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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10810
________________________
D.C. Docket No. 1:13-cr-20911-BB-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELDER NEHEMIAS LOPEZ HERNANDEZ,
SAULO ARAHON HERNANDEZ ALMARAZ,
JOSE LUIS AGUILAR LOPEZ,
SAMUEL SAVALA CISNEROS,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 28, 2017)
Before HULL, MARCUS, and ROGERS *, Circuit Judges.
ROGERS, Circuit Judge:
*
Honorable John M. Rogers, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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The United States prosecuted these four defendants—Lopez Hernandez,
Hernandez Almaraz, Aguilar Lopez, and Savala Cisneros—under the Maritime
Drug Law Enforcement Act (MDLEA), which criminalizes an individual’s
possessing with intent to distribute a controlled substance “[w]hile on board a
covered vessel,” which includes “a vessel subject to the jurisdiction of the United
States,” which in turn includes “a vessel without nationality.” 46 U.S.C. §§
70502(c)(1)(A), 70503(a)(1), (e)(1) (2012). The U.S. Coast Guard arrested the
four defendants on board the Cristiano Ronaldo, which the defendants claimed was
registered in Guatemala—and claimed so truthfully, as it later turned out. Shortly
before the search of the ship, however, when asked by the Coast Guard, the
Guatemalan government could neither confirm nor deny the ship’s registry. The
parties proceeded to trial. The Government presented evidence that the defendants
threw overboard about 290 kilograms of cocaine shortly before arrest. The jury
convicted all four defendants of every indicted crime.
On appeal, the defendants argue primarily that the Cristiano Ronaldo was
not “a vessel without nationality” because the vessel was properly registered in
Guatemala, as the U.S. Coast Guard should have been able to determine with the
information that it had. But the Cristiano Ronaldo fit within the MDLEA’s broad
definition of a “vessel without nationality” because a designee of the U.S.
Secretary of State has certified, and thereby “proved conclusively,” that Guatemala
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had not “affirmatively and unequivocally” asserted that the Cristiano Ronaldo was
of Guatemalan nationality. Under the clear terms of the MDLEA, that certification
put the crime within the territorial coverage of the statutory prohibition. The
executive branch thereby effectively assumed responsibility for any diplomatic
consequences of the criminal prosecution. The defendants’ other arguments—
insufficient evidence, prosecutorial misconduct, improper suppression or loss of
evidence, erroneous admission of hearsay, and misapplication of two sentencing
enhancements—are also without merit.
I.
On November 5, 2013, the U.S. Coast Guard identified a suspicious go-fast
vessel in international waters, about 120 nautical miles southwest of the El
Salvador/Guatemala border, in the Pacific Ocean. The vessel was not flying any
national flag. When a Coast Guard helicopter approached it, the vessel sped off,
despite radio-transmitted orders in English and in Spanish to halt, and despite
several warning shots into the water. The Coast Guard fired at the Cristiano
Ronaldo’s engines, immobilizing the vessel. Crewmen on the vessel then began
dumping black packages overboard.
Officers of the Coast Guard boarded the Cristiano Ronaldo and ultimately
arrested the four crewmen—the four defendants in this case. When the Coast
Guard officers boarded the ship, Hernandez Almaraz said he was its captain. He
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also said he was a Guatemalan citizen, as did the other three crewmen. He claimed
that the Cristiano Ronaldo was registered in Guatemala. Soon thereafter, the Coast
Guard contacted the Guatemalan government to confirm or deny the claim of
registry. The Guatemalan government responded that it “could neither confirm nor
deny.” The Coast Guard proceeded to search the ship.
What happened during the intervening period—the period after Hernandez
Almaraz claimed the ship’s registry in Guatemala but before the Coast Guard
contacted the Guatemalan government to check that claim—is unclear.
The Coast Guard states, “No registration documentation was provided to or
located by United States law enforcement personnel.” That may have been true
when the Coast Guard asked the Guatemalan government about the ship’s registry,
but the Coast Guard later found registration documents on the ship, as the United
States ultimately provided the documents to the defendants during discovery.
Some of the defendants claim, or at least suggest, that the Coast Guard had
the registration documents before it asked Guatemala about the Cristiano
Ronaldo’s registry. In support of the motion to dismiss the indictment, Aguilar
Lopez wrote, “As soon as Cristiano Ronaldo was boarded by the U.S. Coast
Guard, [Hernandez Almaraz] gave the Coast Guard a document, issued by the
Guatemalan Navy, certifying that Cristiano Ronaldo is registered as a Guatemalan
vessel.” On appeal, Savala Cisneros states that “once the Cristiano Ronaldo was
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boarded by the U.S. Coast Guard, [Hernandez Almaraz] gave the Coast Guard [the
registration] document.”
Later, the Coast Guard retrieved some packages where the defendants had
thrown packages overboard. The retrieved packages contained about 290
kilograms of cocaine, valued contemporaneously on the streets at about $8.7
million.
Some of the evidence from the scene was lost. The Cristiano Ronaldo was
accidentally sunk when Coast Guard officers, during a standard “At Sea Space
Accountability” procedure, drilled holes in the Cristiano Ronaldo to check if there
were hidden compartments; they used putty to cover the holes, but water
nevertheless began pouring into the ship. The wet clothes that the defendants were
wearing that day were discarded because of concerns of mold. Similarly, and out
of the same concern, the burlap sacks that had covered the cocaine packages were
discarded.
