United States v. Ever Balbino Ibarguen-Mosquera

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
_________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 10, 2011
No. 09-14476
JOHN LEY
_________________________
CLERK

D. C. Docket No. 09-00009-CR-T-26-MAP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EVER BALBINO IBARGUEN-MOSQUERA,
EFRAIN CUERO PORTOCARRERO,
ISAIAS ESTUPINAN,

Defendants-Appellants.

_________________________

Appeals from the United States District Court
for the Middle District of Florida
_________________________

(February 10, 2011)

Before DUBINA, Chief Judge, and ANDERSON, Circuit Judge.*

*
Although United States District Judge David H. Coar of the Northern District of Illinois sat
by designation in this case, he retired as an Article III Judge in December 2010. Accordingly, we
decide this case by a quorum. See 11th Cir. R. 34-2.
DUBINA, Chief Judge:

Appellants Ever Balbino Ibargüen-Mosquera (“Mosquera”), Efrain Cuero

Portocarrero (“Portocarrero”), and Isaias Estupinan (“Estupinan”) (collectively,

“Appellants”)1 appeal their respective convictions for conspiring to violate and

violating the Drug Trafficking Vessel Interdiction Act, 18 U.S.C. § 2285 (2010)

(the “DTVIA”). Appellants challenge their convictions under the DTVIA on five

grounds. First, Appellants contend the DTVIA is unconstitutional on various

grounds. Second, Appellants argue that convicting them of both conspiracy to

violate and a substantive violation of a single statute runs afoul of the

Constitution’s prohibition against double jeopardy.2 Third, Appellants argue the

elements of statelessness and navigating through international waters, that the

government had to prove, bear on culpability and thus are elements of the crime

requiring proof beyond a reasonable doubt and proof of mens rea. Fourth,

Appellants argue even if this court finds that the district court applied the elements

of the DTVIA correctly, there was insufficient evidence to find them guilty of

1
There was a fourth crewmember-defendant named Johny Moriano Jiminez who did not
appeal his conviction. We use the term “Defendants” to refer to all of the crewmembers in the
original case, including Jiminez, while the term “Appellants” refers to only those Defendants who
join in this appeal.
2
Portocarrero does not join the other Appellants’ first two challenges.

2
violating the statute. Finally, Mosquera argues the district court erred when it

excluded his expert witness’s testimony.

After thorough review of the case and after hearing oral argument, we

affirm the Appellants’ convictions.

I. Background.

A. Facts

On the morning of January 8, 2009, the United States Coast Guard Ship

ALERT (the “ALERT”) received a report from a Maritime Patrol Aircraft

(“MPA”) that an unmarked semi-submersible vessel (the “Vessel”) was spotted in

the Eastern Pacific Ocean, approximately 163 nautical-miles off the coast of

Colombia. The Vessel was ocean-blue, 50 to 60 feet in length, and sat very low in

the water. See App. A. The ALERT immediately dispatched to the location where

the Vessel was originally spotted and arrived around 12 hours later.

Before the ALERT arrived, the MPA observed four men exit the cabin, don

life-vests, inflate life-rafts, and jump into the water. The Defendants then waited

near the Vessel, which sat dead in the water. Eventually they deflated the rafts and

resumed travel.

The ALERT dispatched a helicopter to obtain infrared imagery of the Vessel

when it neared the Vessel’s location. For an hour the helicopter covertly observed

3
the Vessel and noted that, on two occasions, the Vessel stopped and a Defendant

exited the forward hatch and scanned the area before returning below deck. After

observation, the Helicopter illuminated the Vessel and announced its presence; at

around this time the ALERT dispatched a rescue team on a rigid-hull inflatable

boat (the “Rescue”) to execute an interdiction.

Once the helicopter illuminated the Vessel, the Defendants calmly exited the

hatch, donned life-jackets, and inflated the life-rafts for a second time. One

Defendant returned below deck, at which time helicopter personnel observed a

“flash of light” and “smoke or steam” emit from the Vessel. After the Defendants

jumped into the water, the Vessel sank.

