Opinion
Case No: 8:20-cr-138-CEH-JSS
2021-08-11
UNITED STATES of America v. Jhonis Alexis LANDAZURI ARBOLEDA, Dilson Daniel Arboleda Quinones and Luis Elias Angulo Leones
Tereza Zambrano Ohley, Toni Andrea Goodin, Emmett Jackson Boggs, Jr., Lauren N. Stoia, United States Attorneys Office, Tampa, FL, for United States of America. Kathleen M. Sweeney, Public Defender, Raudel Vitier, Public Defender, Percy King, Public Defender, Federal Public Defender's Office, Tampa, FL, for Luis Elias Angulo Leones. William Fargo Sansone, Sansone Law, PA, Raudel Vitier, Federal Public Defender's Office, Tampa, FL, for Jhonis Alexis Landazuri Arboleda. Kathleen S. Lucey, Law Office of Kathleen S. Lucey, St. Petersburg, FL, Raudel Vitier, Federal Public Defender's Office, Tampa, FL, for Dilson Daniel Arboleda Quinones.
Tereza Zambrano Ohley, Toni Andrea Goodin, Emmett Jackson Boggs, Jr., Lauren N. Stoia, United States Attorneys Office, Tampa, FL, for United States of America.
Kathleen M. Sweeney, Public Defender, Raudel Vitier, Public Defender, Percy King, Public Defender, Federal Public Defender's Office, Tampa, FL, for Luis Elias Angulo Leones.
William Fargo Sansone, Sansone Law, PA, Raudel Vitier, Federal Public Defender's Office, Tampa, FL, for Jhonis Alexis Landazuri Arboleda.
Kathleen S. Lucey, Law Office of Kathleen S. Lucey, St. Petersburg, FL, Raudel Vitier, Federal Public Defender's Office, Tampa, FL, for Dilson Daniel Arboleda Quinones.
ORDER
Charlene Edwards Honeywell, United States District Judge
This cause comes before the Court on the Report and Recommendation (Doc. 144), issued by Magistrate Judge Julie S. Sneed. In the Report and Recommendation, Magistrate Judge Sneed recommends Defendant Angulo Leones's Motion to Dismiss Indictment (Doc. 48) and Defendant Arboleda Quinones's Motion to Dismiss for Lack of Jurisdiction (Doc. 54), which Defendant Jhonis Alexis Landazuri Arboleda adopted (Docs. 50, 55), be denied. All parties were furnished copies of the Report and Recommendation and were afforded the opportunity to file objections pursuant to 28 U.S.C. § 636(b)(1).
On December 23, 2021, Defendant Luis Angulo Leones filed an "Objection to the Magistrate Judge's Report and Recommendation on the Motion to Dismiss" (Doc. 151), which Defendants Jhonis Alexis Landzuri Arboleda and Dilson Daniel Arboleda Quinones adopted (Docs. 152, 153). The Government filed a response to the objections. Doc. 161. Upon consideration of the Report and Recommendation, the Objections, and upon this Court's independent examination of the file, the Objections will be overruled, the Report and Recommendation adopted, and the Motion to Dismiss Indictment (Doc. 48) and Motion to Dismiss for Lack of Jurisdiction (Doc. 54) denied.
I. BACKGROUND
A March 19, 2020 indictment charged Defendants with possession and conspiracy to possess with intent to distribute 5 kilograms or more of cocaine on board a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. §§ 70503(a), 70506(a) and (b), 18 U.S.C. §§ 2 and 21, and 21 U.S.C. 960(b)(1)(B)(ii). Doc. 1. The charges arose after Defendants were interdicted in international waters of the Eastern Pacific Ocean by the United States Coast Guard on March 10, 2020, and a search of their go-fast vessel ("GFV") led to the discovery of cocaine hidden under false decking of the GFV. Docs. 120-1 at 1–2.
The GFV was spotted by a maritime patrol aircraft on March 10, 2020, in an area of international waters known for drug trafficking. Doc. 68-1 at 1. The GFV was white with painted markings on the side and was carrying three persons on board. Id. The vessel bore the name Divino Nino Jesus and the hull was marked with letters and numbers: "PQ-1647" and other painted markings. Id.
The patrol aircraft conveyed the information to a Coast Guard cutter called Mohawk, which was on patrol in the area. Doc. 123 at 34. A boarding team from the Mohawk was dispatched in a small, 26-foot, over-the-horizon ("OTH") boat, Hawk I, to intercept the GFV. Id. at 36, 122. The Coast Guard personnel who made up the Boarding Team consisted of Chief Boatswain's Mate Jeremy Swearer ("Chief Swearer"), United States Coast Guard Maritime Enforcement Specialist Luis Saenz ("Officer Saenz"), United States Coast Guard Boatswain's Mate First Class Seth Pontecorvo ("Officer Pontecorvo"), Boatswain's Mate Second Class Harry Seibert, and Machinery Technician Petty Officer Third Class Don Castellon. Id. at 35, 145. Chief Swearer, who was the Boarding Officer, relayed back to the Mohawk the Boarding team's observations regarding the GFV including shape and color of markings on the GFV. Id. at 38–39. No flag was flying from the GFV, but the white hull had blue trim, stripes on the forward part of the bow, and a square painted on the aft with colored stripes. Id. at 40, 78, 155.
As Hawk I came alongside the GFV, Officer Saenz announced their presence, introducing himself and the crew. Doc. 123 at 146. Officer Saenz is a native Spanish speaker and certified translator by the U.S. Coast Guard. Doc. 123 at 140, 161. Chief Swearer, through Officer Saenz who was serving as translator, directed the Defendants to gather in the center of the GFV, and Defendants complied. Doc. 123 at 41. Once Chief Swearer determined there was no immediate danger, the "Go-Pro" recording device being worn by Officer Saenz was turned off and Chief Swearer, through Officer Saenz, began the right of approach questioning. Id. at 38.
Aboard Hawk I were laminated copies of the Alpha and Victor reports, which Chief Swearer used. See Docs. 68-1, 68-2; 123 at 122. Using a grease pen to mark up the laminated sheets, Chief Swearer noted the Boarding Team's observations of the GFV and Defendants’ responses to the questions asked. Id. at 45. As he's looking at the sheets, Chief Swearer testified that he told the translator Officer Saenz to ask the exact verbiage from the sheets. Id. at 42, 44. Officer Saenz asked each of the questions on the Alpha and Victor reports using the exact same language as appears on the reports. Id. at 43. Officer Saenz testified he asked each Defendant individually in Spanish, while pointing with his hand at the Defendant whom he was asking, if they are the captain or the person in charge. Doc. 123 at 149–50. All of the Defendants responded that they took turns driving the boat, but no one was directly in charge of that voyage. Id. at 151. None of them indicated that any of the others were in charge. Id. Officer Saenz then asked each Defendant in Spanish, while pointing to the individual with whom he was speaking, if they wanted to claim nationality of the vessel. Id. at 152. Chief Swearer confirmed this procedure in which Officer Saenz pointed to each individual Defendant when asking the questions from the reports. Id. at 119. Defendants responded "no;" they did not want to make a claim of nationality for the vessel. Id. at 44, 152.