Before trial, the district court rejected the defendants’ motion to dismiss for
lack of jurisdiction, and granted the Government’s motion to determine that the
vessel was subject to the jurisdiction of the United States. The court relied on the
certification from Commander Salvatore J. Fazio of the U.S. Coast Guard, as
designee of Secretary of State John Kerry, which declared that Hernandez Almaraz
claimed the Cristiano Ronaldo’s Guatemalan registry, and that the Guatemalan
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government could neither confirm nor deny that claim. The district court
specifically declined to inquire into “the factual underpinnings of the certificate”
because the court reasoned that they were “neither relevant or appropriate” under
the MDLEA. In the same order, the district court denied the motion to reconsider
its previous order granting the Government’s motion to quash the subpoena to
Commander Fazio.
The parties proceeded to a four-day jury trial. The Government’s trial
evidence included the testimony of Officer Arambula of the U.S. Coast Guard
about the actions and statements of his colleague Officer Ligsay. The closing
arguments were somewhat heated, with the Government calling the defense
attorneys “spin doctors,” for example.
The jury convicted all four defendants of all indicted crimes.
The district court sentenced Lopez Hernandez, Savala Cisneros, and Aguilar
Lopez to 188 months’ imprisonment. The district court sentenced Hernandez
Almaraz to 200 months’ imprisonment, applying to him two sentencing
enhancements related to his role as the captain of the Cristiano Ronaldo.
II.
The district court properly determined that the Cristiano Ronaldo was a
vessel within the jurisdiction of the United States because it was a “vessel without
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nationality” within the meaning of the plain text of the MDLEA. Such a vessel is
statutorily defined to include:
[A] vessel aboard which the master or individual in charge makes a
claim of registry and for which the claimed nation of registry does not
affirmatively and unequivocally assert that the vessel is of its
nationality.
46 U.S.C. § 70502(d)(1)(C). Defendants essentially challenge whether the terms
of this provision have been met, but the Government has proved conclusively that
they have. The Government produced the written certification of Commander
Salvatore J. Fazio of the U.S. Coast Guard, in which Commander Fazio declared
that: (i) the self-identified master of the Cristiano Ronaldo claimed that the ship
was registered in Guatemala; (ii) the U.S. government asked the Guatemalan
government to confirm or deny the vessel’s registry; and (iii) the Guatemalan
government responded that it “could neither confirm nor deny that the go-fast
vessel was registered in Guatemala.” As Commander Fazio further stated,
“Accordingly, the Government of the United States determined the vessel was
without nationality in accordance with 46 U.S.C. § 70502(d)(1)(C), rendering the
vessel subject to the jurisdiction of the United States [under the MDLEA].”
Commander Fazio’s certification was accompanied by a certificate by Secretary of
State John Kerry designating Commander Fazio to act on the part of the
Department of State. The MDLEA specifies that “[t]he response of a foreign
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nation to a claim of registry . . . is proved conclusively by certification of the
Secretary of State or the Secretary’s designee.” Id. § 70502(d)(2). Because
Commander Fazio is an appropriate designee of the U.S. Secretary of State, under
the plain text of the MDLEA, his certification conclusively proves that the
Guatemalan government responded that it “could neither confirm nor deny” the
Cristiano Ronaldo’s registry. That response, in turn, unambiguously means that
Guatemala did not at the time “affirmatively and unequivocally assert” the ship’s
registry. Id. § 70502(d)(1)(C). The absence of such an assertion rendered the
Cristiano Ronaldo a “vessel without nationality,” id. § 70502(d)(1), and thus a
“vessel subject to the jurisdiction of the United States,” id. § 70502(c)(1)(A), and
therefore a “covered vessel,” id. § 70503(e)(1), to which the MDLEA’s criminal
prohibition against possessing a controlled substance with distributary intent
extends, id. § 70503(a)(1). The district court therefore properly exercised
jurisdiction over the defendants under the MDLEA.
To avoid that outcome, the defendants primarily argue that the Cristiano
Ronaldo was actually registered in Guatemala, that the Coast Guard possessed
identifying information about the ship that would easily have confirmed its
registry, and that the Coast Guard failed in bad faith to convey that information
when it asked the Guatemalan government whether the ship was registered. The
defendants’ arguments based on actual registry and alleged bad faith fail, both as a
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statutory argument about proof of the Cristiano Ronaldo’s lack of nationality under
the MDLEA, and as an international-law argument about the U.S. government’s
failure to abide by its treaty promise to the Guatemalan government to convey all
available identifying information when asking about a ship’s registry.
Interpreted as a statutory jurisdictional argument, the defendants’ argument
cannot overcome the conclusive-proof provision of the MDLEA. The statute
plainly states that the certification conclusively proves the foreign country’s
response. Here, because the certification conclusively proves that the Guatemalan
government “could neither confirm nor deny” the Cristiano Ronaldo’s registry, the
certification also establishes the fact that Guatemala did not “affirmatively and
unequivocally assert” registry. The MDLEA does not state what information the
United States must convey to the foreign government during its communication,
and it does not state that actual registry overrides the certification’s proof of
statutory statelessness. MDLEA statelessness does not turn on actual statelessness,
but rather on the response of the foreign government. Arguing actual registry
against the certification therefore misses the mark.