The Rescue arrived just as the boat was completely immersed. The Rescue

crew escorted the Defendants back to the ALERT, where they were transferred to

another U.S. Coast Guard ship, and eventually flown to Tampa, Florida. They

arrived in Tampa on January 14, and were promptly arrested. Authorities

interviewed each Defendant separately.

B. Course of Proceedings and Disposition in the District Court.

On January 13, 2009, a federal grand jury returned a two-count indictment

charging Defendants with conspiring to operate or embark in a semi-submersible

vessel in international waters, without nationality and with the intent to evade

4
detection, in violation of 18 U.S.C. § 2285, and operating, while aiding and

abetting in the operation of, a semi-submersible vessel in international waters,

without nationality and with the intent to evade detection, in violation of the

DTVIA, 18 U.S.C. § 2285, and 18 U.S.C. § 2. Specifically, the DTVIA prohibits

operat[ing] . . . or embark[ing] in any submersible vessel or semi-
submersible vessel that is without nationality and that is navigating or
has navigated into, through, or from waters beyond the outer limit of the
territorial sea of a single country or a lateral limit of that country’s
territorial sea with an adjacent country, with the intent to evade
detection. . . .

18 U.S.C. § 2285(a). Section 2, on the other hand, merely stands for the general

principle that “[w]hoever commits an offense against the United States or aids,

abets, counsels, commands, induces or procures its commission, is punishable as a

principal.” Defendants entered a plea of not guilty and requested a bench trial.

District Judge Lazzara, sitting as the fact-finder, found Defendants guilty of

violating the DTVIA and sentenced each to 108 months’ imprisonment and 3 years

supervised release for each count to run concurrently. Appellants timely appealed.

II. Discussion.

A. Appellants Challenges to the Constitutionality of the DTVIA.

This case requires us to address de novo four constitutional challenges to the

DTVIA in evaluating whether the district court properly denied Appellants’

5
motions to dismiss their indictments.3 Specifically, Appellants argue the DTVIA

is unconstitutional because: (1) its enactment exceeds Congress’s power under

Article I; (2) the phrases “semi-submersible vessel” and “intent to evade” are

unconstitutionally vague; (3) it shifts the burden onto defendants to prove they are

not engaging in drug trafficking and therefore denies them procedural due process;

and (4) it is not rationally related to a legitimate government interest and therefore

violates substantive due process. For the reasons stated below, we conclude that

none of Appellants’ challenges have merit and thus affirm the district court’s

denial of the motions to dismiss.

1. Challenge that the DTVIA Exceeds Congressional Power.

Article I, Section 8 of the Constitution grants Congress the power “[t]o

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. This clause is a broad

grant of power to Congress to punish offenses outside of the United States. Given

that legislatures have plenary power to define the terms of criminal offenses,

Chicago, Burlington, & Quincy Ry. Co. v. United States, 220 U.S. 559, 578–79, 31

3
“Generally, we review a district court’s denial of a motion to dismiss the indictment for
abuse of discretion.” United States v. Di Pietro, 615 F.3d 1369, 1370 n.1 (11th Cir. 2010) (citing
United States v. Palomino Garcia, 606 F.3d 1317, 1322 (11th Cir. 2010)). When a defendant
challenges the constitutionality of a statute, however, the review is de novo. United States v.
Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009).

6
S. Ct. 612, 617 (1911), the question here is whether and in what circumstances

Congress can grant extraterritorial jurisdiction over foreign defendants traveling

outside of the United States’ territorial waters.

The federal courts are in consensus on two basic restrictions to giving a law

extraterritorial effect. First, Congress must state that it intends the law to have

extraterritorial effect. See, e.g., United States v. Flores, 289 U.S. 137, 155, 53 S.

Ct. 580, 584 (1933) (“[C]riminal statues of the United States are not by

implication given extraterritorial effect.”). That requirement is clearly met here.

18 U.S.C. § 2285(c) (“There is extraterritorial jurisdiction over an offense under

this section. . . .”).

