United States v. Perlaza

Volume 1 of 2

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 02-50084
v.  D.C. No.
LEONAR NELLINO SEGURA PERLAZA, CR-00-03209-TJW
Defendant-Appellant.


UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 02-50089
v.  D.C. No.
GUSTAVO SALAZAR PALACIOS, CR-00-03209-TJW
Defendant-Appellant.


UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 02-50093
v.  D.C. No.
HUGO MARQUEZ, CR-00-03209-W-08
Defendant-Appellant.


2559
2560 UNITED STATES v. PERLAZA

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v. No. 02-50102
JOSE WALTER ROMAN SOLIS-  D.C. No.
BARNAZA, aka Jose Walter Rodman CR-00-03209-TJW
Solis Barnaza,
Defendant-Appellant.


UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 02-50108
v.  D.C. No.
MANUEL PLACIDO RENGIFO-AUDIVER, CR-00-03209-W
Defendant-Appellant.


UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 02-50133
v.  D.C. No.
CARLOS JULIO VALENCIA-SANCHEZ, CR-00-03209-W
Defendant-Appellant.


UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 02-50136
v.  D.C. No.
JOSE NEFFER CASTRO-CARVAJAL, CR-00-03209-TJW
Defendant-Appellant.

 UNITED STATES v. PERLAZA 2561

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 02-50188
v.  D.C. No.
DIONASIO ABORNO, CR-00-03209-TJW
Defendant-Appellant.


UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 02-50199
v.  D.C. No.
FERNANDO LOPEZ, CR-00-03209-TJW
Defendant-Appellant.


UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 02-50200
v.  D.C. No.
DAVID MURILLO, CR-00-03209-TJW
Defendant-Appellant.


UNITED STATES OF AMERICA,  No. 02-50207
Plaintiff-Appellee,
v.  D.C. No.
CR-00-03209-TJW
ABRUAL RECIO CARRASCO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
2562 UNITED STATES v. PERLAZA
Argued and Submitted
February 23, 2004*
Pasadena, California

Filed March 14, 2006

Before: Betty B. Fletcher, Harry Pregerson, and
Melvin Brunetti, Circuit Judges.

Opinion by Judge Pregerson;
Partial Concurrence and Partial Dissent by Judge Brunetti

*This panel unanimously finds No. 02-50108 and No. 02-50136 suit-
able for decision without oral argument. See Fed. R. App. P. 34(a)(2).
2566 UNITED STATES v. PERLAZA

COUNSEL

Jeanne G. Knight (brief), San Diego, California; Janice Dea-
ton (brief & argued), San Diego, California; Michael J.
McCabe (brief & argued), San Diego, California; John Lana-
han (brief & argued), San Diego, California; Michael J. Mes-
sina, Trost, Woods & Messina (brief), San Diego, California;
Beverly A. Barnett (brief), San Diego, California; Ezekiel E.
Cortez (brief), San Diego, California; D. Chipman Venie
(brief), San Diego, California; Casey Donovan, (brief &
argued) Donovan & Donovan, San Diego, California; Lori B.
Schoenberg (brief & argued), San Diego, California; and
Mark Fleming (argued), San Diego, California, for the
defendants-appellants.

William V. Gallo (argued), Assistant United States Attorney;
Patrick K. O’Toole (argued), Assistant United States Attor-
ney; and Jay Alvarez (brief), Assistant United States Attor-
ney, San Diego, California, for the plaintiff-appellee.
 UNITED STATES v. PERLAZA 2567
OPINION

PREGERSON, Circuit Judge:

Throughout the late Summer of 2000, the USS De Wert, a
Navy frigate, and other United States Navy and Coast Guard
ships were engaged in maritime surveillance of vessels sus-
pected of drug trafficking in the Eastern waters of the Pacific
off the coasts of Ecuador, Colombia, and Peru. On September
11, 2000, the De Wert’s radar alerted its crew and members
of a United States Coast Guard Law Enforcement Detachment
team aboard it to suspicious activity by a speedboat and a
Colombian fishing vessel, the Gran Tauro, twenty miles
away. The De Wert’s helicopter was dispatched to the site of
the suspicious activity. Once the speedboat’s crew realized
that they had been detected, they jettisoned cargo (later deter-
mined to be approximately 2,000 kilograms of cocaine) and
55-gallon gasoline drums before crashing the speedboat into
the stern of the Gran Tauro in an apparent attempt to scuttle
the speedboat and destroy evidence of illegal activity. United
States Navy and Coast Guard personnel suspected that the
Gran Tauro served as a logistical support vessel for the
speedboat by providing gasoline for the speedboat’s run from
Colombia to Central Mexico.

The five speedboat crew members and seven crew mem-
bers of the Gran Tauro were prosecuted under the Maritime
Drug Law Enforcement Act. Two members of the speedboat
crew pled guilty, and the remaining ten Defendants opted for
a jury trial and were convicted on all charges. These consoli-
dated appeals followed.

We have jurisdiction. See 28 U.S.C. § 1291. We reverse the
convictions of all ten Defendants who opted for trial and
direct the district court to dismiss the indictment because the
district court erroneously exercised jurisdiction over them
without first requiring the Government to allege in the indict-
ment and prove to a jury beyond a reasonable doubt certain
2568 UNITED STATES v. PERLAZA
facts necessary to establish jurisdiction. We also hold alterna-
tively that, even if the district court had jurisdiction over these
Defendants, reversal of their convictions would still be
required because the Government committed prosecutorial
misconduct during closing argument and the district court
failed to adequately cure it. Our reversal is without prejudice
to re-indictment and retrial because we find that the Govern-
ment’s evidence was sufficient to sustain these Defendants’
convictions and that the Government’s improper closing argu-
ment did not trigger the Double Jeopardy Clause’s bar to
retrial. We affirm the conviction of one speedboat crew mem-
ber who pled guilty, but nonetheless appeals, because the sole
challenge to his conviction properly before us lacks merit.

I. FACTUAL BACKGROUND1

The preferred method of smuggling cocaine from South
America to the United States in the Eastern Pacific requires
the use of speedboats to transfer and land drugs2 and larger
logistical support vessels (“LSVs”) to serve as roving refuel-
ing stations.3 LSVs are typically discovered in three transit
1
The following facts are undisputed unless otherwise noted.
2
“Coast Guard officials refer to such vessels as ‘go-fast’ boats because
they can travel at high rates of speed, which makes them a favored vehicle
for drug and alien smuggling operations.” United States v. Rendon, 354
F.3d 1320, 1322 n.1 (11th Cir. 2003) (quotations and citation omitted).
The trial witnesses and parties use the term “Go-Fast” to refer (a) generi-
cally to speed boats suspected of transporting drugs between larger vessels
or between vessels and land and (b) specifically to the speed boat at issue
in this case. We do the same throughout this opinion.
According to the Government’s expert, there are three types of Go-Fast
vessels used by maritime drug smugglers: (1) 25- to 35-foot vessels with
a short range of 250 miles; (2) 35- to 45-foot vessels with an intermediate
range of 750 miles; and (3) 45-foot or longer vessels with a long range of
1500 miles.
3
The term LSV was adopted following the shift in drug smuggling from
the Carribean to the Eastern Pacific and the discovery that fishing boats
from Latin America were carrying extra fuel, food, and crew for smug-
glers aboard the Go-Fasts.
 UNITED STATES v. PERLAZA 2569
corridors between the source of the narcotics (typically,
Colombia) and the narcotics’ destination (typically, Central
Mexico). The first route is along the territorial sea of South
and Central American countries. The second is a straight line
from Colombia to Mexico. The third route, least used because
of distance and cost, is in the Middle Pacific, sufficiently west
of the Central and South America coasts to make detection
unlikely.

Federal law enforcement has learned that, upon departure,
Go-Fast crews are typically given coordinates so they know
where to meet their LSVs. At the rendezvous location, a
member of the LSV crew provides coordinates for the next
LSV meeting. The Go-Fasts and LSVs use global positioning
satellite (“GPS”) devices to coordinate proper rendezvous.
Because of the altitude at which surveillance aircraft fly, nei-
ther the United States Coast Guard (“Coast Guard”) nor the
United States Navy (“Navy”) has ever seen an LSV refueling
a Go-Fast. Nonetheless, each has seen Go-Fasts rendezvous
with LSVs in the Eastern Pacific, and confidential informants
have confirmed such events.

A. Early September 2000 Surveillance of the Gran
Tauro

In late-Summer 2000, the De Wert was conducting a
counter-narcotics patrol in the Eastern Pacific off the coasts
of Colombia, Ecuador, and Peru. A Coast Guard Law
Enforcement Detachment (“LEDET”) team and Navy person-
nel aboard the De Wert had information that the Gran Tauro,
a fishing vessel flying the Colombian flag, was possibly an
LSV and one of six vessels possibly involved in drug smug-
gling. On September 1, 2000, the De Wert’s helicopter located
the Gran Tauro drifting or moving at a very slow speed.
Nobody aboard the vessel was fishing. The same observations
were made the following evening. On September 3, 2000, the
De Wert again observed the Gran Tauro. Under the “Agree-
ment between the Government of the United States of Amer-
2570 UNITED STATES v. PERLAZA
ica and the Government of the Republic of Colombia to
Suppress Illicit Traffic by Sea” (the “Bilateral Agreement”),
the LEDET team received permission from the Colombian
government to board the Gran Tauro. The team approached
the Gran Tauro in a rigid hull inflatable boat (“boarding
boat”) that can be lowered from and lifted onto a frigate.
Coast Guard Chief Warrant Officer Christopher Van Pelt, the
boarding officer, noticed the intense smell of gasoline. Once
aboard, Van Pelt located the Gran Tauro’s master, Defendant
José Walter Roman Solis-Barnaza (“Barnaza”), who gave
Van Pelt the crew manifest and vessel documentation. Van
Pelt identified as members of the crew Defendants Manuel
Placido Rengifo-Audiver (“Audiver”), José Neffer Castro-
Carvajal (“Carvajal”), Hugo Marquez (“Marquez”), Gustavo
Salazar Palacios (“Palacios”), Leonar Nellino Segura Perlaza
(“Perlaza”), Carlos Julio Valencia-Sanchez (“Sanchez”), and
a fifteen-year-old juvenile. Van Pelt inspected the vessel and
noted that its nets were in poor condition, that there was no
bait in the fish hold, and that the ice in the fish hold was clean
with only one fish visible on top.

Included among the documents that Van Pelt obtained from
Barnaza was a zarpe4 that indicated that the Gran Tauro had
left Buenaventura, Colombia, on August 25, 2000, and was
supposed to return on September 25, 2000. The zarpe
restricted the Gran Tauro to fishing in only Buenaventura
Zones 2 and 3 and, because the Gran Tauro ran on diesel, to
carrying only two 55-gallon drums of gasoline for its genera-
tors and pumps. Barnaza told Van Pelt that the Gran Tauro’s
only gasoline was in one blue 55-gallon drum on the Gran
Tauro’s fantail, but Van Pelt found approximately 6,000 gal-
4
A zarpe is a written permit — akin to a visa for marine vessels —
authorizing a vessel to leave port and restricting the scope and duration of
the vessel’s voyage. See Solano v. Gulf King 55, 212 F.3d 902, 904 (5th
Cir. 2000) (noting that Nicaraguan-imposed regulations require, among
other things, “the issuance of zarpe prior to each fishing trip restricting the
scope and duration of that trip”).
 UNITED STATES v. PERLAZA 2571
lons of gasoline in a tank aboard the vessel. The information
obtained by Van Pelt regarding the Gran Tauro’s gasoline
supply was relayed to the Colombian government, which
asked the LEDET team to order the Gran Tauro to return to
Buenaventura and report to the Port Captain.

B. Continued Surveillance of the Gran Tauro

After the September 3, 2000 boarding, the De Wert refu-
eled at Golfito, Costa Rica, and was out of contact with the
Gran Tauro until the De Wert’s helicopter reestablished sur-
veillance on September 7, 2000. Using the De Wert’s helicop-
ter’s Forward Looking Infra-Red Camera (“infra-red
camera”), on September 7, 9, and 10, 2000, the helicopter’s
pilot observed the Gran Tauro. No fishing activity was
observed, and nothing aboard the vessel appeared to have
been moved.

C. The Go-Fast and the Gran Tauro

In the early morning hours of September 11, 2000, the De
Wert’s radar showed a vessel moving at approximately eigh-
teen knots in a westerly direction toward another vessel that
was moving approximately one to two knots. Shortly thereaf-
ter, the two approaching vessels “merged” on the radar
screen, meaning that they were no more than 300 yards apart
from each other. These two vessels were later visually identi-
fied through binoculars from the De Wert’s bridge as a Go-
Fast and the Gran Tauro. The Gran Tauro was still well out-
side its authorized fishing zones — at least 96 miles north of
the northwest boundary of Zone 2. Between September 3,
2000, when the Gran Tauro was ordered to return to Buena-
ventura, and when it was boarded on September 11, 2000, the
Gran Tauro had traveled only 290 to 300 miles toward
Colombia.

At approximately 5:43 a.m., the De Wert launched its heli-
copter to investigate the radar contact merge. The helicopter’s
2572 UNITED STATES v. PERLAZA
surface radar showed two contacts of interest. The first was
a vessel approximately twenty-five nautical miles northeast of
the De Wert. The helicopter flew in that direction until it
determined that the vessel was not the Gran Tauro. The heli-
copter then made a hard right turn and flew in the direction
of the second contact, which was approximately eight nautical
miles southeast of the De Wert. Using the infra-red camera,
the helicopter crew determined that the second contact was
the Gran Tauro sitting dead in the water with its crew milling
about on the stern. About three minutes later, the helicopter
crew spotted the Go-Fast heading northwest away from the
Gran Tauro.5 The helicopter followed the Go-Fast and video-
taped its actions with its infra-red camera. At one point, the
Go-Fast stopped, as if its crew detected the helicopter’s pur-
suit, and turned back toward the Gran Tauro. While being
taped, the Go-Fast weaved left and right and jettisoned large
bales of cargo.

