2

17‐2926
United States v. Van Der End

1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 ____________________
4
5 August Term, 2018
6
7 (Argued: August 13, 2018 Decided: November 14, 2019)
8
9 Docket No. 17‐2926
10
11 ____________________
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 v.
18
19 STEFAN VAN DER END, AKA STEFAN VAN
20 DAM EASEL,
21
22 Defendant‐Appellant.1
23
24 ____________________
25
26 Before: NEWMAN and POOLER, Circuit Judges, and COTE, District Judge.2
27

1 The Clerk of the Court is directed to amend the caption as above.
2Denise Cote, United States District Court for the Southern District of New York,
sitting by designation.
 1 Appeal from United States District Court for the Southern District of New

2 York (Richard J. Sullivan, J.), convicting defendant Stefan Van Der End, after a

3 plea of guilty, of engaging in drug trafficking activity, and conspiring to do so, in

4 violation of the Maritime Drug Law Enforcement Act (the “MDLEA”), 46 U.S.C.

5 §§ 70501 et seq. Because Van Der End has waived his Confrontation Clause and

6 jury trial right challenges to his conviction by pleading guilty, and because the

7 Due Process Clause does not require a nexus between the United States and

8 MDLEA violations that transpire on a vessel without nationality, we affirm the

9 conviction.

10 Affirmed.

11 ____________________

12 BENJAMIN SILVERMAN, Patel & Shellow LLP, New
13 York, N.Y., for Defendant‐Appellant.
14
15 Jill R. Shellow, New York, N.Y., for Defendant‐Appellant
16 (on the brief).
17
18 AMANDA L. HOULE, Assistant United States Attorney
19 (Jason M. Swergold, Karl Metzner, Assistant United
20 States Attorneys, on the brief), for Geoffrey S. Berman,
21 United States Attorney for the Southern District of New
22 York, New York, N.Y., for Appellee.
23

2
 1 POOLER, Circuit Judge:

2 Defendant‐Appellant Stefan Van Der End appeals from a judgment of the

3 United States District Court for the Southern District of New York (Richard J.

4 Sullivan, J.), convicting him, after a plea of guilty, of engaging in drug trafficking

5 activity, and conspiring to do so, in violation of the Maritime Drug Law

6 Enforcement Act (the “MDLEA”), 46 U.S.C. §§ 70501 et seq. Because Van Der

7 End has waived his Confrontation Clause and jury trial right challenges to his

8 conviction by pleading guilty, and because the Due Process Clause does not

9 require a nexus between the United States and MDLEA violations that transpire

10 on a vessel without nationality, we affirm the conviction.

11 BACKGROUND

12 I. Factual Background

13 Stefan Van Der End, a citizen of the Netherlands, was one of three foreign

14 nationals on board the Sunshine, carrying more than 1,000 kilograms of cocaine

15 from Grenada to Canada when it was stopped by the United States Coast Guard

16 on May 23, 2016. Richard Dow, the master of the Sunshine, told the Coast Guard

17 that the boat was registered in St. Vincent and the Grenadines (“SVG”) and

18 provided the vessel’s registration information. The next morning, Coast Guard
3
 1 officers boarded the boat—subject to the authority granted them by a treaty with

2 SVG—and found more than 600 kilograms of cocaine below deck. The vessel

3 began to sink after one of the crewmembers attempted to scuttle it, so the

4 government was unable to recover all of the cocaine; however, the government

5 subsequently learned that there were another 640 kilograms hidden on the

6 Sunshine. Coast Guard officers detained Van Der End and the other members of

7 the crew.

8 Coast Guard officers then inquired with SVG authorities about the

9 Sunshine’s registration. SVG authorities disclosed that the Sunshine’s registration

10 had expired on February 25, 2016, and that SVG did not consider the Sunshine to

11 be subject to the SVG’s jurisdiction. Van Der End and the other crewmembers

12 who were on board the Sunshine were then brought to New York and

13 subsequently arrested on June 3, 2016.

14 II. Procedural History

15 In an indictment filed on June 30, 2016, a grand jury indicted Van Der End

16 and the other crewmembers with one count of manufacture and distribution, and

17 possession with intent to manufacture and distribute, five kilograms and more of

18 mixtures and substances containing a detectable amount of cocaine while aboard
4
 1 a vessel subject to the jurisdiction of the United States in violation of the MDLEA,

2 46 U.S.C. §§ 70503(a)(1), 70504(b)(1), 70506(a); 18 U.S.C. §§ 3238 & 2; 21 U.S.C.