Second, application of the law must comport with due process, meaning that

application of the law “must not be arbitrary or fundamentally unfair.” United

States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999); see also United States v.

Howard-Arias, 679 F.2d 363, 371 (4th Cir. 1982) (principles of international law

may give way to an extraterritorial federal statute, but that statute must still

comport with due process); Leasco Data Processing Equip. Corp. v. Maxwell, 468

F.2d 1326, 1334 (2d Cir. 1972), abrogated on other grounds by Morrison v. Nat’l

Australia Bank Ltd., __ U.S. __, 130 S. Ct. 2869 (2010) (“If Congress has

expressly prescribed a rule with respect to conduct outside the United States, . . . a

7
United States court would be bound to follow the Congressional direction unless

this would violate the due process clause of the Fifth Amendment.”). In

determining whether an extraterritorial law comports with due process, appellate

courts often consult international law principles such as the objective principle,4

the protective principle,5 or the territorial principle.6 See, e.g., United States v.

Gonzalez, 776 F.2d 931, 938–41 (11th Cir. 1985) (relying on the protective

principle to reject defendants’ arguments that applying the predecessor to the

Maritime Drug Law Enforcement Act (the “MDLEA”) to them violated due

4
Under the objective principle, Congress may criminalize behavior that has a “nexus” to the
United States. Section 18 of the Restatement (Second) of Foreign Relations provides:
A state has jurisdiction to prescribe a rule of law attaching legal consequences to
conduct that occurs outside its territory and causes an effect within its territory, if
either
(a) the conduct and its effect are generally recognized as constituent elements
of a crime or tort under the law of states that have reasonably developed legal
systems, or
(b)(i) the conduct and its effect are constituent elements of activity to which
the rule applies; (ii) the effect within the territory is substantial; (iii) it occurs as a
direct and foreseeable result of the conduct outside the territory; and (iv) the rule is
not inconsistent with principles of justice generally recognized by states that have
reasonably developed legal systems.
5
Under the protective principle, Congress may criminalize behavior that may threaten the
security of the United States. Section 33 of the Restatement (Second) of Foreign Relations provides
in pertinent part:
(1) A state has jurisdiction to prescribe a rule of law attaching legal consequences to
conduct outside its territory that threatens its security as a state or the operation of its
governmental functions, provided the conduct is generally recognized as a crime
under the law of states that have reasonably developed legal systems. (emphasis
added).
6
Under the territorial principle, 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.” Cardales, 168 F.3d at 553 (citation and internal quotation marks omitted).

8
process); United States v. Marino-Garcia, 679 F.2d 1373, 1380–83 (11th Cir.

1982) (noting these as exceptions to the general prohibition against criminalizing

conduct by foreigners outside of the United States); United States v. Suerte, 291

F.3d 366, 370 (5th Cir. 2002); Cardales, 168 F.3d at 553. Appellants argue that

DTVIA does not comport with due process because it fails to meet the nexus

requirement (from the objective principle) or the requirement that the crime must

be “condemned universally by law-abiding nations” (from the protective

principle).

These international law principles, however, only apply to laws that govern

the conduct of flagged vessels. In the past we have held that the objective,

protective, and territorial principles “have no applicability in connection with

stateless vessels” because such vessels are “international pariahs” that have “no

internationally recognized right to navigate freely on the high seas.” Marino-

Garcia, 679 F.2d at 1382. Indeed, the law “places no restrictions upon a nation’s

right to subject stateless vessels to its jurisdiction.” Id. (emphasis added); see also

United States v. Rendon, 354 F.3d 1320, 1325 (11th Cir. 2003) (“Because

stateless vessels do not fall within the veil of another sovereign’s territorial

protection, all nations can treat them as their own territory and subject them to

their laws.” (citation and internal quotation marks omitted)); United States v.

9
Rubies, 612 F.2d 397, 403 (5th Cir. 1979);7 United States v. Dominquez, 604 F.2d

304, 307–09 (4th Cir. 1979). “We conclude, therefore, that international law

permits any nation to subject stateless vessels on the high seas to its jurisdiction . .

