United States v. Trinidad

United States Court of Appeals
For the First Circuit

No. 15-1576

UNITED STATES OF AMERICA,

Appellee,

v.

PERSIS TRINIDAD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Barron, Circuit Judges.

Juan A. Albino González and Albino & Assoc. Law Office, PC
on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.

October 14, 2016
 BARRON, Circuit Judge. Persis Trinidad was convicted

of violating the Maritime Drug Law Enforcement Act ("MDLEA")

after his vessel was intercepted by United States authorities.

Trinidad appeals the District Court's application of a

sentencing enhancement to him.1 That enhancement applies if the

defendant "acted as a pilot, copilot, captain, navigator, flight

officer, or any other operation officer" on a vessel carrying

controlled substances. U.S.S.G. §2D1.1(b)(3)(C). We conclude

that the District Court did not err in ruling that Trinidad

acted as a "navigator" within the meaning of the enhancement.

I.

On or about September 27, 2014, Trinidad and Algemiro

Coa-Peña were intercepted in a 30-foot "go-fast type vessel" by

the United States Coast Guard, approximately 80 nautical miles

1 Apparently content with the “benefit of his bargain,”
United States v. Saxena, 229 F.3d 1, 6 (1st Cir. 2000), Trinidad
does not challenge the validity of his plea agreement, and so
does not challenge the Coast Guard's determination that his
vessel was a "vessel without nationality," 46 U.S.C.
§ 70502(c)(1)(A), which the MDLEA defines as a "vessel aboard
which the master or individual in charge makes a claim of
registry and for which the claimed nation of registry does not
affirmatively and unequivocally assert that the vessel is of its
nationality," id. at § 70502(d)(1)(C). We thus have no reason
to question that determination. Moreover, because Trinidad
makes no argument that his guilty plea is invalid, he also makes
no argument that his plea agreement must be vacated because
Congress exceeded its constitutional authority under Article I
in enacting the MDLEA. As we have made clear that such a
challenge would not implicate our subject-matter jurisdiction,
we do not address that issue either. E.g., United States v.
Nueci-Peña, 711 F.3d 191, 196-97 (1st Cir. 2013).

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south of Lea Beata, Dominican Republic.2 The vessel bore no

indicia of nationality.

Trinidad and Coa-Peña told the Coast Guard that the

vessel was coming from Colombia, and one of the men claimed

Colombian nationality for the vessel. After the Government of

Colombia indicated that it could neither confirm nor deny

registry of the vessel, the Coast Guard determined that the

vessel was one without nationality within the meaning of the

MDLEA, 46 U.S.C. § 70502(c)(1)(A), and boarded the vessel. The

Coast Guard found approximately 144 kilograms of cocaine

onboard.

On January 8, 2015, Trinidad pleaded guilty to one

count of possession with intent to distribute cocaine, in

violation of provisions of the MDLEA. See 46

U.S.C. §§ 70503(a)(1), 70504(b)(1), 70506(a), and 70506(b). In

so doing, Trinidad admitted that he and Coa-Peña took turns

driving the vessel. Trinidad also admitted that he and Coa-Peña

"set sail for the Dominican Republic utilizing Global

Positioning Devices that were provided to them."

The parties agreed to a total offense level of 31,

unless Trinidad complied with the requirements set forth in

2
"Because this appeal follows a guilty plea, we draw the
facts from the plea agreement, the change-of-plea colloquy, the
unchallenged portions of the presentence investigation
report . . . , and the transcript of the disposition hearing."
United States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013).

- 3 -
U.S.S.G. §2D1.1(b)(17) (the so-called "safety-valve reduction"),

in which case the parties agreed that the total offense level

would be 29. The agreed-upon offense level did not include the

two-level sentencing enhancement for Trinidad's "act[ing] as a

pilot, copilot, captain, navigator, flight officer, or any other

operation officer aboard any craft or vessel."

U.S.S.G. §2D1.1(b)(3)(C).

The pre-sentence report ("PSR") put together by the

probation office calculated a total offense level of 33. The

PSR calculated that level by taking into account the parties'

stipulated base offense level and by adding the two-level

"pilot-navigator enhancement" set forth in U.S.S.G.

§2D1.1(b)(3)(C). The PSR did not account for the two-level

safety-valve reduction. The PSR added the enhancement because

the probation officer determined that Trinidad "acted as a

navigator" in the course of committing the underlying offense.

Trinidad objected to the enhancement on the grounds that he was

neither the captain nor the navigator of the vessel, as Trinidad

only took turns steering the vessel and did not himself handle

the vessel's GPS system.

The District Court calculated a total offense level of

31 and sentenced Trinidad to a term of imprisonment of 108

months, at the low end of the applicable Guidelines range. In

so doing, the District Court adopted both the two-level safety-

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valve reduction and the two-level pilot-navigator enhancement.

The District Court applied the enhancement because it found that

Trinidad navigated the vessel under the circumstances.