Officer Saenz testified generally that "the Alpha Report is what outlines [their] right-of-approach questions, and it is used to determine the vessel's nationality in international waters. And then a ... Victor Report has [their] right-of-visit questions, which is for a boarding of such a vessel to, again, determine its nationality." Doc. 123 at 143.
Question 3 on the Victor Report to be directed to the suspects as a group reads as follows:
"Who is the master or person in charge/(PIC) of the vessel?" If no one is identified as the master or PIC, ask each person individually, "Are you the master or PIC?" If no one admits to being the master or PIC, ask each person individually, "Do you claim nationality for the vessel?" Doc. 68-1 at 3.
Chief Swearer testified that all questions came from the Alpha and Victor reports and that none of the Defendants claimed to be the master. Doc. 123 at 43, 122. Chief Swearer directed Officer Saenz to ask each Defendant if they wanted to make a claim of nationality. Id. at 44. When Chief Swearer directed Officer Saenz to ask the questions, he read directly from the verbiage on the Alpha and Victor reports. Id. Chief Swearer noted Defendants’ responses on the laminated sheets right after Officer Saenz responded with the Defendants’ answers. Id. at 45. Chief Swearer testified that none of the Defendants identified themselves as the master or made a claim of nationality for the vessel. Id. at 43, 44. Two of the Defendants identified themselves as nationals of Ecuador and Colombia. Doc. 123 at 153. Officer Saenz relayed all of Defendants’ responses to Chief Swearer who, in turn, relayed the information to Coast Guard personnel on the Mohawk. Id. at 153–54. The Coast Guard personnel who received the information from Chief Swearer completed the versions of the Alpha and Victor reports admitted into evidence. Id. at 45–46, 68.
The Alpha and Victor Reports are included in the Case Package which would include, among other things, photographs of the vessel, a diagram of the vessel, and Chief Swearer's investigative report. Doc. 123 at 119–21. Chief Swearer testified that not every single detail is included in his report, but rather it identifies key points and times. Id. at 119.
On March 11, 2020, personnel aboard the Mohawk advised Chief Swearer that the Boarding Team had been granted permission to board the vessel as a vessel without a nationality. Doc. 123 at 46, 157. The Boarding Team boarded the GFV and conducted an intrusive search of the vessel. Id. at 47–49, 96. No registration documents or cloth flag were found on the GFV. Id. at 47. After drilling holes in the deck, the Boarding Team found cocaine in a false deck of the vessel. Id. at 49. The Defendants were transferred to the Mohawk and detained there and ultimately transported to Port Everglades, Florida. The GFV was sunk at sea for hazard-to-navigation purposes. Id.
On June 9, 2020, Angulo Leones moved to dismiss the indictment arguing that the Boarding Team failed to ask for both the master in charge and the individual in charge to make a claim of nationality or registry as part of the inquiry required to determine if a vessel is stateless. Doc. 48. On June 15, 2020, Arboleda Quinones filed a similar motion to dismiss for lack of jurisdiction. Doc. 54. The motions were adopted by Defendant Landazuri Arboleda. Docs. 50, 55, 77. On July 4, 2020, the Government responded in opposition to Defendants’ motions to dismiss. Doc. 68. The Magistrate Judge held an evidentiary hearing on the motions to dismiss on October 13 and 14, 2020. Docs. 123, 124.
A. Angulo Leones’ Motion to Dismiss Indictment (Doc. 48)
Angulo Leones moves to dismiss the indictment pursuant to 46 U.S.C. § 70504(a) on the ground that the Court lacks jurisdiction. Doc. 48. Specifically, Angulo Leones contends the Government cannot meet its burden of proving that the vessel was stateless. Angulo Leones claims that prior to declaring a vessel stateless under 46 U.S.C. § 70502(d), the Government was required to ask for both the master and the individual in charge to make a claim of nationality or registry for the vessel. Although the boarding officers asked for the master of the vessel, Angulo Leones argues they did not ask for the individual in charge of the vessel. Angulo Leones provides, in his motion, a picture of the vessel with registration numbers painted on both sides. Additionally, he points to the painted-on Costa Rican flag as indicia of the vessel's registration, ensign and/or nationality. Given the Defendants’ claim that they were kidnapped and there was no claim of nationality, Angulo Leones submits the Government was required to determine if the vessel was registered in Costa Rica which it failed to do.
B. Arboleda Quinones’ Motion to Dismiss for Lack of Jurisdiction (Doc. 54)
Defendant Arboleda Quinones moves to dismiss the indictment for lack of jurisdiction. He similarly argues the Court lacks jurisdiction because it improperly treated the vessel as one without nationality. Arboleda Quinones asserts that asking the Defendants only about the master of the vessel is insufficient to make a finding of statelessness. Rather, the Coast Guard was required to inquire as to the individual in charge, which he claims the Coast Guard failed to do. Doc. 54.
C. The Government's Response (Doc. 68)
In response to the motions to dismiss, the Government argues that the Coast Guard validly established jurisdiction by asking for the master or person in charge of the vessel and upon receiving no response requested a claim of nationality from each Defendant. The Government further claims that the Coast Guard did not err by contacting Columbia to confirm registry and that the visual displays on the subject vessel did not substantiate a claim of Costa Rican nationality. Doc. 68.
D. The Magistrate Judge's Findings and Recommendations (Doc. 144)
At the evidentiary hearing on October 13 and 14, 2020, the Court heard testimony from Chief Swearer, Officer Saenz, Officer Pontecorvo, United States Coast Guard Petty Officer Second Class Nicholas Allen ("Petty Officer Allen"), and United States Coast Guard Lieutenant Kyle Pearson ("Lieutenant Pearson"). The Magistrate Judge received into evidence, without objection, the Government's exhibits, including a map showing the approximate location of the vessel's interdiction, the Alpha Report prepared by the Coast Guard during the interdiction, and the Victor Report prepared by the Coast Guard during the interdiction, among other documents. Doc. 121. Additionally, the Magistrate Judge received into evidence, without objection from the Government, several defense exhibits, including a video of a portion of the interdiction, the Case Package prepared by the Coast Guard relating to the interdiction, photographs of the vessel, the Alpha and Victor Reports prepared by the Coast Guard during the interdiction, a Report of Investigation prepared by Special Agent Jose Ramirez, and a certificate from the United States Department of State. Docs. 119, 120.
Based on the testimony and evidence presented, the Magistrate Judge determined that the Coast Guard affirmatively asked each crew member whether he was the master or individual in charge and whether he wanted to make a claim of nationality for the vessel. Each Defendant declined to make any such claim. The Magistrate Judge concluded that the thorough questioning by the Coast Guard consistent with the questions contained in the Alpha and Victor Reports eliminated the possibility that someone aboard the vessel had the authority to make a claim of nationality for the vessel but was not asked to do so. Doc. 144 at 18. Thus, the Magistrate Judge concluded the evidence established that the vessel was "without nationality" and therefore appropriately subject to the jurisdiction of the United States under 46 U.S.C. § 70502(c)(1)(A).
