United States v. Angulo-Hernández

United States Court of Appeals
For the First Circuit
No. 07-2428

UNITED STATES OF AMERICA,

Appellee,

v.

ALBERTO ANGULO-HERNÁNDEZ,

Defendant, Appellant.

No. 07-2453

UNITED STATES OF AMERICA,

Appellee,

v.

EUSEBIO ESTUPINAN-ESTUPINAN,

Defendant, Appellant.

No. 07-2460

UNITED STATES OF AMERICA,

Appellee,

v.

GUSTAVO RAFAEL BRITO-FERNÁNDEZ,

Defendant, Appellant.
No. 07-2497

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ LUIS CASIANO-JIMÉNEZ,

Defendant, Appellant.

Before
Lynch, Chief Judge,
Torruella, Boudin, Lipez and Howard,
Circuit Judges.

ORDER OF COURT
Entered: August 7, 2009

Defendant José Luis Casiano-Jiménez's petition for rehearing is denied.

Defendants Alberto Angulo-Hernández, Eusebio Estupinan-Estupinan, and Gustavo Rafael

Brito-Fernández's petitions for rehearing having been denied by the panel of judges who decided the

case, and the petitions for rehearing en banc having been submitted to the active judges of this court

and a majority of the judges not having voted that the cases be heard en banc, it is ordered that the

petitions for rehearing and the petitions for rehearing en banc be denied.

By the Court:
/s/ Richard Cushing Donovan, Clerk

cc: Hon José A. Fusté, Ms. Frances de Moran, Clerk, United States District Court for the District of
Puerto Rico, Mr. Rivera-Ortiz, Mr. Anglada-López, Mr. Rieckehoff, Mr. Andrade-Ravelo, Mr.
Henwood, Mr. Burgos-Amador, Mr. Inserni-Milán, Mr. Laws, Mr. Pérez-Sosa and Mr. Olmo-
Rodriguez.
 TORRUELLA, Circuit Judge (Dissenting from the denial of en banc review).

In this case, defendants challenge their convictions under the Maritime Drug Law Enforcement Act

("MDLEA"). 46 U.S.C. §§ 70501-08. The Coast Guard found a large quantity of drugs banned

under United States law on board the defendants' Bolivian vessel in the Caribbean, en route from

Colombia to the Dominican Republic. Neither the defendants nor any other crewmembers are U.S.

nationals, and there is no other specific suggestion of any tie to the United States. I dissent from the

denial of en banc review on two grounds set forth below.

I. Sufficiency

Up to now, the rule in this circuit has been that a defendant's mere presence at the

scene of a discovery of a quantity of illegal drugs is, without additional evidence, insufficient to

establish a defendant's knowledge of the presence of those drugs. United States v. Steuben, 850 F.2d

859, 864 (1st Cir. 1988). As a result of the panel opinion, that rule is now substituted by one that

allows a jury to speculatively link presence to entrustment, and then link entrustment to knowledge.

United States v. Angulo-Hernández, 565 F.3d 2, 13-18 (1st Cir. 2009) (Torruella, J., dissenting).

I would grant en banc rehearing as to this issue as to crewmembers Casiano-Jiménez and Brito-

Fernández to correct this error.

II. Extraterritorial Jurisdiction

Additionally, I would grant en banc rehearing as to all defendants to allow this court

to reexamine and correct our law on the extraterritorial reach of the MDLEA. The defendants,

foreign nationals on a foreign-flag ship in waters not subject to U.S. jurisdiction, have challenged

the application of the MDLEA to them in this prosecution. In the panel decision, I concurred in this

application, because our circuit precedent clearly forecloses their argument. Id. at 19.

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 But our precedent has missed an important logical link in its decision to uphold the

MDLEA against a due process challenge on similar facts. And, as explained below, a convincing

argument can be made that due process aside, Congress lacks the power to proscribe the instant

conduct, which lacks a nexus with the United States. Both legal strands lead to the same conclusion:

we should follow the Ninth Circuit and impose a requirement that a prosecution under the MDLEA

establish a nexus between the criminal conduct and the United States.

A. Due Process

In an earlier decision addressing whether the MDLEA included a nexus requirement,

United States v. Cardales, we agreed with the Ninth Circuit that MDLEA defendants had a due

process right not to be subject to this country's law enforcement in a manner that was "arbitrary or

fundamentally unfair." 168 F.3d 548, 553 (1st Cir. 1999) (citing United States v. Davis, 905 F.2d

245, 248-49 (9th Cir. 1990)). But we concluded that the MDLEA, even without a nexus

requirement, was neither arbitrary nor unfair. Id. We reasoned that through consent of the flag

nation, the MDLEA comported with the territorial principle of international law, which provides that

a "'state has jurisdiction to prescribe and enforce a rule of law in the territory of another state to the

extent provided by international agreement with the other state.'" Id. (quoting United States v.