Trinidad appeals the application of the pilot-

navigator sentencing enhancement to him.

II.

We review the District Court's interpretation and

application of this sentencing enhancement de novo and the

District Court's underlying "factual findings, which must be

supported by a preponderance of the evidence, for clear error."

United States v. Lopez, 299 F.3d 84, 87 (1st Cir. 2002). The

government's sole argument to us is that the District Court did

not err in finding that the enhancement applies because Trinidad

acted as a navigator. We agree.

The undisputed record shows that Trinidad took turns

steering the vessel with Coa-Peña, the only other passenger on

board; that the vessel was traveling from Colombia to the

Dominican Republic; that he and Coa-Peña "set

sail . . . utilizing Global Positioning Devices"; and that the

vessel was intercepted after twenty-four hours on the high seas.

Given these facts, the District Court reasonably concluded that

Trinidad must have been responsible for ensuring that the boat

stayed on course for some not insubstantial portion of the trip.

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 Trinidad does contend that he did not "use" the GPS,

and that he therefore cannot be said to have been navigating.

But the District Court reasonably concluded that Trinidad must

have relied on the GPS to keep the boat on course. Unlike on

land, the District Court noted, Trinidad could not have been

instructed to "[j]ust keep going straight." Thus, the District

Court did not clearly err in determining that, even if Trinidad

did not himself set or calibrate the GPS device, it was

impossible to conclude that he "[got] on a boat," was told "that

way," and went. "That's not the way it goes. You will end up

God knows where. It's a big ocean up there."

Further supporting the District Court's assessment of

Trinidad's onboard role -- and reliance on instrumentation in

guiding the boat's course -- is the portion of the colloquy at

sentencing in which Trinidad's counsel did not contest the

notion that Trinidad had relied on the GPS to keep the boat on

course. In that exchange, Trinidad's counsel, in trying to

explain that Trinidad's role was too minimal to make him a

navigator, remarked, "If you tell him look at the GPS or the

(Remarks in Spanish) -- we're going 280 east for example." At

that point, the District Court stated: "You have given it in.

The moment that you use the compass, if you will, or you're

using the GPS as you mention, you are navigating." So, while

Trinidad contends that, in order to be deemed a navigator, he

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must have been, at points, "in charge of navigating the vessel

and directing it to its ultimate destination," we conclude that

the District Court reasonably found Trinidad was in charge of

doing just that during some not insubstantial portions of the

trip.

We therefore agree that, on this record, Trinidad, who

was an experienced fisherman, acted as a navigator during the

journey from Colombia to the Dominican Republic. See The Oxford

English Dictionary 259 (2d ed. 1989) (defining "navigate" to

mean, among other things, "to sail, direct, or manage (a ship)"

and "to plot and supervise the course of (an aircraft or

spacecraft)"); The Random House Dictionary of the English

Language 1282 (2d ed. 1987) (defining "navigate" to mean, among

other things, "to direct or manage (a ship . . .) on its

course"); Webster's Third New Int'l Dictionary 1509 (1981)

(defining "navigate" to mean, among other things, "to steer,

direct, or manage in sailing: conduct (a boat) upon the water by

the art or skill of seamen").3

3
The definition of the term "navigate" found in the Sea
Talk Nautical Dictionary is not inconsistent with the District
Court's decision to apply the pilot-navigator enhancement. The
District Court's statements during the plea colloquy reflect the
District Court's conclusion that Trinidad must have adjusted the
course of the vessel by "employing the elements of position,
course, and speed" provided to him by the pre-programmed GPS,
and thus that Trinidad must have "determin[ed] [his] position,
course, and speed" using the GPS, and adjusted the course of the

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 In so concluding, we reject Trinidad's contention that

a person can only qualify as a navigator if he or she knows how

to program or adjust a GPS -- or other navigational device --

and not if he merely relies on it to keep the boat on course.

Nothing in the text or commentary of the enhancement supports

such a restricted definition of the term "navigator." Cf.

United States v. Cruz-Mendez, 811 F.3d 1172, 1176 (9th Cir.

2016) (explaining that appropriate application of the "pilot"

portion of the enhancement is "not dependent on a finding of any

particular formal training"); United States v. Cartwright, 413

F.3d 1295, 1296-99 (11th Cir. 2005) (per curiam) (reviewing the

defendant's actions on board the vessel, rather than the extent

of his knowledge or training, in applying the "captain" portion

of the enhancement).

We also reject Trinidad's contention that he did not

act as a navigator because he was a subordinate to the other man

on the vessel. By its own terms, the enhancement reaches anyone

who "act[s] as a navigator," just as it reaches captains and co-

pilots alike. U.S.S.G. §2D1.1(b)(3)(C) (emphasis added). Thus,

even assuming that Trinidad did not bear "ultimate

responsibility" for the vessel's safe passage, as he contends,

that fact would not preclude the conclusion that he "act[ed] as

vessel accordingly. Sea Talk Nautical Dictionary,
http://www.seatalk.info (last visited September 13, 2016).