The Go-Fast traveled erratically toward the Gran Tauro
until it crashed into the Gran Tauro’s stern, causing substan-
tial damage to the Go-Fast. The Gran Tauro began to steam
away, giving no assistance to the Go-Fast as it began to sink;
no one aboard the Gran Tauro even came out to the stern of
the vessel to see what hit it. Meanwhile, as the Go-Fast began
to capsize, its crew stripped themselves naked in an apparent
attempt to remove any trace evidence of having handled the
cocaine.

D. Rescue of the Go-Fast Crew, Scuttling of the Go-
Fast, and Recovery of Cocaine and Other Items

The Go-Fast was videotaped as it capsized and as the crew
(Defendants Dionasio Aborno (“Aborno”), Abrual Recio Car-
5
The Go-Fast used in this case was of the short-range variety, see supra
note 2, powered by twin Yamaha 200-hp two-stroke outboard engines. It
appeared to have no hull markings designating national origin and did not
appear to be flying a flag.
 UNITED STATES v. PERLAZA 2573
rasco (“Carrasco”), Fernando Lopez (“Lopez”), David
Murillo (“Murillo”), and Ferrnei Reina (“Reina”)) were res-
cued from the water by the De Wert’s LEDET team and
brought aboard the De Wert, before being transferred to the
custody of the LEDET team aboard the USS Valley Forge.
Meanwhile, the Go-Fast bobbed in the water, as it was barely
able to stay afloat. The crane used for lowering and lifting the
boarding boat aboard the De Wert could not have been used
to salvage the Go-Fast because the Go-Fast was too big, too
heavy, and did not have any hoisting points from which to lift
it out of the water. Thus, the Go-Fast was destroyed because
it was a hazard to navigation and because it held and was sur-
rounded by fuel that could be ignited. In the Go-Fast’s debris
field were at least a dozen 55-gallon drums riding low in the
water, indicating that they were full.

Another LEDET team aboard the USS Firebolt assisted in
recovering the items jettisoned from the Go-Fast. That team
recovered 77 bales of cocaine, a blue 55-gallon fuel drum, and
other non-drug evidence. The De Wert’s LEDET team also
recovered some cocaine. The total cocaine recovered weighed
1,964 kilograms.

E. September 11, 2000, Boarding of the Gran Tauro

After the Go-Fast crashed into the Gran Tauro, the LEDET
team aboard the Valley Forge contacted the Gran Tauro by
radio in Spanish. In response, Barnaza indicated that the Gran
Tauro’s last port-of-call was Buenaventura on August 20, 2000;6
that the next port-of-call was also to be Buenaventura on or
about September 25, 2000; that the cargo aboard was fifteen
kilograms of fish; and that there were a total of eight people
aboard, all from Colombia. The Valley Forge LEDET team,
like the De Wert LEDET team on September 3, 2000,
6
As noted earlier, the Gran Tauro’s zarpe indicated that the Gran Tauro
had actually left Buenaventura on August 25, 2000. See supra Part I(A).
This discrepancy is not germane to this appeal.
2574 UNITED STATES v. PERLAZA
obtained permission from the Colombian government under
the Bilateral Agreement to board the Gran Tauro.

The LEDET team traveled on its boarding boat in a horse-
shoe pattern around the Gran Tauro to determine whether the
vessel had any noticeable safety hazards. Coast Guard Petty
Officer Max Seda noticed a strong smell of gasoline coming
from the Gran Tauro. When the LEDET team came aboard
the Gran Tauro, it noticed that the vessel’s fishing gear was
bundled up in front of the crew and that there was a strong
smell of gasoline where they stood. When Barnaza turned
over the Gran Tauro’s documents, he stated that he did not
know in which fishing zone he was supposed to be or in
which fishing zone, if any, he was at the time of the boarding.
Barnaza also said that they had fished only four days and
three nights, that they had caught only a little bit of fish, and
that the last time that they caught any fish was one week ear-
lier on September 4, 2000. He said that he did not know how
to operate the high-frequency radio located in the state room
behind the pilot house and indicated that he did not know how
to use the boat’s GPS. Finally, he said that Audiver was the
Administrator of the vessel and the person responsible for
giving directions as to where the Gran Tauro would travel.

F. Pumps and Hoses Aboard the Gran Tauro

When asked about the Gran Tauro’s gasoline reserves,
Marquez told the LEDET team that there were about 200 gal-
lons in the center aft fuel tank and that it was used for the
Gran Tauro’s bilge pumps. The LEDET team noted that the
Gran Tauro’s two pumps and generator all had four-stroke,
single cylinder engines.7 The intake and discharge points of
one of the pumps, both ends of a hose hooked up to it, and
an unattached hose all smelled of gasoline. In an experiment,
7
A four-stroke engine can burn only pure gasoline, whereas two-stroke,
outboard motors such as twin Yamahas seen on the Go-Fast burn a
gasoline/oil mixture.
 UNITED STATES v. PERLAZA 2575
the LEDET team moved the pump and hoses near the aft tank
and, within two minutes, hooked them up without any help
from the Gran Tauro crew. The gasoline in the aft tank was
approximately three feet from the top, and one of the gas-
smelling hoses was long enough to reach the gasoline. From
this exercise, Seda concluded that the crew aboard the Gran
Tauro could use it to refuel other vessels at sea.8 Marquez
denied that the pump had been used to pump gasoline from
the aft tank.

G. Results from Comparison of the Gasoline Aboard
the Gran Tauro and the Go-Fast’s 55-Gallon Drum

Samples were taken from the blue 55-gallon drum recov-
ered from the Go-Fast’s debris field. They were compared
with samples taken from a similar blue 55-gallon drum aboard
the Gran Tauro and from the Gran Tauro’s aft tank. An
expert testified at trial that all the gasoline came from the
same source; that all the gasoline contained motor oil; that
none of it would be suitable for four-stroke engines like the
engines on the Gran Tauro’s generator and pumps; but that it
would be suitable for two-stroke engines like the twin
Yamahas on the Go-Fast. Nor could the gasoline have been
used to power the Gran Tauro because, as noted earlier, the
Gran Tauro ran on diesel. From all of this evidence, the Gov-
ernment’s expert opined at trial that on September 11, 2000,
the Gran Tauro was, indeed, an LSV participating in a
narcotics-trafficking operation.

II. PROCEDURAL BACKGROUND

On October 11, 2000, a federal grand jury in the Southern
8
After the Gran Tauro was dry-docked in San Diego, California, it was
found to contain approximately 1,500 gallons of gasoline — almost 4,500
gallons fewer than found during the September 3, 2000, boarding. This
further indicates that the Gran Tauro was refueling other vessels while on
its voyage.
2576 UNITED STATES v. PERLAZA
District of California returned a two-count indictment. Count
One charged all the individuals aboard the Go-Fast and the
Gran Tauro (except the fifteen-year-old juvenile) — Aborno,
Audiver, Barnaza, Carrasco, Carvajal, Lopez, Marquez,
Murillo, Palacios, Perlaza, Reina, and Sanchez — with con-
spiracy to possess cocaine with intent to distribute, aboard a
vessel, in violation of certain sections of the Maritime Drug
Law Enforcement Act (“MDLEA”), 46 App. U.S.C.
§ 1903(a), (c), and (j). Count Two charged the individuals
aboard the Go-Fast — Aborno, Carrasco, Lopez, Murillo, and
Reina — with possession of cocaine with intent to distribute,
on a vessel, also in violation of the MDLEA — in particular,
46 App. U.S.C. § 1903(a), (c)(1)(A), and (f).

Before trial, Defendants filed various motions, including
motions to dismiss the indictment. Relevant to our decision,
Defendants sought to dismiss the indictment on the bases

(1) that the MDLEA is unconstitutional because it
does not require an effect on interstate or for-
eign commerce; and

(2) that the district court lacked jurisdiction over
Defendants because the Government did not
allege in the indictment that the Go-Fast was
stateless and because the Government did not
produce any “evidence of nexus at all” between
Defendants and the United States.

The district court denied these motions.

On October 18, 2001, Aborno and Reina pled guilty to both
counts and were sentenced to 108 and 135 months in custody,
respectively. The remaining ten Defendants were convicted
on November 9, 2001, after a three-week jury trial. Carrasco,
Lopez, and Murillo were convicted of both counts. Audiver,
Barnaza, Carvajal, Marquez, Palacios, Perlaza, and Sanchez
were convicted of Count One. The district court, Judge
 UNITED STATES v. PERLAZA 2577
Thomas Whelan presiding, sentenced Carvajal, Palacios, Per-
laza, and Sanchez to 135 months in custody; Audiver,
Barnaza, and Marquez to 188 months in custody; and Car-
rasco, Lopez, and Murillo to 200 months in custody. Appeals
from all twelve Defendants followed.9

III. DISCUSSION

In their briefs, all of the remaining eleven Defendants raise
various challenges to their convictions.10 Defendants Carrasco
and Lopez also raise sentencing issues. After the Supreme
Court decided Blakely v. Washington, 542 U.S. 296 (2004),
and while these consolidated appeals were under submission,
all ten of the Defendants who had opted for trial — including
9
Defendant Reina’s appeal was severed from these consolidated
appeals, and his conviction was affirmed by memorandum disposition. See
United States v. Reina, 74 Fed. App. 835, 2003 WL 22137240 (9th Cir.
Sep. 8, 2003). Thus, these consolidated appeals now consist of only eleven
Defendants’ cases.
10
In addition to the grounds discussed in this opinion, the ten Defen-
dants who opted for trial challenge their convictions on the basis that “the
Government engaged in outrageous [pretrial] misconduct,” such that the
district court should have dismissed the indictment under its “inherent
supervisory powers.”
Gran Tauro Defendant Marquez also challenges his conviction on the
basis that certain statements he made during the September 3 and 11,
2000, boardings were obtained in violation of his Miranda v. Arizona, 384
U.S. 436 (1966), rights. Go-Fast Defendants Carrasco and Lopez also
challenge their convictions on the basis that the district court erred by
refusing to sever their trials from the trial of the Gran Tauro Defendants,
whose defenses, they contend, were antagonistic. Additionally, Lopez
argues that the district court’s refusal to sever his trial violated his Sixth
Amendment Confrontation Clause rights under Bruton v. United States,
319 U.S. 123 (1968), and Crawford v. Washington, 541 U.S. 36 (2004).
Because these issues are “likely to arise again on remand,” United
States v. Smith-Balthier, 424 F.3d 913, 915 (9th Cir. 2005) (addressing
issue not dispositive of appeal but “likely to arise again on remand”),
should these Defendants be re-indicted, we have considered their argu-
ments and find them to be without merit.
2578 UNITED STATES v. PERLAZA
the eight who did not raise sentencing issues in their opening
briefs — filed supplemental papers arguing that Blakely ren-
dered their sentences unconstitutional.

Because we find, for the reasons explained below, that the
convictions of the ten Defendants who opted for trial cannot
stand, their sentencing issues are moot. We begin our analysis
with Defendants’ challenges to the district court’s denial of
their motions to dismiss the indictment.

A. The MDLEA is Constitutional11

Before trial, Defendants moved to dismiss the indictment
on the basis that the MDLEA is unconstitutional because it
fails to require an effect on interstate or foreign commerce.
The district court rejected this argument, ruling that the
MDLEA was properly enacted under Article I of the Constitu-
tion’s Piracies and Felonies Clause. See U.S. Const., art. I,
§ 8, cl. 10. Defendants challenge this ruling.

[1] The Constitution empowers Congress “[t]o define and
punish Piracies and Felonies on the high Seas, and Offenses
against the Law of Nations.” U.S. Const., art. I, § 8, cl. 10.
Defendants acknowledge that we upheld the MDLEA as a
proper exercise of Congress’ constitutional power under the
Piracies and Felonies Clause in United States v. Aikins, 946
F.2d 608 (9th Cir. 1991), and in United States v. Davis, 905
F.2d 245 (9th Cir. 1990). Nonetheless, they argue that neither
Aikins nor Davis is binding because neither decision analyzes
the scope of the Piracies and Felonies Clause, and thus, both
decisions’ statements about the constitutionality of the
MDLEA are dicta. Defendants are incorrect.

Aikins’ and Davis’ statements that the MDLEA is constitu-
tional were “necessarily involved in the case[s,] essential to
11
We review the constitutionality of a federal statute de novo. See
United States v. McCoy, 323 F.3d 1114, 1117 (9th Cir. 2003).
 UNITED STATES v. PERLAZA 2579
[their] determination,” and therefore not dicta. BLACK’S LAW
DICTIONARY 454 (6th ed. 1990); see also Bryan A. Garner, A
DICTIONARY OF MODERN LEGAL USAGE 274-75 (2d ed. 1995);
accord, Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th
Cir. 2004) (“A statement is dictum when it is made during the
course of delivering a judicial opinion, but is unnecessary to
the decision in the case and is therefore not precedential.”
(citations, quotations, and alterations omitted)).12 For exam-
ple, in Davis, the defendant was caught by the Coast Guard
approximately 100 miles west of California with over 7,000
pounds of marijuana aboard his vessel. See 905 F.2d at 247.
Among other things, the defendant argued “that the provisions
of the . . . [MDLEA] do not apply to persons on foreign ves-
sels outside the territory of the United States.” Id. We trifur-
cated our analysis of the defendant’s argument, the first part
of which was “whether Congress has constitutional authority
to give extraterritorial effect to the [MDLEA].” Id. at 248. In
answering that question in the affirmative, we noted that
“[t]he Constitution gives Congress the power to ‘define and
punish piracies and felonies on the high seas . . . .’ and that
the Constitution authorized Congress to give extraterritorial
effect to the Act.” Id. (quoting U.S. Const., art. I, § 8, cl. 10).