3 § 960(b)(1)(B), and one count of conspiracy to engage in the above‐described

4 drug trafficking activity in violation of the MDLEA, 46 U.S.C. §§ 70503, 70506(b),

5 70504(b)(1); 18 U.S.C. § 3238; 21 U.S.C. § 960(b)(1)(B).3

6 On April 24, 2017, Van Der End filed a motion to dismiss the indictment

7 for lack of subject matter jurisdiction. He also challenged the constitutionality of

8 the MDLEA as applied to him on due process grounds and raised a Sixth

9 Amendment challenge to his prosecution based on the government’s alleged

10 forum shopping. The same day, the government filed a motion in limine in

11 which it argued that the defendants should be precluded from arguing to a jury

12 that the Sunshine was not subject to the jurisdiction of the United States.

13 At a May 4, 2017, hearing, the district court orally ruled in favor of the

14 government on all issues. The district court also ruled that it would permit the

15 government to enter into evidence documents from the SVG government

16 regarding ownership of the Sunshine. After the district court’s rulings, Van Der

3The text of some of the MDLEA’s provisions have since changed in ways that
are immaterial for purposes of this appeal.
5
 1 End stated that he intended to enter a guilty plea. The district court scheduled a

2 plea hearing for that same afternoon, during which Van Der End pled guilty to

3 both counts of the indictment without a plea agreement or otherwise reserving

4 any rights to challenge his conviction on appeal. The district court later

5 published an opinion and order formally announcing its ruling on subject matter

6 jurisdiction, statelessness, and the other challenges to the indictment Van Der

7 End and one of his codefendants had raised. United States v. Suarez, 16‐cr‐453

8 (RJS), 2017 WL 2417016, at *1 (S.D.N.Y. June 1, 2017).

9 On September 8, 2017, the district court sentenced Van Der End to 25 years

10 of imprisonment and five years of supervised release, and entered judgment the

11 same day. This appeal followed.

12 DISCUSSION

13 On appeal, Van Der End primarily argues that the district court erred by

14 denying his motion to dismiss the indictment because (1) the government

15 presented insufficient evidence that the Sunshine was a vessel subject to the

16 jurisdiction of the United States, (2) the Fifth and Sixth Amendments required

17 the district court to submit that question to a jury rather than decide it for itself,

18 and (3) his conduct lacked the nexus to the United States that due process
6
 1 requires. In reviewing the denial of a motion to dismiss an indictment, we review

2 the district court’s findings of fact for clear error and its conclusions of law de

3 novo. United States v. Bout, 731 F.3d 233, 237‐38 (2d Cir. 2013).

4 I. Evidence of Statelessness

5 A. The MDLEA’s Requirements

6 As presently drafted, the MDLEA makes it a federal crime to engage in

7 certain specified drug trafficking activity “[w]hile on board a covered vessel.” 46

8 U.S.C. § 70503(a). A “covered vessel” includes, as relevant here, “a vessel subject

9 to the jurisdiction of the United States.” Id. § 70503(e)(1). A vessel may be subject

10 to the jurisdiction of the United States if, inter alia, it is “a vessel without

11 nationality.” Id. § 70502(c)(1)(A). For present purposes, a vessel is without

12 nationality if “the master or individual in charge makes a claim of registry that is

13 denied by the nation whose registry is claimed.” Id. § 70502(d)(1)(A). A claim of

14 registry may be made in one of three ways: “(1) possession on board the vessel

15 and production of documents evidencing the vessel’s nationality . . . ; (2) flying

16 its nation’s ensign or flag; or (3) a verbal claim of nationality or registry by the

17 master or individual in charge of the vessel.” Id. § 70502(e). “The response of a

7
 1 foreign nation to a claim of registry . . . is proved conclusively by certification of

2 the Secretary of State or the Secretary’s designee.” Id. § 70502(d)(2).