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a navigator." Id. And to the extent Trinidad contends that the

enhancement can only be applied to persons with special

authority, he is also wrong. See United States v. Guerrero, 114

F.3d 332, 346 & n.16 (1st Cir. 1997), cert. denied 522 U.S. 870

& 522 U.S. 924 (1997).

III.

For the reasons given, we affirm.

-Dissenting Opinion Follows-

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 TORRUELLA, Circuit Judge. (Dissenting). The sole

issue raised by appellant's counsel before the trial court, and

now before this court, is an objection to the sentencing court's

enhancement of appellant's sentence pursuant to its finding that

he was a "navigator" within the meaning of U.S.S.G.

§2D.1(b)(3)(C).4 Because I disagree with the majority opinion's

overly-broad reading of this term, I must respectfully dissent.

If I did not feel bound by my prior decision in United

States v. Bravo, 489 F.3d 1 (1st Cir. 2007), however, there

would be additional grounds which would lead me to further part

from my brethren in affirming appellant's conviction. I can no

longer support the approach taken by this and our sister

circuits in embracing the sweeping powers asserted by Congress

and the Executive under the Maritime Drug Law Enforcement Act

("MDLEA"), and I am of the view that the district court acted

without jurisdiction over appellant.5

My concerns are of a fundamental nature and deal with

the power of this court, or rather the lack of power of this

court, to penalize appellant for the crimes which he allegedly

committed against the United States. That is, first, whether

4 Which applies if the defendant "acted as a pilot,
copilot, captain, navigator, flight officer, or any other
operation officer" on a vessel carrying controlled substances.
U.S.S.G. §2D1. 1(b)(3)(c).
5 Cf., United States v. Cardales-Luna, 632 F.3d 731, 739
(1st Cir. 2011) (Torruella, J., dissenting).

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the United States has the power to arrest appellant under the

circumstances of this case and involuntarily render him into the

territory of the United States. Second, whether the United

States has the power to retroactively apply to him the criminal

laws of the United States for conduct which previous to his

arrest and rendition was not subject to those laws, and which

only comes into play by the actions of the United States in

arresting appellant in international waters and rendering him

into United States territory.6

I.

To fully consider the issues raised by appellant's

conviction, a more detailed fleshing of the record is required

than appears in the majority opinion.7

Appellant Persis Trinidad was, at the time of the

alleged violations, a 46-year-old native and citizen of the

Dominican Republic, who lived in the seaside village of Playa

6 These are matters that can be raised motu proprio by the
court at any stage of the proceedings, and I hereby raise them.
See Cardales-Luna, 632 F.3d at 740 (Torruella, J., dissenting)
(citing United States v. Madera–López, 190 F. App'x 832, 834
(11th Cir. 2006)). As in Cardales-Luna, I believe that we must
address jurisdictional deficiencies as great as this one
whenever they present themselves. Id. at 750-51.
7 As with the majority opinion, I take my recount of the
relevant facts "from the plea agreement, the change-of plea
colloquy, the unchallenged portions of the presentence
investigation report. . . ., and the transcript of the
disposition hearing," supra note 2, at *3, as well as from his
co-defendant's pre-sentence report.

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Las Galeras, Samana, in the northern part of the island, where

he eked out a living as a fisherman earning about $150 a month.

Although his record shows that he had a sixth-grade education,

Trinidad nevertheless expressed being illiterate, a fact that

can be confirmed from his "signature" on the plea agreement and

other court documents. Furthermore, his primary language is

Spanish and he has no fluency in English. Sometime in August,

2014, Trinidad was approached by a Colombian who went by the

first name of Andrés, who bought some fish from him. The

following day, Andrés hired him for a fishing trip, during which

he asked Trinidad if he was interested in another job, earning

more money. Upon inquiring as to the nature of the job,

Trinidad was told it would require his going to Colombia and

bringing back narcotics by sea to Santo Domingo, Dominican

Republic, for which he would be paid $20,000. Andrés informed

Trinidad that he would help him get his Dominican Republic

passport and would pay for his airfare to Colombia. Thereafter,

Trinidad accepted the offer.

On September 16, 2014, Andrés picked up Trinidad at

Playa Las Galeras and drove him to Santo Domingo where he gave

him 2,600 Dominican pesos (RD$) for passport fees, and

approximately RD$1,500 more for government processing. Andrés

then helped Trinidad with the passport process and subsequently

went with him to the Avianca Airline's office where Andrés paid

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for Trinidad's airline ticket to Barranquilla, Colombia and then

gave the ticket to Trinidad. Andrés then gave Trinidad RD$3,600

for his transportation to Punta Cana International Airport and

$500 to cover miscellaneous expenses. On that same day Trinidad

went to the airport, took the Avianca flight to Bogotá,

Colombia, and there connected to a flight to Barranquilla,

Colombia.