This conclusion is supported by our decision in United States v. Campbell,
743 F.3d 802 (11th Cir. 2014). In that case, as in this case, the Commander of the
U.S. Coast Guard (at the time, Commander Deptula) certified in writing that the
ship’s captain claimed foreign registry, that the Coast Guard asked the foreign
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government whether the claim was true, and that the foreign government
responded that it “could neither confirm nor deny” the claimed registry. Id. at 804.
The defendant, as in this case, nonetheless challenged the certification’s conclusive
proof of jurisdiction, arguing “that the certification . . . lacked details about the
communications between the Coast Guard and Haiti and that the United States did
not offer any testimony to corroborate the certification.” Id. at 809. We rejected
that argument, explaining that the certification’s statement “that Haiti responded
that it could neither confirm nor deny the registry . . . provided conclusive proof
that the vessel was within the jurisdiction of the United States.” Id. Just as the
certification’s conclusive proof foreclosed any need for details or corroborations in
that case, it also forecloses any inquiry into its veracity in this case.
While in Campbell the defendant “stipulated to . . . the representations by
the Coast Guard in the certification,” Campbell, 743 F.3d at 809, and in this case
the defendants specifically challenge the statement in the certification that “no
registration document was provided to or located by United States law enforcement
personnel,” the difference triggers no distinction. The very concept of a conclusive
proof entails not only that no detail or corroboration is needed, but also that any
contrary evidence is futile. If a document states a proposition, a party introduces
evidence that contradicts or undermines the proposition, and a court thereby
inquires whether the proposition is true, then the court treats the document at most
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as establishing a rebuttable presumption of the proposition’s truth, but not as
conclusively proving its truth. Congress instructs specifically that courts should
treat the MDLEA certification as conclusive of the foreign nation’s response.
It is true that in two cases relied upon by the defendants, we proceeded past
a similar certification to examine whether the U.S. agents acted in good faith when
communicating with the foreign government. See United States v. Tinoco, 304
F.3d 1088 (11th Cir. 2002); United States v. Devila, 216 F.3d 1009 (11th Cir.
2000). However, both of those cases are distinguishable because they applied prior
versions of the MDLEA, versions without a conclusive-proof provision that
applied to the determination in question. In Devila, the defendants were indicted in
June 1996, 216 F. 3d at 1012, months before the amendment to the MDLEA on
October 19, 1996, that added a conclusive-proof provision, Coast Guard
Authorization Act of 1996, Pub. L. No. 104-324, § 1138, 110 Stat. 3901, 3988–89
(1996). We explicitly rejected a Government assertion that a Secretary of State
certification was conclusive proof, applying what was then the law, that such a
certification provided only rebuttable prima facie evidence. Devila, 216 F.3d at
1015 n.4. The applicable version of the MDLEA in Devila stated only that “[t]he
denial of such claim of registry by the claimed flag nation may be proved by
certification of the Secretary of State or the Secretary’s designee.” 46 U.S.C.A.
App. § 1903(c)(2) (1996) (emphasis added). In Tinoco, the United States as in the
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instant case had certified that Colombia “could neither confirm nor deny the verbal
claim of Colombian registry,” 304 F.3d at 1113, but this was at a time when the
conclusive-proof provision applied only to the foreign state’s “denial” of registry.
46 U.S.C.A. App. § 70502(d)(2) (2006) (“The denial of such a claim is proved
conclusively by certification of the Secretary of State or the Secretary’s
designee.”). The provision was amended in 2006, Coast Guard and Maritime
Transportation Act of 2006, Pub. L. No. 109-241, § 303, 120 Stat. 516, 527 (2006),
and codified in 2008, National Defense Authorization Act for Fiscal Year 2008,
Pub. L. No. 110-181, § 3525(a)(6), 122 Stat. 3, 601 (2008), into its current form,
which states that the certification conclusively proves “the response” of the foreign
nation, no matter whether “the response” is a denial, a non-denial/non-
confirmation, or a confirmation. See generally United States v. Brant-Epigmelio,
2010 WL 557283, at *5 n.6 (M.D. Fla. 2010) (outlining the two amendments that
added the MDLEA’s conclusive-proof language).
United States v. Wilchcombe, 838 F.3d 1179 (11th Cir. 2016), relied upon by
defendants, is also not to the contrary, although it, too, proceeded to analyze good
faith, and even though the current version on the MDLEA was in effect. That case
arose from slightly different facts. There, the defendant claimed the ship’s registry
in the Bahamas and the Bahamian government confirmed the ship’s registry. Id. at
1184. The issue with respect to jurisdiction was therefore whether the Bahamian
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government thereafter consented to the United States’ searching the ship. A
separate provision of the MDLEA states that that “[c]onsent or waiver of objection
by a foreign nation,” too, “is proved conclusively by certification of the Secretary
of State or the Secretary’s designee.” 46 U.S.C. § 70502(c)(2). The certification
in that case stated that the Bahamian government so consented. 838 F.3d at 1187.
