United States v. Hurtado

89 F.4th 881

UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos Acosta HURTADO,Asdrubal Quijada Marin, Defendants-Appellants.

No. 21-12702

United States Court of Appeals, Eleventh Circuit

Filed: December 20, 2023

Appeals from the United States District Court for the Middle District of Florida, D.C. Docket No. 8:19-cr-00488-CEH-JSS-2

Todd B. Grandy, U.S. Attorney Service - Middle District of Florida, U.S. Attorney, DOJ-USAO, Appellate Division, Tampa, FL, for Plaintiff - Appellee.

Jorge Leon Chalela, Counsel, Jorge Leon Chalela, PA, Tampa, FL, for Defendant - Appellant Juan Carlos Acosta Hurtado.

Adeel Bashir, Jenny L. Devine, Nicole Valdes Hardin, Alec Fitzgerald Hall, Federal Public Defender's Office, Middle District of Florida, Tampa, FL, for Defendant - Appellant Asdrubal Quijada Marin.

Before Grant, Tjoflat, and Ed Carnes, Circuit Judges.

PER CURIAM:

All panel members agree that the judgment of the District Court is due to be affirmed. The only disagreement arises from defining the holding of a particular prior panel precedent that relates to one of the issues that is raised in this appeal. For reasons explained in Judge Carnes's concurring opinion, which is joined by Judge Grant, the two of them do not join the last two paragraphs of Part IV.A. of Judge Tjoflat's opinion. As a result, those two paragraphs do not reflect the views of this Court in this case. The views of this Court on that matter are the ones expressed in the concurring opinion of Judge Carnes.

Tjoflat, Circuit Judge:

The United States Coast Guard apprehended Asdrubal Quijada Marin and Juan Carlos Acosta Hurtado—as well as five other co-defendants—aboard a motor vessel, the Zumaque Tracer, in the Caribbean Sea. Marin and Acosta Hurtado were convicted after a bench trial in the Middle District of Florida for (1) conspiracy to possess with intent to distribute five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United States and (2) possession with intent to distribute five kilograms or more of cocaine on a vessel subject to the jurisdiction of the United States, pursuant to the Maritime Drug Law Enforcement Act (the MDLEA). See 46 U.S.C. §§ 70503(a), 70506(a)-(b); 21 U.S.C. § 960(b)(1)(B)(ii).

On appeal, Marin and Acosta Hurtado appeal the denial of several pre-trial motions. Marin appeals the denial of a motion to dismiss the indictment for lack of jurisdiction. Acosta Hurtado appeals the same. Acosta Hurtado additionally appeals the denials of: (1) a motion to suppress evidence, because he alleges the stop and search of the Zumaque Tracer violated the Fourth Amendment; (2) a motion to dismiss the indictment, based on unnecessary delay; and (3) a motion to dismiss the indictment, because of outrageous government conduct. After careful review of the record and with the benefit of oral argument, we find these challenges unpersuasive and accordingly affirm the District Court's judgments.

I.

The issues on appeal were addressed in a pre-trial evidentiary hearing. We therefore take the substantive facts leading up to Acosta Hurtado and Marin's indictment from the evidence in the record at that time and the witnesses presented at that hearing. Some of the facts also come from a certificate submitted by the Government from United States Coast Guard Commander David M. Bartram as designee of the Secretary of State (the Certificate).¹ By and large, the parties do not dispute the facts.

A.

On August 12, 2019, a British vessel with a United States law enforcement detachment spotted the motor vessel Zumaque Tracer, a roughly 260-foot vessel, anchored in international waters between Aruba and Venezuela.² The Zumaque Tracer flew a Republic of Cameroon flag. The British vessel engaged in right-of-approach questioning. Right-of-approach questioning is authorized by international law and can be conducted by a law enforcement vessel in international waters as a matter of course. The Marianna Flora, 24 U.S. 1, 10-11, 11 Wheat. 1, 6 L.Ed. 405 (1825). Right-of-approach questioning aims at ascertaining the nationality of a vessel traveling in international waters. See United States v. Marino-Garcia, 679 F.2d 1373, 1385 (11th Cir. 1982) ("Under international law, the Coast Guard has the authority to approach an unidentified vessel in order to ascertain the vessel's nationality.").