Similarly, in Aikins, the defendants were caught by the
Coast Guard on the high seas southeast of the Hawaiian
Islands with approximately 21,000 pounds of marijuana
aboard their vessel. See 946 F.2d at 611. Among other things,
the defendants contended that the MDLEA was unconstitu-
tional as applied to them. See id. at 613. At the beginning of
12
What is dicta has been the subject of frequent discussion by en banc
panels of our court. See, e.g., Barapind v. Enomoto, 400 F.3d 744 (9th Cir.
2005) (en banc); Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en
banc); Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th Cir. 1987)
(en banc); United States v. Johnson, 256 F.3d 895 (9th Cir. 2001) (en
banc). We note that, regardless of the characterization of dicta that one
chooses, neither Aikins’ nor Davis’ finding that the MDLEA is constitu-
tional is dicta. Compare Barapind, 400 F.3d at 751, with id. at 758
(Rymer, J., dissenting).
2580 UNITED STATES v. PERLAZA
our “as applied” analysis, we noted that “[i]t has been estab-
lished that the Act is intended by Congress to apply to con-
duct on the high seas” and that “[i]t is clear that Congress has
power ‘to define and punish piracies and felonies committed
on the high seas.’ ” Id. (citing U.S. Const., art. I, § 8, cl. 10;
Davis, 905 F.2d at 248).

Moreover, even if our statements in Aikins and Davis were
dicta, in United States v. Moreno-Morillo, 334 F.3d 819 (9th
Cir. 2003), cert. denied, 540 U.S. 1156 (2004), decided after
the majority of the briefs were filed in this case, we adopted
Aikins’ and Davis’ discussions of the constitutionality of the
MDLEA. In Moreno-Morillo, we held that “Congress . . . was
acting within its constitutionally conferred authority when it
passed the MDLEA. That authority is expressly conferred by
Article I, Section 8, Clause 10 [the Piracies and Felonies
Clause] . . . .” 334 F.3d at 824-25; see also United States v.
Ledesma-Cuesta, 347 F.3d 527, 532 (3d Cir. 2003)
(“Congress had authority to enact [the MDLEA], pursuant to
its constitutional power to: ‘define and punish Piracies and
Felonies committed on the high seas, and Offenses against the
Law of Nations.’ Inasmuch as the trafficking of narcotics is
condemned universally by law-abiding nations, we see no rea-
son to conclude that it is ‘fundamentally unfair’ for Congress
to provide for the punishment of persons apprehended with
narcotics on the high seas.” (quoting United States v.
Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993))).

[2] Binding precedent compels us to find that the MDLEA
is constitutional under the Piracies and Felonies clause and to
reject Defendants’ constitutional challenge to it.

B. The District Court Erred when It Concluded that It
Had Jurisdiction over the Defendants13
13
We review questions of law, such as the MDLEA’s jurisdictional
requirements, de novo. See United States v. Bynum, 327 F.3d 986 (9th
Cir.) (reviewing de novo the district court’s construction of jurisdictional
elements of 18 U.S.C. § 666, the federal statute proscribing “theft or brib-
ery concerning programs receiving Federal funds”), cert. denied, 540 U.S.
908 (2003).
 UNITED STATES v. PERLAZA 2581
Before trial, Defendants also moved to dismiss the indict-
ment on the basis that the district court lacked jurisdiction
over them because the Government did not allege in the
indictment that the Go-Fast was stateless and because the
Government did not produce any “evidence of nexus at all”
between Defendants and the United States. The district court
rejected these arguments and found that it had jurisdiction
over Defendants. This was error.

[3] The MDLEA prohibits possession, manufacture, or dis-
tribution of illicit drugs aboard a “vessel subject to the juris-
diction of the United States.” 46 App. U.S.C. § 1903(a). A
“vessel subject to the jurisdiction of the United States” is
defined as either (1) a vessel without nationality (also com-
monly referred to as a stateless vessel); (2) a vessel assimi-
lated to a vessel without nationality; (3) a vessel registered in
a foreign nation where the nation of registration consents to
the United States’ enforcement of its laws aboard that ship;
(4) a vessel located in the customs waters of the United
States; or (5) a vessel located in the territorial waters of
another nation where that nation consents to enforcement of
United States laws by United States authorities. See id.
§ 1903(c). For the Government to prosecute someone under
the MDLEA, the Government must satisfy at least one of
these “statutory jurisdiction” requirements. United States v.
Medjuck (“Medjuck III”), 156 F.3d 916, 918 (9th Cir. 1998).

[4] In addition to the MDLEA’s “statutory jurisdiction”
requirements, where the MDLEA is being applied extraterri-
torially, as in this case, due process requires the Government
to demonstrate that there exists “a sufficient nexus between
the conduct condemned and the United States” such that the
application of the statute would not be arbitrary or fundamen-
tally unfair to the defendant. United States v. Medjuck
(“Medjuck II”), 48 F.3d 1107, 1111 (9th Cir.1995); see also
Moreno-Morillo, 334 F.3d at 828; United States v.
Klimavicius-Viloria, 144 F.3d 1249, 1256-59 (9th Cir. 1998);
United States v. Khan, 35 F.3d 426, 429-30 (9th Cir. 1994);
2582 UNITED STATES v. PERLAZA
Davis, 905 F.2d at 248-49; United States v. Peterson, 812
F.2d 486, 493 (9th Cir. 1987).14 There is one exception, how-
ever, to this “constitutional jurisdiction” requirement: “[i]f a
vessel is deemed stateless, there is no requirement that the
government demonstrate a nexus between those on board and
the United States before exercising jurisdiction over them.”
Moreno-Morillo, 334 F.3d at 829; see also United States v.
Caicedo, 47 F.3d 370, 372-73 (9th Cir. 1995).

In this case, the district court determined that both the stat-
utory and constitutional jurisdiction questions were questions
for the court — not the jury — to decide. With respect to the
Go-Fast Defendants, the district court found that it had statu-
tory jurisdiction because, after conducting evidentiary hear-
ings, it determined that the Go-Fast was a stateless vessel.
Because it deemed the Go-Fast stateless, the district court
found that the Government was not required to establish con-
stitutional jurisdiction by showing a nexus between the Go-
Fast and the United States. With respect to the Gran Tauro
Defendants, the district court found that it had statutory juris-
diction because it determined that the Gran Tauro was a
Colombian-registered vessel and that the Colombian govern-
ment had consented to the United States’ enforcement of its
laws aboard that ship.

Although nexus is ordinarily required for foreign-flagged
vessels like the Gran Tauro, the district court found that the
Government need not show nexus between the Gran Tauro
Defendants and the United States. Specifically, the district
court found that the Gran Tauro Defendants were aiding and
abetting the Go-Fast Defendants and, as aiders and abettors,
“stand in the shoes of the principals, specifically the Go-Fast
defendants, for jurisdiction purposes.” Because the district
14
Other circuits do not require a “nexus.” See United States v. Suerte,
291 F.3d 366, 375 (5th Cir. 2002); United States v. Perez-Oviedo, 281
F.3d 400, 403 (3d Cir. 2002); United States v. Cardales, 168 F.3d 548,
553 (1st Cir. 1999) (Hall, J., sitting by designation).
 UNITED STATES v. PERLAZA 2583
court had previously found that the Go-Fast was stateless and
that the district court had jurisdiction over the Defendants
aboard it, the district court concluded that it also had jurisdic-
tion over the Gran Tauro Defendants and that the Govern-
ment need not demonstrate a nexus between the Gran Tauro
and the United States.

Defendants challenge all of these rulings. As a threshold
matter, the Government contends that we need not evaluate
Defendants’ challenges to these rulings because the district
court properly exercised jurisdiction over Defendants under
the “drug trafficking protective principle” and the United
States’ “universal jurisdiction” to prevent piracy, slave trad-
ing, and other universally condemned activities. Accordingly,
before considering the merits of Defendant’s challenges to the
district court’s statutory and constitutional jurisdiction analy-
ses, we consider the “protective principle” and “universal
jurisdiction.”

1. The “Protective Principle” and “Universal
Jurisdiction”

Our circuit has recognized the “protective principle”15 as
part of its consideration of whether nexus exists, not as a sub-
stitute for it. We first discussed the “protective principle” in
Peterson, where we stated that

drug trafficking may be prevented under the protec-
tive principle of jurisdiction, without any showing of
15
As recognized by the Second Circuit, under the “protective principle,”
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.”
United States v. Pizzarusso, 388 F.2d 8, 10-11 (2d Cir. 1968) (quoting
Restatement (Second), Foreign Relations § 33 (1965)).
2584 UNITED STATES v. PERLAZA
an actual effect on the United States. Protective
jurisdiction is proper if the activity threatens the
security or governmental functions of the United
States. Drug trafficking presents the sort of threat to
our nation’s ability to function that merits applica-
tion of the protective principle of jurisdiction.

812 F.2d at 493 (citations omitted).

There are limitations, however, to Peterson’s discussion of
the “protective principle.” First, the language in Peterson,
quoted above, concerning the “protective principle” is dicta.
It was “unnecessary to the decision of the case and . . . there-
fore not precedential,” Cetacean Cmty., 386 F.3d at 1173,
because, in that case, “there was more than a sufficient nexus
with the United States to allow exercise of jurisdiction,”
Peterson, 812 F.2d at 493.

Second, the notion that Peterson’s “protective principle”
can be applied to “prohibiting foreigners on foreign ships 500
miles offshore from possessing drugs that . . . might be bound
for Canada, South America, or Zanzibar” — as suggested by
the Government here — has been repeatedly called into ques-
tion by our Court and others. United States v. Robinson, 843
F.2d 1, 3 (1st Cir. 1988) (Breyer, J.) (questioning the reason-
ableness of a broad reading of the “protective principle”
because such a broad reading would allow the United States
to police any international conduct “against [any] important
state interests”); see also, e.g., Davis, 905 F.2d at 248-49 &
n.2; United States v. Suerte, No. CRIM. 00-0069, 2001 WL
1877264, *6 (S.D. Tex. June 6, 2001), vacated on other
grounds, 291 F.3d 366 (5th Cir. 2002); United States v. Juda,
797 F. Supp. 774, 777 (N.D. Cal. 1992) (“Juda I”), aff’d, 46
F.3d 961 (9th Cir. 1995) (“Juda II”). For example, in Davis,
we noted that “[i]nternational law principles,” such as the
“protective principle,”

may be useful as a rough guide of whether a suffi-
cient nexus exists between the defendant and the
 UNITED STATES v. PERLAZA 2585
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?

902 F.2d at 249 n.2 (emphasis added) (citing Peterson, 812
F.2d at 493).

Third, application of Peterson’s “protective principle”
without a showing of nexus or statelessness would nullify 46
App. U.S.C. § 1903(c) and a wealth of our MDLEA opinions
requiring nexus or statelessness for the United States to have
jurisdiction over drug smugglers captured on the high seas.
See, e.g., Moreno-Morillo, 334 F.3d at 827-28; Juda II, 46
F.3d at 965-66; Aikens, 923 F.2d at 655; Davis, 905 F.2d at
249.16

The Government also argues that the district court properly
found that it had jurisdiction over the Go-Fast defendants
under the “universal jurisdiction” to prevent piracy, slave
trade, and universally condemned activity. This argument is
simply a weaker version of the Government’s “protective
principle” argument that differs only inasmuch as it rests
exclusively on two Eleventh Circuit cases: United States v.
Marino-Garcia, 679 F.2d 1373, 1382 n.16 (11th Cir. 1982)
(noting “a growing consensus among nations to include drug
trafficking as a universally prohibited crime”), and Gonzalez,
776 F.2d at 939-40 (citing Marino-Garcia for the proposition
that “conduct may be forbidden if it has a potentially adverse
16
Indeed, as Northern District of California Judge Charles Legge con-
cluded, “Based upon the Davis court’s discussion on pp. 248-49, and par-
ticularly footnote 2 . . . the circuit has rejected the protective principle
discussed in Peterson . . . as being an independent ground for jurisdiction,
and instead requires a constitutionally sufficient nexus.” Juda I, 797 F.
Supp. at 777.
2586 UNITED STATES v. PERLAZA
effect and is generally recognized as a crime by nations that
have reasonably developed legal systems”).

[5] For these reasons, we reject the Government’s conten-
tion that either the “protective principle” or “universal juris-
diction” vitiated its obligation to establish statutory and
constitutional jurisdiction over Defendants. Thus, we now
consider whether the district court properly concluded that it
had statutory jurisdiction over Defendants.

2. Statutory Jurisdiction

[6] “Prior to 1996, there was a consensus among the cir-
cuits that ‘the jurisdictional requirement in section 1903(a) is
an element of the crime charged and therefore must be
decided by the jury.’ ” Moreno-Morillo, 334 F.3d at 828
(quoting Medjuck II, 48 F.3d at 1110 (citing cases from the
First, Third, and Eleventh Circuits)). In 1996, Congress
amended § 1903 by adding a new subsection (f), which pro-
vides that “[j]urisdiction of the United States with respect to
vessels subject to this chapter is not an element of any
offense” and that “[a]ll jurisdictional issues arising under this
chapter are preliminary questions of law to be determined
solely by the trial judge.” 46 App. U.S.C. § 1903(f). In doing
so, Congress’ goal was to “expand the Government’s prosecu-
torial effectiveness in drug smuggling cases.” H.R. Conf. Rep.
104-854, at 142 (1996), reprinted in 1996 U.S.C.C.A.N. 4292,
4337; see also 32 Weekly Comp. Pres. Doc. 2212 (Oct. 28,
1996) (signing statement of President Clinton) (noting that the
general purpose of the amendment was to “strengthen [ ] the
hand of prosecutors in drug smuggling cases”).

Defendants argue that, notwithstanding Congress’ addition
of subsection (f), whether they were “on board . . . a vessel
subject to the jurisdiction of the United States” remains an
element of an MDLEA offense and must be submitted to the
jury because subsection (f) is unconstitutional under the Fifth
 UNITED STATES v. PERLAZA 2587
Amendment’s Due Process Clause and the Sixth Amend-
ment’s right to trial by jury.