The defendants there nevertheless argued that “the Coast Guard misled the
Bahamian Government about the documentation of the registration status of [the
boat in question] that was available to the Coast Guard when it was seeking the
[statement of no objection],” and on that ground urged the court to look past the
certification’s conclusive proof of consent. Id. Without deciding whether doing so
was required, we proceeded to do so and concluded that the argument did not
defeat jurisdiction, listing “multiple reasons” why. Id. at 1188.1 We did not hold
that the law required looking past the certification’s conclusive proof of consent
upon evidence undermining the certification’s veracity. Instead we ruled for the
Government on one alternative basis (no evidence of bad faith or intentional
misrepresentation) rather than on another (the conclusive proof provision). This
hardly constitutes a holding that rejects the latter.
1
While there is a statement in the Wilchcombe opinion that a district court “may take into
account” evidence of bad faith or intentional misrepresentation, id. (citing Tinoco, 304 F.3d at
1114), the statement was based on Tinoco, a case which did not apply a conclusive-proof
provision, as explained in the preceding paragraph.
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Any remaining challenge to the way that the Coast Guard communicated
with the Guatemalan government effectively asserts a violation of international
law, which under the MDLEA is not a defense. Savala Cisneros relies on an
agreement between the U.S. and Guatemalan governments which states that a
request for verification of a ship’s registry “shall contain the basis for the suspicion
[of the ship’s illicit activity], the geographic position of the vessel, and, if available
the name of the suspect vessel, the registration number, home port, the port of
origin and destination, and any other identifying information.” Agreement
Concerning Cooperation to Suppress Illicit Traffic in Narcotic Drugs and
Psychotropic Substances by Sea and Air, U.S.-Guat., art. VII, § 2, June 19, 2003. 2
However, the MDLEA states that “[a] person charged with violating [the MDLEA]
. . . does not have standing to raise a claim of failure to comply with international
law as a basis for a defense,” explains that that “claim of failure to comply with
international law in the enforcement of [the MDLEA] may be made only by a
foreign nation,” and specifies that “[a] failure to comply with international law
does not divest a court of jurisdiction and is not a defense.” 46 U.S.C. § 70505.
With that text, Congress has instructed: any battle over the United States’
compliance with international law in obtaining MDLEA jurisdiction should be
2
Available at .
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resolved nation-to-nation in the international arena, not between criminal
defendants and the United States in the U.S. criminal justice system. Assuming as
true the defendants’ suggestions that they provided the ship’s registration
document to the Coast Guard as soon as its officers boarded the ship, 3 assuming
further that the Coast Guard failed in bad faith to convey information in that
document to the Guatemalan government, and assuming finally that that assumed
failure violated the United States’ obligation to Guatemala, still the defendants’
international law argument does not touch the conclusion that the United States
properly exercised statutory jurisdiction over this suit. If the United States hid
information from Guatemala, then the Guatemalan government may complain in
some form to the U.S. government; but Congress has instructed that these
defendants may not litigate those complaints in an MDLEA prosecution.
3
In his motion below to dismiss the indictment, Lopez Hernandez appeared to admit that the
Coast Guard found the registration documents after it determined the ship to be stateless. But on
that same motion, Aguilar Lopez wrote, “As soon as Cristiano Ronaldo was boarded by the U.S.
Coast Guard, [Hernandez Almaraz] gave the Coast Guard a document, issued by the Guatemalan
Navy, certifying that Cristiano Ronaldo is registered as a Guatemalan vessel.” On appeal,
Savala Cisneros states that “once the Cristiano Ronaldo was boarded by the U.S. Coast Guard,
[Hernandez Almaraz] gave the Coast Guard [the registration] document,” without specifying
exactly how long after the boarding the tender occurred. Savala Cisneros also points out that the
Coast Guard later produced the registration document to the defense during discovery and argues
that that production of the document shows that the Coast Guard had obtained the registration
document before it contacted the Guatemalan government for confirmation of registry. But this
does not follow. The Coast Guard could have obtained the registration document after the
communication with the Guatemalan government, during the following search of the vessel, and
therefore before discovery.
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In his reply brief, Savala Cisneros insists that he “is not contesting the
response of the foreign nation, but is instead contesting the facts alleged by the
United States in the certification and jurisdiction.”4 Savala Cisneros may simply
be insisting that we look beyond what the Guatemalan government is conclusively
proven to have said, to the conduct of the U.S. Coast Guard that brought about that
response. But the conclusive proof provision does not specify the requisite form of
prior notice to the government of the claimed flag nation. To the extent that such
prior notice may be required by international law, reliance on such a requirement is
not warranted under the MDLEA. Congress explicitly stated: “A failure to comply
with international law does not divest a court of jurisdiction and is not a defense.”
46 U.S.C. § 70505 (emphasis added).
Savala Cisneros may also be arguing that even if the certification
conclusively proves the Guatemalan government’s response, i.e., that the
certification could “neither confirm nor deny” the registry, it does not necessarily
follow that the certification also conclusively proves the jurisdictional fact that
Guatemala did not “affirmatively and unequivocally assert” registry under 46
U.S.C. § 70502(d)(1)(C). But a non-confirmation/non-denial of registry is
necessarily the failure to “affirmatively and unequivocally assert” registry; the
4
Elsewhere in the reply brief, Savala Cisneros claims that he is disputing jurisdiction in
particular on the basis of “the false statements the United States government made to
Guatemala,” or as put elsewhere, “the United [States’] claims outlined in the certification.”
