan ALFONSO, a.k.a. Jhonathan Alfonzo, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Jose Miguel Rosario-Rojas, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Jose Jorge Kohen, Defendant-Appellant.

No. 22-10576

No. 22-10589

No. 22-10590

United States Court of Appeals, Eleventh Circuit

Filed: June 14, 2024

Appeals from the United States District Court for the Southern District of Florida, D.C. Docket Nos. 1:21-cr-20306-CMA-1, 1:21-cr-20306-CMA-3, 1:21-cr-20306-CMA-2

Jonathan Colan, Yeney Hernandez, Daniel Matzkin, Lisa Tobin Rubio, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Plaintiff-Appellee.

Michael Caruso, Federal Public Defender's Office, Southern District of Florida, West Palm Beach, FL, Tracy Michele Dreispul, Julie Erin Holt, Federal Public Defender's Office, Southern District of Florida, Miami, FL, for Defendant-Appellant Jhonathan Alfonso in No. 22-10576.

Humberto Dominguez, Humberto R. Dominguez, PA, Miami, FL, for Defendant-Appellant Jose Miguel Rosario-Rojas in No. 22-10589.

Roger Cabrera, Roger Cabrera, PA, Miami, FL, for Defendant-Appellant Jose Jorge Kohen in No. 22-10590.

Before Branch, Luck, Circuit Judges, and Berger,^* District Judge.

Branch, Circuit Judge:

The United States Coast Guard seized the Appellants on a vessel bearing no indicia of nationality in what is known as the Dominican Republic's Exclusive Economic Zone ("EEZ"). When the Coast Guard boarded the vessel, no one claimed to be the vessel's master, but the crew asserted that the vessel was of Colombian nationality. Colombia, however, was unable to confirm or deny registry of the vessel, which rendered the vessel a "vessel without nationality"¹ and subject to the jurisdiction of the United States under § 70502(d)(1)(C) of the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. §§ 70501-70508.²

Once drugs were discovered on the vessel, the Appellants were arrested, brought to the United States, and prosecuted and convicted of violations of the MDLEA. They argue on appeal that Congress exceeded its authority under the Felonies Clause of the Constitution, and that the MDLEA is unconstitutional both facially and as applied to them for several reasons. In order to address their claims, we must decide, as a matter of first impression, whether the EEZ—the waters extending 200 nautical miles seaward of and adjacent to the territorial sea of a nation—is part of the "high seas," such that Congress has the authority under the Felonies Clause to punish drug-trafficking crimes that occur in the EEZ. Additionally, we address the Appellants' contention that Congress exceeded its authority under the Felonies Clause by defining "a vessel without nationality"—i.e., a stateless vessel—under the MDLEA to include vessels where registry is asserted but cannot be confirmed by the foreign country.³

After review and with the benefit of oral argument, we conclude that the EEZ is part of the "high seas" and thus within Congress's authority under the Felonies Clause. We also conclude that the Appellants cannot show that there is any plain error with regard to the MDLEA's definition of a vessel without nationality as including vessels where registry is asserted but cannot be confirmed or denied by the foreign country.⁴ Accordingly, we affirm.

I. Background

In 2021, the Coast Guard stopped a go-fast vessel bearing no indicia of nationality approximately 69 nautical miles off the coast of the Dominican Republic in the Dominican Republic's EEZ. The Appellants here, Jhonathan Alfonso, Jose Jorge Kohen, and Jose Miguel Rosario-Rojas, were aboard the go-fast vessel. Alfonso made a verbal claim of Columbian nationality for the vessel, but Colombia could not confirm or deny registry of the vessel, which rendered the vessel stateless and subject to the jurisdiction of the United States under the MDLEA, pursuant to 46 U.S.C. § 70502(d)(1)(C). When authorities searched the vessel, they discovered 12 bales of cocaine.

Alfonso, Kohen, and Rosario-Rojas were arrested, brought to the United States, and indicted on two counts: conspiracy to possess a controlled substance aboard a vessel, in violation of 46 U.S.C. § 70506(b) (Count One), and possession with intent to distribute a controlled substance aboard a vessel, in violation of 46 U.S.C. § 70503(a)(1) (Count Two). The indictment alleged that this conduct occurred "upon the high seas."