Very few courts have analyzed the effect of § 1903(f) —
much less, the effect of 1903(f) in light of the Fifth and Sixth
Amendments. In United States v. Tinoco, 304 F.3d 1088,
1106-12 (11th Cir. 2002), the Eleventh Circuit held that
whether a vessel is subject to the jurisdiction of the United
States under § 1903(f) is an issue for only the judge to decide.
According to the Eleventh Circuit, “statutory jurisdiction” is
no longer an element of an MDLEA offense, and, therefore,
whether a vessel is subject to the jurisdiction of the United
States need not be determined by a jury. See id.; see also
United States v. Bustos-Useche, 273 F.3d 622, 625-26 (5th
Cir. 2001) (defendant’s guilty plea did not waive challenge to
jurisdiction because, under § 1903(f), jurisdiction is no longer
an element of the crime to be found by a jury); but cf. United
States v. Gonzalez, 311 F.3d 440, 442-44 (1st Cir. 2002)
(holding that defendant’s guilty plea did waive objection to
jurisdiction over the vessel, but not reaching the question
whether jurisdiction over the vessel must be decided by a jury
after § 1903(f)).

We have considered the effect of subsection (f) in two
cases: United States v. Smith, 282 F.3d 758 (9th Cir. 2002),
and Moreno-Morillo. Neither case decides the precise ques-
tion presented here, although Smith (as interpreted by
Moreno-Morillo) supports Defendants’ arguments.17

The defendants in Smith were arrested on a vessel allegedly
in United States customs waters. See 282 F.3d at 767. In that
case, the district court concluded that under § 1903(f), the
court, not the jury, should decide both (1) whether the United
States has jurisdiction over the place where the vessel was
allegedly intercepted (i.e., in Smith, if the place where the ves-
17
We recognize that the district court was without the benefit of Smith
or Moreno-Morillo when it decided the jurisdictional issues in this case.
2588 UNITED STATES v. PERLAZA
sel was allegedly intercepted was within United States cus-
toms waters); and (2) whether the vessel was actually
intercepted at that place. See id. at 766. We rejected the dis-
trict court’s interpretation as “over-inclusive,” finding that
“[s]ection 1903(f) empowers the court to make only the for-
mer determination; the latter question, as to where the vessel
was intercepted, is a question of fact to be decided by the
jury.” Id.

In Moreno-Morillo, we read Smith as having narrowed the
effect of § 1903(f) to apply to only purely legal questions
while reserving factual questions for the jury. See 334 F.3d at
829-30. The Eleventh Circuit has also described Smith’s hold-
ing this way: “Generally speaking, the Ninth Circuit’s inter-
pretation of § 1903(f) suggests that particularized, case-
specific factual determinations that have to be made as part of
the MDLEA jurisdictional inquiry are to be decided by the
jury.” Tinoco, 304 F.3d at 1111 n.22 (discussing Smith).

[7] In Moreno-Morillo, as in this case, statutory jurisdiction
depended not on the factual determination of where the vessel
was seized, as in Smith, but, rather, on the ship’s nationality
— in particular, whether the vessel was stateless. See
Moreno-Morillo, 334 F.3d at 829. The problem with Smith, as
we explained in Moreno-Morillo, is that not all jurisdictional
determinations under § 1903 may be split so easily into two
questions — one of which is purely legal and, under
§ 1903(f), is decided by the court, and the other, which is fac-
tual, is left for the jury. See id. at 829. For example, where
jurisdiction, as in this case, turns on a vessel’s nationality or
statelessness, there is only one question to be answered:

[A] determination [of jurisdiction in a statelessness
case], unlike that faced by this court in Smith, a cus-
toms waters case, cannot be separated neatly into
two parts. Here, jurisdiction depends not on the
ship’s location (e.g., “the waters where a vessel is
allegedly intercepted,” Smith, 282 F.3d at 767), but
 UNITED STATES v. PERLAZA 2589
rather upon its status: Either the Defendants’ ship is
stateless or it is not.

Id.

Ultimately, in Moreno-Morillo, we concluded that we need
not resolve whether a judge or jury should decide a vessel’s
nationality or statelessness.18 Id. at 830. The day for deciding
the issue, however, is now upon us.

Here, there is no dispute that the Gran Tauro was a Colom-
bian flagged vessel for purposes of § 1903. The status of the
Go-Fast, however, is disputed. The Government may prove
that the Go-Fast was stateless in any one of three ways: (1)
by proving that a claim of registry was denied by the claimed
nation; (2) by proving that the master or person in charge
failed, when asked, to make a claim of nationality or registry;
or (3) by proving that the master or person in charge made a
claim of registry but that the claimed nation did not “affirma-
tively and unequivocally” confirm the vessel’s nationality. 46
App. U.S.C. § 1903(c)(2).

Three Navy personnel who observed the Go-Fast through
binoculars from the De Wert’s bridge or with the De Wert’s
18
With respect to one of the Moreno-Morillo defendants, we held that
the defendant waived his right to challenge § 1903(f) because the issue
“ha[d] not been properly preserved under the terms of his plea agreement.”
334 F.3d at 825. With respect to the remaining three Moreno-Morillo
defendants, we avoided the issue by finding that the district court had
made only a preliminary determination of statelessness on uncontested
facts in order to determine whether the court had personal jurisdiction. Id.
at 830-31 (where defendants failed to challenge substance of State Depart-
ment certificate noting that Colombia would neither affirm nor deny ves-
sel’s registry, “the substance of that certificate stands as the only — and
therefore uncontroverted — evidence in the record regarding stateless-
ness”). The district court had not necessarily taken the ultimate question
of statelessness away from the jury, and the defendants pled guilty, so the
case never proceeded far enough for the district court to revisit the issue.
See id.
2590 UNITED STATES v. PERLAZA
helicopter’s infra-red camera testified at the district court’s
evidentiary hearing that they saw no flags of any kind, no
markings of any kind, no hull numbers, no name on the boat,
and no home-port inscription. Additionally, when Coast
Guard Petty Officer Craig Cruz asked the Go-Fast Defendants
if the vessel had a flag, Reina and Murillo simply shook their
heads back and forth, and Aborno stated, “Barco no tengo
bandera,” which literally means, “Boat I have no flag.” On the
other hand, Reina and Murillo both submitted declarations
stating that they were “from” Colombia and that the Go-Fast
was “from” Colombia. This could be read fairly as a state-
ment of nationality.

At the evidentiary hearing, Petty Officer Cruz also testified
that later, when asked who was in charge of the Go-Fast,
Murillo stated that Go-Fast’s captain was a person named
“Freddy,” who was never found and, according to Cruz’s
report, “was the only one who really knew about the boat
expedition.” Although the district court indicated that this
statement was not produced for its truth — namely, that
“Freddy” was in fact the Go-Fast’s captain — the statement
indicates that, when Cruz inquired as to who was the Go-
Fast’s captain, neither Murillo nor Reina claimed to be its
master or the person in charge. On the other hand, Reina and
Murillo may nonetheless have been in charge of the Go-Fast
at the time because “Freddy” was never found by the LEDET
teams investigating the Gran Tauro and the Go-Fast. Addi-
tionally, the Government also appears to have treated Reina
and Murillo as persons in charge by asking them about the
Go-Fast’s nationality.

[8] After hearing all the evidence as to its status at a pre-
trial hearing, the district court determined that the Go-Fast
was a stateless vessel. We find that by not submitting this
issue to the jury, the district court erred. The evidence relating
to the Go-Fast’s statelessness presents precisely the kind of
disputed factual question that Smith requires a jury to resolve.19
19
Our dissenting colleague’s assertion that “the Go-Fast’s status was a
question for the court, not the jury,” is dependent on his finding that “the
 UNITED STATES v. PERLAZA 2591
Cf. Brosseau v. Haugen, 543 U.S. 194, 206 (2004) (Stevens,
J., dissenting) (“This is a quintessentially ‘fact-specific’ ques-
tion, not a question that judges should try to answer ‘as a mat-
ter of law.’ ”). “[C]ase-specific factual determinations that
have to be made as part of the MDLEA jurisdictional inquiry
are to be decided by the jury.” Tinoco, 304 F.3d at 1111 n. 22
(discussing Smith).20

Notwithstanding the statutory language of § 1903(f) and
Congress’ prerogative in enacting the law of federal crimes,
see Staples v. United States, 511 U.S. 600, 604 (1994), we are

evidence presented with regard to the Go-Fast’s status is . . . uncontrovert-
ed.” Dissent at 2624; see also id. at 2626 (“Since no evidence was pres-
ented to create a factual dispute with regard to the Go-Fast’s status as a
‘vessel without nationality,’ under Moreno-Morillo, the district court prop-
erly determined that the vessel was stateless based on the uncontrovered
evidence in the record.”). For the reasons already explained above, we dis-
agree with this reading of the evidence.
Accordingly, contrary to our dissenting colleague’s assertion, see id. at
2623-24, the inquiry required to resolve the tension in these facts issue is
necessarily closer to the type of dispute that Smith required the jury to
resolve — i.e., whether the vessel was in fact intercepted at the location
alleged by the Government — rather than the legal question that Smith
required the judge to resolve — i.e., whether the United States had juris-
diction over the waters where the vessel was in fact intercepted, see 282
F.3d at 766.
20
The Government bears the burden of proving statelessness. See
Tinoco, 304 F.3d at 1114 (“[W]e note that the government bears the bur-
den of establishing that the statutory requirements of subject matter juris-
diction imposed by the MDLEA have been met.”); cf. Medjuk III, 156
F.3d at 918 (stating that the government must demonstrate “nexus”). This
approach to the burdens of proof is consistent with the general rule that
the party invoking a federal court’s jurisdiction bears the burden of prov-
ing that all of the requirements for the exercise of jurisdiction have been
met. See Hunter v. United Van Lines, 746 F.2d 635, 639 (9th Cir. 1984)
(“We . . . note that the burden of establishing federal jurisdiction falls on
the party who invokes the removal statute.”); see also LSO, Ltd. v. Stroh,
205 F.3d 1146, 1152 (9th Cir. 2000) (“As the party seeking to invoke fed-
eral jurisdiction, LSO bears the burden of establishing its standing.”).
2592 UNITED STATES v. PERLAZA
mindful that we must honor the strictures of the Fifth and
Sixth Amendments. Thus, this case presents one of the “lim-
ited circumstances” in which “facts not formally identified as
elements of the offense charged” must be submitted to the
jury and proved beyond a reasonable doubt. McMillan v.
Pennsylvania, 477 U.S. 79, 85 (1986). This is because “the
Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.”
In re Winship, 397 U.S. 358, 364 (1970); see also Harris v.
United States, 536 U.S. 545, 561 (2002) (defining “elements”
as “ ‘fact[s] . . . legally essential to the punishment to be
inflicted.’ ” (quoting United States v. Reese, 92 U.S. 214, 232
(1876) (Clifford, J., dissenting))). “It is equally clear that the
‘Constitution gives a criminal defendant the right to demand
that a jury find him guilty of all the elements of the crime
with which he is charged.’ These basic precepts, firmly rooted
in the common law, have provided the basis for recent deci-
sions interpreting modern criminal statutes . . . .” United
States v. Booker, 125 S. Ct. 738, 748 (2005) (quoting United
States v. Gaudin, 515 U.S. 506, 511 (1995)).

Consistent with these precepts, the Supreme Court has
recently admonished that “Congress may not manipulate the
definition of a crime in a way that relieves the Government
of its constitutional obligations to charge each element in the
indictment, submit each element to the jury, and prove each
element beyond a reasonable doubt.” Harris, 536 U.S. at 556
(citing Jones v. United States, 526 U.S. 227, 240-41 (1999);
Mullaney v. Wilbur, 421 U.S. 684, 699 (1975)); see also Ring
v. Arizona, 536 U.S. 584, 606-07 (2002) (“In various settings,
we have interpreted the Constitution to require the addition of
an element or elements to the definition of a criminal offense
in order to narrow its scope. If a legislature responded to one
of these decisions by adding the element we held constitution-
ally required, surely the Sixth Amendment guarantee would
apply to that element.” (internal citations omitted)). But that
is precisely what Congress did with respect to § 1903. In
 UNITED STATES v. PERLAZA 2593
adding subsection (f), it essentially overrode by statute the
consensus prevailing at that time that juries, not judges, would
decide whether § 1903(a)’s jurisdictional requirement was
satisfied. See Coast Guard Authorization Act of 1996, Pub. L.
104-324, § 1138(a)(5), 110 Stat. 3901 (1996).

[9] When that jurisdictional inquiry turns on “factual issue-
[s],” such as the question “where the vessel was intercepted”
in Smith, 282 F.2d at 767, or in this case, whether the Go-Fast
was stateless, the jurisdictional inquiry must be resolved by a
jury. Accordingly, we must vacate Go-Fast Defendants Car-
rasco’s, Lopez’s, and Murillo’s convictions and direct the dis-
trict court to dismiss the indictment against them.21
21
Even though Defendant Aborno pled guilty unconditionally, he asserts
that his conviction must be reversed because the MDLEA violates the
Fifth and Sixth Amendments by removing the jurisdictional inquiry from
the jury. Ordinarily, in this circuit, “[c]laims that ‘the applicable statute is
unconstitutional or that the indictment fails to state an offense’ are juris-
dictional claims not waived by the guilty plea.” United States v. Montilla,
870 F.2d 549, 552 (9th Cir. 1989) (quoting United States v. Broncheau,
597 F.2d 1260, 1262 n.1 (9th Cir. 1979)), amended by 907 F.2d 115 (9th
Cir. 1990); see also United States v. Lopez-Armenta, 400 F.3d 1173, 1175
(9th Cir. 2005) (“[I]t is well-settled that an unconditional guilty plea con-
stitutes a waiver of the right to appeal all nonjurisdictional antecedent rul-
ings and cures all antecedent constitutional defects.” (emphasis added)
(citing United States v. Floyd, 108 F.3d 202, 204 (9th Cir. 1997); United
States v. Cortez, 973 F.2d 764, 766 (9th Cir. 1992))). Nonetheless,
Aborno’s argument is foreclosed by Moreno-Morillo, where we held that
“claim[s] that the MDLEA violates the Fifth and Sixth Amendments
because it removes from the jury an element of the offense” must be
expressly reserved for appeal. 334 F.3d at 825-26 (citing United States v.
Chon, 210 F.3d 990, 995 (9th Cir. 2000)); cf. Gonzalez, 311 F.3d at 444
(holding that an MDLEA defendant who unconditionally pleads guilty for-
feits his right to challenge the district court’s jurisdiction on appeal).
Accordingly, our reversal of the Go-Fast Defendants’ convictions and dis-
missal of the indictment against them on the basis that the Go-Fast’s
nationality must be proved to a jury do not apply to Aborno.
In addition, on October 6, 2003, Aborno attempted to expand the scope
of his appeal when he filed a motion to join in the challenges raised by
his co-Defendants. On October 23, 2003, a motions and screening panel
2594 UNITED STATES v. PERLAZA
On remand, should the Government re-indict Go-Fast
Defendants Carrasco, Lopez, and Murillo, and should a jury
conclude that the Go-Fast was stateless, the district court’s
jurisdictional inquiry with respect to them will be complete
because, as we noted earlier, “[i]f a vessel is deemed stateless,
there is no requirement that the government demonstrate a
nexus between those on board and the United States before
exercising jurisdiction over them.” Moreno-Morillo, 334 F.3d
at 829; see also Caicedo, 47 F.3d at 372-73. In contrast,
should a jury conclude on remand that the Go-Fast was
Colombian, the district court will, consistent with the princi-
ples outlined in the following section, have to determine
whether the Government established a sufficient nexus
between the Go-Fast and the United States.