3 “Jurisdiction of the United States with respect to a vessel subject to this

4 chapter is not an element of an offense.” Id. § 70504(a). Rather, “[j]urisdictional

5 issues” that arise under MDLEA “are preliminary questions of law to be

6 determined solely by the trial judge.” Id. As we have recently explained, the

7 function of MDLEA’s jurisdictional language “is not to confer subject matter

8 jurisdiction on the federal courts, but rather to specify the reach of the statute

9 beyond the customary borders of the United States.” United States v. Prado, 933

10 F.3d 121, 132 (2d Cir. 2019).

11 However, where there is no factual basis to find that the vessel on which a

12 defendant was apprehended was a vessel subject to the jurisdiction of the United

13 States, the defendant may still be permitted to raise that issue on appeal even

14 after pleading guilty. That is because “a defective guilty plea will not necessarily

15 be deemed to waive all objections to a conviction.” Id. at 151. And when the

16 government’s proof that a vessel was subject to the jurisdiction of the United

17 States is lacking, a district court might run afoul of Federal Rule of Criminal

18 Procedure 11(b)(1)(G), which “requires that the court must inform the defendant
8
 1 of, and determine that the defendant understands, . . . the nature of each charge

2 to which the defendant is pleading,” and 11(b)(3), which “requires the court to

3 determine that there is a factual basis for the plea,” rendering the defendant’s

4 guilty plea invalid. Id. at 152 (alteration in original) (internal quotation marks

5 omitted).

6 B. The Sunshine Was a Vessel Without Nationality

7 Van Der End argues that the government did not present sufficient

8 evidence from which the district court could properly conclude that the Sunshine

9 was a vessel without nationality. He argues that the district court’s reliance on

10 the State Department certification violated the Confrontation Clause because it

11 amounted to a testimonial statement by a witness whom Van Der End did not

12 have an opportunity to confront. This argument is without merit. Van Der End’s

13 guilty plea waived his right to raise that Sixth Amendment challenge to the

14 evidence on which the government’s prosecution relied. Boykin v. Alabama, 395

15 U.S. 238, 243 (1969) (observing that “the right to confront one’s accusers” is

16 among the “federal constitutional rights [that] are involved in a waiver that takes

17 place when a plea of guilty is entered”); United States v. Dhinsa, 243 F.3d 635, 651

18 (2d Cir. 2001) (“[A] defendant who enters a plea of guilty waives his rights under
9
 1 the Confrontation Clause.”); see also Class v. United States, 138 S. Ct. 798, 803

2 (2018) (differentiating claims that call into question “the very power of the State

3 to prosecute the defendant” from constitutional claims “related to events (say,

4 grand jury proceedings) that had occurred prior to the entry of the guilty plea”

5 (internal quotation marks omitted)).

6 Moreover, we are satisfied that the evidence the government presented of

7 the Sunshine’s statelessness sufficed. In Prado, we found problematic the “Coast

8 Guard boarding party’s inattention” to the MDLEA’s procedures for establishing

9 a vessel’s statelessness. 933 F.3d at 130. Most significantly, the government there

10 relied on the fact that the master of the vessel did not make a verbal claim of

11 nationality or registry; however, the government adduced no evidence that “an

12 officer of the United States authorized to enforce applicable provisions of United

13 States law,” 46 U.S.C. § 70502(d)(2), had made such a request. Id. at 130 & n.5.

14 And, because the Coast Guard had destroyed the vessel, “it became virtually

15 impossible for the government to demonstrate to the court in the statutorily

16 mandated preliminary hearing that the vessel was subject to the jurisdiction of

17 the United States and therefore that the MDLEA applied.” Id. at 132. Further, at

18 the defendants’ plea allocution, the district court made “no reference either to the
10
 1 requirement that the vessel have been subject to the jurisdiction of the United

2 States or to the crucial issue of its statelessness,” nor did the defendants

3 “demonstrate awareness . . . of the crucial significance of statelessness.” Id. at

4 152‐53. Thus, neither through the Government’s evidence nor the defendants

5 themselves, was there any “factual basis for the plea.” Id. at 153.

6 Here, however, the Coast Guard’s investigation suffered none of the same

7 defects. As explained above, Dow, the master of the Sunshine, claimed that the

8 vessel was registered in SVG and provided the Coast Guard with SVG

9 registration information. That sufficed to make a claim of registry. See 46 U.S.C.