. . Jurisdiction exists solely as a consequence of the vessel’s status as stateless.”

Marino-Garcia, 679 F.2d at 1383. Because extraterritorial jurisdiction is proper,

we conclude that the enactment of the DTVIA does not offend the Due Process

Clause of the Constitution.

2. Void-for-Vagueness Challenge.

Appellants also contend the DTVIA violates due process because the

phrases “semi-submersible vessel” and “intent to evade” are vague and are thus

subject to arbitrary enforcement. Except in First Amendment cases, a party “ ‘who

engages in some conduct that is clearly proscribed cannot complain of the

vagueness of the law as applied to the conduct of others.’ ” Holder v.

Humanitarian Law Project, __ U.S. __, 130 S. Ct. 2705, 2719 (2010) (quoting

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S. Ct.

1186, 1191 (1982)). Therefore, we must determine whether these phrases are

vague as applied to Appellants.

7
In Bonner v. City of Pritchard, 661 F.2d 1206, 1207 & 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered prior to
October 1, 1981.

10
 First, the phrase “semi-submersible” clearly covers the Vessel here and thus

is not vague. The DTVIA defines“semi-submersible” as “any watercraft

constructed or adapted to be capable of operating with most of its hull and bulk

under the surface of the water.” 46 U.S.C. § 70502(f)(1). Appellants argue that

the terms “capable” and “most” are insufficiently clear to provide guidelines to

law enforcement officials, and thus subject the DTVIA to arbitrary enforcement.

Appellants’ Vessel, however, clearly falls within the DTVIA’s definition of semi-

submersible under the plain English meaning of those terms.

“Capable” means “having attributes required for performance, . . . having . .

. features permitting, [or] having general . . . ability” to do something. Webster’s

Ninth New Collegiate Dictionary 203 (1986). And “most” is a widely used term

meaning “greatest amount.” Id. at 774. The facts clearly show that this Vessel

was operating only 4 to 12 inches above the water while stationary and was nearly

completely underwater while moving. Since the Vessel was operating with the

“greatest amount” of its bulk underwater at the time of detection, it clearly had

“features permitting” it to do so. Therefore the phrase “semi-submersible vessel”

covers the Vessel.

Likewise, the phrase “intent to evade” clearly covers Appellants’ conduct

and is not vague. Evade means “to elude by dexterity or stratagem.” Webster’s

11
Ninth New Collegiate Dictionary 429. Not only does the phrase “intent to evade”

have a plain and ordinary meaning, the DTVIA defines that phrase by reference to

another section of the code. In subsection (b), the DTVIA states that the presence

of any of the indicia in 46 U.S.C. § 70507 (b)(1)(A), (E), (F), or (G), or (b)(4–6) is

prima facie evidence of intent to evade detection.

Appellants’ conduct is clearly covered under both the plain-English

meaning of intent to evade and the relevant subsections. Defendants traveled in a

Vessel that sat very low in the water, was painted ocean-blue, and had no head-

lights or signals. Rather than using one of Colombia’s major ports to get the

Vessel to sea, Defendants surreptitiously guided it down a small estuary near the

Ecuadorian coast. The Vessel bore no registration numbers or other markings. It

traveled more slowly in the day than at night, and was configured to create very

little wake when moving and no wake when still. The Vessel sank upon arrival of

the Rescue. There is sufficient evidence here that “intent to evade” covers

Appellants’ conduct, and therefore that phrase is not vague as applied to them.

Appellants additionally argue that because one of the § 70507 indicia of

“intent to evade” is “the configuration of the vessel to ride low in the water or

present a low hull profile to avoid being detected visually or by

radar”—essentially the definition of semi-submersible—the statute is circular and

12
thus vague. This argument, however, has nothing to do with vagueness. What

Appellants are actually arguing is that this provision violates due process because

it shifts the burden of persuasion on the issue of “intent to evade” from the

government to Appellants.

