United States v. Marin

90 F.4th 1235

UNITED STATES of America, Plaintiff-Appellee, v. Luis MARIN, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Luis Chavez, Defendant-Appellant.

No.22-50154

No.22-50155

United States Court of Appeals, Ninth Circuit

Argued and Submitted July 19, 2023 Pasadena, California

Filed January 17, 2024

Appeal from the United States District Court for the Southern District of California, Dana M. Sabraw, Chief District Judge, Presiding, D.C. No. 3:21-cr-01021-DMS-2, D.C. No. 3:21-cr-01021-DMS-1

Kenneth J. Troiano (argued), Kenneth J. Troiano Attorney at Law, San Diego, California; Martin G. Molina (argued), Law Office of Martin G. Molina, San Diego, California; for Defendant-Appellant.

Mark R. Rehe (argued), Nicole Bredariol, and P. Kevin Mokharti, Assistant United States Attorneys; Daniel E. Zipp, Assistant United States Attorney, Appellate Section Chief, Criminal Division; Randy S. Grossman, United States Attorney; United

States Department of Justice, San Diego, California, for Plaintiff-Appellee.

Before: Jacqueline H. Nguyen and Danielle J. Forrest, Circuit Judges, and Richard D. Bennett,^* Senior District Judge.

OPINION

NGUYEN, Circuit Judge:

Luis Marin and Luis Chavez ("defendants") appeal their convictions for violating 46 U.S.C. § 70503(a)(1) of the Maritime Drug Law Enforcement Act ("MDLEA"), which prohibits possession of a controlled substance with intent to distribute while on board a covered vessel. Defendants were arrested after the U.S. Coast Guard interdicted their "go-fast" speedboat, which was carrying at least 1,000 kilograms of cocaine, on the high seas off the coast of Ecuador. The vessel carried no nationality flag, but both Marin and Chavez made a verbal claim of Ecuadorian nationality for the vessel. The Ecuadorian government, however, neither confirmed nor denied nationality. The United States treated the vessel as stateless (i.e. without nationality) and exercised jurisdiction. Id. § 70503(b). Under § 70502(d)(1)(C), a vessel is stateless when the master claims registry but "the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality." Id. § 70502(d)(1)(C).

Defendants challenge the government's jurisdiction, arguing the provision under which jurisdiction was exercised is unconstitutional because: first, Congress's authority to "define and punish . . . Felonies committed on the high Seas," U.S. Const. art. I, § 8, cl. 10 (known as the "Felonies Clause"), is limited by international law principles; and second, § 70502(d)(1)(C), enacted under the Felonies Clause, conflicts with international law as to when a vessel may be treated as stateless. We need not decide whether Congressional power under the Felonies Clause is implicitly constrained by international law because even assuming so, § 70502(d)(1)(C) is consistent with international law. We therefore affirm the district court's denial of defendants' motion to dismiss the indictment.

I. Background

On March 18, 2021, the U.S. Coast Guard interdicted a go-fast vessel¹ on the high seas, about 655 nautical miles west of the Galapagos Islands, Ecuador. The vessel did not display any flags or indicia of nationality. Prior to boarding, Coast Guard officers saw visible packages on deck. Marin and Chavez were the only men on board, and they both identified themselves as master of the vessel and verbally claimed Ecuadorian nationality for the vessel. One of them spontaneously stated that there were drugs in the cargo hold.

The Coast Guard officers initiated a "forms exchange" under a bilateral United States-Ecuador agreement, whereby they contacted Ecuadorian authorities to confirm or deny registry of the vessel under their nationality. See United States v. Alarcon Sanchez, 972 F.3d 156, 160 (2d Cir. 2020). Ecuadorian authorities at first confirmed the nationality of the vessel and authorized full law enforcement boarding. The Coast Guard officers found a modified hatch in the deck that had been replaced with space containing a white powdery substance that field-tested positive for cocaine.

The Coast Guard officers then received a second response from Ecuadorian authorities stating that they could neither "confirm nor deny nationality of the vessel." The Coast Guard proceeded to treat the vessel as stateless and arrested Marin and Chavez. The officers removed over 1,000 kilograms of cocaine from the vessel.