10 §§ 70502(e)(1), (e)(3). The Coast Guard then contacted SVG officials who “refuted

11 the vessel’s claimed nationality.” App’x at 55. That established that the vessel

12 was without nationality. See 46 U.S.C. § 70502(d)(1)(A). Finally, the government

13 produced a certification from the United States Department of State that “proved

14 conclusively” the response of the SVG government. See id. § 70502(d)(2).

15 In short, a MDLEA defendant does not automatically waive his or her

16 ability to challenge the sufficiency of the government’s evidence regarding

17 whether a vessel is subject to the jurisdiction of the United States by pleading

18 guilty. See Prado, 933 F.3d at 151‐52. However, that does not mean that a MDLEA
11
 1 defendant who enters an unconditional guilty plea may still challenge all aspects

2 of the government’s evidence. We are satisfied here that there was a factual basis

3 for Van Der End’s guilty plea, such that he has waived his right to challenge the

4 district court’s determination that the vessel was subject to the jurisdiction of the

5 United States.

6 II. Jury Trial Rights

7 Van Der End further argues that the district court was required to submit

8 to a jury the question of whether the Sunshine was subject to the jurisdiction of

9 the United States. This argument fails for much the same reason his

10 Confrontation Clause argument fails. By pleading guilty, Van Der End waived

11 his right to a jury trial. McMann v. Richardson, 397 U.S. 759, 766 (1970); see also

12 Class, 138 S. Ct. at 804‐05.

13 To be clear, we recently recognized that, if the issue were properly

14 presented for appellate review, Section “70504(a)’s provision that the jurisdiction

15 of the United States be determined solely by the trial judge” might be stricken as

16 violative of a criminal defendant’s right to a jury trial. Prado, 933 F.3d at 139 n.9;

17 see also id. at 157 (Pooler, J., concurring in the judgment). We thus cautioned that

18 district courts would be well advised “to submit the issue of jurisdiction over the
12
 1 vessel to the jury notwithstanding the statutory word ‘solely’”—“after making

2 the preliminary determination required by § 70504(a) so that trial may proceed.”

3 Id. at 139 n.9. But here, the district court had no opportunity to submit the

4 question to a jury because Van Der End pled guilty after the district court made

5 the preliminary determination MDLEA requires.

6 III. Due Process

7 Finally, Van Der End argues that his prosecution violated the Due Process

8 Clause because there was no nexus between the offense conduct and the United

9 States. The government contends that no nexus is required because the Sunshine

10 was a stateless vessel and, even if a nexus were required, there was a sufficient

11 nexus here to satisfy due process.

12 As a threshold matter, we hold that Van Der End did not waive this

13 challenge to his prosecution by pleading guilty. We have previously held that a

14 criminal defendant who pleads guilty waives the argument “that the indictment

15 to which he [or she] pled guilty failed to adequately allege a nexus between his

16 [or her] alleged conduct and the United States, as required by the Due Process

17 Clause of the Fifth Amendment before a criminal statute may apply

18 extraterritorially.” United States v. Yousef, 750 F.3d 254, 256, 262 (2d Cir. 2014).
13
 1 However, the Supreme Court has since clarified that a guilty plea does not “by

2 itself bar[] a federal criminal defendant from challenging the constitutionality of

3 the statute of conviction on direct appeal.” Class, 138 S. Ct. at 803. Although

4 criminal defendants cannot “contradict the terms of the indictment” to which

5 they pled guilty “or written plea agreement[s]” pursuant to which they pled

6 guilty, defendants may still raise constitutional challenges to the statute of

7 conviction that “can be resolved without any need to venture beyond the

8 record.” Id. at 804 (internal quotation marks omitted). In other words, criminal

9 defendants who have pled guilty may still “challenge the Government’s power

10 to criminalize [their] (admitted) conduct,” “thereby call[ing] into question the

11 Government’s power to constitutionally prosecute” them. Id. at 805. Here, Van

12 Der End raises precisely such a challenge. Whether the Due Process Clause

13 requires MDLEA crimes committed on board a stateless vessel to have a nexus to

14 the United States is a purely legal question on which the government’s

15 constitutional power to prosecute Van Der End turns.

16 Nevertheless, Van Der End’s challenge fails on the merits. We have

17 previously held that the MDLEA’s predecessor statute did not, as a statutory

18 matter, require a nexus. United States v. Pinto‐Mejia, 720 F.2d 248, 261 (2d Cir.
14
 1 1983), modified in part on denial of reh’g, 728 F.2d 142 (2d Cir. 1984); United States v.