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wording of the Guatemalan response leaves no ambiguity that it was doing
something other than “affirmatively and unequivocally assert[ing]” registry. This
is particularly true given the certification’s explicit reference to the relevant
statutory language. To rule otherwise would be to impose an undue and
burdensome formality on the content of the Secretary’s certification. This
conclusion is supported by our decision in Wilchcombe, which held that the
certification in that case was not required to “precisely mirror” the statutory
language. Wilchcombe, 838 F.3d at 1186–87.
Savala Cisneros presses two additional arguments related to jurisdiction.
Both fail. First, the district court did not commit reversible error in quashing
Aguilar Lopez’s subpoena to Commander Fazio. Even though the district court
granted the Government’s motion to quash the subpoena before the defendants had
the opportunity to respond to the motion, the error was harmless because the
defendants later had the opportunity to respond in their motion to reconsider. In
any event, the district court properly reasoned that Commander Fazio did not need
to testify because the MDLEA’s conclusive-proof provision foreclosed any inquiry
into the Commander’s communications with the Guatemalan government in
determining the Cristiano Ronaldo’s MDLEA statelessness. Second, Savala
Cisnero’s constitutional argument—that the MDLEA is an unconstitutional
assertion of Congressional power because it reaches stateless vessels on the high
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seas without a proven nexus to the United States—is foreclosed by our precedent.
In Campbell, we held that the MDLEA was a constitutional exercise of
Congressional authority under the Felonies Clause, and that the conduct proscribed
by the MDLEA need not have a nexus to the United States. Campbell, 743 F.3d at
809–10; see also Wilchcombe, 838 F.3d at 1186 (adhering to that conclusion).
III.
Finally, Aguilar Lopez makes what sounds like a plausible argument: How
can defendants commit a crime on a vessel at a time when it is not yet determined
to be a stateless vessel, only to have the vessel meet the statutory requirements for
a stateless vessel after the crime has been committed? By the time the Coast Guard
received word from the Guatemalan government that it could neither confirm nor
deny the Cristiano Ronaldo’s registry, the crewmen had already thrown the
packages overboard, and there were no longer any drugs on the ship. Aguilar
Lopez therefore argues that, even under the Government’s theory, when the
response from the Guatemalan government “converted the Guatemalan vessel into
a stateless one,” Aguilar Lopez no longer possessed narcotics with intent to
distribute, and that the Government has failed to prove that Aguilar Lopez was on
board a stateless vessel subject to U.S. jurisdiction when he previously did
allegedly possess narcotics with intent to distribute.
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Aguilar Lopez’s insufficiency-of-the-evidence argument fails because
whether the statutory requirements for MDLEA jurisdiction have been met is not
an element of the crime that the Government must prove beyond a reasonable
doubt. “[T]he [MDLEA’s] jurisdictional requirement is not an essential ingredient
or an essential element of the MDLEA substantive offense, and, as a result, it does
not have to be submitted to the jury for proof beyond a reasonable doubt.” Tinoco,
304 F.3d at 1109–10. Instead, the MDLEA’s jurisdictional provisions allocate
power between the courts and the executive as to which of the two will be
responsible for complying with U.S. obligations under the international law of
criminal jurisdiction.
Construed as a challenge to that allocation, Aguilar Lopez’s argument fails
because, by relying on the certification to exercise MDLEA jurisdiction over this
case, we are not holding that the Cristiano Ronaldo was stateless under
international law at the time of the criminal conduct. We are instead holding, as
we need only hold, that the statutory requirements for MDLEA prosecution in U.S.
courts have been met, while recognizing that any further jurisdictional complaint
over that U.S. prosecution is to be handled by the executive branch, nation-to-
nation, in the international arena. There is nothing anomalous about basing that
decision on actions taken after the criminal activity.
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Some background helps explain why. Under international law, a nation may
lack power to punish criminally the actions of a foreign citizen outside its territory,
such that the nation whose national is tried may protest diplomatically. These
limits are referred to as limits on a nation’s jurisdiction to prescribe. F.T.C. v.
Compagnie De Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1315 (D.C. Cir.
1980). In addition, under international law a nation may lack power to go on the
territory of a foreign state without consent to seize a person, even a national of the
seizing state, such that the state whose territory is violated may protest
diplomatically. These limits fall under the rubric of a nation’s jurisdiction to
enforce. Id. at 1305–06. See generally Restatement (Second) of the Foreign
Relations Law of the United States § 6 cmt. a (1965).
In the MDLEA, Congress has delineated between judicial and diplomatic
compliance with international law limits on criminal jurisdiction over the actions
of aliens on ships on the high seas, with respect to limits on both prescriptive and
enforcement jurisdiction. To the extent that we determine a particular case to be
on the diplomatic side of those lines, we are not necessarily saying that the United
States could exercise territorial jurisdiction under international law limits, but only
that Congress has determined that the question, if there is one, is to be dealt with
diplomatically and not by the courts. On the protest of a foreign nation, for
instance, the executive branch can decline to prosecute. So viewed, there is no
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anomaly in finding jurisdiction under the MDLEA based on a Secretary of State
certification of a vessel’s state’s post-crime non-assertion of registry.
IV.