3. Constitutional Jurisdiction

As noted earlier, in addition to establishing a statutory basis
for jurisdiction over foreign-flagged vessels, we also require
a showing of nexus between the prohibited activity and the
United States. See Medjuck III, 156 F.3d at 918. “The nexus
requirement is a judicial gloss applied to ensure that a defen-
dant is not improperly haled before a court for trial . . . . [It]
serves the same purpose as the ‘minimum contacts’ test in
personal jurisdiction.” Moreno-Morillo, 334 F.3d at 830 n.8
(quoting Klimavicius-Viloria, 144 F.3d at 1257). As we noted
above, the nexus requirement turns on the status of the vessel:
“With respect to those apprehended aboard foreign-flagged
vessels, there must be some nexus to the United States before
jurisdiction can be established . . . .” Id. at 828; see also

of our Court referred Aborno’s motion to this merits panel for resolution.
In light of the precedents cited in the preceding paragraph, we deny
Aborno’s motion to join in the challenges raised by his co-Defendants
with respect to all issues except their challenge to Congress’ power to
enact the MDLEA. Having already decided that issue against Defendants,
and it being Aborno’s only challenge to his conviction properly before us,
his conviction must be affirmed.
 UNITED STATES v. PERLAZA 2595
Klimavicius-Viloria, 144 F.3d at 1257 (“A defendant on [a
foreign-flagged ship] would have a legitimate expectation that
because he has submitted himself to the laws of one nation
[the foreign-flag nation], other nations will not be entitled to
exercise jurisdiction without some nexus.” (citation omitted)).

[10] The Gran Tauro was, without dispute, a Colombian
vessel, and the Colombian government gave the De Wert’s
and Valley Forge’s LEDET teams telephonic consent under
the Bilateral Agreement to board the Gran Tauro. This satis-
fied the Government’s statutory jurisdiction obligations under
§ 1903(c). See 46 App. U.S.C. § 1903(c)(1) (“[A] ‘vessel sub-
ject to the jurisdiction of the United States’ includes . . . a ves-
sel registered in a foreign nation where the flag nation has
consented or waived objection to the enforcement of United
States law by the United States . . . . Consent or waiver of
objection by a foreign nation . . . may be obtained by radio,
telephone, or similar oral or electronic means . . . .”). Under
such circumstances, however, and as we noted above, our
case law requires the Government to also show nexus
between the prohibited activity and the United States.

[11] Here, the district court concluded that the Government
need not show nexus as to the Gran Tauro because the Gran
Tauro aided and abetted the Go-Fast, over which the district
court already concluded that it had jurisdiction by virtue of
the Go-Fast’s statelessness. The district court’s conclusion
that the Government need not show nexus as to the Gran
Tauro was erroneous.

First, the district court’s ruling as to the Gran Tauro cannot
stand because we have already reversed the antecedent ruling
on which it relied — namely, that the Go-Fast was stateless.
But even if we had affirmed the district court’s ruling that the
Go-Fast was stateless, we would still reverse its ruling as to
the Gran Tauro.

Relying on the theory of aiding and abetting does not viti-
ate the need to consider the underlying bases for jurisdiction.
2596 UNITED STATES v. PERLAZA
In Klimavicius-Viloria, we noted that criminal liability under
the MDLEA could be predicated on an aider-and-abettor the-
ory, but we conducted a nexus analysis nevertheless. See
Klimavicius-Viloria, 144 F.3d at 1257. Aiding and abetting is
a substantive area of criminal law that allows courts to punish
vicariously a defendant who, in some way, associates himself
with an illegal venture, participates in it as in something he
wishes to bring about, and seeks by his actions to make it suc-
ceed. Id. at 1263 (citing Nye & Nissen v. United States, 336
U.S. 613, 619 (1949)). The ability of a United States court to
exercise jurisdiction over that particular defendant, however,
is a preliminary determination totally distinct from the crime
itself and must be considered before any United States court
or jury may determine whether the defendant acted as a prin-
cipal or an aider and abettor. See id. at 1257.

[12] The fact that the Government received Colombia’s
consent to seize the members of the Gran Tauro, remove
them to the United States, and prosecute them under United
States law in federal court does not eliminate the nexus
requirement. The consent permitted the United States to pros-
ecute defendants under United States law — nothing more.
See id. at 1256-57 (conducting nexus analysis despite Pana-
ma’s consent to United States to seize the Panamanian-
flagged vessel and the contraband, arrest the crew, and prose-
cute under United States law). For a United States court to
properly exercise jurisdiction, the Government still needs to
establish some detrimental effect within, or nexus to, the
United States. Cf. United States v. Hill, 279 F.3d 731, 739
(9th Cir. 2002) (“Under the territorial jurisdiction theory,
jurisdiction is appropriate if the acts performed outside the
United States produce detrimental effects within the United
States.”); United States v. Felix-Gutierrez, 940 F.2d 1200,
1205-06 (9th Cir. 1991) (holding that accessory-after-the-fact
liability can attach extraterritorially if the underlying statute
was intended to reach extraterritorially, but international law
jurisdictional limits still apply). Until nexus is established, we
cannot apply United States aiding-and-abetting law, and, by
 UNITED STATES v. PERLAZA 2597
applying it in lieu of holding the Government to its obligation
to establish nexus, the district judge put the proverbial cart
before the horse.

[13] Nor can we find that the district court’s failure to
require the Government to establish nexus was harmless
because, here, the Government conceded at oral argument
before us that it did not present any evidence indicating that
the cocaine jettisoned from the Go-Fast had any nexus to the
United States. Thus, the district court erred in exercising juris-
diction over the Gran Tauro Defendants, who were members
of an undisputably foreign-flagged vessel. Because nexus is
an essential part of the jurisdictional analysis that our case law
requires, we reverse the Gran Tauro Defendants’ convictions
and direct the district court to dismiss the indictment against
them.

C. The Government Committed Prosecutorial
Misconduct Sufficient to Warrant Reversal of
Defendants’ Convictions22

The ten Defendants who opted for trial contend that the
Government committed prosecutorial misconduct on multiple
occasions throughout their trial. We need not consider each
alleged instance of prosecutorial misconduct because we find
that one of them in particular is a sufficient alternative basis
to warrant reversal of the convictions of the ten Defendants
who opted for trial.

At the close of Defendants’ three-week trial, the Prosecutor
made the following statement in his rebuttal argument:

[I]n a short period of time, the case will be handed
to you. You’re going to go back into that delibera-
tion room and that presumption of innocence, that
22
We review whether closing argument constitutes misconduct de novo.
See United States v. Santiago, 46 F.3d 885, 892 (9th Cir. 1995).
2598 UNITED STATES v. PERLAZA
presumption of innocence that these men have all
been cloaked with for the last year, the last year
while we’ve litigated motions — you’ve heard about
all the motions that have been held beforehand.
That’s why it’s taken so long to get here. That pre-
sumption, when you go back in the room right
behind you, is going to vanish when you start delib-
erating. And that’s when the presumption of guilt is
going to take over you . . . . [interrupted by objec-
tion]

Defendants’ counsel responded to this statement with a flurry
of objections, all of which the district judge overruled. Imme-
diately after the court overruled the objections, one of Defen-
dants’ counsel made the following additional comment:
“That’s misconduct. There is no presumption of guilt” and “I
move for mistrial,” to which the district court responded,
“That’s proper rebuttal. Go ahead. You are all right.”
Defense counsel finished by stating, “Presumption of guilt
can’t be proper, Your Honor.” The Prosecutor continued with
his remarks,23 which lasted approximately twenty pages of
transcript until a break in the proceedings allowed counsel
and the district judge to discuss more fully the Prosecutor’s
statement.

Defense counsel forcefully argued that, not only was the
Prosecutor’s statement a misstatement of law, but it consti-
tuted prosecutorial misconduct. Defense counsel asserted that
they did not believe that a curative instruction could cure the
prejudice suffered by the defendants from this remark; how-
ever, one of Defendants’ counsel stated,

But I think that if Your Honor is going to give one,
23
During this sequence of rebuttal, the Prosecutor attempted to give his
own “curative instruction,” stating that the Defendants had nothing to
prove and that it was the Government’s burden to prove its case beyond
a reasonable doubt.
 UNITED STATES v. PERLAZA 2599
as we are bound to request under the Ninth Circuit,
it should be something along the lines of: that was
absolute misconduct by the prosecutor, it was inex-
cusable, and there is no — and then instruct them on
the correct law, which is the presumption of inno-
cence applies unless and until it is disproven and that
there is no presumption of guilt.

When given the opportunity to respond, the Prosecutor con-
firmed that his statement was intentional: “That’s what I said,
when they get back there and start looking at it is when the
presumption takes over, presumption of guilt.”

The district court concluded that the Prosecutor’s statement
did not constitute misconduct and denied the motion for mis-
trial but agreed to give a curative instruction. After the break,
the court allowed the Prosecutor to continue without making
any statement to the jury, and only after the Prosecutor fin-
ished his rebuttal arguments — this time, about thirty-six tran-
script pages later — did the district court give the following
instruction:

[I]t is my duty at this time to instruct you on the law
that applies in this case . . . . Also, I’m sure you’re
all aware of this, but let me just tell you this before
we begin. There is no such thing as a presumption of
guilt in a criminal case. All defendants in a criminal
case are presumed to be innocent unless or until such
time as the evidence establishes their guilt.

The court continued with its instructions, stating that “the
defendants are presumed to be innocent,” “the government
has the burden of proof of proving every element of each
charge beyond a reasonable doubt,” and “[n]o presumption of
guilt may be raised and no inference of any kind may be
drawn from the fact that a defendant did not testify.” The
court then provided a fairly comprehensive explanation of the
legal standard for proof beyond a reasonable doubt.
2600 UNITED STATES v. PERLAZA
Defendants argue that the Government’s “presumption of
guilt” comment impermissibly shifted the burden of proof to
the defense. The Government concedes in its Answering Brief
that the comment was improper but argues that it was harm-
less and cured by the district court’s curative instruction and
repeated instructions on the burden of proof. So too does our
dissenting colleague. See Dissent at 2628. We disagree.

[14] Criminal defendants have a constitutional right to the
presumption of innocence and to have the government prove
guilt beyond a reasonable doubt. Estelle v. Williams, 425 U.S.
501, 503 (1976) (“The right to a fair trial is a fundamental lib-
erty secured by the Fourteenth Amendment. The presumption
of innocence, although not articulated in the Constitution, is
a basic component of a fair trial under our system of criminal
justice.” (citation omitted)); In re Winship, 397 U.S. 358, 362
(1970) (“[I]t [is] the duty of the Government to establish . . .
guilt beyond a reasonable doubt. This notion — basic in our
law and rightly one of the boasts of a free society — is a
requirement and a safeguard of due process of law in the his-
toric, procedural content of ‘due process.’ ” (quoting Leland
v. Oregon, 343 U.S. 790, 802-03 (Frankfurter, J., dissenting))).24
24
See also United States v. Gaudin, 515 U.S. 506, 510 (1995) (“We
have held that [the Fifth and Sixth Amendments] require criminal convic-
tions to rest upon a jury determination that the defendant is guilty of every
element of the crime with which he is charged, beyond a reasonable
doubt.”); Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993) (“What the
factfinder must determine to return a verdict of guilty is prescribed by the
Due Process Clause. The prosecution bears the burden of proving all ele-
ments of the offense charged, and must persuade the factfinder ‘beyond a
reasonable doubt’ of the facts necessary to establish each of those ele-
ments.” (citations omitted)); Patterson v. New York, 432 U.S. 197, 210
(1977) (“[T]he Due Process Clause requires the prosecution to prove
beyond a reasonable doubt all of the elements included in the definition
of the offense of which the defendant is charged.”); Coffin v. United
States, 156 U.S. 432, 453 (1895) (“The principle that there is a presump-
tion of innocence in favor of the accused is the undoubted law, axiomatic
and elementary, and its enforcement lies at the foundation of the adminis-
tration of our criminal law.”); United States v. Cummings, 468 F.2d 274,
280 (9th Cir. 1972) (the presumption of innocence “is the converse of the
government’s burden to prove and persuade beyond a reasonable doubt”).
 UNITED STATES v. PERLAZA 2601
If we view what happened in this case as constitutional
error, we must reverse unless the error was harmless beyond
a reasonable doubt. See Neder v. United States, 527 U.S. 1,
15 (1999). If we view what happened in this case as non-
constitutional error, we must reverse unless “it is more proba-
ble than not that the error did not materially affect the ver-
dict.” United States v. Mitchell, 172 F.3d 1104, 1111 (9th Cir.
1999).25

[15] In our view, the instruction specifically intended to be
curative by the district court was inadequate to correct the dis-
trict court’s earlier error and, therefore, precludes the Govern-
ment from meeting the burden under either test. As noted
earlier, the district court instructed the jury that “defendants
in a criminal case are presumed innocent unless or until such
time as the evidence establishes their guilt.” This instruction
was not adequate to correct the Prosecutor’s improper com-
ment because it fails to set forth the Government’s proper bur-
den of persuasion — namely, guilt beyond a reasonable
doubt.