Upon his arrival at the Barranquilla airport, Trinidad

was met by a Colombian couple, who took him to a hotel (at an

unknown location) in Barranquilla, where he stayed until

September 23, 2014. On this date another Colombian picked him

up and transported him to a second hotel in Barranquilla (also

at an unknown location), where he sojourned for one more night.

While at this second hotel, Trinidad met Algemiro Coa-Peña

("Coa-Peña"), who was to be his companion on the return sea

voyage to the Dominican Republic, as well as his eventual co-

defendant in this case. Coa-Peña is a native of Cartagena,

Colombia and a citizen of the Republic of Colombia.

At some time on the 24th, Andrés picked up Trinidad

and took him to a store to purchase two pairs of pants for him.

Later that night took him to a small pier near the hotel where a

so-called "go-fast" boat was docked.8 Andrés told Trinidad that

8
"This is a small boat, customized with additional engines
and fuel tanks for added speed and range. Experience tells us

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the narcotics would be transported to the Dominican Republic

aboard that vessel. Trinidad observed that the boat had twelve

blue fuel drums aboard, and saw unidentified Colombian personnel

load the boat with six bales, which were placed in the forward

part of the vessel. At some point, Coa-Peña arrived at the

pier, whereupon two unidentified individuals showed up and

handed two Global Positioning System ("GPS") handheld

instruments to Coa-Peña and Trinidad, and proceeded to program

the instruments with the coordinates of the destination in the

Dominican Republic where the drugs were to be delivered.

Although they attempted to instruct Trinidad and Coa-Peña on the

use of the GPS's, it was Coa-Peña who eventually handled them

because of Trinidad's apparent inability to familiarize himself

with their use at that time.

Soon thereafter, Coa-Peña and Trinidad left from

Barranquilla, Colombia destined for Santo Domingo, Dominican

Republic. During the trip towards the Dominican Republic, both

took turns steering the vessel, with Coa-Peña "handling" the

GPS.9 On September 26, 2014, the voyage was proceeding normally

that such boats play a large role in the drug trade." United
States v. González, 311 F.3d 440, 444 n.3 (1st Cir. 2002)
(Torruella, J., concurring).
9Considering that the GPS's had been already set up,
presumably the "handling" would have only required looking at
the instrument's screen, which would indicate the direction to
follow, something akin to looking at your watch to see the time

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until the boat reached an area approximately 80 miles south of

Isla Beata, Dominican Republic. At this point, while the vessel

was still in international waters, the vessel's engines

experienced trouble and the boat came to a stop. Shortly after,

the disabled vessel was approached by a U.S. Coast Guard cutter,

which, with the aid of a marine patrol aircraft, had for some

time been tracking the vessel Trinidad and Coa-Peña were

travelling on, as well as another "suspicious" boat, as they

headed in a northerly course towards the Dominican Republic. A

boarding team from the cutter soon approached the disabled

vessel, which as previously indicated, was dead in the water.

The other "suspicious vessel" was nowhere in sight, having

disappeared into the expanse of the sea.

The boarding team reported coming upon a 30-foot "go-

fast" boat, with no markings or indicia of nationality, and

aboard which were two persons later identified as Trinidad and

Coa-Peña. Neither claimed to be the master of the vessel, but

one of them orally claimed Colombian nationality for the vessel.

Both indicated that their last port of call was in Colombia, and

that their next port of call was Santo Domingo. Several bales

of cargo could be observed in the forward section of the boat.

or looking at the GPS screens on the phone or dashboard of an
automobile.

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 The Coast Guard put in effect their protocol under the

U.S.-Colombia bilateral agreement on maritime smuggling,10

whereby the government of Colombia was contacted to request

confirmation or denial of the registry of the suspect vessel in

Colombia. On the next day, September 27, the Colombian

government responded that it could neither confirm nor deny

registry of the vessel in Colombia (unsurprisingly, given the

dearth of information available at that point), whereupon the

Coast Guard's Seventh District Commander granted permission to

the cutter's boarding crew to consider the vessel as one without

nationality, and to conduct a boarding under U.S. law. The

boarding party then conducted a field test of the substances

found in the bales located on the bow section of the intercepted

vessel, which yielded a positive result for the presence of

cocaine. Upon this discovery, Trinidad and Coa-Peña were

formally detained.

On board the intercepted vessel were found 144.9

kilograms of cocaine packed in bricks inside six bales, which

were moved to the Coast Guard cutter as the detained boat could

not be safely towed and had to be purposely sunk to prevent it

from becoming a hazard to navigation. Trinidad and Coa-Peña

10 See Agreement between the Government of the United
States of America and the Government of the Republic of Colombia
to Suppress Illicit Traffic by Sea, U.S.-Colom., Feb. 20, 1997,
T.I.A.S. No. 12,835.

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were brought aboard the U. S. Coast Guard cutter and then

transported aboard the cutter to Mayaguez, Puerto Rico, which,

according to the Government's euphemistic statement in the

indictment, "was where the defendants first entered the United

States after commission of the . . . offense" (emphasis added),

a contention which in itself raises some interesting issues,11

which will be presently discussed.