The defendants’ other arguments are also without merit. Despite arguments
from Savala Cisneros and Aguilar Lopez to the contrary, sufficient evidence
supported the defendants’ convictions. Savala Cisneros argues, as he and his co-
defendants argued at trial, that they had only been fishing that day and that the
bales of cocaine that the Coast Guard recovered from the water had not been
thrown from the Cristiano Ronaldo. The trial evidence included testimony, for
example: (i) that the Cristiano Ronaldo was located more than 120 miles offshore,
away from any fishing fleet, with essentially no fishing gear, but with a large
amount of fuel; (ii) that the Cristiano Ronaldo sped off when the Coast Guard
helicopter approached, despite the Coast Guard’s radio-transmitted orders to halt,
and despite several warning shots from the helicopter into the water; (iii) that the
crew of the Cristiano Ronaldo threw overboard black packages from the boat when
the Coast Guard immobilized the vessel; and (iv) that in that marked location the
Coast Guard later recovered about ten bales containing about 290 kilograms of
cocaine. Viewing the evidence in the light most favorable to the Government and
accepting all reasonable inferences in favor of the verdict, e.g., United States v.
Calhoon, 97 F.3d 518, 523 (11th Cir. 1996), the presented evidence allowed a
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reasonable trier of fact to find that the evidence established beyond a reasonable
doubt that the four crewmen of the Cristiano Ronaldo were smuggling cocaine
instead of fishing. Their intent to distribute the cocaine, moreover, reasonably
could have been inferred from the large quantity. See, e.g., Tinoco, 304 F.3d at
1123 (11th Cir. 2002).
V.
Contrary to the arguments of Savala Cisneros and Aguilar Lopez, the
Government’s statements made in closing argument and rebuttal did not constitute
reversible prosecutorial misconduct, because they were not sufficiently prejudicial.
Some of the challenged remarks do not reflect the high standards to which the
Government should hold itself: instead of twice characterizing the defense
attorneys as “spin doctor[s],” the Government could have cut to refuting the
defense theory; instead of responding eye-for-eye to the defense counsel’s
statement that the Government’s case was “insulting” by calling the defense theory
“insulting,” the Government could have cut to arguing on the merits why it had
proven its case and why the defense had failed to plant a reasonable doubt in it;
instead of referring to its witnesses as the “fine men and women of the Coast
Guard [who] put their lives on the line every single day,” the Government could
have highlighted the facts adduced at trial from which the jury could have inferred
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their credibility. Other challenged remarks do not appear improper at all. 5 In any
event, to be reversible error, prosecutorial misconduct must raise a reasonable
probability that, but for the prejudicial remarks, the outcome at trial would have
been different. E.g., United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009).
The challenged remarks do not raise that probability both because they are not
sufficiently substantive and because of the strength of the Government’s evidence
supporting the defendants’ guilt.
VI.
Neither the Coast Guard’s accidental destruction of the Cristiano Ronaldo
on the day of arrest, nor the Government’s discarding the defendants’ clothes and
the burlap sacks in which the bales of cocaine were found, violated Savala
Cisneros’s rights, either under Brady v. Maryland, 373 U.S. 83 (1963), or under
Arizona v. Youngblood, 488 U.S. 51 (1988). These pieces of evidence were not
5
For example, this remark—“the Government submits to you that Lieutenant Hawn and Petty
Officer Brown were extremely credible when they told you what are the priorities”—does not
improperly bolster the witnesses’ credibility, especially since it was followed directly by
arguments why the testimony was credible. The Government’s statement that Savala Cisneros’s
boarding the Cristiano Ronaldo sufficed to support conspiratorial agreement to distribute cocaine
was not improper when viewed in the context, which was that, in order for there to be
conspiratorial agreement, the members did not have to know every aspect of the plan regarding
the cocaine and that the magnitude of any particular defendant’s role was not relevant. The
Government’s closing remarks that characterized a witness’s testimony, regardless of whether
they were mischaracterizations, did not amount to reversible impropriety, especially in light of
the district court’s reminder to the jury to recall the witness’s testimony itself.
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sufficiently exculpatory, particularly in light of the strength of the inculpatory
evidence, for the following reasons.
Savala Cisneros first asserts that the Cristiano Ronaldo contained fishing
equipment, that he was wearing fishing clothes, and that the equipment and his
clothes would have shown that he was, in fact, fishing the day he was apprehended
by law enforcement. But Savala Cisneros does not specifically allege what fishing
equipment was on board the Cristiano Ronaldo when it sank, and does not argue
how even with fishing equipment and even wearing fishing clothes one cannot also
smuggle cocaine. Savala Cisneros next asserts that the precise dimensions of the
Cristiano Ronaldo’s fish hold would have conclusively established that the large
amount of cocaine recovered would not have fit in it. However, the Government
introduced a photograph that depicted the four defendants standing in the fish hold,
which made the jury aware of its relative size. The loss of the burlap sacks that
had covered the bales did not prevent Savala Cisneros from arguing as follows:
that the photographs of the bales that had been thrown from the Cristiano Ronaldo
show yellow tape on the bales, but that the packages of cocaine recovered from the
water did not have any yellow markings and therefore did not come from the
Cristiano Ronaldo. In response, the Government introduced testimony from
multiple Coast Guard witnesses that the packages jettisoned from the Cristiano
Ronaldo, and subsequently recovered by the Coast Guard, were all black.