The Magistrate Judge also rejected Defendants’ contention that the Coast Guard should have considered the markings on the exterior of the vessel as sufficient indicia of nationality to make a claim of nationality for the vessel. The evidence was undisputed that the vessel was not flying a nation's flag, and a search of the vessel by the Boarding Team did not locate a flag. Further, Defendants’ argument that the painted markings depicting what Defendants assert was the Costa Rican flag were insufficient under Eleventh Circuit precedent to establish a claim of nationality or registry. Lastly, the Magistrate Judge concluded that the United States’ courtesy call to Columbia did not otherwise void a finding of statelessness under the Maritime Drug Law Enforcement Act ("MDLEA").
E. Luis Elias Angulo Leones’ Objections (Doc. 151)
Angulo Leones now objects to the Magistrate Judge's factual findings and analysis contained in the Report and Recommendation. Angulo Leones claims the Magistrate Judge erred in finding that the boarding team asked for both the master and the individual in charge because the finding goes beyond the sworn testimony of the boarding officer, his report and the report of the boarding team member translator. Doc. 151. He further asserts the protocol documents associated with the interdiction only reference the vessel master and there's no requirement to ask for the person in charge. He claims the Magistrate Judge erroneously relied on the testimony of a subordinate whose testimony contradicted the testimony of the person in charge.
Angulo Leones asserts the Government's failure to ask the Defendants for the person in charge violates MDLEA jurisdictional requirements. Angulo Leones also argues this failure meant the Government could not know which country to contact to determine the vessel's nationality and a State Department certification could not cure the Government's failure to comply with the MDLEA. Defendants Landazuri Arboleda and Arboleda Quinones adopted the objections raised by Angulo Leones. Docs. 152, 153, 154.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 72(b)(2), in pertinent part, provides that "a party may serve and file specific written objections to the proposed findings and recommendations" of a magistrate judge. The district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1) ; Jeffrey S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 512 (11th Cir. 1990). The district judge may accept, reject, or modify, in whole or in part, the Report and Recommendation. Fed. R. Civ. P. 72(b)(3). The district judge may also receive further evidence or recommit the matter to the magistrate judge with further instructions. Id.
III. DISCUSSION
Under the Maritime Drug Law Enforcement Act (MDLEA), it is unlawful for any person on board a "covered vessel" to knowingly possess with the intent to distribute a controlled substance. 46 U.S.C. § 70503(a). A "covered vessel" under the MDLEA means "a vessel of the United States or a vessel subject to the jurisdiction of the United States." 46 U.S.C.A. § 70503(e)(1). A vessel without a nationality is subject to the jurisdiction of the United States. 46 U.S.C. § 70502(c)(1)(A). Relevant here, the term "vessel without nationality" includes:
(B) a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel[.]
A. Coast Guard asked Defendants Approach Questions Consistent with the Alpha and Victor Reports.
1 Defendants contend that the Boarding Team did not ask the correct approach questions so as to deem the GFV a "stateless vessel" subjecting it to the jurisdiction of the United States. The Magistrate Judge found the testimony of Chief Swearer and Officer Saenz to be reliable, found that the Defendants were asked the questions verbatim from the Alpha and Victor reports, and concluded the Coast Guard's thorough questioning was sufficient to extinguish the possibility that someone aboard the vessel had the authority to make a claim of nationality. Defendants’ objections that the Magistrate Judge's findings in this regard are in error are due to be overruled.
Asserting the finding is inconsistent with sworn testimony, Angulo Leones claims the Magistrate Judge erred in finding that the Boarding team "asked for both the master and the individual in charge." Doc. 151. The Magistrate Judge found that Chief Swearer and Officer Saenz offered consistent, credible testimony regarding the right of approach questioning and that the questions came directly from the Alpha and Victor Reports. The Magistrate Judge's findings that the Boarding Team thoroughly questioned the Defendants as to whether any of them claimed to be the master or person in charge and whether any claimed nationality of the vessel is supported by the evidence and due to be affirmed. The Magistrate Judge relied on the testimony of Chief Swearer and Officer Saenz, whom she found to be credible, noting they responded to questions directly and without evasiveness as to all questions posed on direct examination and cross-examination. Doc. 144 at 15–18.
23"Credibility determinations are typically the province of the fact finder because the fact finder personally observes the testimony and is thus in a better position than a reviewing court to assess the credibility of witnesses." United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (citing Viehman v. Schweiker, 679 F.2d 223, 227-28 (11th Cir. 1982) ). In judging the officers’ credibility, the Magistrate Judge observed their demeanor and interest in testifying, the consistencies and inconsistencies in their testimony, and their prepared statements. Doc. 144 at 18. "[I]n evaluating the factual version of events ... we should defer to the magistrate judge's determinations unless [her] understanding of the facts appears to be ‘unbelievable.’ " Ramirez-Chilel, 289 F.3d at 749 (citing United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985) ).
Having reviewed the transcript of the hearing, the Court finds the Magistrate Judge's understanding of the facts to be believable. Angulo Leones repeatedly argues that Chief Swearer's lack of recollection should be credited over Officer's Saenz's testimony. Notwithstanding Chief Swearer's testimony that he could not specifically recall asking about the person in charge, his testimony was consistent that all questions were posed using the exact language of the Alpha and Victor Reports and that he methodically went through the reports. Officer Saenz corroborated this and further confirmed that each Defendant was asked as to whether they wanted to make a claim of nationality for the vessel. Officer Saenz is a certified translator, he has been a part of twelve prior counter-narcotics boardings of which seven he served as interpreter, he is familiar with the Alpha and Victor reports, and when asking the questions, he recites in Spanish the exact meaning of the English words from the reports. Doc. 123 at 140–42, 149.
4 Defendants primarily rely on the unpublished opinion inUnited States v. Guerro, 789 F. App'x 742, 748 (11th Cir. 2019), for the proposition that the MDLEA requires a U.S. officer to ask for both the master in charge and the individual in charge to make a claim of nationality or registry for a vessel prior to declaring a vessel stateless pursuant to 46 U.S.C. § 70502(d). As the Magistrate Judge points out, however, the issue in Guerro was the Coast Guard's failure to ask the defendants to make a claim of nationality for the vessel so it was unclear whether someone with authority could make a claim of registry or nationality for the vessel. Guerro, 789 F. App'x at 750. Here, Chief Swearer, through Officer Saenz, specifically gave each individual Defendant the opportunity to make a claim of nationality for the vessel. As the Eleventh Circuit recently noted, even if a boarding team does not specifically ask who is "the individual in charge," the team's questions are nevertheless sufficient where "they did ask all defendants if anyone wished to make a claim of nationality for the vessel" such that "any individual who possessed the authority to make a claim of registry or nationality for the vessel was given the opportunity to do so at the request of a duly authorized officer." United States v. Cabezas-Montano, 949 F.3d 567, 589 n.14 (11th Cir.), cert. denied sub nom. Palacios-Solis v. United States, ––– U.S. ––––, 141 S. Ct. 162, 207 L. Ed. 2d 1098 (2020), and cert. denied sub nom. Guagua-Alarcon v. United States, ––– U.S. ––––, 141 S. Ct. 814, 208 L. Ed. 2d 398 (2020), and cert. denied, ––– U.S. ––––, 141 S. Ct. 814, 208 L. Ed. 2d 398 (2020). And, in any event, the credible evidence here is that each Defendant was asked if they were the master or person in charge and if they wanted to make a claim of nationality for the vessel.
