United States v. Davila-Reyes

38 F.4th 288 (Mem)

UNITED STATES, Appellee,

v.Jeffri DAVILA-REYES, Defendant - Appellant.

United States, Appellee

v.Jose Reyes-Valdivia, Defendant - Appellant.

No. 16-2089

No. 16-2143

United States Court of Appeals, First Circuit.

Entered: July 5, 2022

ORDER OF COURT

A majority of the active judges who are not disqualified have voted to hear this case en banc. Accordingly, the petition for rehearing en banc is granted. In accordance with customary practice, the panel opinion released on January 20, 2022 is withdrawn, and the judgment entered the same date is vacated. See 1st Cir. I.O.P. X(D).

The en banc court will have copies of the parties' previously filed briefs. The parties are also directed to file simultaneous supplemental briefs addressing the following questions, in addition to any other questions the parties may wish to address.

1. The prosecution proceeded with the assertion by the government that 46 U.S.C. § 70502(d)(1)(C) provides jurisdiction under the MDLEA to bring this prosecution because the defendants were on:

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.

What basis, if any, is there for applying this provision to claims of nationality, such as the claim that was made in this case? Did the government waive any argument that the provision applies to claims of nationality by failing to raise it, including in its response to the panel's January 2019 briefing order? Did the defendants waive any argument that the provision does not apply to claims of nationality by failing to raise it? Should any such waiver by either party be excused?

2. Do the defendants' plea agreements, guilty pleas, or other actions foreclose an argument on appeal that § 70502(d)(1)(C) does not cover claims of nationality and that, accordingly, their prosecutions are unlawful for lack of United States jurisdiction over their vessel and them?

3. If § 70502(d)(1)(C) does not provide enforcement jurisdiction over defendants and their vessel, what is the alternative basis for such jurisdiction, if any, in the provisions of the MDLEA, international law, or some other source of authority?

4. If there is such an alternative basis, has the government waived or forfeited any argument that jurisdiction to bring the prosecution exists under that basis? Should the court excuse any such waiver or forfeiture? How, if at all, do principles of due process bear on whether any such alternative basis for jurisdiction may be relied on in

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