United States v. Barbosa-Rodríguez

680 F.Supp.3d 121

UNITED STATES of America, Plaintiff, v. Gustavo BARBOSA-RODRÍGUEZ [1], Eduardo Peterson-Manuel [3], José E. Serrano [5], Defendants.

Criminal No. 17-577 (FAB)

United States District Court, D. Puerto Rico

Signed June 28, 2023

Antonio L. Perez-Alonso, AUSA, John P. Hutchins, III - Closed, AUSA, Jonathan Edward Jacobson, AUSA, Max J. Perez-Bouret, AUSA, Vanessa Elsie Bonhomme, United States Department of Justice United States Attorney's Office District of Puerto Rico, San Juan, PR, for Plaintiff.

Marie L. Cortes-Cortes, San Juan, PR, for Defendant Gustavo Barbosa-Rodríguez.

Jose G. Perez-Ortiz, San Juan, PR, for Defendant Eduardo Peterson-Manuel.

Julio Cesar Alejandro-Serrano, Toa Baja, PR, for Defendant José E. Serrano.

OPINION AND ORDER

BESOSA, District Judge.

Defendants José E. Serrano ("Serrano"), Eduardo Peterson-Manuel ("Peterson"), and Gustavo Barbosa-Rodríguez ("Barbosa") [collectively, "the defendants"] move to dismiss the second-superseding indictment, which charges them with two counts pursuant to the Maritime Drug Law Enforcement Act ("MDLEA"). The defendants argue that the MDLEA violates the United States Constitution on its face, and is unconstitutional as applied to them. (Docket Nos. 47, 49 and 84.) For the reasons set forth below, the motion to dismiss is DENIED.

I. Background¹

Beginning in June 2014, "the defendants" and "the captain" purportedly "planned and financed" a shipment of cocaine from Colombia to Portugal. (Docket No. 47 at p. 3.) The coordination to repair a boat, the "Odysee II," and acquire the contraband all took place in Colombia. Id. Law enforcement officers gathered information regarding this drug-trafficking venture by wiretap.² Id.

On October 23, 2014, Her Majesty's Ship ("HMS") Argyll located the Odyssee II 130 miles southwest of Bermuda. Id. at p. 2; Docket No. 83 at p. 2. A United States Coast Guard Enforcement Detachment ("USCG LEDET") was on board the HMS Argyll. (Docket No. 47 at p. 2; Docket No. 83 at p. 2.) "Law enforcement personnel observed a United Kingdom flag flying from the vessel." See Docket No. 52-1 at p. 1 (Department of State Certification for the Maritime Drug Law Enforcement Act Case Involving Sailing Vessel Odyssee II (United Kingdom) Federal Drug Identification Number (FDIN) 2014896019) ("the Certification"). According to the Certification, the United States contacted the United Kingdom to confirm or deny the vessel's registry, "and if confirmed, grant authorization to board and search the vessel." Id. The Coast Guard boarded the Odyssee II, found contraband, and arrested the two crew members. (Docket No. 47 at p. 2; Docket No. 83 at p. 2.)

The next day, October 24, 2014, the United Kingdom confirmed the vessel's registry and waived jurisdiction. (Docket No. 52-1 at p. 1.)

On January 8, 2021, a grand jury returned a two-count second-superseding indictment charging the defendants and others with conspiracy to possess with intent to distribute a controlled substance aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1) and 70506(b) (count one), and with aiding and abetting possession with intent to distribute a controlled substance aboard a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. § 70503(a)(1) and 18 U.S.C. § 2 (count two). (Docket No. 20.)³ In 2022, Colombia extradited Serrano, Peterson, and Barbosa to the United States. (Docket Nos. 45 and 67.)

II. The Motion to Dismiss

The defendant's motion to dismiss makes three main arguments. First, the motion argues that the MDLEA is an unconstitutional extension of Congress' power to enact felonies on the high seas as enumerated in Article I, section 8, clause 10 of the United States Constitution as that clause was originally understood and intended. (Docket No. 47 at p. 1.) Second, as applied to the defendants, the MDLEA only extends to the high seas and no further, and thus is unconstitutional when applied to foreigners operating purely on foreign soil. Id. at pp. 18-23. Lastly, the defendants argue that the United States never acquired jurisdiction over the vessel at issue because the United States was not the interdicting authority and Britain's consent was received after the U.S. Coast Guard had already boarded. Id. at pp. 23-30.