A claim of nationality or registry under the MDLEA includes only:
(1) possession on board the vessel and production of documents evidencing the vessel's nationality as provided in article 5 of the 1958 Convention on the High Seas;
(2) flying its nation's ensign or flag; or
(3) a verbal claim of nationality or registry by the master or individual in charge of the vessel.
46 U.S.C.A. § 70502(e)(1), (2). None of the Defendants made a claim of nationality here. Additionally, it is undisputed that the vessel was not flying a flag, nor was one discovered on the vessel upon search by the Boarding Team. Defendants argue that the painted-on markings depicting a flag constitute a claim of nationality or registration, but the Eleventh Circuit has soundly rejected this proposition. See United States v. Obando, 891 F.3d 929, 934 (11th Cir. 2018) (flag painted on vessel was not "flying its nation's ensign or flag" for purposes of a claim of nationality or registry under section 70502(e) ). The evidence supports the Magistrate Judge's findings that the vessel was stateless.
B. State Department Certification
To the extent Defendants contend that the Magistrate Judge should have addressed their arguments regarding the State Department Certification, the Court finds no error in the Magistrate Judge's refusal to consider arguments raised for the first time at the evidentiary hearing. Regardless, Defendants’ argument that the State Department Certification "did not cure" the Coast Guard's failure to ask for the person in charge is unavailing. The proper questions were asked as discussed above. Therefore, a Secretary of State Certification is of no import where the Defendants made no claim of nationality and the statelessness of the vessel was clear under subsection (d)(1)(B). See Cabezas-Montano, 949 F.3d at 589.
IV. CONCLUSION
The determination that the vessel was stateless is amply supported by the evidence of record and the testimony of Chief Swearer and Officer Saenz. The vessel was not flying a flag. No flag was located upon search of the vessel, and the painted-on markings do not support a finding of claim of nationality or registry. None of the Defendants identified themselves as the master or person in charge and none claimed a nationality for the vessel when asked by the officers. As such, the Magistrate Judge is correct that the vessel was a vessel without nationality pursuant to 46 U.S.C. § 70502(d)(1)(B).
After careful consideration of the Report and Recommendation of the Magistrate Judge and the Objections thereto, in conjunction with an independent de novo examination of the file, the Magistrate Judge's Report and Recommendation should be adopted, confirmed, and approved in all respects, and the motions to dismiss denied. The Court will therefore overrule Defendants’ objections to the Magistrate Judge's recommendation and deny the motions to dismiss. Accordingly, it is now
ORDERED:
(1) The Report and Recommendation of the Magistrate Judge (Doc. 144) is adopted, confirmed, and approved in all respects and is made a part of this Order for all purposes, including appellate review.
(2) Defendant Angulo Leones's Objections (Doc. 151), which Defendants Jhonis Alexis Landzuri Arboleda and Dilson Daniel Arboleda Quinones adopted (Docs. 152, 153), are OVERRULED.
(3) Defendant Angulo Leones's Motion to Dismiss Indictment (Doc. 48), which Defendant Jhonis Alexis Landazuri Arboleda adopted (Doc. 50), is DENIED.
(4) Defendant Arboleda Quinones's Motion to Dismiss for Lack of Jurisdiction (Doc. 54), which Jhonis Alexis Landazuri Arboleda adopted (Doc. 55), is DENIED.
DONE and ORDERED in Tampa, Florida on August 11, 2021. Copies:
REPORT AND RECOMMENDATION
JULIE S. SNEED, UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court on Defendant Angulo Leones's Motion to Dismiss Indictment (Dkt. 48), Defendant Arboleda Quinones's Motion to Dismiss for Lack of Jurisdiction (Dkt. 54) (collectively, "Motions to Dismiss"), and the Government's response in opposition (Dkt. 68). On October 13 and 14, 2020, the undersigned held an evidentiary hearing on the Motions to Dismiss. For the reasons that follow, the undersigned recommends that the Court deny Defendants’ Motions to Dismiss.
BACKGROUND
A March 19, 2020 indictment alleges that Luis Elias Angulo Leones, Jhonis Alexis Landazuri Arboleda, and Dilson Daniel Arboleda Quinones (collectively, "Defendants"), "while upon the high seas on board a vessel subject to the jurisdiction of the United States," conspired to knowingly and intentionally distribute and possess with the intent to distribute (Count I), and aided and abetted one another in possessing with intent to distribute (Count II), "five (5) kilograms or more of a mixture and substance containing a detectable amount of cocaine," in violation of 21 U.S.C. § 960(b)(1)(B)(ii), 46 U.S.C. §§ 70503(a), 70506(a), (b), and 18 U.S.C. § 2. (Dkt. 1.)
On June 9, 2020 and June 15, 2020, Defendants filed the Motions to Dismiss, arguing that the vessel was not subject to the jurisdiction of the United States. (Dkts. 48, 54.) Defendant Landazuri Arboleda adopted the Motions to Dismiss. (Dkt. 77.) The Motions to Dismiss are pending before the undersigned on referral from the presiding District Court Judge. (Dkt. 60.)
On July 6, 2020, the Court noticed an evidentiary hearing on the Motions to Dismiss. (Dkt. 69.) Upon Defendants’ motion and consent by the parties, the Court continued the hearing due to issues associated with the coronavirus pandemic, difficulties with video conferencing technology at the Pinellas County Jail, availability of witnesses, and the parties’ preference for an in-person evidentiary hearing. (Dkts. 74, 75.) On October 13 and 14, 2020, the Court conducted an in-person evidentiary hearing on the Motions to Dismiss.1 (Dkts. 113, 114.) All Defendants and witnesses appeared in-person before the Court during the hearing.
FACTUAL FINDINGS
At the evidentiary hearing, the Court heard the testimony of United States Coast Guard Chief Boatswain's Mate Jeremy Swearer ("Chief Swearer"), United States Coast Guard Maritime Enforcement Specialist Luis Saenz ("Officer Saenz"), United States Coast Guard Boatswain's Mate First Class Seth Pontecorvo ("Officer Pontecorvo"), United States Coast Guard Petty Officer Second Class Nicholas Allen, and United States Coast Guard Lieutenant Kyle Pearson ("Lieutenant Pearson"). Additionally, the Court received into evidence without objection the Government's exhibits, which included a map showing the approximate location of the vessel's interdiction (Gov't Ex. 1), a detainee log maintained by the United States Coast Guard ("Coast Guard") during Defendants’ detention (Gov't Ex. 2A), a medical history log maintained by the Coast Guard during Defendants’ detention (Gov't Ex. 2B), documents allegedly signed by Defendant Arboleda Quinones (Gov't Ex. 3), the Alpha Report prepared by the Coast Guard during the interdiction (Gov't Ex. 4A), and the Victor Report prepared by the Coast Guard during the interdiction (Gov't Ex. 4B). (Dkt. 121.)
The Court also received into evidence without objection six of Defendants’ exhibits, which included a video of a portion of the interdiction (Def. Ex. 3), the Case Package prepared by the Coast Guard relating to the interdiction (Def. Ex. 4), photographs of the vessel (Def. Exs. 5-5k), the Alpha and Victor Reports (Def. Ex. 6), a Report of Investigation prepared by Special Agent Jose A. Ramirez (Def. Ex. 7), and a certificate from the United States Department of State, previously filed by the Government (Dkt. 93; Def. Ex. 11). (Dkt. 119.) Further, the Court received two of Defendants’ exhibits into evidence over the Government's objection, which included a news article and a photograph of a different vessel (Def. Exs. 10, 10A). Based on the testimony and the exhibits entered into evidence, the undersigned recommends the following findings of fact.