Even as to this argument, however, Appellants fail. It is true that while

Congress has the power to make the proof of one fact prima facie evidence of

another, a statute may not “shift the burden of proof to the defendant by presuming

[one element] upon proof of the other elements of the offense.” Patterson v. New

York, 432 U.S. 197, 215, 97 S. Ct. 2319, 2329 (1977); see also United States v.

Tinoco, 304 F.3d 1088, 1107 (11th Cir. 2002) (“[O]nce the legislature has defined

certain facts as elements of the offense, the legislature cannot shift the burden of

persuasion as to those elements to the defendant, nor can the legislature create any

presumptions as to those elements that negate the defendant’s presumption of

innocence.”). But this provision does not shift the burden onto Appellants for at

least two reasons. First, that the design of the vessel can serve as prima facie

evidence of intent to evade merely means that such evidence is legally sufficient to

find such an intent, and does not shift the burden of persuasion onto Appellants.

The government is still charged with convincing the fact-finder that the defendant

intended to evade detection.

13
 Second, there is much more evidence here of “intent to evade” than merely

the fact that the Vessel is semi-submersible: the Vessel’s camouflage, its lack of

headlights, its surreptitious route to the ocean, and its statelessness. The phrase

“intent to evade detection” is therefore not vague, nor does it violate due process

by presuming the element upon proof of another element of the crime.

3. Procedural Due Process Challenge.

Appellants argue that the DTVIA violates due process because it effectively

redefines the offense of drug trafficking, eliminating the requirement of drug-

possession. The Constitution prohibits presuming an ingredient of an offense

upon proof of other facts, or shifting certain elements of an offense from an

element to an affirmative defense. Patterson, 432 U.S. at 215. The Constitution

would therefore prohibit redefining an offense so that the absence of an element of

the original crime becomes an affirmative defense.

While it is probably true that the DTVIA was enacted in part to deal with

the problem of losing drug evidence to the sinking of semi-submersibles, the

DTVIA is not a drug-trafficking statute. In enacting the DTVIA, Congress chose

to prohibit an entirely new evil, not to redefine an old one. Indeed, in discussing

the enactment of the DTVIA, Congress considered that these vessels are useful not

only in drug trafficking, but also in trafficking of weapons and people. 154 Cong.

14
Rec. H7,238–39 (daily ed. July 29, 2008) (statement of Rep. Steve Cohen); 154

Cong. Rec. H10,253 (daily ed. Sept. 27, 2008) (statement of Rep. Daniel

Lungren). Congress further found that other than these ills, these vessels have no

utilitarian value to society. 154 Cong. Rec. H10,252–54 (daily ed. Sept. 27, 2008)

(statement of Rep. Daniel Lungren). Based on these findings, Congress

determined to criminalize not only the underlying conduct—whatever that conduct

may be—but also traveling on the vessel itself.

Appellants specifically argue that the DTVIA places the burden on them to

prove that they are not trafficking drugs, but this is simply incorrect. Even if

Appellants proved that they were not trafficking drugs, they would still be guilty

of violating the DTVIA if the government proved, beyond a reasonable doubt, all

of the elements of the crime.8 Because the DTVIA does not shift the burden of

proof to the accused as to any element of the crime, but rather creates a wholly

new crime that Congress is within its right to define, the Due Process Clause is not

violated.

4. Substantive Due Process Challenge.

8
Nor do the DTVIA’s affirmative defenses offer any support for Appellants’ claim. As an
affirmative defense, a defendant can show that the vessel was, at the time of the offense: (A) a U.S.
vessel or a vessel lawfully registered in a foreign country; (B) “classed by and designed in
accordance with the rules of a classification society;” (C) operating in a government licensed
activity; or (D) “equipped with and using” some sort of vessel monitoring system. 18 U.S.C. §
2285(e). There is no defense if a defendant is found not to be trafficking in narcotics.