The United States law enforcement personnel on board the British vessel reported the results of the right-of-approach questioning to District Seven—the United States Coast Guard district responsible for coordinating and commanding action in the Caribbean Sea—in Miami. Generally, the Coast Guard districts immediately command assets in their jurisdictional waters and report up to Coast Guard headquarters. Through the right-of-approach questions, the Coast Guard learned that the master of the Zumaque Tracer—Marin—claimed Cameroonian registry, the vessel had been anchored for twenty-one days with an engine problem, the vessel was not transmitting on Automated Information Systems (AIS),³ and the vessel only had a crew of seven. After engaging in their deliberative process and based on the information it had received from the British vessel, District Seven determined that the Zumaque Tracer was suspicious and warranted boarding. District Seven, therefore, "requested to invoke the Article 17 process through Coast Guard headquarters," which involves the "Government of the United States . . . reach[ing] out to the . . . flag state and ask[ing] for permission to . . . exercise law enforcement authority on behalf of the flag state."⁴ The Coast Guard received no response for many days, during which the British vessel monitored the anchored Zumaque Tracer and awaited further direction.⁵

Having waited multiple days with no response from Cameroon granting permission to board, the British vessel had to move on. A vessel with the Dutch Coast Guard, again containing a United States Coast Guard detachment, assumed monitoring duties while the United States continued to await permission to act on its suspicions from Cameroon. On August 20, 2019, the Zumaque Tracer weighed anchor and entered the territorial waters of Venezuela—where the United States lost contact with the vessel—and the Dutch vessel continued its patrol duties elsewhere.

At some point over the next ten days, having been unable to order the boarding and search of what the Coast Guard believed to be a suspicious vessel, District Seven sent the Coast Guard cutter Northland to patrol a section of the Caribbean Sea where the cutter might find the Zumaque Tracer after it emerged from Venezuelan territorial waters. On August 30, 2019, the Northland encountered the Zumaque Tracer in international waters, roughly 180 nautical miles south of Haiti.⁶

The Northland engaged in right-of-approach questioning, revealing the following suspicious aspects of the vessel in addition to what the Coast Guard already knew from the previous right-of-approach questioning. First, the Zumaque Tracer was pointed 285 degrees true (north northwest), which would eventually cause the vessel to arrive at land around northern Honduras or Grand Cayman. Yet, the vessel claimed to be headed for Panama, much further to the south. Second, the Zumaque Tracer said it had come from Venezuela—where it allegedly conducted repairs—but the vessel appeared to be in the same bad shape observed earlier in August.⁷ Marin also claimed—again—that the purpose of the vessel's voyage—this time to Panama—was for repairs. Third, the Zumaque Tracer was in a known narcotics-ferrying corridor of the Caribbean. Fourth, the Zumaque Tracer had only a crew of seven—all of Venezuelan nationality, and none of whom were on deck. The minimum manning crew for this vessel was nine crewmembers. The Northland was of roughly the same size and had a crew of about ninety-five people. Fifth, the AIS on board the Zumaque Tracer was still off; in fact, Marin—the master of the vessel—claimed to not even know how to use it or what AIS was. International standards require ships of 300 gross tons or more to use AIS; the Zumaque Tracer had a gross weight of over 2,500 tons. Sixth, the Zumaque Tracer had trouble maintaining a steady course. Seventh, despite being a cargo vessel, the Zumaque Tracer apparently had no cargo on board nor any equipment with which to handle cargo.

Again, the Northland communicated these findings to District Seven. District Seven in turn communicated with Coast Guard headquarters, requesting to invoke the Article 17 process to board the Zumaque Tracer. Coast Guard headquarters presumably requested that the Republic of Cameroon grant the United States permission to engage in law enforcement activities on Cameroon's behalf by boarding and searching the Zumaque Tracer. This time, a response—in the affirmative—arrived fairly quickly and Coast Guard headquarters authorized District Seven to order the Northland to stop, board, and search the Zumaque Tracer.⁸ In so permitting the United States Coast Guard to board and search the Zumaque Tracer, Cameroon confirmed that the vessel was indeed registered as a Cameroonian vessel.

A boarding team from the Northland eventually boarded the Zumaque Tracer where the team engaged in a three-step search. First, the team confirmed the identity and nationality of the vessel. Second, the team performed an initial safety sweep—including mustering the crew—to ensure the vessel was safe for Coast Guard personnel to be aboard. Third, the team searched for evidence of criminal activity.

On August 31, 2019, the search crew from the Northland found 140 bales of what appeared to be cocaine inside wing tanks—typically filled to ballast the ship—in the engine room.⁹ Two consecutive field tests revealed that at least one of the bales indeed contained cocaine. The Northland crew passed this information along to District Seven, which informed Coast Guard headquarters, which requested that Cameroon waive jurisdiction over the crew of the ...