On March 10, 2020, a maritime patrol aircraft observed a small "go fast vessel" ("GFV") in international waters of the Eastern Pacific Ocean, approximately 87 nautical miles south of Jicarita Island, Panama. The vessel was operating in a known drug trafficking area, headed in a northbound direction, with at least fifteen fuel drums on deck. The vessel had a white hull, blue interior, three engines, and three persons on board. The vessel also bore the name Divino Nino Jesus on the forward portion of the hull and displayed the letters "PQ1647." The patrol aircraft conveyed this information to Coast Guard Cutter Mohawk ("Mohawk "), which was on a patrol in the area. Officers aboard the Mohawk were briefed on the observations of the aircraft personnel and a boarding team was dispatched to the vessel's location aboard the Mohawk's small over-the-horizon boat, HAWK 1. The aircraft remained in flight around the vessel until HAWK 1 arrived.
At approximately 11:30 p.m. Zulu Time,2 the Coast Guard launched HAWK 1 and Coast Guard personnel from the Mohawk (the "Boarding Team") to conduct right of approach questioning under international law. The Boarding Team was comprised of the following Coast Guard personnel: Chief Swearer, Officer Saenz, Officer Pontecorvo, Boatswain's Mate Second Class Harry T. Seibert, and Machinery Technician Petty Officer Third Class Don A. Castellon. As HAWK 1 neared the vessel, the Boarding Team observed that the vessel was not moving, or was "dead in the water." Although the sun had set, HAWK 1 was equipped with floodlights to illuminate the area. Each Boarding Team member also carried a flashlight. Additionally, HAWK 1 utilized a flashing blue light to indicate the Coast Guard's presence as a law enforcement agency.
"The ‘right of approach’ is a doctrine of international maritime common law that bestows a nation's warship with the authority to hail and board an unidentified vessel to ascertain its nationality." United States v. Romero-Galue , 757 F.2d 1147, 1149 n.3 (11th Cir. 1985). "The ‘right of approach’ is codified by article 22 of the Convention on the High Seas." Id. (citing Convention on the High Seas art. 22, opened for signature Apr. 19, 1958, 13 U.S.T. 2312 ).
After making visual contact with the subject vessel, the Boarding Team observed that the vessel had a white hull with blue trim, stripes on the forward bow, and stickers displaying numbers and letters. Additionally, the Boarding Team observed a square or rectangle on the aft portion of the boat with colors that were similar to the stripes. The Boarding Officer, Chief Swearer, relayed the Boarding Team's observations back to the Mohawk. Pursuant to Coast Guard policy and in accordance with his training, Chief Swearer relayed the Boarding Team's observations of markings on the vessel with respect to shapes, colors, orientation, and location. Chief Swearer did not report whether he or his team members believed any of the markings correlated to the flag of any particular nation.
During the approach, Officer Saenz wore a GoPro device mounted to his helmet, which recorded a video of HAWK 1's approach of the vessel. As HAWK 1 came alongside, Officer Saenz, the translator for the Boarding Team, announced their presence in Spanish. HAWK 1 floated close enough to the subject vessel to allow Officer Saenz to communicate without the use of a bullhorn. Chief Swearer, through Officer Saenz, directed Defendants to gather in the center portion of the vessel and Defendants complied. After observing the vessel and asking some initial safety questions, Chief Swearer determined the Boarding Team had positive control of the situation and was therefore not in immediate danger. Accordingly, Chief Swearer directed Officer Saenz to turn off the GoPro device. Chief Swearer, through Officer Saenz, then began the right of approach questioning.
Aboard HAWK 1, Chief Swearer utilized laminated copies of the Alpha and Victor Reports, the forms used to administer the right of approach questioning. Using a grease pen to mark up the laminated sheets, Chief Swearer recorded the Boarding Team's observations of the vessel and Defendants’ responses to the questions. Chief Swearer testified that he methodically worked his way through both the Alpha and Victor Reports by asking the questions on the reports, which Officer Saenz translated into Spanish for the Defendants. Chief Swearer further testified, repeatedly and consistently, that he posed the questions to Officer Saenz using the exact language appearing on the reports.
Chief Swearer and Officer Saenz offered consistent, credible testimony regarding the right of approach questioning. Question 3 on the Victor Report directs the following question to be asked of the group collectively: "Who is the master or person in charge/PIC of the vessel?" The second subpart of Question 3 directs that if no one is identified as the master or person in charge in response to the collective question, the Boarding Officer shall inquire of each crew member individually whether they are the master or person in charge.
Chief Swearer testified that all questions he asked through Officer Saenz came directly from the Alpha and Victor Reports. Although he could not recall specifically whether Officer Saenz inquired about the person in charge, he did recall that none of the crew members claimed to be the master. Further, he recalled that he directed Officer Saenz to ask the crew whether anyone wanted to make a claim of nationality for the vessel. Chief Swearer testified that none of the crew members identified themselves as the master or made a claim of nationality for the vessel.
Officer Saenz, a native Spanish speaker and certified translator by the Department of Defense, testified that Chief Swearer directed him to ask for the master or person in charge of the vessel. Officer Saenz had a clear and consistent recollection of the questioning. He testified that he asked the questions directly to each crew member, extended his arm to each person individually, and asked them whether they were the captain or person in charge. Each crew member denied being the captain or person in charge of the vessel. Officer Saenz further testified that he also asked each individual crew member whether he wanted to make a claim of nationality for the vessel. While testifying, Officer Saenz demonstrated the manner in which he asked the questions, by extending his arm to point at each crew member to inquire of them specifically. Officer Saenz explained that each crew member responded that he did not want to make a claim of nationality. However, the crew members did identify themselves as nationals of Ecuador and Colombia. Additionally, the crew members stated that their last port of call was Malpelo, Colombia. Officer Saenz testified that he relayed all responses from the crew members back to Chief Swearer.
Once the right of approach questioning concluded, Chief Swearer transmitted the information etched on the laminated sheets back to Coast Guard personnel in the Combat Information Center ("CIC") aboard the Mohawk. The Boarding Team remained on HAWK 1 during the transmission process and awaited further instructions from the Mohawk.
The Coast Guard crew members in the CIC, overseen by Lieutenant Pearson, collected the information from Chief Swearer and filled out the versions of the Alpha and Victor Reports admitted into evidence. After receiving the necessary information from the Boarding Team, the crew members in the CIC relayed the information to "District 11," the command center located in California overseeing Coast Guard operations in the Eastern Pacific Ocean. While the Boarding Team waited on HAWK 1 for further instructions, Chief Swearer and Officer Saenz testified that they understood District 11 contacted Colombian authorities pursuant to a treaty they colloquially referred to as the "United States-Colombian Bilateral Agreement." Chief Swearer did not know what response, if any, Colombia provided to District 11. Officer Saenz testified that he understood that Colombia could not confirm or deny whether the vessel was Colombian, but also that he had no personal knowledge of the communications. Officer Pontecorvo also testified that he had no personal knowledge of the timing or content of the communications with Colombia.