15
 Appellants briefly argue that the DTVIA violates their substantive due

process rights because it is not rationally related to any legitimate government

interest. This is not a rigorous test and is generally easily met. We must simply

determine whether “any set of facts may be reasonably conceived to justify

legislation.” TRM, Inc. v. United States, 52 F.3d 941, 945 (11th Cir. 1995)

(citation and quotation marks omitted).

Congress has found that operating such vessels is a “serious international

problem, facilitates transnational crime . . . and presents a specific threat to the

safety of maritime navigation and the security of the United States.” 46 U.S.C. §

70501. These types of ships have no utility other than the transport of drugs or

weapons. 154 Cong. Rec. H10,252–54 (daily ed. Sept. 27, 2008) (statement of

Rep. Daniel Lungren). They are capable of traveling long distances without

refueling, are difficult to detect, and are easily disposable upon detection. Id.; 154

Cong. Rec. H7,238–39 (daily ed. July 29, 2008) (statement of Rep. Steve Cohen).

Clearly the government’s interest in eliminating the use of these types of vessels is

legitimate, and the statute is narrowly tailored to suit that interest. Therefore

Appellants’ substantive due process claim lacks merit.

B. Double Jeopardy Claim.

16
 Appellants also seek to invoke one of the three related protections afforded

under the Fifth Amendment’s double jeopardy clause, that of prohibiting multiple

punishments for the same offense. This court reviews de novo the district court’s

denial of a motion to dismiss a charge on double jeopardy grounds. United States

v. Thurston, 362 F.3d 1319, 1322 (11th Cir. 2004). In determining whether

Appellants have been charged twice for the same offense, we apply the standard

announced in Blockburger v. United States, which states that “where the same act

or transaction constitutes a violation of two distinct statutory provisions, the test to

be applied to determine whether there are two offenses or only one is whether each

provision requires proof of an additional fact which the other does not.” 284 U.S.

299, 304, 52 S. Ct. 180, 182 (1932) (emphasis added).

Ordinarily, the court must only look to the elements of each crime to

determine whether there are two offenses or one. United States v. Hassoun, 476

F.3d 1181, 1186 (11th Cir. 2007). Moreover, it has long been held that when the

conspiracy and substantive charges derive from separate statutes, “the

commission of the substantive offense and a conspiracy to commit it are separate

and distinct offenses” because the charge for conspiracy requires an element not

17
required by the substantive offense: proof of an agreement. Pinkerton v. United

States, 328 U.S. 640, 643, 66 S. Ct. 1180, 1182 (1946).9

We have previously held that where two counts are “charged under the same

statutory provision,” Blockburger may require an inquiry beyond the elements of

the offense to determine whether there are separate crimes “in substance as well as

form.” Hassoun, 476 F.3d at 1186. While the Government alleges that the “aiding

and abetting” charge arises under both 18 U.S.C. §§ 2 & 2285, we have stated that

§ 2 “does not represent a distinct offense, but rather simply codifies an alternate

theory of liability” that is inherent in every criminal charge. Hassoun, 476 F.3d at

1184 n.2. Therefore, the two charges both arise under the same statute, 18 U.S.C.

§ 2285.

Even looking to the substance, however, it is clear there are two offenses

here. The conspiracy charge requires collaboration on the part of the Defendants

to violate the statute while the substantive crime contains no such requirement.

Each Defendant admitted to agreeing with another person to embark on this trip.

Each carried identification and some amount of cash. In order to further their goal

of operating this Vessel, Defendants took turns navigating it. In order to further

9
One of the only notable exceptions to this rule is where the substantive offense requires the
agreement of two or more parties, an exception not applicable in this case. United States v.
Wayerski, 624 F.3d 1342 (11th Cir. 2010).

18
their goal of evading detection, Defendants took turns scanning the horizon and

looking for oncoming ships or planes. All of this shows that, above and beyond

the elements of the DTVIA, the Defendants conspired to violate the DTVIA.