Appellant pled guilty to Count One of the Indictment

which charged possession with the intent to distribute more than

five kilograms of cocaine on board a vessel subject to the

jurisdiction of the United States, that is, a vessel without

nationality, for which he was sentenced to imprisonment for a

period of 108 months.12

II.

The majority opinion argues that because Trinidad

admitted as part of his plea agreement that he took turns

"conning the vessel" with Coa-Peña, that he therefore meets the

11 Commission of what offense? Against whom? And when?
12The district court calculated that Trinidad had a total
offense level of 31. This number was reached by taking the
offense level agreed to as part of the plea agreement (31),
subtracting two points because Trinidad complied with the
requirements for the safety-valve reduction (U.S.S.G.
§2D1.1(b)(17)) and adding two points for the navigator
enhancement (U.S.S.G. §2D1.1(b)(3)(C)). Without the navigator
enhancement Trinidad's total offense level would have been 29,
which carried a recommended range of 87-108 months'
imprisonment.

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definition of a "navigator."13 In making this argument the

majority cites English dictionaries that equate "navigate" with

"to steer." Supra at *7.

I take issue with what in my view is an obviously

unjust result. The majority's opinion relies on an overly broad

way of reading this term. To be a navigator contains its own

particular subset of skills that are more easily summarized by

the term "navigator" than merely driving a boat. Although the

majority cites common dictionaries of the English language to

equate "navigate" with "steer," much more telling, in my view,

is the definition of "navigate" found in nautical dictionaries.

Here the definition is "[t]o safely operate a vessel employing

the elements of position, course and speed" and "[t]o determine

position, course and speed using instruments." Definition of

"Navigate", Sea Talk Nautical Dictionary,

http://www.seatalk.info/ (last visited Oct. 6, 2016). This

13 Because this statement was agreed to as part of the plea
agreement I am setting aside serious concerns that may be raised
about the source of this information. Trinidad was interrogated
by Homeland Security Agents who "provided Miranda Warnings to
the Defendant." One wonders what meaning Miranda warnings might
have to a poor fisherman from the Dominican Republic. One also
wonders if the Dominican consulate in Puerto Rico was contacted
and informed that a citizen of the Dominican Republic, who
surely may not understand his rights under the U.S.
Constitution, was being held and interrogated without counsel
being present. See Vienna Convention on Consular Relations art.
36, Apr. 24, 1963, 21 U.S.T. 77. This is only one of the
numerous problems that might arise when foreign nationals are
pulled into the United States for criminal prosecution.

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definition embraces the notion that in nautical terms "to

navigate" actually requires extra abilities to determine

"position, course and speed using instruments." Yet the facts

recited above suggest that the very opposite was true of

Trinidad. He specifically did not understand how to use the

GPS. It had to be set up for him and it is undisputed that Coa-

Peña managed those instruments throughout the trip.

To assume a broader definition of "navigator" suggests

that the sheer act of driving somehow enhances the individual's

criminal conduct. But would we ever suggest that suburban or

rural drug dealers should receive an enhanced sentence simply

because they drive a car to the location of their drug

transactions rather than walk or take public transportation as

their more urban counterparts might? Persis Trinidad was a

fisherman who knew how to engage in his trade, which was coastal

fishing on a yola (a small open skiff propelled by oars or an

outboard motor). See United States v. Matos-Luchi, 627 F.3d 1,

2 (1st Cir. 2010). He was offered more money than he could make

in ten years of fishing to help manage the boat between Colombia

and the Dominican Republic. During the voyage he may have

periodically looked at the screen of the handheld GPS he was

provided with by his Colombian cohorts, but this is no more an

exceptional skill or action than if he had been driving most

modern cars which have GPS in their dashboard. Id. Nothing in

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this behavior suggests extra-culpability or a justifiable basis

for enhancement. If the truth be said he was a water borne

"mule," nothing more than the common "mules" that sit in

commercial airlines, transporting contraband in and on their

bodies, for which they are not penalized additionally as has

been done with Trinidad.

III.

My departure from the majority's opinion is not

limited to their reading of the term "navigator," however. The

Maritime Drug Enforcement Act (MDLEA), codified as amended at 46

U.S.C. §§ 70501-08, has been used to expand United States

criminal jurisdiction well beyond U.S. borders to include people

and acts that have no connection whatsoever with the United

States. This extraterritorial exercise is far in excess of any

powers either permitted by international law or granted by

Congress to the Executive branch.