As Boarding Officer, Chief Swearer reviewed the Alpha and Victor Reports recorded by the CIC to ensure completeness and accuracy before the reports were included in the case package for the interdiction. The laminated sheets utilized aboard HAWK 1 were cleaned from the markings by the grease pen and returned to the Mohawk's boarding kit for future use.
See Agreement Between the Government of the United States of America and the Government of the Republic of Colombia to Suppress Illicit Traffic By Sea, Colom.-U.S., Feb. 20, 1997, T.I.A.S. No. 12835.
The Victor Report provides that if there is a Colombian crew member on board a target vessel and a claim is made that the vessel departed from Colombia, as here, the Coast Guard should initiate the agreement protocols.
At approximately 4:30 a.m. Zulu Time on March 11, 2020, personnel aboard the Mohawk advised Chief Swearer that District 11 granted the Boarding Team permission to board the target vessel as a vessel without a nationality. Thereafter, the Boarding Team boarded the vessel and, pursuant to authorizations from District 11, conducted intrusive searches of the boat. During the search, the Boarding Team drilled holes into the deck and found cocaine. District 11 then granted the Boarding Team permission to treat the crew as detainees and return with them to the Mohawk. Due to its reduced stability from the destructive searches and potential as a navigation hazard, the Boarding Team sank the vessel and returned to the Mohawk.
The Coast Guard transported Defendants to Port Everglades, Florida. Defendants arrived on April 3, 2020 and were transported to the Middle District of Florida.
ANALYSIS
A. Claim of Nationality
In their Motions to Dismiss, Defendants argue that the indictment should be dismissed for lack of jurisdiction under the Maritime Drug Law Enforcement Act ("MDLEA"). See 46 U.S.C. §§ 70501 – 70508. Specifically, Defendants argue that the Boarding Team failed to inquire whether any of the Defendants were the master or the individual in charge of the subject vessel during the right of approach questioning. In response, the Government argues that the evidence established the Boarding Team conducted the proper colloquy to acquire jurisdiction.
Jurisdictional questions under the MDLEA "are preliminary questions of law to be determined solely by the trial judge." 46 U.S.C. § 70504(a). The Eleventh Circuit has repeatedly recognized that "the MDLEA jurisdictional requirement is not an essential element" that must be submitted to a jury for proof beyond reasonable doubt. United States v. Francisco , 823 F. App'x 854, 857 (11th Cir. 2020) ; see also United States v. Tinoco , 304 F.3d 1088, 1109–10 (11th Cir. 2002) ("[T]he ... jurisdictional requirement is not an essential ingredient or an essential element of the MDLEA substantive offense, and, as a result, it does not have to be submitted to the jury for proof beyond a reasonable doubt."). In doing so, however, the Eleventh Circuit has expressly left open the question of whether "the government must establish the jurisdictional requirement beyond a reasonable doubt or by a preponderance of the evidence." Tinoco , 304 F.3d at 1114 ; see United States v. Guerro , 789 F. App'x 742, 747 n.2 (11th Cir. 2019) (expressly leaving "open for another day" the issue of whether the government must establish jurisdiction beyond a reasonable doubt or by a preponderance of the evidence). It is recommended that the Government has met both standards of proof in this case. See Griffin v. United States , 588 F.2d 521, 530 n.19 (5th Cir. 1979) (choosing not to resolve issue concerning the burden of proof that should apply when the party carrying the burden had "met both burdens of proof").
In Bonner v. City of Prichard , 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as precedent all decisions of the former Fifth Circuit Court of Appeals decided prior to October 1, 1981.
The Constitution grants Congress the power to "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. In furtherance of this power, Congress passed the MDLEA, which makes it a crime to knowingly or intentionally "manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance," while "on board a covered vessel." 46 U.S.C. § 70503(a)(1). A "covered vessel" is defined to include a vessel subject to the jurisdiction of the United States. 46 U.S.C. § 70503(e)(1).
The MDLEA recognizes six broad categories of vessels subject to the jurisdiction of the United States for purposes of criminal prosecution. 46 U.S.C. § 70502(c)(1). One of the six categories is at issue here: stateless vessels, also known as vessels without nationality. Id. § 70502(c)(1)(A) ; see also United States v. Cruickshank , 837 F.3d 1182, 1187 (11th Cir. 2016). The MDLEA defines a vessel without nationality to include any of the following: (1) "a vessel aboard which the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed"; (2) "a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel"; and (3) "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." 46 U.S.C. § 70502(d)(1)(A)-(C) ; see also Guerro , 789 F. App'x at 746–47 ("[A]n officer of the United States must request a claim of registry and the master or individual in charge must fail to answer that request before a vessel can be deemed stateless under § 70502(d)(1)(B).").
In support of their Motions to Dismiss, Defendants primarily rely on the Eleventh Circuit's decision in United States v. Guerro, 789 F. App'x 742 (11th Cir. 2019). During the right of approach questioning at issue in Guerro , the Coast Guard officer asked only for the "master of the vessel." Id. at 745. The crew members did not respond, and the officer then asked each of the men individually whether he was the master. Id. The crew members again did not respond. The three men were subsequently indicted for conspiracy and possession with intent to distribute narcotics under the MDLEA. Id. The defendants moved to dismiss the indictment and for a judgment of acquittal based on lack of jurisdiction, but the District Court denied both motions. Id. at 745–46.
On appeal, the Eleventh Circuit reversed, finding that the court lacked subject matter jurisdiction under the MDLEA. Id. at 747–49. The Court concluded that although the Coast Guard asked for the master of the vessel, this inquiry alone "was not enough" to establish jurisdiction under § 70502(d)(1)(B). Id. at 748–49 ("The master and the individual in charge are not one and the same."). The Court reasoned that because the Coast Guard failed to ask for both the master and individual in charge, it was possible that one of the three defendants had the authority to make a claim of nationality for the vessel but was never asked to do so at the request of an officer. Id. at 749. Further, the Court noted that the Coast Guard "never requested the defendants to make a claim of nationality or registry for the vessel." Id. at 750. Due to these shortcomings in the right of approach questioning, the Court held that the government failed to establish jurisdiction under the MDLEA and vacated the judgments of conviction. Id. at 750–51.
After Guerro was decided, the Eleventh Circuit further clarified the necessary inquiry to establish jurisdiction under the MDLEA in United States v. Medina , 793 F. App'x 850 (11th Cir. 2019). During the interdiction in Medina , the Coast Guard officer "first asked all assembled crew members who was the master of the vessel and then, when none responded, asked if any crew member wished to make a claim of the nationality of the vessel." Id. at 852. The Court reasoned that because the entire crew was present during this questioning, "any individual who possessed the authority to make a claim of registry or nationality for the vessel was given the opportunity to do so at the request of a duly authorized officer." Id. The Court found this inquiry sufficient to establish jurisdiction under § 70502(d)(1)(B). Id. ; see also United States v. Cabezas-Montano , 949 F.3d 567, 589 n.14 (11th Cir. 2020), cert. denied sub nom. Palacios–Solis v. United States , ––– U.S. ––––, 141 S.Ct. 162, 207 L.Ed.2d 1098, No. 19-1195, 2020 WL 3492674 (U.S. June 29, 2020), cert. denied sub nom. Guagua-Alarcon v. United States , ––– U.S. ––––, 141 S.Ct. 814, 208 L.Ed.2d 398, No. 19-8889, 2020 WL 6551776 (U.S. Nov. 9, 2020), and cert. denied, ––– U.S. ––––, 141 S.Ct. 814, 208 L.Ed.2d 398, No. 19-8910, 2020 WL 6551777 (U.S. Nov. 9, 2020) ("We recognize that the LRI boarding team did not ask who was ‘the individual in charge,’ but the team's questions were nevertheless sufficient because they did ask all defendants if anyone wished to make a claim of nationality for the vessel.").