Robinson, 843 F.2d 1, 4 (1st Cir. 1988)). We also rejected a nexus requirement as we found

application of the MDLEA consistent with the "the protective principle of international law because

Congress has determined that all drug trafficking aboard vessels threatens our nation's security." Id.

These conclusions are both suspect. The consent of the flag nation is not material to a due process

analysis focused on our government's power over a foreign individual defendant. And the protective

principle is simply inapplicable on these facts.

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 1. The Protective Principle

I will address the latter rationale first. Justifying the reach of the MDLEA under the

protective principle is not convincing on facts where there is no nexus between the drug trafficking

vessel and the United States. Cf. Robinson, 843 F.2d at 3-4 (Breyer, J.) (observing problems with

that principle and so relying only on the territoriality principle). Since the drugs at issue in this case

were heading for the Dominican Republic, not the United States, there is not the kind of direct threat

to the United States required to trigger the protective principle. See United States v. Perlaza, 439

F.3d 1149, 1162 (9th Cir. 2006) ("Our circuit has recognized the 'protective principle' as part of its

consideration of whether nexus exists, not as a substitute for it.").

The only response to this argument is that drug trafficking, generally, is such a global

threat that the United States is justified in protecting itself by prosecuting traffickers anywhere,

regardless of the destination of the drug shipment. See 46 U.S.C. § 70501 (generally finding

trafficking to be a threat to the United States). But this broad proposition is not consistent with

international law. See Restatement (Third) of Foreign Relations Law § 402 cmt. f (1987) (defining

the scope of the protective principle as allowing prosecution of "offenses directed against the security

of the state or other offenses threatening the integrity of governmental functions that are generally

recognized as crimes by developed legal systems," such as counterfeiting currency). Relying on the

protective principle without any nexus would be to conclude that Congress could allow for arrests

and prosecutions of drug traffickers on the other side of the world, even without flag-nation consent.

This cannot be and is not the correct result; the protective principle requires a showing that the

"particular conduct endangered the United States." Eugene Kontorovich, Beyond the Article I

Horizon: Congress's Enumerated Powers and Universal Jurisdiction over Drug Crimes, 93 Minn. L.

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Rev. 1191, 1229-31 (2009) (rejecting, in the context of analyzing Congress's Article I powers, the

argument that the MDLEA could be justified under the protective principle because drugs not

destined for United States markets do not fall into the "limited class of offenses . . . directed at the

security of the State," since that principle "refers to the safety and integrity of the state apparatus

itself (its 'government functions' or 'state interests'), not its overall physical and moral well-being");

see also Robinson, 843 F.2d at 3 (identifying, but not resolving, this argument). Such interpretation

would result in a protective principle which swallows the principle of universal jurisdiction.

Kontorovich, Beyond the Article I Horizon, supra, at 1231.

2. The Territorial Principle

Relying on the consent of the flag nation, the "territorial" argument could justify our

government's exercise of power under international law. But this does not mean that all due process

concerns are automatically satisfied. In other words, we erred in Cardales, and subsequent precedent,

by assuming due process was satisfied if international law was satisfied.1

Rather, compliance with international law is necessary but not sufficient. Under the

doctrine of personal jurisdiction, principles of due process and comity between the states preclude

one state from exercising jurisdiction over non-forum-state individuals where that person lacks

1
This position is well-made in a Ninth Circuit decision:

International law principles may be useful as a rough guide of
whether a sufficient nexus exists between the defendant and the
United States so that application of the statute in question would not
violate due process. However, danger exists that emphasis on
international law principles will cause us to lose sight of the ultimate
question: would application of the statute to the defendant be arbitrary
or fundamentally unfair?

Davis, 905 F.2d at 249 n.2 (citation omitted).

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sufficient contacts with the forum state. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466

U.S. 408, 414 (1984) (finding no personal jurisdiction over a foreign defendant in a suit based on

a foreign helicopter crash where there were no "certain minimum contacts with [the forum] such that

the maintenance of the suit [did] not offend 'traditional notions of fair play and substantial justice.'"

(quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945))). The same result should be

applied when our government attempts to exercise criminal jurisdiction over foreign nationals -- due

process limits one State's power to seize the citizen of another State, absent a nexus between the

seizing State and the seized individual. See Perlaza, 439 F.3d at 1168 ("The nexus requirement is

a judicial gloss applied to ensure that a defendant is not improperly haled before a court for trial . .