The defendants jointly moved to dismiss the indictment on several grounds. As pertinent to this appeal, they argued that the MDLEA was unconstitutional as applied to them because they were arrested in the EEZ, which they asserted is not part of the "high seas" as defined by customary international law. Therefore, because the EEZ was not part of the "high seas," their conduct fell outside of Congress's authority under the Felonies Clause, and the district court lacked subject matter jurisdiction.

The government opposed the motion, arguing that although a coastal nation has special economic rights in the EEZ adjacent to its territorial waters, the EEZ is still part of the "high seas" within the meaning of the Felonies Clause.

Following an evidentiary hearing, the district court denied the motion to dismiss, concluding that the court had subject matter jurisdiction under the MDLEA. The district court explained that courts have recognized that a nation's territorial waters extend up to twelve nautical miles from the nation's coast and that the waters seaward of the territorial sea are the "high seas." The district court noted that the defendants cited no case where a court had held that the EEZ was not part of the "high seas" and stated that it "[would] not be the first."

Alfonso, Kohen, and Rosario-Rojas subsequently each pleaded guilty to Count One—conspiracy to possess with intent to distribute five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States. In exchange for their pleas, the government agreed to dismiss Count Two. Notably, at no point in the proceedings below did the defendants argue that Congress exceeded its authority under the Felonies Clause by defining a "vessel without nationality" under § 70502(d)(1)(C) of the MDLEA to include vessels where registry is asserted but cannot be confirmed or denied by the foreign country.

Alfonso, Kohen, and Rosario-Rojas now appeal their convictions.⁵

II. Standards of Review

Generally, the district court's denial of a motion to dismiss an indictment is reviewed only for an abuse of discretion. United States v. McPhee, 336 F.3d 1269, 1271 (11th Cir. 2003). But when, as here, the motion to dismiss is based on subject matter jurisdictional grounds our review is de novo. Id.; see also United States v. Cabezas-Montano, 949 F.3d 567, 588 & n.13 (11th Cir. 2020) (explaining that we review de novo issues of subject matter jurisdiction, including whether "the statutory requirements of MDLEA subject matter jurisdiction are met"). Likewise, "[w]e review de novo a district court's interpretation of a statute and whether a statute is constitutional." Cabezas-Montano, 949 F.3d at 586 n.10. "The government bears the burden of establishing that the statutory requirements of MDLEA subject-matter jurisdiction are met." Id. at 588.

Finally, when a defendant raises a constitutional challenge for the first time on appeal, we review only for plain error. See United States v. Valois, 915 F.3d 717, 729 n.7 (11th Cir. 2019) ("We ordinarily review de novo the constitutionality of a statute, because it presents a question of law, but we review for plain error where a defendant raises his constitutional challenge for the first time on appeal.").

III. Discussion

A. Whether the district court erred in concluding that it had subject matter jurisdiction because the EEZ is part of the "high seas"

We start with a discussion of the MDLEA and several relevant maritime law concepts to provide context for the parties' arguments and the discussion that follows.

The MDLEA makes it a crime to "knowingly or intentionally . . . possess with intent to manufacture or distribute, a controlled substance" on board "a [covered] vessel subject to the jurisdiction of the United States," 46 U.S.C. § 70503(a)(1) and (e)(1), and to conspire to do the same, id. § 70506(b). The statute defines a "vessel subject to the jurisdiction of the United States" as including "a vessel without nationality." Id. § 70502(c)(1)(A). And a "vessel without nationality" is further defined to include "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(d)(1)(C). Notably, the MDLEA "applies even though the act is committed outside the territorial jurisdiction of the United States." Id. § 70503(b).

As mentioned previously, Article I, Section 8, Clause 10 of the Constitution bestows on Congress "three distinct grants of power:" (1) "the power to define and punish piracies," (the Piracies Clause); (2) "the power to define and punish felonies committed on the high [S]eas," (the Felonies Clause); and (3) "the power to define and punish offenses against the law of nations" (the Offences Clause). United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1248 (11th Cir. 2012). We repeatedly have upheld the MDLEA as a valid exercise of Congress's power "to define and punish . . . Felonies on the high Seas." United States v. Estupinan, 453 F.3d 1336, 1338-39 (11th Cir. 2006) (rejecting claim that Congress "exceeded its authority under the Piracies and Felonies Clause in enacting the MDLEA"); Cabezas-Montano, 949 F.3d at 587 (holding that "the MDLEA is a valid exercise of Congress's power under the Felonies Clause as applied to drug trafficking crimes without a 'nexus' to the United States"). Congress,...