In United States v. Cummings, 468 F.2d 274 (9th Cir.
1972), we considered the following instruction:

Presumptions, like the presumption of innocence, are
also deductions and conclusions. They are deduc-
tions or conclusions which the law requires the jury
to make in the absence of evidence which leads the
jury to a different or contrary conclusion. A pre-
sumption continues to exist only so long as it is not
25
We applied the harmlessness test for non-constitutional error to a
Prosecutor’s burden-shifting closing argument in United States v. Cox,
633 F.2d 871 (9th Cir. 1980). Cox, however, is factually distinguishable
from this case because in Cox, the district court sustained defense coun-
sel’s objection and admonished the prosecutor. See 633 F.2d at 875. The
critical difference in this case is that the district court initially ratified the
Prosecutor’s burden-shifting by stating in the presence of the jury, “That’s
proper rebuttal. Go ahead. You are all right.”
2602 UNITED STATES v. PERLAZA
overcome or outweighed by evidence to the contrary.
But unless and until the presumption is outweighed,
the jury should find in accordance with the presump-
tion of innocence.

Id. at 280. We found error in this instruction because “[t]he
presumption [of innocence] does not disappear when evidence
to the contrary is received; it is overcome only by evidence
convincing the jury beyond a reasonable doubt.” Id. (empha-
sis added). In this case before us, the district court’s curative
instruction failed to state that only evidence that convinces the
jury of guilt beyond a reasonable doubt will overcome the
presumption of innocence.

The district court’s curative instruction was flawed in other
respects as well. It did not specify that the presumption of
innocence “go[es] with the jury when it deliberates.” Cum-
mings, 468 F.2d at 280. The district court’s instruction should
have done so — particularly because of the Prosecutor’s state-
ment that the “presumption, when you go back in the room
right behind you, is going to vanish when you start deliberat-
ing.” It is true that, in its standard instructions at the conclu-
sion of the evidence, the district court told the jury that the
defendants “are presumed innocent.” But the jury may have
tried to reconcile this instruction with the district court’s ear-
lier erroneous instruction — i.e., that “defendants in a crimi-
nal case are presumed innocent unless or until such time as
the evidence establishes their guilt” — by concluding that
criminal defendants “are presumed innocent” only until delib-
erations begin.

The district court also delayed its curative instruction over
a period that spanned more than fifty pages of transcript and
then failed to tie explicitly the instruction to the Prosecutor’s
and the court’s earlier statements. The district court did not
tell the jury that the Prosecutor had been wrong, notwithstand-
ing that the Prosecutor’s statement was patently improper and
intentional, as the Prosecutor confirmed when he stated,
 UNITED STATES v. PERLAZA 2603
“That’s what I said . . . when they get back there and start
looking at it is when the presumption takes over, the presump-
tion of guilt.” Most importantly, the district court never told
the jury of the earlier mistake when the judge ratified the
Prosecutor’s burden-shifting statement.

We recognize that in its prepared jury instructions, the dis-
trict court explained the reasonable doubt standard and told
the jury that the Government bears the burden of proving
every element beyond a reasonable doubt. At that point, how-
ever, the proper instruction regarding burden of proof became
one of several conflicting statements that the court made to
the jury. When a district court delays its curative instruction
on an error so fundamental, the court must refer specifically
to its earlier error so that the jury understands which of the
court’s instructions should be followed and which should be
ignored.

[16] Based on the district court’s ratification of the Prose-
cutor’s intentional and improper burden-shifting statement,
we cannot conclude that what happened in this case was
harmless under any standard of harmlessness.26 Accordingly,
26
While we do not address the other alleged instances of misconduct by
the Government in this case, we are nonetheless deeply troubled by the
Prosecutor’s conduct throughout the trial.
The United States Attorney is the representative not of an ordi-
nary party to a controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall be done. As such,
he is in a peculiar and very definite sense the servant of the law,
the twofold aim of which is that guilt shall not escape or inno-
cence suffer. He may prosecute with earnestness and vigor
indeed, he should do so. But, while he may strike hard blows, he
is not at liberty to strike foul ones. It is as much his duty to
refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about
a just one.
2604 UNITED STATES v. PERLAZA
the convictions of the ten Defendants who opted for trial must
be reversed on this basis as well.

[17] Although we find the Prosecutor’s burden-shifting
statement to have been intentional and not harmless, it does
not bar retrial. For the Double Jeopardy Clause to bar retrial,
Defendants must demonstrate that the “governmental conduct
in question [was] intended to ‘goad’ the defendants into mov-
ing for a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 676
(1982). In other words, “unless [the Prosecutor] is trying to
abort the trial, his misconduct will not bar a retrial. It doesn’t
even matter that he knows he is acting improperly, provided
that his aim is to get a conviction. The only relevant intent is
intent to terminate the trial, not intent to prevail at this trial
by impermissible means.” United States v. Oseni, 996 F.2d
186, 188 (7th Cir. 1993) (citations omitted); see also United
States v. Lewis, 368 F.3d 1102, 1108 (9th Cir. 2004) (noting
that the Double Jeopardy Clause “prevents prosecutors from
sinking a case they knew was doomed to end in an acquittal
in the hope of having better luck before a second jury”).
Based on the “objective facts and circumstances” discernable
from the record, Kennedy, 456 U.S. at 675, we cannot con-
clude that the Government was trying to abort the trial here.
Accordingly, our finding of prosecutorial misconduct does not
trigger the Double Jeopardy Clause’s bar to retrial.

D. The Evidence Was Sufficient to Sustain
Defendants’ Convictions27

It is fair to say that the average jury, in a greater or less degree,
has confidence that these obligations, which so plainly rest upon
the prosecuting attorney, will be faithfully observed. Conse-
quently, improper suggestions . . . are apt to carry much weight
against the accused when they should properly carry none.
Berger v. United States, 295 U.S. 78, 88 (1935).
27
We review claims of insufficient evidence de novo. See United States
v. Odom, 329 F.3d 1032, 1034 (9th Cir. 2003). “Evidence is sufficient if,
 UNITED STATES v. PERLAZA 2605
Eight of the ten Defendants who opted for trial — Go-Fast
Defendant Lopez and all seven of the Gran Tauro Defendants
— assert that the Government’s evidence was insufficient to
support their convictions. Although we have already held that
the convictions of the ten Defendants who opted for trial must
be reversed, “we must still consider [the] contention[s of these
eight Defendants] that the evidence was insufficient to sustain
[their] conviction[s], because a challenge to the sufficiency of
the evidence implicates a defendant’s rights under the Double
Jeopardy Clause.” United States v. Boulware, 384 F.3d 794,
809-10 (9th Cir. 2004) (citing United States v. Recio, 371
F.3d 1093, 1104 (9th Cir. 2004); United States v. Gergen, 172
F.3d 719, 724-25 (9th Cir. 1999)). That is, we must determine
whether the evidence presented against the eight Defendants
was sufficient to sustain their convictions “in order to deter-
mine whether there should be an acquittal or retrial upon
remand.” Gergen, 172 F.3d at 724.

As noted earlier, Go-Fast Defendant Lopez and his fellow
crew members were convicted of both conspiracy to possess
cocaine aboard a vessel with intent to distribute (Count One)
and possession of cocaine aboard a vessel with intent to dis-
tribute (Count Two). The Gran Tauro Defendants were con-
victed of only conspiracy to possess cocaine aboard a vessel
with intent to distribute (Count One). As Defendants and the
Government agree, Defendants’ sufficiency claims turn on
whether the Government submitted sufficient evidence of
Defendants’ knowledge of the presence of cocaine aboard the
Go-Fast. “There need not be [direct] evidence of specific
intent to distribute because that intent can be inferred from the
large quantity of cocaine” — 1,964 kilograms — recovered.
Klmavicius-Viloria, 144 F.3d at 1263 (citing United States v.
Humphrey, 759 F.2d 743, 751 (9th Cir. 1985)). We first con-

viewed in a light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reason-
able doubt.” Id. (citing United States v. Carranza, 289 F.3d 634, 641 (9th
Cir. 2002)).
2606 UNITED STATES v. PERLAZA
sider Go-Fast Defendant Lopez’s contention that the evidence
was insufficient to support his conviction.
UNITED STATES v. PERLAZA 2607
Volume 2 of 2
2610 UNITED STATES v. PERLAZA

1. Go-Fast Defendant Lopez28

Lopez argues that the evidence cannot sustain his convic-
tion because the Government proved nothing more than his
“mere presence” aboard a vessel that happened to contain
almost 2,000 kilograms of cocaine. In doing so, Lopez relies
on a handful of our cases that can be characterized as embrac-
ing the “mere houseguest,” “mere passenger,” or “mere pres-
ence” defenses to narcotic trafficking liability. See, e.g.,
United States v. Estrada-Macias, 218 F.3d 1064, 1066 (9th
Cir. 2000) (holding that living in a trailer at a site where
methamphetamine was being produced and knowing that it
was being produced, without evidence of participation in

28
Go-Fast Defendants Carrasco and Murillo do not contest the suffi-
ciency of the evidence against them. As noted earlier, Go-Fast Defendant
Reina’s appeal, having already been decided, is not before us. See supra
note 9. And, as also noted earlier, we deny Go-Fast Defendant Aborno’s
motion to join in his co-Defendants’ challenges except with respect to
Congress’ power to enact the MDLEA. See supra note 21. Accordingly,
with respect to the evidence against the Go-Fast Defendants, we consider
whether the evidence was sufficient to sustain only Defendant Lopez’s
conviction.
 UNITED STATES v. PERLAZA 2611
methamphetamine production or distribution, was insufficient
to sustain conviction for conspiracy to manufacture metham-
phetamine); United States v. Vasquez-Chan, 978 F.2d 546,
549-50 (9th Cir. 1992) (holding that being a caretaker and a
guest in a house where cocaine was kept and knowing of the
cocaine’s presence, without evidence of participation in the
scheme to distribute the cocaine, was insufficient to sustain
conviction for possession with intent to distribute cocaine);
United States v. Sanchez-Mata, 925 F.2d 1166, 1168 (9th Cir.
1991) (holding that being “merely a passenger” in a vehicle
transporting marijuana is insufficient to sustain a conviction
for possession with intent to distribute narcotics or conspiracy
to possess with intent to distribute narcotics); United States v.
Whitman, 469 F.2d 1370, 1370 (9th Cir. 1972) (holding that
“mere presence” in a vehicle carrying marijuana is insuffi-
cient to sustain a conviction for “facilitating the transportation
of marihuana”); see also United States v. Herrera-Gonzalez,
263 F.3d 1092, 1096-97 (9th Cir. 2001) (discussing, inter
alia, Estrada-Macias, Vasquez-Chan, and Sanchez-Mata).

Were Lopez temporarily residing in or visiting a house
where narcotics were kept or manufactured, merely riding in
an automobile that contained narcotics, or perhaps even
aboard a vessel significantly larger than the Go-Fast, these
precedents might compel us to conclude that the evidence
against him was insufficient to sustain his conviction. But
Lopez’s case is distinguishable from all of these scenarios,
and, as the Government properly notes, we have already artic-
ulated “a number of factors” that may be used to demonstrate
“knowing participation” in a maritime narcotics-trafficking
prosecution under the MDLEA. Klimavicius-Viloria, 144 F.3d
at 1263.

These factors include:

a long voyage on a small vessel evincing a close
relationship between captain and crew; suspicious
behavior or diversionary maneuvers before appre-
2612 UNITED STATES v. PERLAZA
hension; attempts to flee; inculpatory statements
made after apprehension; witnessed participation as
a crewman; obviousness of the contraband; or
absence of equipment necessary to the intended use
of the vessel.

Id. (quoting United States v. Ospina, 823 F.2d 429, 433 (11th
Cir. 1987)). The factors relevant in this case include the
length of the Go-Fast’s voyage, the Go-Fast’s size, and the
Go-Fast crew’s suspicious behavior and diversionary maneu-
vers.

As we noted earlier, the Go-Fast was of the short-range
variety, with one small cabin and estimated by the Govern-
ment’s expert to be between twenty-five and thirty-five feet
in length. In addition to the 1,964 kilograms of cocaine, the
Go-Fast contained at least a dozen 55-gallon drums of gaso-
line, suggesting that its planned voyage was lengthy and, as
the Government’s expert opined, likely destined for Central
Mexico.29 Once detected by the De Wert’s helicopter, the Go-
Fast engaged in diversionary maneuvers, weaving left and
right, jettisoning the large bales of cocaine, and eventually
crashing into the rear of the Gran Tauro. Additionally, once
29
The Defendants who opted for trial contend that the district court
erred when it admitted expert testimony regarding maritime drug smug-
gling. According to Defendants, this evidence constituted inadmissible
“drug courier profile evidence.” We review a district court’s decision to
admit expert testimony for abuse of discretion. See United States v. Doro-
tich, 900 F.2d 192, 194 (9th Cir. 1990). The district court’s decision here
to admit the Government’s expert testimony was not an abuse of discre-
tion. See Klimavicius-Viloria, 144 F.3d at 1260 (finding that district court
did not abuse its discretion when it allowed a Government expert to testify
“about fifteen different smuggling routes over air, land and sea, and gave
a detailed explanation of the complexity of maritime smuggling. She
related how mother ships, which may be disguised as fishing vessels, take
circuitous routes to their destinations to avoid detection. She also
explained that drug trafficking organizations are compartmentalized, in
that different groups are responsible for different functions, so that each
group has limited knowledge of the operation.”).
 UNITED STATES v. PERLAZA 2613
the Go-Fast began to capsize, its crew — including Lopez —
stripped themselves naked in an apparent attempt to remove
any trace evidence of having handled the cocaine. From this
evidence, “any rational trier of fact could have found” that no
member of the Go-Fast crew could have been aboard that ves-
sel without knowing of the cocaine’s presence and participat-
ing in its transport. Odom, 329 F.3d at 1034. Accordingly, we
find that the evidence was sufficient to sustain Lopez’s con-
viction.