The District Court in Medina found that the inquiring Coast Guard officer testified that "no Defendant identified himself as the master of the vessel and no Defendant made any claim of nationality regarding the vessel." United States v. Bautista , No. 4:17-cr-10003-KMM, slip op. at 4 (S.D. Fla. Apr. 17, 2017), report and recommendation adopted , No. 4:17-cr-10003-KMM (S.D. Fla. Apr. 29, 2017).
Here, the evidence presented establishes that Chief Swearer directed Officer Saenz to ask the right of approach questions pursuant to the Alpha and Victor Reports. Although Chief Swearer did not specifically recall asking about the person in charge, he repeatedly testified that all questions were taken directly from the reports, verbatim. The Court observed the demeanor of Chief Swearer on the witness stand and considered his interests in testifying. Chief Swearer was forthright about the limitations of his recollection. But his consistent testimony that he asked all the questions as they were listed in the Alpha and Victor Reports was persuasive. The Court finds that Chief Swearer's testimony was credible.
As noted above, Question 3 on the Victor Report reads: "Who is the master or person in charge/PIC of the vessel?"
Moreover, Chief Swearer's testimony was corroborated by the testimony of Officer Saenz. Officer Saenz had a clear recollection of events and testified about numerous details, including the weather conditions and his specific location in relation to Defendants while he was asking the questions. Officer Saenz demonstrated before the Court with affirmative physical motions the way he asked questions of each Defendant aboard the vessel. He unequivocally testified that he used his arm to point at each person as he inquired of them. First, he asked each Defendant whether they were the captain or the person in charge of the vessel and waited for their response. None of the Defendants claimed to be in charge of the vessel or indicated that any of the other Defendants were in charge. After relaying this response to Chief Swearer, Officer Saenz asked whether any of the Defendants wanted to make a claim of nationality for the vessel, in the same manner, by extending his arm to point at each individual separately. Officer Saenz testified that all Defendants declined to make a claim of nationality for the vessel. The Court observed Officer Saenz's demeanor while testifying and considered his interests as well. He appeared at ease, confident in his recollection, and forthright in his testimony. Officer Saenz's testimony was clear, internally consistent, externally consistent with Chief Swearer's testimony, and was credible.
Based upon the officers’ testimony and evidence, the Court finds that the Boarding Team asked for both the master and individual in charge of the subject vessel. Even further, all persons aboard the subject vessel were given an opportunity to make a claim of nationality for the vessel, upon the request of a United States officer, but failed to do so. Therefore, the Government satisfied its burden to establish jurisdiction over the vessel under § 70502(d)(1)(B). Medina , 793 F. App'x at 852 (holding MDLEA jurisdiction established under § 70502(d)(1)(B) where "any individual who possessed the authority to make a claim of registry or nationality for the vessel was given the opportunity to do so at the request of a duly authorized officer" but failed to do so). Consequently, MDLEA jurisdiction was established in this case both beyond reasonable doubt and by a preponderance of the evidence. See, e.g. , United States v. De La Cruz , 443 F.3d 830, 832 (11th Cir. 2006) (per curiam).
Defendants argue that Chief Swearer's testimony was inconsistent with that of Officer Saenz, based upon Chief Swearer's written statement in the case package. Specifically, Defendants maintain that Chief Swearer's written statement failed to identify that he directed Officer Saenz to ask for both the master and individual in charge. Defendants further contend that Chief Swearer "adopted his statement" during his testimony.
As previously explained, Chief Swearer and Officer Saenz testified consistently regarding the administration of the right of approach questioning. Chief Swearer candidly stated that he did not recall specifically whether he directed Officer Saenz to ask for the person in charge, but repeatedly testified that all questions were posed using the exact language of the Alpha and Victor Reports. Chief Swearer further testified that he methodically worked through both reports. Officer Saenz testified that he asked for both types of potential authority, and that he inquired of each crew member individually whether they wanted to make a claim of nationality for the vessel. Both officers responded directly and without evasiveness to all questions posed on direct and cross-examination. Further, both officers explained that statements prepared after the interdiction are not intended to be an exhaustive record of every aspect, question, and detail of the interdiction. The Court finds that Chief Swearer's written statement is not inconsistent with and does not undermine the credibility of his or Officer Saenz's in-court testimony.
Defendants further assert that Officer Saenz was not a credible witness because he did not recall collecting Defendants’ personal belongings from the subject vessel, as indicated in his statement. In response to direct questions on this issue, Officer Saenz candidly stated he did not recall whether he personally collected Defendants’ personal items off the boat. However, he explained that he performed the job of collecting belongings during other interdictions, so he was not surprised to learn that his statement indicated he was responsible for the task here. Officer Saenz was candid, stating that he did not specifically remember being given the responsibility of collecting personal belongings during this interdiction.
The Court notes that this inquiry was made during testimony on Defendant Arboleda Quinones’ Motion to Suppress, rather than the Motions to Dismiss. However, counsel for Defendant Arboleda Quinones raised the issue in closing argument on the Motions to Dismiss, so the Court addresses it here.
The Court notes that this interdiction took place over the course of more than fifteen hours. The right of approach questions were asked within the first few hours of the interdiction, while the collection of Defendants’ belongings did not occur until hours later. After having observed Officer Saenz's testimony on the stand and hearing his specific recollection of the colloquy, as well as his candid testimony regarding the limitations of his recollection, the Court finds Officer Saenz's testimony to be credible. Thus, the Court concludes that Officer Saenz's credibility was not undermined by his failure to specifically recall whether he personally collected Defendants’ personal belongings from the subject vessel.
Having observed Chief Swearer's and Officer Saenz's in-court testimony, considered their interests in testifying as well as the consistencies and inconsistences in their testimony, and considered the statements prepared by them, the Court finds the testimony of Chief Swearer and Officer Saenz to be consistent and credible. See generally United States v. Ramirez-Chilel , 289 F.3d 744, 750 (11th Cir. 2002) (deferring to magistrate judge's credibility determination where magistrate judge took into account "the interests of the witnesses, the consistencies or inconsistencies in their testimonies, and their demeanor on the stand").