Considering that Trinidad is an illiterate, non-

English speaking Dominican citizen, with no record of his having

ever resided or even visited the United States, without any

prior criminal past and unaware of U.S. criminal law until he

was captured in the high seas, the question arises whether he

can be charged with retroactively violating U.S. law upon his

forced rendition into U.S. territory. When and where did

Trinidad commit this alleged U.S. crime? Can it be said that

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there was any U.S. crime committed by Trinidad, before the

vessel he was navigating was intercepted? That would be a

stretch that would be difficult to swallow. Thus we must

assume, that if there was a U.S. crime committed, it was only

after he was physically apprehended in the high seas. Prior to

that Trinidad could not have infringed any U.S. law, and if he

did commit any crime for which he could be charged, it would

have been against the laws of Colombia and/or the Dominican

Republic. This raises the question of how Trinidad's conduct

before he was apprehended (which conduct could not then have

been a U.S. crime) can become a U.S. crime by the United States

Government capturing Trinidad at a time when he had committed no

crime against the United States. This enigma is at the heart of

the attempt by the United States to exercise universal criminal

jurisdiction through means repeatedly and soundly rejected

pursuant to customary international law.

This conundrum arises because of the expansive

definition Congress has given to statelessness.14 There are two

14 Because I take issue with whether Trinidad's boat was
actually stateless I am setting aside the question of what type
of jurisdiction the Constitution and international law would
allow the United States to exercise on stateless vessels. A
common view is that "stateless vessels do not fall within the
veil of another sovereign's territorial protection" and
therefore "all nations can treat them as their own territory and
subject them to their laws." United States v. Moreno-Morillo,
334 F.3d 819, 828 (9th Cir. 2003) (quoting United States v.
Caicedo, 47 F.3d 370, 373 (9th Cir. 1995)). Although this view

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problems with the MDLEA's treatment of stateless vessels.

First, its definition of when a vessel is actually stateless far

exceeds anything that exists or is allowed by international law.

Second, the degree and type of proof the MDLEA accepts for

statelessness risks violating international and domestic law.

The MDLEA uses the statelessness of a vessel as the hook by

which it allegedly acquires jurisdiction over a vessel and its

crew, allowing it to retroactively apply U.S. criminal laws to

said persons irrespective of their nationality, the place where

the alleged crimes were committed, or the lack of any U.S.

connection or impact of the charged conduct.

A. Defining when a Vessel is Stateless

According to the MDLEA a vessel without nationality is

one "aboard which the master or individual in charge" either

"makes a claim of registry that is denied by the nation whose

registry is claimed," "fails . . . to make a claim of

nationality or registry for that vessel," or "makes a claim of

registry and for which the claimed nation of registry does not

recognizes that in exercising jurisdiction the United States is
not infringing on the rights of another nation to legislate for
the boat in question, this still raises due process and
jurisdictional concerns regarding the people on the boat. For
this reason I agree with those commentators who have found that
"[t]he better view appears to be that there is a need for some
jurisdictional nexus in order that a State may extend its laws
to those on board a stateless ship and enforce the laws against
them." R.R. Churchill & A.V. Lowe, The Law of the Sea 214 (3d
ed. 1999).

- 22 -
affirmatively and unequivocally assert that the vessel is of its

nationality." 46 U.S.C. § 70502(d)(1)(A)-(C). It is this last

provision that is at issue here.15

When Trinidad's boat was intercepted by the U.S. Coast

Guard, Trinidad and Coa-Peña were questioned as to the

nationality of the boat and Coa-Peña answered that the ship was

Colombian. Nevertheless, the vessel in question was deemed

stateless by the United States after Colombian authorities

responded to the inquiry by U.S. authorities to the effect that

Colombian registry could be "neither confirm[ed] nor den[ied]."

On the basis of this noncommittal statement, based upon the

flimsy information available at the time, the Coast Guard was

authorized pursuant to the U.S.'s self-promoting legislation to

assume jurisdiction over the vessel and its crew, and to apply

U.S. criminal laws to them. 46 U.S.C. § 70502(d)(1)(C). Of

course, we do not know what information was actually provided by

the Coast Guard to the Colombian authorities, nor do we know

what Colombia's answer would have been had all the

circumstantial evidence described previously, pointing to a non-

15 There are other grounds for allegedly exercising
jurisdiction in the legislation, including "a vessel registered
in a foreign nation if that nation has consented or waived
objection to the enforcement of United States law by the United
States." 46 U.S.C. § 70502(c); but see Cardales-Luna, 632 F.3d
at 740 (Torruella, J., dissenting). Those grounds are not at
issue here.

- 23 -
U.S. nationality of the vessel and its crew, been available and

provided to Colombia.