2. The Gran Tauro Defendants

Like Lopez, the seven Gran Tauro Defendants argue that
the Government failed to establish that they were knowing
participants in the Go-Fast crew members’ conspiracy to
transport cocaine. In response, the Government relies on
Klimavicius-Viloria, where we said that “[c]ourts have found
knowing participation [in a maritime narcotics-trafficking
scheme] when a ship’s asserted legitimate purpose appears to
be a ruse.” 144 F.3d at 1264 (emphasis added). The Govern-
ment then argues that there is convincing evidence in this case
that the Gran Tauro’s alleged fishing expedition was cover
for it serving as a floating gasoline station and that this sug-
gests that the Gran Tauro Defendants knowingly participated
in the drug trafficking scheme. We agree with the Govern-
ment that the evidence properly allowed the jury to conclude
beyond a reasonable doubt that the Gran Tauro’s alleged fish-
ing expedition was a ruse, that the Gran Tauro’s true purpose
was to serve as a floating gasoline station, and that the Gran
Tauro, did in fact, refuel the Go-Fast. We also agree with the
Government that, from this evidence, a reasonable jury could
conclude beyond a reasonable doubt that the Gran Tauro
Defendants knowingly agreed to refuel vessels carrying nar-
cotics.

On each occasion that the Gran Tauro was observed (Sep-
tember 1, 2, 7, 9, and 10), all eye-witnesses aboard the De
Wert and its helicopter saw the Gran Tauro dead in the water
2614 UNITED STATES v. PERLAZA
or moving very slowly with no one aboard fishing. LEDET
team members testified that the Gran Tauro’s fishing nets
were stored improperly, dry, rotted, and had dry floats. The
vessel’s gangions and hooks were on the second level of the
vessel and not easily accessible for fishing. The vessel’s only
fishing crane was rusted and unusable. Though the ice in the
fish hold was observed to be clean and fresh during the
LEDET team’s September 3, 2000, boarding, by September
11, the ice was glazed over and appeared to have not been
stirred.30 The fish aboard were not stored whole as is usually
the case on fishing vessels, but instead were perfectly layered,
filleted, and clean, as if ready for market.31

Further supporting the Government’s theory that the Gran
Tauro’s purported fishing expedition was a ruse is the fact
that the Gran Tauro was found well outside its approved fish-
ing zones. The Government presented evidence from which a
jury could conclude, Barnaza’s protestations to the contrary
notwithstanding, that he knew the locations of the Gran
Tauro’s approved fishing zones (Buenaventura Zones 2 and
3) and knew how to use the high frequency radio aboard it.32
30
By the time the Gran Tauro reached San Diego on September 26,
2000 — one day after its scheduled return to port at Buenaventura — its
ice had entirely solidified into a block and the fish below it was discol-
ored, odoriferous, and unmarketable. The Government presented evidence
that the fish was likely bad by as early as September 11, 2003, as no mem-
ber of the Gran Tauro’s crew ate any of the filleted fish from its hold dur-
ing their trip to San Diego, notwithstanding that the crew claimed to run
out of food and had to be replenished by the Valley Forge.
31
Had the 950 kilograms of fish aboard the Gran Tauro been stored
whole but gutted and de-headed, the quantity might suggest that the vessel
was actually on a fishing expedition.
32
The Government introduced into evidence the Gran Tauro’s log book,
which indicated that, on two prior occasions in June 2000, while under the
control of Barnaza, the Gran Tauro had in fact fished in Zones 2 and 3.
Though Defendants did not object to the admission of the log books when
originally admitted, Barnaza’s counsel objected on hearsay and Rule
404(b) grounds to the Government’s examination of Petty Officer Seda
 UNITED STATES v. PERLAZA 2615
Finally, when Chief Warrant Officer Van Pelt boarded the
Gran Tauro on September 3, 2000, he found almost 6,000
gallons of gasoline in the Gran Tauro’s tanks. The smell of
gasoline was so noticeable that both the September 3 and Sep-
tember 11 LEDET boarding teams could smell it from outside
the Gran Tauro as they approached on their boarding boats.
Notwithstanding the thousands of gallons of gasoline found
aboard, Barnaza claimed that the Gran Tauro’s only gasoline
was contained in one 55-gallon drum, and Marquez stated that
all the tanks aboard the Gran Tauro were filled with diesel —
the Gran Tauro’s fuel-type. When the Gran Tauro was
boarded on September 11, 2000, approximately three-quarters
of its gasoline supply had been depleted and its pump and
hoses smelled of gasoline.

The Gran Tauro Defendants argue that, regardless of how
compellingly or convincingly this evidence established that
the Gran Tauro was a refueling — and not a fishing — ves-
sel, the Government, nonetheless, failed to offer any evidence
that the Gran Tauro’s crew knew that the Go-Fast or any
other vessel that it may have refueled in September 2000 was
carrying narcotics. In support of this argument, the Gran

about their contents. The district court properly overruled these objections.
First, the log book clearly falls under the business records exception to the
hearsay rule. See Fed. R. Evid. 803(6). Barnaza contends that the log book
does not fall under the business record exception because Barnaza, who
refused to testify, did not authenticate it. This argument fails, however,
because Van Pelt’s testimony that Barnaza gave it to him with the rest of
the Gran Tauro’s documents provides sufficient authentication.
Nor is the log inadmissible 404(b) evidence. The log book was not
admitted as other bad act evidence, but rather as evidence of Barnaza’s
knowledge of Zones 2 and 3 and “absence of mistake” when the Gran
Tauro was found outside of Zones 2 and 3. See Fed. R. Evid. 404(b).
Barnaza asserts that, even if the log book was not “other bad acts” evi-
dence, it was still improperly admitted because the Government failed to
comply with Rule 404(b)’s notice provision. This assertion is belied by the
record. Barnaza had access to the log book months before trial and it was
on the Government’s trial exhibit list.
2616 UNITED STATES v. PERLAZA
Tauro Defendants rely on our decision in Estrada-Macias. In
Estrada-Macias, we recognized that, “[w]hen there is an inno-
cent explanation for a defendant’s conduct as well as one that
suggests that the defendant was engaged in wrongdoing, the
government must produce evidence that would allow a ratio-
nal jury to conclude beyond a reasonable doubt that the latter
explanation is the correct one.” 218 F.3d at 1067 (quoting
Vasquez-Chan, 978 F.2d at 549). The Gran Tauro Defendants
assert that their “innocent explanation” is that the Gran Tauro
and its crew departed Buenaventura on an expedition to profit
from refueling other vessels on the high seas and that the
Government provided no evidence to allow the jury to reject
this explanation beyond a reasonable doubt.

[18] We reject this contention. It is well-settled in this cir-
cuit that, once the existence of a conspiracy is established, a
defendant may be convicted of knowing participation therein
if the evidence establishes, beyond a reasonable doubt, “even
a slight connection” between the defendants and the conspir-
acy. United States v. Wright, 215 F.3d 1020, 1028 (9th Cir.
2000). There is no doubt that the Government established a
“slight connection” between the Gran Tauro Defendants and
the cocaine recovered from the Go-Fast’s debris field. More-
over, we will accept a defendant’s allegedly “innocent expla-
nation” only when that explanation is plausible. Compare
United States v. Jose Luis L., 978 F.2d 543, 545-46 (9th Cir.
1992) (insufficient evidence to support conviction for posses-
sion where defendant’s story was plausible and consistent
with defendant’s actions), and Vasquez-Chan, 978 F.2d at 553
(same), with Mayes, 524 F.2d at 807-08 (9th Cir. 1975) (suffi-
cient evidence to support conviction for possession where the
only innocent explanation of the evidence was so implausible
that a reasonable jury could have dismissed it). It is highly
improbable that anyone unconnected with the conspiracy
would know of the existence of other vessels needing gaso-
line, such as the Go-Fast, much less be aware of their precise
location at a given time and be able to sell them gasoline in
the middle of the high seas. Accordingly, we find that the evi-
 UNITED STATES v. PERLAZA 2617
dence was sufficient to establish that the Gran Tauro Defen-
dants knowingly participated in the Go-Fast crew members’
conspiracy to possess cocaine aboard a vessel with intent to
distribute and that the indictment against the Gran Tauro
Defendants, though dismissed for the reasons discussed ear-
lier, is without prejudice to re-indictment and retrial.

CONCLUSION

In light of the foregoing, we reverse the convictions of the
ten Defendants who opted for trial and remand with instruc-
tions that the district court dismiss the indictment because the
district court erroneously exercised jurisdiction over these
Defendants without first requiring the Government to allege
in the indictment and prove to a jury beyond a reasonable
doubt certain facts necessary to establish the district court’s
jurisdiction. We also find that, even if the district court had
jurisdiction over these Defendants, we would still reverse
their convictions because of the Prosecutor’s improper closing
argument and the district court’s failure to adequately cure it.
The district court’s dismissal shall be without prejudice
because the Government’s evidence was sufficient to sustain
these Defendants’ convictions and the prosecutorial miscon-
duct did not trigger the Double Jeopardy Clause’s bar to
retrial. We affirm Defendant Aborno’s conviction because we
reject the one challenge he raises that is properly before us.

REVERSED IN PART, AFFIRMED IN PART, and
REMANDED.

BRUNETTI, Circuit Judge, concurring in part and dissenting
in part:

The majority of the panel has reversed the convictions of
the ten Defendants who opted for trial, holding that the dis-
trict court erred when it concluded it had jurisdiction over the
2618 UNITED STATES v. PERLAZA
defendants and, alternatively, because of the Government’s
prosecutorial misconduct. I agree with the majority opinion,
Section D, that the evidence was sufficient to sustain the
defendants’ convictions and that the Gran Tauro defendants’
convictions should be reversed on jurisdictional grounds.

I disagree with the majority, however, with regard to the
Go-Fast defendants because the district court correctly
decided the issue of statutory jurisdiction as applied to the
Go-Fast defendants, and any prosecutorial misconduct
resulted in harmless error. Therefore, I respectfully dissent.

Proceedings Below

Before trial, Defendants sought to dismiss the indictment
on the basis that the district court lacked jurisdiction. The dis-
trict court denied this motion, after an evidentiary hearing,
finding that it had jurisdiction over both the Go-Fast and Gran
Tauro defendants, in part because the Go-Fast was a stateless
vessel.

On October 18, 2001 Defendants Aborno and Reina pled
guilty to both charges (conspiracy to possess cocaine with
intent to distribute and possession of cocaine with intent to
distribute, both under the MDLEA) and were sentenced to
108 and 135 months in custody, respectively. The remaining
ten defendants went to trial.

At the close of remaining defendants’ three-week trial, the
Assistant U.S. Attorney made the following statement in his
rebuttal arguments:

[I]n a short period of time, the case will be handed
to you. You’re going to go back into that delibera-
tion room and that presumption of innocence, that
presumption of innocence that these men have all
been cloaked with the last year, the last year while
we’ve litigated motions — you’ve heard about all
 UNITED STATES v. PERLAZA 2619
the motions that have been held beforehand. That’s
why it’s taken so long to get here. That presumption,
when you go back in that room right behind you, is
going to vanish when you start deliberating. And
that’s when the presumption of guilt is going to take
over once you —

Defendants’ counsel responded to this statement with a flurry
of objections, which the trial court judge overruled. Immedi-
ately after the court overruled the objections, defense counsel
made the following additional comments: “That’s miscon-
duct. There is no presumption of guilt” and “I move for mis-
trial,” to which the judge responded, “That’s proper rebuttal.
Go ahead. You are all right.” Defense counsel finished by
stating, “Presumption of guilt can’t be proper, Your Honor.”
The Assistant U.S. Attorney continued with his remarks
which lasted some 20 pages-worth of trial transcript until a
break in the proceedings allowed counsel and the trial judge
to discuss more fully the Assistant U.S. Attorney’s statement.

Defense counsel forcefully argued that not only was the
Government’s statement a misstatement of law but that it con-
stituted prosecutorial misconduct. Counsel stated that they did
not believe that a curative instruction could cure the prejudice
suffered by the defendants from this remark. When given the
opportunity to respond, the Assistant U.S. Attorney said,
“That’s what I said, when they get back there and start look-
ing at it is when the presumption takes over, presumption of
guilt.” The court concluded that the Assistant U.S. Attorney’s
statement did not constitute misconduct and denied the
motion for mistrial, but agreed to give a curative instruction.
After the break, the court allowed the Assistant U.S. Attorney
to continue without making any statement to the jury, and
only after he finished his rebuttal arguments—this time, some
36 transcript pages later—did the court make the following
statement:

[I]t is my duty at this time to instruct you on the law
that applies in this case . . . Also, I’m sure you’re all
2620 UNITED STATES v. PERLAZA
aware of this, but let me just tell you this before we
begin. There is no such thing as a presumption of
guilt in a criminal case. All defendants in a criminal
case are presumed to be innocent unless or until such
time as the evidence established guilt.

The court continued with his instructions, including stating
that “the defendants are presumed to be innocent,” “the gov-
ernment has the burden of proof of proving every element of
each charge beyond a reasonable doubt,” and “[n]o presump-
tion of guilt may be raised and no inference of any kind may
be drawn from the fact that a defendant did not testify.” The
court then provided a comprehensive explanation of the legal
standard for proof beyond a reasonable doubt.

The ten defendants were convicted on November 9, 2001,
after a three-week jury trial. Three of the ten defendants were
convicted of both counts (conspiracy to possess cocaine with
intent to distribute and possession of cocaine with intent to
distribute, both under the MDLEA ) and the remaining seven
were convicted solely of the conspiracy count.

Discussion

I. Jurisdictional Inquiry

Although I agree with the majority that the district court
erred in concluding it had jurisdiction over the Gran Tauro
defendants, I diverge from the majority in its conclusion that
the district court erred in finding it had jurisdiction over the
Go-Fast defendants.

Section 1903(a), under which all defendants were prose-
cuted, states:

It is unlawful for any person on board a vessel of the
United States, or on board a vessel subject to the
jurisdiction of the United States, or who is a citizen
 UNITED STATES v. PERLAZA 2621
of the United States . . . on board any vessel, to
knowingly or intentionally manufacture or distribute,
or to possess with intent to manufacture or distribute,
a controlled substance.