Marin and Chavez were indicted for conspiracy to distribute cocaine while on board a covered vessel, in violation of 46 U.S.C. §§ 70503(a)(1) & 70506(b) (Count 1), and two counts of possession of a controlled substance on board a vessel with intent to distribute, in violation of 46 U.S.C. § 70503(a)(1) (Counts 2 and 3). Pursuant to written plea agreements, Chavez entered guilty pleas to two counts of violating § 70503(a)(1) on September 29, 2021; and Marin entered guilty pleas to the same charges on November 3, 2021.²

On January 20, 2022, before defendants were sentenced, the First Circuit, in a now-withdrawn opinion, held that § 70502(d)(1)(C) of the MDLEA, the same provision at issue here, is unconstitutional. See United States v. Dávila-Reyes, 23 F.4th 153 (1st Cir. 2022). Dávila-Reyes first concluded that Congress's ability to define felonies on the high seas under the Felonies Clause is implicitly limited by international law. Id. at 173-86. That court then held that the § 70502(d)(1)(C) is unconstitutional because it conflicts with accepted definitions of a stateless vessel under international law. Id. at 186-95.

On April 21, 2022, in reliance on Dávila-Reyes, Marin filed a motion to withdraw his guilty plea, which Chavez joined. The district court denied defendants' motion to withdraw their guilty pleas but invited them to renew the issue at sentencing by way of a motion to dismiss for lack of subject-matter jurisdiction. Defendants did so, and on June 30, 2022, the district court denied the motions to dismiss. The district court held that Congress's power to legislate under the Felonies Clause is not constrained by international law. It did not decide the second question—whether 46 U.S.C. § 70502(d)(1)(C) violates international law.

The district court sentenced each defendant to 72 months of imprisonment, followed by 5 years of supervised release.³

Less than a week after defendants were sentenced, the First Circuit withdrew its panel opinion in Dávila-Reyes after voting to rehear the case en banc. 38 F.4th 288 (1st Cir. 2022). Subsequently, in an en banc decision, the First Circuit affirmed the convictions on narrow grounds, holding that the government could have asserted jurisdiction because the vessel "was not authorized to fly the flag of any state," a standard "proper" under international law, and was thus stateless "for reasons independent of the vessel being the kind of vessel that § 70502(d)(1)(C) describes." United States v. Dávila-Reyes, 84 F.4th 400, 417 (1st Cir. 2023) (citing United States v. Rosero, 42 F.3d 166, 171 (3d Cir. 1994)) ("Under international law, '[s]hips have the nationality of the State whose flag they are entitled to fly.' ") (quoting Convention on the High Seas art. 5(1), opened for signature Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82 (entered into force Sept. 30, 1962)).

II. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. "We review de novo the constitutionality of a statute." United States v. Hansen, 25 F.4th 1103, 1106 (9th Cir. 2022) (quoting United States v. Mohamud, 843 F.3d 420, 432 (9th Cir. 2016)).

III. Discussion

The Constitution empowers Congress "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." U.S. Const. art. I, § 8, cl. 10. This constitutional provision contains three distinct grants of power: (1) to define and punish piracies committed on the high seas, (2) to define and punish felonies committed on the high seas (the Felonies Clause), (3) and to define and punish offenses against the law of nations. See United States v. Smith, 18 U.S. (5 Wheat.) 153, 158-59, 5 L.Ed. 57 (1820).

Relevant here is the Felonies Clause, which provides the basis for the MDLEA. See United States v. Shi, 525 F.3d 709, 721 (9th Cir. 2008) (holding that a federal statute is a valid exercise of the Felonies Clause if it "proscribes felony offenses and expressly applies to international waters"). The MDLEA makes it unlawful for an individual to "knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance" on board "a vessel of the United States or a vessel subject to the jurisdiction of the United States." 46 U.S.C. § 70503(a)(1), (e)(1). That prohibition "applies even though the act is committed outside the territorial jurisdiction of the United States." Id. § 70503(b). A vessel "subject to the jurisdiction of the United States" includes "a vessel without nationality." Id. § 70502(c)(1)(A). A vessel is considered "without nationality" under the MDLEA under multiple circumstances, including when the master makes a claim of registry, but the country of claimed registry "does not affirmatively and unequivocally assert that the vessel is of its nationality."⁴ Id. § 70502(d)(1)(C).

Defendants argue that Congress's Felonies-Clause power is bounded by international law jurisdictional principles, and the definition under the MDLEA goes beyond what international law deems a stateless vessel (i.e., a vessel without nationality).

Without deciding whether the Felonies Clause is constrained by international law, we hold that the definition of "vessel without nationality" under 46 U.S.C. § 70502(d)(1)(C) does not conflict with international law. Accordingly, we uphold defendants' convictions under the MDLEA. Although the district court did not reach this issue, we may affirm on any basis, "whether or not relied upon by the district court." Muniz v. UPS, Inc., 738 F.3d 214, 219 (9th Cir. 2013)...