2 Henriquez, 731 F.2d 131, 134 (2d Cir. 1984). We now hold that due process does

3 not require that there be a nexus between the United States and MDLEA

4 violations that transpire on a vessel without nationality.4 To begin with, the

5 MDLEA indisputably has extraterritorial application. 46 U.S.C. § 70503(b)

6 (“Subsection (a) [which proscribes specified drug trafficking activity] applies

7 even though the act is committed outside the territorial jurisdiction of the United

8 States.”). And “[w]here Congress expressly intends for a statute to apply

9 extraterritorially, . . . the burden is a heavy one for a defendant seeking to show

10 that extraterritorial application of the statute violates due process.” United States

11 v. Epskamp, 832 F.3d 154, 168 (2d Cir. 2016) (internal quotation marks omitted).

12 Van Der End cannot meet that burden. Although we have adopted a

13 “‘sufficient nexus’ test for determining whether the extraterritorial application of

14 federal criminal law comported with constitutional due process,” id., MDLEA

15 prosecutions involving stateless vessels do not present the same concerns that

4We need not, and do not, decide what the Due Process Clause may require
before persons who are not on board a vessel without nationality may be
prosecuted for violating the MDLEA.
15
 1 are present in the extraterritorial application of typical criminal statutes. That is

2 because stateless “vessels are international pariahs” that “subject themselves to

3 the jurisdiction of all nations solely as a consequence of the vessel’s status as

4 stateless.” United States v. Caicedo, 47 F.3d 370, 372 (9th Cir. 1995) (internal

5 quotation marks omitted). “Because stateless vessels do not fall within the veil of

6 another sovereign’s territorial protection, all nations can treat them as their own

7 territory and subject them to their laws.” Id. at 373. Thus, when a vessel is subject

8 to the jurisdiction of another nation, a person trafficking drugs on board “would

9 have a legitimate expectation that because he has subjected himself to the laws of

10 one nation, other nations will not be entitled to exercise jurisdiction without

11 some nexus.” Id. at 372. The same is not true when “a defendant attempts to

12 avoid the law of all nations by travelling on a stateless vessel.” Id. at 372‐73.

13 The purpose of requiring a sufficient nexus with the United States is to

14 prevent extraterritorial application of U.S. criminal laws from being “arbitrary or

15 fundamentally unfair.” See Epskamp, 832 F.3d at 168 (internal quotation marks

16 omitted); see also United States v. Ballestas, 795 F.3d 138, 148 (D.C. Cir. 2015)

17 (same). That “ultimate question” of arbitrariness or unfairness, Ballestas, 795 F.3d

18 at 148 (internal quotation marks omitted), in turn, hinges in part on the notion of
16
 1 “fair warning.” Epskamp, 832 F.3d at 169. “The idea of fair warning is that no

2 [person] shall be held criminally responsible for conduct which he [or she] could

3 not reasonably understand to be proscribed.” United States v. Al Kassar, 660 F.3d

4 108, 119 (2d Cir. 2011) (internal quotation marks omitted). “Fair warning does

5 not require that the defendants understand that they could be subject to criminal

6 prosecution in the United States so long as they would reasonably understand that

7 their conduct was criminal and would subject them to prosecution somewhere.”

8 Id.

9 In other words, no nexus is required for the government to bring MDLEA

10 prosecutions against persons who are trafficking drugs on board stateless vessels

11 because such prosecutions are not arbitrary, since any nation may exercise

12 jurisdiction over stateless vessels, and they are not unfair, since persons who

13 traffic drugs may be charged with knowledge that such activity is illegal and

14 may be prosecuted somewhere. On that score, we have little trouble concluding

15 that those who participate in international drug trafficking activity are aware

16 that such conduct is illegal. See 46 U.S.C. § 70501 (congressional findings that

17 “trafficking in controlled substances aboard vessels is a serious international

17
1 problem [and] is universally condemned”). In this context, that is all due process

2 requires.

3 CONCLUSION

4 We have considered the remainder of Van Der End’s arguments and find

5 them to be without merit. For the foregoing reasons, we AFFIRM the judgment

6 of the district court.

18