46 App. U.S.C. § 1903(a) (emphasis added). In this circuit,
whether a vessel is subject to the jurisdiction of the United
States involves an analysis of two distinct elements, which
have been coined “statutory jurisdiction” and “constitutional
jurisdiction.” United States v. Medjuck, 156 F.3d 916, 918
(9th Cir. 1998). The district court found that it had statutory
jurisdiction over the Go-Fast defendants because the Go-Fast
was a stateless vessel, or a “vessel without nationality.”

Section 1903(c) defines vessels that are “subject to the
jurisdiction of the United States” under the MDLEA. Included
is “a vessel without nationality.” § 1903(c)(1)(A). “A vessel
without nationality,” for purposes of the MDLEA, can take
one of three forms:

(A) a vessel aboard which the master or person in
charge makes a claim of registry, which claim is
denied by the flag nation whose registry is claimed;

(B) any vessel aboard which the master or person
in charge fails, upon request of an officer of the
United States empowered to enforce applicable pro-
visions of United States law, to make a claim of
nationality or registry for that vessel; and

(C) a vessel aboard which the master or person in
charge makes a claim of registry and the claimed
nation of registry does not affirmatively and
unequivocally assert that the vessel is of its national-
ity.

46 App. U.S.C. § 1903(c)(2). Section § 1903(c)(3) further
defines “a claim of nationality or registry” as including only:
2622 UNITED STATES v. PERLAZA
(A) possession on board the vessel and production
of documents evidencing the vessel’s nationality in
accordance with article 5 of the 1958 Convention on
the High Seas;

(B) flying its flag nation’s ensign or flag; or

(C) a verbal claim of nationality or registry by the
master or person in charge of the vessel.

Id. § 1903(c)(3).

In 1996, Congress amended § 1903 by adding § 1903(f),
which states: “Jurisdiction of the United States with respect to
vessels subject to this chapter is not an element of any
offense. All jurisdictional issues arising under this chapter are
preliminary questions of law to be determined solely by the
trial judge.” 46 U.S.C. App. § 1903(f). Congress made clear
through this amendment that the jurisdictional requirement is
not an element of a § 1903(a) substantive offense, but rather
is an issue that goes only to the subject matter jurisdiction of
the federal courts. Constitutional limitations on congressional
power to remove issues from the jury’s determination are nar-
row: “[t]he definition of the elements of a criminal offense is
entrusted to the legislature, particularly in the case of federal
crimes, which are solely creatures of statute.” Staples v.
United States, 511 U.S. 600, 604 (1994) (internal quotations
omitted). Although Congress’s decision on how to define the
elements of the offense “is usually dispositive,” McMillan v.
Pennsylvania, 477 U.S. 79, 85 (1986), the majority’s holding
will render § 1903(f) meaningless in this case.

We have analyzed the effect of § 1903(f) in two cases, and
in both cases held that the determination of whether the court
had jurisdiction over the vessel, or the waters where the vessel
was intercepted, was a question for the court, consistent with
the language of Congress’ 1996 amendment. In United States
v. Smith, 282 F.3d 758 (9th Cir. 2002), the district court con-
 UNITED STATES v. PERLAZA 2623
cluded that under § 1903(f), the court, not the jury, should
decide both (1) whether the United States has jurisdiction
over the place where the vessel was allegedly intercepted; and
(2) whether the vessel was actually intercepted at that place.
Id. at 766. This circuit rejected the district court’s interpreta-
tion as “over-inclusive,” holding that where the vessel was
actually intercepted was a question for the jury, but that
§ 1903(f) empowers the court to make the determination of
whether the United States has jurisdiction over that location.
Id.

In the subsequent case of United States v. Moreno-Morillo,
334 F.3d 819 (9th Cir. 2003), as in this case, jurisdiction
depended not on the factual determination of where the ship
was seized, as in Smith, but, rather, of the ship’s status vis-a-
vis statelessness. Id. at 829. The court noted that unlike Smith,
this case “cannot be separated neatly into two parts,” but con-
cluded that the district court properly determined “that the
Defendants’ vessel falls within the definition of ‘vessel with-
out nationality’ under the MDLEA.” Id. at 830. The court rea-
soned that because the defendants had failed to challenge the
substance of the State Department certificate noting that
Colombia would neither affirm nor deny the vessel’s registry,
“the substance of the certificate stands as the only—and there-
fore uncontroverted—evidence in the record regarding state-
lessness.” Id.

The case before us falls squarely within the contours of
Smith and Moreno-Morillo. In Smith, the court noted that “the
‘jurisdictional issue’—whether the United States has jurisdic-
tion over the waters where a vessel is allegedly intercepted—
can and should be decided by the trial court as a preliminary
question of law.” Id. at 767. Here, the district court faced an
analogous jurisdictional issue: whether the United States had
jurisdiction over the Go-Fast. Just as in Smith, where the trial
court determined the status of the waters in question, here, the
district court determined the status of the vessel in question.
The jurisdictional inquiry in this case did not involve a “fac-
2624 UNITED STATES v. PERLAZA
tual issue,” because the question was whether the United
States had jurisdiction over the vessel, not whether the Go-
Fast defendants were on the vessel.

This “dual inquiry” analysis is well-supported in our cir-
cuit. For example, in United States v. Warren, the defendant
was charged with stabbing a man at a Hawaii army base,
Schofield Barracks. 984 F.2d 325, 327 (9th Cir. 1993). At the
outset, the district court determined that Schofield Barracks
was within the jurisdiction of the United States, but the court
never had the jury find whether the stabbing actually took
place at the base. Id. We held that the district court properly
decided whether the base was within the jurisdiction of the
United States, but that the instruction improperly omitted the
issue of whether the stabbing occurred on the base. Id. Here,
the district court properly determined whether the Go-Fast
was subject to the jurisdiction of the United States, leaving
any question of whether the defendants were on the Go-Fast
to the jury. “A district court may determine as a matter of law
the existence of federal jurisdiction over the geographic area,
but the locus of the offense within that area is an issue for the
trier of fact.” Id. (internal quotations omitted); accord United
States v. Sohappy, 770 F.2d 816, 821 (9th Cir. 1985) (holding
that district court properly determined whether “Cooks Land-
ing” was “Indian country” and then correctly “instructed jury
that they need only find that the violations occurred in Cooks
Landing”).

Moreno-Morillo’s interpretation of Smith further supports
the position that the Go-Fast’s status was a question for the
court, not the jury. In Moreno-Morillo, the court held that
since the evidence presented to the court regarding stateless-
ness was uncontroverted, there were no factual issues for the
jury to determine. 334 F.3d at 831. Here, the evidence pres-
ented with regard to the Go-Fast’s status is similarly uncon-
troverted. A United States officer who observed the Go-Fast
by using sensitive surveillance equipment testified that they
saw no flags of any kind, no marking of any kind, no hull
 UNITED STATES v. PERLAZA 2625
numbers, no name on the vessel, and no home-port inscrip-
tion. Moreover, when Petty Officer Craig Cruz boarded the
Gran Tauro and asked the members of the Go-Fast if the ves-
sel had a flag, Go-Fast defendants Reina and Murillo simply
shook their heads back and forth and defendant Aborno stated
“Barco no tengo bandera,” which literally means, “Boat I
have no flag.” Officer Cruz also testified that later, when
asked who was in charge of the Go-Fast, Murillo stated that
the ship captain was a person named Freddy, who, according
to Cruz’s report “was the only one who really knew about the
boat expedition.” Although the court indicated that this state-
ment was not produced for its truth, i.e., that Freddy was in
fact the captain, the statement indicates that when Cruz
inquired as to the Go-Fast’s captain, neither Murillo nor Reina
proclaimed to be the master or person in charge. Reina and
Murillo individually introduced declarations to the district
court indicating that they both told Cruz that they were from
Colombia and that the boat was from Colombia. Murillos’s
declaration stated that “[I] told the Coast Guard Officers that
I was a Colombian citizen from the city of Buenaventura,
Colombia.” “Buenaventura” was crossed out in the declara-
tion and replaced with illegible handwriting. The declaration
also stated: “I also told them that the our boat was from Buen-
aventura, Colombia.” Again, “Buenaventura” was crossed
out. Reina’s declaration similarly stated that “[I] told the
Coast Guard Officers that I was a Colombian citizen from the
City of Valle Sudano (Colombia).” “Valle Sudano” was
crossed out, and replaced with illegible writing. Reina’s dec-
laration also stated “I also told them that our boat was from
Baiazolano (DM) Colombia.” Taken together, this evidence
does not leave any factual determinations that need to be
made by the jury. The defendants’ statements to Cruz that
they were from Colombia are legally insignificant under the
jurisdictional inquiry, as neither claimed to be the person in
charge of the vessel, as required by § 1903(c)(3)(C). The
statements that the boat “was from Colombia” made by per-
sons not claiming to be the master or person in charge are also
2626 UNITED STATES v. PERLAZA
legally insignificant, and no further facts or documents to sup-
port a “claim of nationality or registry” were asserted by the
defendants. Since no evidence was presented to create a fac-
tual dispute with regard to the Go-Fast’s status as a “vessel
without nationality,” under Moreno-Morillo, the district court
properly determined that the vessel was stateless based on the
uncontroverted evidence in the record.

For these reasons, the district court correctly concluded that
it had jurisdiction over the Go-Fast defendants on the basis of
the vessel being “without a nationality” under § 1903(c), and
the convictions of the Go-Fast defendants should be upheld.

II. Prosecutorial misconduct

The majority holds that the Government committed pro-
secutorial misconduct by impermissibly shifting the burden of
proof to the defense, and that this error was not harmless. I
disagree because any prosecutorial misconduct was harmless
error, and therefore the convictions of the Go-Fast defendants
should not be reversed on these grounds.

Given my concurrence with the majority that the district
court erred in not deciding the existence of a nexus as
required by the law in this circuit, vis-à-vis the Gran Tauro
defendants, I need only analyze the effect of the prosecutorial
misconduct with regard to the Go-Fast defendants.

We review the record de novo in order to determine an
error’s harmlessness. Arizona v. Fulminante, 499 U.S. 279,
295 (1991) “The purpose of harmless-error analysis is to
avoid setting aside convictions for small errors or defects that
have little, if any, likelihood of having changed the result of
the trial.” United States v. Annigoni, 96 F.3d 1132, 1143 (9th
Cir. 1996) (internal citations omitted). “[B]efore a federal
constitutional error can be held harmless, the court must be
able to declare a belief that it was harmless beyond a reason-
able doubt.” Fulminante, 499 U.S. at 295 (citing Chapman v.
 UNITED STATES v. PERLAZA 2627
California, 386 U.S. 18, 24 (1967)). In so doing, it must be
determined whether the Government has met its burden of
demonstrating that the error did not contribute to the defen-
dant’s conviction. Chapman, 386 U.S. at 26. The inquiry,
therefore, is whether allegedly improper behavior, considered
in the context of the entire trial, affected the jury’s ability to
judge the evidence fairly. United States v. McKoy, 771 F.2d
1207, 1212 (9th Cir. 1985)

Courts consider several factors in determining whether an
error contributed to the defendant’s conviction. Included are
the relative strength of the case against the accused or whether
instructions given by the trial court sufficiently diluted any
prejudice. United States v. Hawkins, 595 F.2d 751, 755 (D.C.
Cir. 1978) (prosecutor’s improper statements during closing
argument harmless because they “did not substantially sway
the verdict”) (cited with approval in United States v. McKoy,
771 F.2d 1207 (9th Cir. 1985)).

To determine whether the prosecutorial misconduct sub-
stantially swayed the verdict as to the Go-Fast defendants we
must assess the strength of the government’s case as well as
the effectiveness of the court’s curative instruction to deter-
mine whether the error improperly resulted in conviction. The
strength of government’s case is clearly established in the
majority opinion, Section D, which found the evidence was
sufficient to sustain the defendants’ convictions. The strength
of the government’s case against the Go-Fast defendants,
therefore, militates against a finding that the prosecutor’s
error produced a wrongful conviction.

Moreover, we have held that the trial judge may neutralize
any potential harm of improper remarks by giving a curative
instruction. United States v. Endicott, 803 F.2d 506, 513 (9th
Cir. 1986). “A trial judge may cure the effect of improper pro-
secutorial comments ‘by admonishing counsel to refrain from
such remarks or by giving appropriate curative instructions to
2628 UNITED STATES v. PERLAZA
the jury.’ ” Id. (citing McKoy, 771 F.2d at 1213; United States
v. Birges, 723 F.2d 666, 672 (9th Cir. 1984)).

Here, as noted above, the trial court first overruled defense
counsels’ objections to the Government’s statement, stating in
response, “That’s proper rebuttal. Go ahead. You are all
right.” After discussion with all counsel at a break, however,
the court agreed to make a curative instruction, although the
court refused to admonish the Assistant U.S. Attorney or indi-
cate that his comment constituted gross misconduct. After the
Assistant U.S. Attorney’s rebuttal and before instructing the
jury on the law that applied in the case, the court highlighted
and gave a curative instruction which included a statement
that there is no such thing as a presumption of guilt in a crimi-
nal case. The court then instructed the jury on the law that
applied in this case and emphasized throughout his instruc-
tions that the government carried the burden of proof to prove
all the elements of the charged offenses beyond a reasonable
doubt.

This curative instruction is sufficient to cure any prejudice
defendants suffered. Unlike in Fulminante, where the prose-
cution introduced the defendant’s completely damning
coerced confession, the jury here was able to ignore the prose-
cutor’s misstatement of law and follow the trial judge’s
instructions as to burden of proof and presumption of inno-
cence. See Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d
1258, 1270 (9th Cir. 2000) (strong presumption that juries fol-
low curative instructions).

In sum, the strength of the government’s case against the
Go-Fast defendants, coupled with the trial court’s tardy, yet
clearly stated, curative instruction renders the error harmless,
and the convictions of the Go-Fast defendants should be
upheld.

For these reasons, I dissent.