In sum, the evidence presented demonstrates that the Coast Guard affirmatively asked each crew member whether he was the master or individual in charge and whether he wanted to make a claim of nationality for the vessel. Each crew member declined to make any such claim. The Coast Guard's thorough questioning extinguished the possibility that someone aboard the vessel had the authority to make a claim of nationality for the vessel but was not asked to do so by the Coast Guard. Contra Guerro , 789 F. App'x at 749 ("[I]t is equally possible one of the three defendants possessed the authority as the individual in charge to make a claim of registry or nationality for the vessel. That possibility means, in turn, that the government failed to prove there was no one on board the vessel who could make a claim of registry or nationality."). This evidence establishes that the vessel was "without nationality," as defined under § 70502(d)(1)(B), and that the vessel was therefore subject to the jurisdiction of the United States under § 70502(c)(1)(A). Cabezas-Montano , 949 F.3d at 589 ("Despite being given two opportunities, the defendants did not produce any nationality documents, did not fly any nation's flags, and did not make any verbal claim of nationality or registry."); Medina , 793 F. App'x at 852 ("[A]ny individual who possessed the authority to make a claim of registry or nationality for the vessel was given the opportunity to do so at the request of a duly authorized officer.").
B. Indicia of Nationality
Defendants also argue that the Coast Guard improperly treated the vessel as one without a nationality because the Divino Nino Jesus bore markings and an ensign suggesting that the vessel was Costa Rican. According to Defendants, the markings on the exterior of the vessel were sufficient indicia of nationality to make a claim of nationality for the vessel.
Under § 70502(e), a claim of nationality or registry for purposes of establishing jurisdiction "includes only": (1) possession and production of documents demonstrating the vessel's nationality; (2) "flying its nation's ensign or flag"; or (3) a verbal claim of nationality by the master or individual in charge. 46 U.S.C. § 70502(e). In United States v. Obando , 891 F.3d 929 (11th Cir. 2018), the Eleventh Circuit directly addressed the issue of whether a painted ensign on the hull of a vessel is a "flying flag" under the MDLEA. In Obando , the Court found that a painted flag is not a "flying" flag, reasoning that the ordinary meaning of the word "flying" requires "a flag to be capable of freely moving in the air." 891 F.3d at 934. The Court further examined the text of the MDLEA and other federal statues to conclude that " ‘[f]lying’ refers to a particular method of displaying a flag, and the Maritime Drug Law Enforcement Act uses this specific word instead of the more general term ‘displaying.’ " Id. at 935. The Court also examined its precedent to note that "a flying flag is distinct from other visual displays that also suggest nationality," such as markings or visual depictions. Id. at 936–37. Accordingly, the Court held that a flag must be "hoisted in the air" to establish a claim of nationality or registry under the MDLEA. Id. at 938 ; see also United States v. Bautista Ortiz , 808 F. App'x 984, 988 n.1 (11th Cir. 2020) (noting that "the Colombian flag painted on the vessel was not flying and, therefore, would not satisfy a claim of nationality").
There is no dispute that the Divino Nino Jesus was not flying a flag at the time of the interdiction. Although Defendants suggest that it is customary to lower a flag at night, the Boarding Team did not find a flag capable of being hoisted during their extensive search of the vessel. Regardless, pursuant to the Eleventh Circuit's decision in Obando , the painted emblems, stripes, and color scheme displayed on the Divino Nino Jesus did not establish a claim of nationality or registry under 46 U.S.C. § 70502(e). Obando , 891 F.3d at 934–38.
C. Communications with Colombia
Finally, Defendants also argue that the United States could not assert jurisdiction over the Divino Nino Jesus because the Coast Guard incorrectly determined that Colombia was an appropriate country to contact for a nationality inquiry. (Dkt. 48 at 12–13; Dkt. 54 at 13.) According to Defendants, because no one made a claim of Colombian nationality for the vessel, and the vessel was not near Colombian waters, there was no basis to contact Colombia. (Dkt. 48 at 12–13.) In response, the Government maintains that after the Defendants failed to make a claim of nationality when asked, any attempt to contact Colombia was a "courtesy call" because the vessel could already be deemed stateless pursuant to § 70502(d)(1)(B). (Dkt. 68 at 12.)
The Eleventh Circuit addressed a similar issue in United States v. Cabezas-Montano. 949 F.3d at 589–90. In Cabezas-Montano , the Court affirmed the District Court's finding of MDLEA jurisdiction where the Coast Guard contacted Ecuador after learning the vessel's last port of call was in Ecuador and observing an Ecuadorian mark on the vessel. 949 F.3d at 589–90. The Court characterized this as a "courtesy call" that "did not create a nationality claim on behalf of the defendants and their vessel where no master presented himself or actively made a claim of nationality." Id. at 590. The Court further found:
It also is of no matter that the Coast Guard takes the last port of call as the nationality of the vessel and contacts that corresponding government when no claim is made. Whatever the foreign government's response (or non-response), the Coast Guard's taking of that additional step does not void a statelessness finding under §§ 70502(c)(1)(A) and 70502(d)(1)(B).
Id.
Here, after learning that two of the crew members were Colombian nationals and their last port of call was in Colombia, the Coast Guard contacted Colombia to inquire whether the Divino Nino Jesus was a Colombian vessel. As explained above, the Boarding Team members who testified before the Court had no personal knowledge of the communications with Colombian officials. Based upon the evidence, the Coast Guard's decision to contact Colombia was a "courtesy call," indistinguishable from the one at issue in Cabezas-Montano . Here, Defendants failed, upon the request of a United States officer, to make a claim of nationality for the vessel. Thereafter, the Coast Guard contacted Colombia, but was under no obligation to do so under the MDLEA because no claim of nationality had been made. Cabezas-Montano , 949 F.3d at 590. As such, Colombia's response, regardless of its content, "does not void a statelessness finding" under the MDLEA. Id.
D. Arguments Raised for the First Time at the Hearing
On September 29, 2020, the Government filed a certification from the United States Department of State in support of its response in opposition to the Motions to Dismiss. (Dkt. 93.) The State Department certified that on March 11, 2020, the Republic of Colombia "replied that it could neither confirm nor deny" nationality of the Divino Nino Jesus. (Dkt. 93-1.) Additionally, the State Department certified that on July 1, 2020, the Republic of Costa Rica confirmed that the vessel was not registered in Costa Rica.
During the evidentiary hearing, Defendants attempted to raise additional arguments that had not been briefed to the Court, including, without limitation, issues relating to the State Department certification. However, the Court did not receive any briefing concerning these arguments. As these issues were not properly raised before the evidentiary hearing, the Court declines to consider them at this time. See, e.g. , Ocasio v. C.R. Bard, Inc. , No. 8:13-cv-1962-T-36AEP, 2020 WL 3288026, at *2 n.1 (M.D. Fla. June 18, 2020) (declining to consider new arguments raised for the first time at oral argument); Starbuck v. R.J. Reynolds Tobacco Co. , 349 F. Supp. 3d 1223, 1229 (M.D. Fla. 2018) (noting that an argument not appearing in the proponent's briefing was not properly before the Court); Rivas v. Berryhill , No. 16-cv-61861, 2018 WL 328796, at *4 (S.D. Fla. Jan. 9, 2018) (explaining that courts have discretion to decline to consider new arguments raised for the first time at oral argument).
Accordingly, it is RECOMMENDED that:
1. Defendant Angulo Leones's Motion to Dismiss Indictment (Dkt. 48) be DENIED ; and
2. Defendant Arboleda Quinones's Motion to Dismiss for Lack of Jurisdiction (Dkt. 54) be DENIED .
IT IS SO REPORTED in Tampa, Florida, on December 11, 2020.
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.