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Furthermore, the witness familiar with the camera noted that the coloring could be
distorted if the camera was not set up perfectly. Savala Cisneros finally asserts that
the vessel would have shown that it did not have a radio, which could have
explained why the defendants did not stop the vessel when the Coast Guard radio-
transmitted orders to halt. But even putting aside the radio-transmitted orders, at
trial, a Coast Guard lieutenant testified that the helicopter he flew in pursuit of the
Cristiano Ronaldo had an insignia indicating that it was a Coast Guard helicopter.
He also testified that one of the helicopter’s crew members was waving to the
defendants in an attempt to make them stop, and that warning shots were fired near
the vessel to stop it.
For both a Youngblood claim that the Government failed to preserve
potentially useful defense evidence and a Brady claim that the prosecution failed to
disclose exculpatory evidence, there is a materiality requirement. To warrant
reversal, the evidence that the prosecution suppresses under Brady must raise “a
reasonable probability,” i.e., “a probability sufficient to undermine confidence in
the outcome,” that “had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” United States v. Bagley, 473 U.S. 667,
682 (1985); id. at 685 (White, J., concurring); see Turner v. United States, 137 S.
Ct. 1885, 1893 (2017) (explaining that evidence is material under Brady “when
there is a reasonable probability that, had the evidence been disclosed, the result of
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the proceeding would have been different”). Similarly, to warrant reversal, the
unpreserved evidence under Youngblood must be the sort of evidence “that might
be expected to play a significant role in the suspect’s defense.” California v.
Trombetta, 467 U.S. 479, 488 (1984). None of the unavailable pieces of evidence
that Savala Cisneros points to would have been expected to play a significant role
in defense or raise the reasonable probability that the outcome could have been
different, not just because the alleged unavailable evidence is insufficiently
probative or sufficiently substituted, but also because the evidence of guilt is
overwhelming.6
United States v. Revolorio-Ramo, 468 F.3d 771 (11th Cir. 2006), confirms
this result. In that case, we affirmed MDLEA convictions and rejected the
defendants’ argument that their due process rights were violated when the Coast
Guard destroyed their vessel after determining the vessel was not seaworthy and
could not be towed safely. Id. at 774–75. There, as here, photographs and a video
6
Savala Cisneros’s claims here might also fail for alternative reasons, which we note but do not
reach. His Brady claim might fail also because the prosecution never had access to some of the
lost evidence. Brady applies only to the suppressed evidence that was available to the
prosecution. United States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002). His Youngblood
claim might fail also because he failed to prove the Government’s bad faith in destroying the
evidence. Unlike in a Brady claim, bad faith must be proven in a Youngblood claim.
Youngblood, 488 U.S. at 58. Here, any argument that the Government acted in bad faith is
speculative. Officer Arambula testified that the Cristiano Ronaldo was sunk accidentally despite
attempts to prevent it; another agent testified that the clothes and the burlap sacks were wet and
therefore discarded due to mold and sanitation concerns. Savala Cisneros offers no concrete
argument that those reasons were pretextual.
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had been taken of the boat, but they were poor in quality, and the parties disagreed
about the quantity and condition of the fishing equipment on board. Id. at 773.
We nevertheless determined that any exculpatory evidence aboard the vessel
would have, at most, bolstered the arguments already presented to the jury, and
would not have allowed the defense to present an otherwise unavailable argument.
Id. at 774. We emphasized that the defendants had the opportunity to question law
enforcement at trial to attempt to raise doubts for the jury. Id. at 774-75.
Likewise, in this case, Savala Cisneros’s claims about the lost evidence, at best,
would have merely bolstered the arguments that he made at trial—that he was
merely a fisherman, that the fish hold could not conceal such a large amount of
cocaine, that the packages thrown from the vessel were not the ones later
recovered, and that no radio was on board. Savala Cisneros was able to review
photographs of the lost evidence and extensively question the Coast Guard
personnel present the day the Cristiano Ronaldo was interdicted.
VII.
Despite Savala Cisneros’s arguments to the contrary, the district court did
not err in admitting Officer Arambula’s testimony about the statements and actions
of another Coast Guard crew member, Officer Ligsay.
First, the district court did not err in admitting Officer Arambula’s testimony
that he saw Officer Ligsay inspect the fish hold of the Clara Luz, the vessel that the
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officers stopped before encountering the Cristiano Ronaldo, and that in his opinion
Officer Ligsay did not appear concerned during and after the inspection. While
Officer Arambula’s testimony permitted the Government to argue that the Clara
Luz did not contain anything suspicious and therefore could not have been the
source of the cocaine found in the water, Savala Cisneros has not shown that
Officer Ligsay’s nonverbal conduct constituted a statement. Nonverbal conduct
can constitute a statement where the person intended the conduct to communicate a
message, but nothing in the record suggests that Officer Ligsay intended through
his conduct to communicate any message to Officer Arambula. See Fed. R. Evid.
801(a). Officer Ligsay was just inspecting the Clara Luz’s fish hold; Officer
Arambula just saw that Officer Ligsay did so and that he did not react in a way that
displayed concern. That conduct and reaction are not hearsay because they are not
statements.
Nor did the district err in admitting Officer Arambula’s testimony about
Officer Ligsay’s joke. Officer Arambula testified that on the Cristiano Ronaldo
there was “a box of chicken” with “some bones . . . and a few pieces of chicken,”
and that “Officer Ligsay asked [the four defendants] if they were using the chicken
as bait and then we just all laughed.” Officer Ligsay’s question appears not to
have been a statement offered to prove the truth of the matter asserted—indeed, it
is unclear just what the question asserts. Savala Cisneros nevertheless argues that
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Officer Ligsay’s question allowed the jury to infer that no bait was on the boat.