Appellants argue, however, that the Blockburger rule should not even apply

here because Congress did not intend to allow for cumulative punishment. The

Blockburger rule, as a rule of statutory construction, is used to determine whether

Congress intended that two offenses be punished cumulatively. Hassoun, 476 F.3d

at 1185 (citing Albernaz v. United States, 450 U.S. 333, 337, 101 S. Ct. 1137,

1141 (1981)). Therefore, even if the Blockburger test is met, Congress may state

that it does not intend cumulative punishment. Given the Federal Government’s

long history of charging and convicting defendants of both conspiracies and

substantive offenses, that the legislative history of DTVIA makes no mention of a

desire to make each offense in that section exclusive, and that the DTVIA

specifically provides for both a conspiracy charge and a substantive offense, we

find this argument meritless.

C. Statutory Construction Question.

Appellants argue that the phrases “navigating . . . through, or from waters

beyond the outer limit of the territorial sea of a single country or a lateral limit of

that country’s territorial sea with an adjacent country” and “without nationality”

19
are elements of the crime which must be proved by the government beyond a

reasonable doubt. Moreover, Appellants argue that the government must prove

scienter—that is, Defendants knowingly acted with respect to these elements. This

court reviews de novo issues of statutory construction. United States v. Svete, 556

F.3d 1157, 1161 (11th Cir. 2009) (en banc).

We begin questions of statutory construction with the language of the

statute. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S. Ct. 755, 760

(1999). The DTVIA prohibits

operat[ing] . . . or embark[ing] in any submersible vessel or semi-
submersible vessel that is without nationality and that is navigating or
has navigated into, through, or from waters beyond the outer limit of the
territorial sea of a single country or a lateral limit of that country’s
territorial sea with an adjacent country, with the intent to evade
detection. . . .

18 U.S.C. § 2285(a). Moreover, subsection (g) of the DTVIA incorporates 46

U.S.C. § 70504 of the MDLEA, which states, “Jurisdiction of the United States

with respect to a vessel subject to this chapter is not an element of the offense.

Jurisdictional issues arising under this chapter are preliminary questions of law to

be determined solely by the trial judge.”10 Under this provision, provisions of the

10
We have previously upheld the constitutionality of removing these jurisdictional questions
from the jury in the context of the MDLEA. See Tinoco, 304 F.3d at 1108.

20
DTVIA that are solely jurisdictional are not elements going to culpability that

must be proved to the fact-finder. Moreover, “ ‘the existence of the fact that

confers . . . jurisdiction need not be one in the mind of the actor at the time he

perpetrates the act made criminal by the federal statute.’ ” United States v.

Campa, 529 F.3d 980, 1007 (11th Cir. 2008) (quoting United States v. Feola, 420

U.S. 671, 677 n.9, 95 S. Ct. 1255, 1260 n.9 (1975)). “[K]nowledge of

jurisdictional facts is not required in determining guilt . . . .” Id. (quoting United

States v. Muncy, 526 F.2d 1261, 1264 (5th Cir. 1976)). Because Appellants

concede that these elements bear at least partly on jurisdiction, we need only

determine whether they are solely jurisdictional or bear simultaneously on

jurisdiction and culpability.

First, we hold that the phrase “navigating . . . through, or from waters

beyond the outer limit of the territorial sea of a single country or a lateral limit of

that country’s territorial sea with an adjacent country” is solely jurisdictional, and

does not bear on culpability. The location of the commission of a crime is a

jurisdictional fact in nearly all American laws. Indeed, crimes committed across

state lines are often tried in federal courts and crimes committed in one state or

intended to have an effect in a state are tried in that state’s courts. It is difficult, if

not impossible, to imagine how changing the location of a crime bears on the

21
culpability of the defendant and, indeed, Appellants were unable to present a

single reason why location would ever bear on culpability. We find it

incomprehensible that a defendant found 11 miles from the coast of Colombia

would necessarily be less culpable than a defendant found 13 miles from the same

coast. We conclude, then, that this phrase bears solely on the jurisdiction of the

United States and need not be proven beyond a reasonable doubt nor proven with

scienter.