Under international law, however, the acquisition of

jurisdiction in this case on the basis of "statelessness"

because of Colombia's failure to make an unequivocal assertion

of nationality within the twenty-four hours or so given is a

gross overstepping of jurisdictional boundaries. In

international maritime law there is the long-established concept

of the law of the flag, a principle of customary international

law that is adhered to by the United States.16 Under the law of

the flag principle, a ship has the nationality of the country

whose flag it is entitled to fly.17 Central to this entire

regime is the principle that

[e]ach state under international law may
determine for itself the conditions on which

16Customary international law is part of the federal
common law. Restatement (Third) of Foreign Relations Law § 111
(Am. Law Inst. 1987); see also Kadic v. Karadzic, 70 F.3d 232,
246 (2d Cir. 1995) (accepting "the settled proposition that
federal common law incorporates international law").
17
See United Nations Convention on the Law of the Sea art.
91, Dec. 10, 1982, 1833 U.N.T.S. 397 (UNCLOS). Although the
United States has not ratified UNCLOS, Article 91 is part of the
customary international law codified by UNCLOS, which is
recognized by this country. United States v. Alaska, 503 U.S.
569, 588 n.10 (1992); see also Lauritzen v. Larsen, 345 U.S.
571, 584 (1953) ("Perhaps the most venerable and universal rule
of maritime law . . . is that which gives cardinal importance to
the law of the flag."); see also, United States v. Arra, 630 F.
2d 836, 840 (1st Cir. 1980) ("Vessels have the nationality of
the nation whose flag they are entitled to fly . . . ."
(emphasis added)).

- 24 -
 it will grant its nationality to a merchant
ship, thereby accepting responsibility for
it and acquiring authority over it. . . .
The United States has firmly and
successfully maintained that the regularity
and validity of a registration can be
questioned only by the registering state.

Lauritzen, 345 U.S. at 584 (emphasis added).18

This means that once a claim of Colombian nationality

was made, it was up to Colombia to definitively decide whether

the boat was in fact Colombian, not for the United States to

unilaterally make that decision in a conclusive manner with the

scarcity of information available to it at the time of

interception and arrest.19 It should be noted that under the

18 In support of this argument the Court cited the example
of The Virginius, a boat that claimed U.S. registry and was
seized by the Spanish while en route to Cuba. Lauritzen, 345
U.S. at 584 n.17. Although there were questions regarding the
validity of the registration, the United States took the
position that it was up to the courts of the United States to
determine its status. The Attorney General to the Secretary of
State, Dec. 17, 1873, Foreign Relations of the United States,
1874 (Washington, DC: GPO, 1874-75), XXXIV: 1113-5. Spain
ultimately consented, and paid $80,000 in reparation to the
United States. Claims: The Case of the "Virginius," Feb. 27,
1875, 11 U.S.T.I.A. 544 1968.
19 I note that this is a question that does not admit an
easy answer. Although a preliminary investigation into
Colombian law reveals that "[n]o ship shall have Colombian
nationality unless registered under the statute relating to
national merchant shipping" the boat at issue in this case is
not of a type or size normally associated with "merchant
shipping." U.N. Secretariat, Laws Concerning the Nationality of
Ships, U.N. Doc. ST/LEG/SER.B/5 at 25 (1955). It is thus not
clear how or when Colombia extends its nationality to
recreational vehicles. See United States v. Matos-Luchi, 627
F.3d 1, 18 (1st Cir. 2010) (Lipez, J., dissenting) (arguing that
many states do not have formal registries for smaller vessels).

- 25 -
MDLEA it is contemplated that nationality can be asserted

orally. 46 U.S.C. § 70502(e)(3) ("A claim of nationality or

registry" includes "a verbal claim of nationality or registry by

the master or individual in charge of the vessel").20 This is

particularly relevant when considering smaller boats of the type

found here because "[m]any states . . . do not issue documents

to ships with a tonnage below a given figure" and "a State may

not require, or permit, the registration of ships below a

certain size . . . but may nonetheless regard such ships as

having its nationality if they are owned by its nationals."

Matos-Luchi, 627 F.3d at 18 (Lipez, J., dissenting) (quoting H.

Meyers, The Nationality of Ships 160 (1967) and R.R. Churchill &

A.V. Lowe, The Law of the Sea 213 n.19 (3d ed. 1999)). Indeed,

the United States is an example of a nation that extends its

nationality to otherwise unregistered ships that are owned, in

whole or part, by one of its citizens. 46 U.S.C. § 70502(b)(2)

(defining a vessel of the United States in part as one "owned in

any part by an individual who is a citizen of the United

In any event, this is a question to be resolved by Colombian
courts, not the uniquely unqualified courts of the United
States. See Lauritzen, 345 U.S. at 584.
20
Similarly, under the more recent Drug Trafficking Vessel
Interdiction Act of 2008 (DTVIA), which is applicable to
submersibles and submersible vessels, a valid claim of the
vessel's nationality can be made verbally by the vessel's master
or individual in charge. 18 U.S.C. § 2285(d)(3).

- 26 -
States," unless said vessel has been granted nationality by

another nation).