But even if it did, and even if Officer Ligsay intended his question to assert that
there was no bait on the Cristiano Ronaldo, admitting Officer Arambula’s
testimony about the question did not prejudice Savala Cisneros, as improper
admission of hearsay, to warrant reversal, must have had a “substantial influence
on the outcome” of the case. United States v. Fortenberry, 971 F.2d 717, 722
(11th Cir. 1992). There was more than sufficient evidence establishing Savala
Cisneros’s guilt outside of the existence or non-existence of bait on the Cristiano
Ronaldo.
Finally, the Government concedes the hearsay nature of Officer Arambula’s
testimony about Officer Ligsay’s comment that the cocaine bales they pulled from
the water were weighted down with cement. Savala Cisneros claims the
Government used this hearsay testimony to support its theory of the case in
closing, by arguing that the defendants had thrown the cocaine from the boat,
hoping the concrete buckets would sink the cocaine and they would evade
responsibility. But Savala Cisneros has here again failed to show that he was
prejudiced by admission of the testimony. Regardless of whether the cocaine bales
were weighted down with cement, strong evidence supported that the bales were
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thrown overboard the Cristiano Ronaldo while the defendants were fleeing from
the Coast Guard. 7
VIII.
The district court properly applied the two sentencing enhancements that
Hernandez Almaraz challenges: a two-level enhancement for “act[ing] as a . . .
captain . . . aboard any craft or vessel carrying a controlled substance,” U.S.S.G. §
2D1.1(b)(3)(C), and another two-level enhancement for “recklessly creat[ing] a
substantial risk of death or serious bodily injury to another person in the course of
fleeing from a law enforcement officer,” U.S.S.G. § 3C1.2.
The district court properly determined that Hernandez Almaraz “acted” as
the captain of the Cristiano Ronaldo under U.S.S.G. § 2D1.1(b)(3). Hernandez
Almaraz identified himself as the captain when the Coast Guard boarded the
vessel; he held a captain’s license in Guatemala; and Lopez Hernandez later
confirmed that Hernandez Almaraz was the ship’s captain. Hernandez Almaraz
7
Savala Cisneros also cites the Confrontation Clause in his brief, but fails to develop the claim,
only stating that “Savala Cisneros was deprived [of] his Sixth Amendment right to confront the
witnesses against him, by the court’s erroneous admission of hearsay testimony.” The
Confrontation Clause was not raised below. Before the district court, defense counsel objected
to only one of the three statements Savala Cisneros now challenges, and even that objection
challenged the testimony only on hearsay grounds. Plain error review therefore applies. See
United States v. Arbolaez, 450 F.3d 1283, 1291 n.8 (11th Cir. 2006). Under plain error review,
Savala Cisneros bears the burden of establishing that the district court erred. See United States v.
Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014). Because Savala Cisneros has not developed
the Confrontation Clause claim, he has not established that the district court plainly erred in
admitting this testimony.
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relies on cases like United States v. Cartwright, 413 F.3d 1295 (11th Cir. 2005), to
argue that while that evidence may show that he was the ship’s captain, it does not
show that he “acted” as such. Cartwright did focus on whether the defendant
“acted” as a captain by operating the vessel, but the case did so in the context of
expanding the scope of § 2D1.1(b)(3) to apply to the defendant who was “a
lifelong fisherman” and who was “driving the boat when the Coast Guard boarded
it,” even though he “was not officially named the captain.” Cartwright, 413 F.3d
at 1299. That case shows therefore that a non-captain can “act” as a captain under
§ 2D1.1(b)(3); it does not show that a captain does not “act” as a captain when he
is not operating the boat. A captain generally acts as a captain as the ship’s
ultimate decisionmaker, even when the captain delegates aspects of the operation
of the vessel. The district court properly determined that Hernandez Almarez
“acted” as the Cristiano Ronaldo’s captain based on the evidence that he was the
captain.
The district court also properly determined that Hernandez Almaraz
“recklessly created a substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer,” U.S.S.G. § 3C1.2,
by overseeing as its captain the Cristiano Ronaldo’s aggressive maneuvers in
response to the Coast Guard’s approach and orders to halt. The trial testimony
established that the boat maneuvered “aggressively” and refused to stop, requiring
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the Coast Guard helicopter to move close to the vessel in order to follow it and fire
warning shots. The district court did not clearly err in finding on that evidence that
the aggressive maneuvers “recklessly created a substantial risk of death or serious
bodily injury.” The district court did not clearly err, either, in attributing the
aggressive maneuvers to Hernandez Almaraz, since he was the ship’s captain and
the district court specifically found that Hernandez Almaraz actively caused the
risk by controlling the actions of the boat. This met the requirement, restated in
United States v. Dougherty, 754 F.3d 1353, 1360 (11th Cir. 2014), that the district
court make “a specific finding [] that the defendant actively caused or procured the
reckless behavior at issue.” Id. (citing United States v. Johnson, 694 F.3d 1192,
1196–97 (11th Cir. 2012)).
IX.
The judgments of the district court are affirmed.
32