. . [It] serves the same purpose as the minimum contacts test in personal jurisdiction." (internal

quotation marks omitted)); United States v. Caicedo, 47 F.3d 370, 372 (9th Cir. 1995) ("A defendant

would have a legitimate expectation that because he has subjected himself to the laws of one nation,

other nations will not be entitled to exercise jurisdiction without some nexus."); see also Restatement

(Third) of Foreign Relations Law § 403 (explaining that extraterritorial exercise of jurisdiction must

be reasonable, and basing a reasonableness inquiry on eight factors, many of which relate to the

nexus between the activity and the jurisdiction). Considered in this way, I fail to see how the fact

that the flag nation has consented to a search and potential arrest aboard its vessel in international

water has any bearing on the sufficiency of contacts between a defendant and the United States.

Thus, consent of the flag nation, while relevant to establishing statutory jurisdiction, should not

automatically establish that due process is satisfied. See Perlaza, 439 F.3d at 1169.

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 B. Constitutional Power

In addition to the due process problem, a separate basis supports vacatur here: the

MDLEA, as applied without a nexus requirement, is beyond Congress's power. See Kontorovich,

Beyond the Article I Horizon, supra; Eugene Kontorovich, The "Define and Punish" Clause and the

Limits of Universal Jurisdiction, 103 Nw. U. L. Rev. 149 (2009).

The MDLEA, as applied without a nexus requirement, cannot be legitimately based

on the "Piracy and Felonies" clause, which gives Congress the power to "define and punish Piracies

and Felonies committed on the high Seas and Offenses against the Law of Nations." U.S. Const. art.

I, § 8, cl. 10. The term "Felonies" has not been read to include all felonies, but rather only felonies

with an adequate jurisdictional nexus to the United States. See, e.g., United States v. Furlong, 18

U.S. 184, 197 (1820). The Furlong decision rejected a prosecution for murder of a foreigner by

another foreigner on a foreign vessel. Id. In so doing, the Court effectively distinguished between

"Felonies," which are not subject to universal jurisdiction, and "Piracy," which is. Id. at 196-198 ("If

by calling murder piracy, it might assert a jurisdiction over that offence committed by a foreigner

in a foreign vessel, what offence might not be brought within their power by the same device?").

This understanding is also demonstrated by congressional hesitance to prohibit the slave trade unless

there was a nexus between the defendant and the United States. See Kontorovich, Beyond the

Article I Horizon, supra, at 1207-17.

Even though the term "Piracy" has evolved to include other crimes that are universally

condemned (as the slave trade has since become), the drug trade is not subject to universal

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jurisdiction. See id. at 1223-27.2 As explained above, the protective principle also does not support

exercise without nexus. Id. at 1229-31. Nor can the consent from other nations be deemed some

form of extension of legislative power by treaty.3 Id. at 1227-29, 1238-48. Further, no other Article

I powers save the MDLEA. Id. at 1237-51 (explaining that treaty power does not apply and that

foreign commerce clause power does not apply absent a nexus). Thus, the exercise of Congressional

power in enacting the MDLEA is not consistent with the Constitution, which limits Congress's

2
As explained in the article, the United Nation Convention on the Law of the Seas, Article
105 allows every State to "seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and
under the control of pirates, and arrest the persons and seize the property on board." The same
convention, Article 108, only recognizes that States may cooperate to eliminate the drug trade. A
Second Circuit decision is also of note:

The historical restriction of universal jurisdiction to piracy, war
crimes, and crimes against humanity demonstrates that universal
jurisdiction arises under customary international law only where
crimes (1) are universally condemned by the community of nations,
and (2) by their nature occur either outside of a State or where there
is no State capable of punishing, or competent to punish, the crime
(as in a time of war).

See United States v. Yousef, 327 F.3d 56, 103-05 (2d Cir. 2003) (finding certain terrorist acts not
subject to universal jurisdiction); see also Restatement (Third) of Foreign Relations Law § 404.
Drug trafficking does not rise to the required level of universal condemnation:

While there is no firm agreement on the precise set of crimes subject
to UJ, there is a general consensus that they are egregious, violent
human rights abuses. Not a single UJ offense, or indeed widely
recognized international crime, is a so-called victimless offense. All
U.S. courts that have considered the issue have held that narcotics
traffic falls outside UJ.

Kontorovich, Beyond the Article I Horizon, supra, at 1224 (footnotes omitted).
3
In this regard, it is important not to confuse consent by a flag nation with true
statelessness, where the analysis may be quite different. Id. at 1229; see also Caicedo, 47 F.3d at
372-73.

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power to proscribe crimes on the high sea to crimes of universal jurisdiction and crimes with a U.S.

nexus.

III. Conclusion

On the sufficiency issue, the panel opinion uproots our precedent. On the question

of the extraterritorial reach of the MDLEA, the panel opinion rests on substantial circuit precedent,

which, in my view, is in need of serious reexamination. Each of these is adequate justification for

en banc review. For the reasons stated, I respectfully dissent from the refusal to grant en banc

review.

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