Given the facts of this case, I am unaware of anything

preventing further inquiry into such a crucial factor as was the

nationality of the vessel. There is no apparent reason why this

matter was not raised or pursued once dry land and legal

representation were reached. Cf. United States v. Greer, 285

F.3d 158, 175 (2d Cir. 2002) (jurisdictional element of the

MDLEA may be inquired into any time before trial); United States

v. Bustos-Useches, 273 F.3d 622, 627 (5th Cir. 2001)

(identifying legitimate deadline to consent to U.S. law any time

before trial). The jurisdictional issue was not cast in stone

based only on the flimsy information available in situs at the

time of the interception. Considering the undisputed

circumstantial evidence surrounding this sea voyage (i.e., the

place where the vessel departed from, the nationality of the

personnel that dealt with this enterprise, the nationality of

half of the crew that by all appearances was the leading actor

aboard the vessel, and the specific claim of the vessel's

Colombian nationality), it is difficult to deny the vessel's

Colombian connection and nationality, which if it had been

properly raised and established, should have deprived the court

- 27 -
of jurisdiction and led to dismissal of the charges against

Trinidad.21

Nothing in the MDLEA dictates a contrary result.

Although the MDLEA does define as a "vessel without nationality"

one "aboard which the master or individual in charge makes a

claim of registry and for which the claimed nation of registry

does not affirmatively and unequivocally assert that the vessel

is of its nationality," there is no indication of a timeline

according to which the claimed nation of registry must

"affirmatively and unequivocally" assert that nationality. 46

U.S.C. § 70502(d) (1)(C). Moreover, although the MDLEA provides

an evidentiary mechanism for the government to demonstrate

"[t]he response of a foreign nation to a claim of registry,"

this provision again does not specify a timeline for the

inquiry. 46 U.S.C. § 70502(d)(2) (stating that the response

"may be made by radio, telephone, or similar oral or electronic

means, and is proved conclusively by certification of the

Secretary of State or the Secretary's designee").22 Given the

complex issues of international and municipal law that may be at

issue, the costs associated with maintaining a registry, and the

21 I am unaware of any rule that prohibits the
establishment of nationality by the use of circumstantial
evidence.
22 The record does not appear to include the required
certificate, presumably because Trinidad and Coa-Peña pled
guilty and did not challenge the jurisdiction of the court.

- 28 -
small size of the boat in question in this case, how can it be

expected that an "unequivocal" assertion of nationality could be

made by Colombia in twenty-four hours? We have examples in this

circuit of countries taking up to five days to provide a

definitive response, so imposing an arbitrary timeline of

twenty-four hours is something not required by the MDLEA and

increases the likelihood of a grave violation of international

law. United States v. Cardales, 168 F.3d 548, 551-52 (1st Cir.

1999) (On May 31, Venezuela was unable to say if a boat that

claimed Venezuelan registry was Venezuelan, but on June 5 "the

Venezuelan government notified the State Department that the

[boat] was indeed of Venezuelan registry.").

This court is directed to avoid interpreting the MDLEA

in a way that would result in a violation of international law.

Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18

(1804). Reading the MDLEA to permit the half-hearted attempt to

establish nationality that was made here to establish

statelessness in violation of international law is in direct

contradiction to this longstanding notion of statutory

construction. Weinberger v. Rossi, 456 U.S. 25, 32 (1982)

(applying Schooner Charming Betsy as a "maxim of statutory

construction."). Because nothing in the statute denied the

government or Trinidad's attorney the ability to conduct further

inquiry into the nationality of the vessel, it is incumbent on

- 29 -
us to avoid reading into the statute a requirement that the

described verification was legally sufficient to establish the

statelessness of Trinidad's boat.

Trinidad's shipmate invoked Colombian nationality for

the vessel, and Colombia could not confirm or deny this

assertion within the short time provided. Colombia did not

grant U.S. authorities permission to subject the boat to U.S.

jurisdiction, and so the United States unilaterally decided

that, pursuant to its laws, the vessel was stateless and

therefore subject to U.S. criminal laws. I cannot read the

MDLEA as permitting such a brazen expansion of U.S. jurisdiction

at the expense of international law.

B. The Degree of Proof Necessary to Establish Statelessness

Finally, I further object to this circuit's treatment

of this question as one that may be answered by a preponderance

of the evidence. Matos-Luchi, 627 F.3d at 5; see also United

States v. Vilches-Navarrete, 523 F.3d 1, 8-10 (1st Cir. 2008)

(Torruella, J., dissenting in part). This is done by treating

the question of statelessness as one of jurisdiction, but as my

analysis above seeks to demonstrate, the status of Trinidad's

boat goes far beyond the question of whether United States

courts have jurisdiction. It goes to the very heart of whether

there has been any crime committed at all. Matos-Luchi, 627

F.3d at 14 (Lipez, J., dissenting) ("[A] failure to prove that

- 30 -
defendants' conduct occurred on board a covered vessel amounts

to a failure to prove that the defendants violated the MDLEA.").

If Trinidad cannot face any criminal penalty at all in the

absence of proof of his vessel's statelessness, how can proof of

his vessel's statelessness possibly be subjected to a

preponderance of the evidence standard? See United States v.

Perlaza, 439 F.3d 1149, 1167 (9th Cir. 2006) (holding that when

a jurisdictional inquiry into statelessness turns on factual

issues, then it "must be resolved by a jury").

IV.

With due respect, I cannot join an opinion which

validates the blatant violation of international law by the

United States.

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