We need not address, however, whether the “without nationality” element

bears solely on jurisdiction or on jurisdiction and culpability. We conclude from

the record that there is ample evidence that Appellants knew the Vessel was not

registered in Colombia. The boat had no markings, registration papers, or flags,

nor did it leave from any one of Colombia’s major ports. Because any error in

interpretation would be harmless, we need not address this issue further.

D. Sufficiency of the Evidence Claim.

Appellants argue that the evidence was insufficient to convict them of

violating the DTVIA.11 Primarily, Appellants argue that there is insufficient

11
Appellants essentially use this argument to rehash the argument that the term “knowingly”
should apply to “that is without nationality” and “navigating . . . through, or from waters beyond the
outer limit of the territorial sea of a single country or a lateral limit of that country’s territorial sea
with an adjacent country.” Given our earlier conclusion that the “international waters” element goes
to jurisdiction and not culpability, and that there is ample evidence that the Defendants knew the
Vessel was stateless, we will not address the sufficiency challenge as to those elements here.

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evidence to prove the crime of conspiracy and the element of “intent to evade

detection.” This Court reviews de novo a challenge to the sufficiency of the

evidence, “viewing the evidence in the light most favorable to the government.”

United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (citation and

quotation marks omitted). The question is whether “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).

After a thorough review of the record, we first conclude that the evidence

presented was more than legally sufficient to find that the Appellants had an

“intent to evade.” Moreover, we conclude that there is sufficient evidence to

prove that Appellants conspired to violate the DTVIA. To sustain a conviction for

conspiracy, the government must prove (1) “the existence of an agreement to

achieve an unlawful objective”; (2) “the defendant[s’] knowing and voluntary

participation in the conspiracy”; and (3) “an overt act in furtherance of the

conspiracy.” United States v. US Infrastructure, Inc., 576 F.3d 1195, 1203 (11th

Cir. 2009). A conspiracy may, indeed usually must, be proven through

circumstantial evidence. United States v. Gupta, 463 F.3d 1182, 1194 (11th Cir.

2006). The fact-finder’s conclusion “should not be disturbed as long as it is

23
supported by the evidence.” United States v. Richardson, 532 F.3d 1279, 1284

(11th Cir. 2008).

By their own testimony, three of the four Defendants were recruited for this

journey by the same man. They traveled together to the site of the Vessel near the

Ecuador border. Two of the Defendants admitted that they knew such Vessels

were commonly used for smuggling drugs. Each Defendant navigated the Vessel

during their trip pursuant to instructions received via radio. Each Defendant had a

specific “part” to play in the journey. Each carried a plastic bag carrying nearly

identical contents: some form of identification and a large amount of U.S. and

Colombian currency. This is certainly sufficient evidence that the Appellants

engaged in a conspiracy to violate the DTVIA to warrant upholding the verdict of

the fact-finder.

E. Exclusion of Expert Testimony.

Mosquera argues that the district court erred in excluding expert testimony

that he claims would have aided in his defense that he did not knowingly travel

into international waters. This court reviews a district court’s decision with

respect to the admissibility of expert testimony for an abuse of discretion and can

reverse the district court’s ruling only if it is manifestly erroneous. United States

v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc).

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 Mosquera’s expert proposed to testify that, according to the Colombian

Constitution, Colombia claims 200 nautical-miles off its coast as its territorial

waters. Mosquera stipulated that he was not challenging the district court’s

determination that the phrase “beyond the outer limit of the territorial sea of a

single country” refers to the 12 nautical-miles recognized by the United States.

Instead, the testimony served to show that it would be reasonable for Mosquera to

believe that, at the time of interdiction, he was not in international waters. This,

he argues, goes to the mental state of “knowing” he was navigating in

international waters. Because we conclude that the phrase “navigating in

international waters” goes to jurisdiction rather than culpability, this testimony

was irrelevant and the district court did not abuse its discretion in refusing to

admit it.

III. Conclusion.

Because we conclude that none of the Appellants’ arguments has merit, we

affirm their convictions.

AFFIRMED.

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Appendix A

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