The government argues the MDLEA is a constitutional exercise of Congress' power that has been affirmed repeatedly by the Circuit Courts of Appeals, and that the prosecution of the defendants here is consistent with international law. (Docket No. 83.)

A. Legal Standard

Federal Rule of Criminal Procedure 12(b)(1) allows a party to "raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). The defendants seek to invalidate a federal statute, invoking "the gravest and most delicate duty that courts are called to perform." Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 72 L.Ed. 206 (1927) (Holmes, J., concurring). " 'Proper respect for a coordinate branch of government' requires that [the Court] strike down an Act of Congress only if 'the lack of constitutional authority to pass the [statute] is clearly demonstrated.' " Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 537, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) (quoting United States v. Harris, 106 U.S. 629, 635, 1 S.Ct. 601, 27 L.Ed. 290 (1883)); Mass. v. United States HHS, 682 F.3d 1, 15 (1st Cir. 2012) ("Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect.").

The defendants shoulder the burden of proving that the MDLEA is an impermissible exercise of congressional authority. See Heller v. Doe, 509 U.S. 312, 320-21, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (explaining that " 'the burden is on the one attacking the legislative arrangement to [negate] every conceivable basis which might support it,' whether or not the basis has a foundation on the record") (citation omitted). Moreover, the Court presumes that Congress legislates "in accordance with the Constitution." See United States v. Dwinells, 508 F.3d 63, 70 (2007).

B. The Maritime Drug Law Enforcement Act

Drug traffickers "constantly refine their methods for transporting illegal narcotics from country to country." United States v. Carvajal, 924 F. Supp. 2d 219, 224 (D.D.C. 2013); see Lt. CDR Aaron J. Casavant, In Defense of the U.S. Maritime Drug Enforcement Act: A Justification for the Law's Extraterritorial Reach, 8 HARV. NAT'L SEC. J. 191, 200 (2017) ("As the [US Coast Guard] and U.S. Navy (USN) became more adept at disrupting the early methods, [drug trafficking organizations] began using multi-engine speedboats (i.e., "go fast" vessels or GFVs) with the ability to outrun slower law enforcement assets."). "The MDLEA reflects Congress's intention to enable the aggressive prosecution of maritime drug trafficking." United States. v. Dávila-Reyes, 23 F.4th 153, 167 (1st Cir. 2022), reh'g en banc granted, opinion withdrawn, 38 F.4th 288 (1st Cir. 2022).

The MDLEA provides that "an individual [on board a vessel subject to the jurisdiction of the United States] may not knowingly or intentionally:"

(1) manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance;

(2) destroy (including jettisoning . . .), or attempt or conspire to destroy, property that is subject to forfeiture under section 511(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

48 U.S.C. §§ 70503(a)(1)-(2). Vessels subject to criminal liability include, inter alia, ships "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)(1)(C). "Jurisdictional issues arising under the [MDLEA] are preliminary questions of law to be determined solely by the trial judge," and do not constitute an element of the offense. 46 U.S.C. § 70504. A Department of State certification is conclusive proof of a nation's response to a claim of registry. 46 U.S.C. § 70502(d)(2); United States v. Cardales-Luna, 632 F.3d 731, 737 (1st Cir. 2011) (explaining that the Secretary of State designee "need only certify that the 'foreign nation' where the vessel is registered 'has consented or waived objection' " to United States prosecution).

The MDLEA recognizes that "controlled substances aboard vessels is a serious international problem, is universally condemned, and presents a specific threat to the security and societal well-being of the United States." 46 U.S.C. § 70501(c)(1)(C). Congress specified that the MDLEA "applies even though the act is committed outside the territorial jurisdiction of the United States." 46 U.S.C. § 70503(b). Federal law enforcement officers are ubiquitous on the high seas, "constantly patrolling the Western Hemisphere's major narcotics trafficking vectors with the intent of locating and then boarding those vessels suspected of illicit drug trafficking." Capt. James D. Carlson and Lt. Timothy N. Cronin, Transnational Organized Crime in the Maritime Domain, and Broader Consideration for the United States' Interagency, 4 U. MIAMI NAT'L SEC. & ARMED CONF. L. REV. 43, 47 (2013).

III. Analysis

A. Whether Congress Exceeded its Authority Pursuant to the Define and Punish Clause in Enacting the MDLEA

Congress "can exercise only the powers granted to it." McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 405, 4 L.Ed. 579 (1819) (Marshall, C.J.). "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60 (1803) (Marshall, C.J.) (invalidating a provision of the Judiciary Act of 1789). At the same time, "[t]he broad statement that the federal government can exercise no powers except those...