United States v. Mitchell-Hunter

United States Court of Appeals
For the First Circuit

No. 10-2203

UNITED STATES OF AMERICA,

Appellee,

v.

JAVIER MITCHELL-HUNTER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Stahl, and Thompson, Circuit Judges.

Rachel Brill, by Appointment of the Court, for appellant.
Justin Reid Martin, Assistant United States Attorney, with
whom Nelson Pérez-Sosa, Chief, Appellate Division, and Thomas F.
Klumper, Assistant United States Attorney, were on brief, for
appellee.

December 12, 2011
 STAHL, Circuit Judge. Defendant-appellant Javier

Mitchell-Hunter (Mitchell) was charged with drug crimes under the

Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. §§ 70501-

70508, after he was apprehended on a go-fast vessel in the

Caribbean by a Coast Guard counter-narcotics patrol. Before the

district court, Mitchell moved for dismissal based on lack of

jurisdiction under the MDLEA, arguing that use of State Department

certifications memorializing the inability of Colombia and

Venezuela to confirm or refute the go-fast's master's claim of

national registry, without an opportunity to cross-examine their

author, constituted a violation of his Sixth Amendment right to

confrontation under Crawford v. Washington, 541 U.S. 36 (2004).

The district court denied his motion to dismiss, finding that

jurisdiction was adequately established and that there was no

violation of the Confrontation Clause. United States v. Nueci-

Pena, No. 07-00888CCC, 2010 WL 759160 (D.P.R. Feb. 26, 2010). This

timely appeal followed.

I. Facts and Background

On February 23, 2007, members of a United States Coast

Guard enforcement team on counter-narcotics patrol in the Caribbean

detected a suspicious go-fast vessel, which was not displaying

registry numbers, a hailing port, or a national flag. The Coast

Guard boarded the vessel seeking to verify its national registry.

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Francisco Nueci-Pena (Nueci) identified himself as the master of

the ship.

The evidence is contradictory as to which nationality

Nueci claimed. Contemporaneously, Petty Officer Hector Canaval, a

member of the enforcement team that boarded the vessel, reported

that Nueci claimed Colombian registry. United States Coast Guard

Commander G. Philip Welzant, a designee of the Secretary of State,

stated in his March 20, 2007 Certification for the Maritime Drug

Law Enforcement Act Case Involving the Go-Fast Vessel (First

Welzant Certification) that Colombian authorities were contacted

but could neither confirm nor refute the vessel's registry. Thus,

the vessel qualified as a "vessel without nationality," and was

subject to the jurisdiction of the United States under the MDLEA,

46 U.S.C. § 70502(c)(1)(A), (d)(1)(C). Meanwhile, a February 27,

2007 affidavit by Federal Bureau of Investigation Special Agent

Benjamin Walker, who was not present at the interdiction, stated

that Nueci claimed Venezuelan registry, that Venezuelan authorities

were contacted, and that they were unable to confirm or deny the

vessel's registry (Walker Affidavit).

Regardless of the claimed nationality, Coast Guard

personnel recovered burlap sacks from the go-fast vessel, which

were later determined to contain 1,170 pounds of cocaine.

Thereafter, on February 27, 2007, the Coast Guard brought the six

members of the go-fast's crew, which included Mitchell, to shore in

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San Juan, Puerto Rico. A criminal complaint was issued the same

day with the Walker Affidavit attached. A federal grand jury from

the District of Puerto Rico issued a second superseding indictment

on April 4, 2007,1 charging the members of the crew with one count

of drug possession and one count of conspiracy to possess drugs

with intent to distribute, in violation of the MDLEA, 46 U.S.C. §§

70503(a)(1), 70504(b)(1), and 70506(b).

On October 23, 2007, Nueci and Mitchell moved for

dismissal of the criminal complaint, arguing that Nueci had claimed

Venezuelan registry consistent with the Walker Affidavit, and that

because Commander Welzant had only certified that Colombia could

not confirm or deny registry, jurisdiction of the United States

under the MDLEA had never been established.2 The motion also

included a request for an evidentiary hearing on the issue of

jurisdiction.

The government initially opposed the motion by arguing

that "vessel without nationality" status had been properly

ascertained via contact with the Colombian government, as

memorialized in the First Welzant Certification. However, the

government then went further, filing a supplemental opposition

1
The first indictment, issued on March 7, 2007, included
outdated section numbers of the MDLEA; the superseding indictment
included the recodified section numbers.
2
The Walker Affidavit, in addition to asserting that Nueci
claimed Venezuelan registry, also stated that Venezuela had been
contacted and could neither confirm nor deny the vessel's registry.

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including a second Certification for the Maritime Drug Law

Enforcement Act Case Involving the Go-Fast Vessel from Commander

Welzant (Second Welzant Certification), dated January 15, 2008,

describing the Coast Guard's contact with the Venezuelan government

on that day. The Venezuelan government could neither confirm nor

refute the go-fast vessel's registry. The government therefore

asserted that the vessel was indeed "without nationality" and

subject to the jurisdiction of the United States, regardless of

which claim of registry Nueci had made.

On January 23, 2008, the parties met with a magistrate

for a status conference on the pending motion to dismiss for lack

of jurisdiction and the need for an evidentiary hearing. The

parties agreed that an evidentiary hearing was not necessary and

that jurisdiction could be determined on the papers. Importantly,

as the magistrate later noted in the Supplemental Report and

Recommendation (Supplemental R & R), "defense counsel voiced no

objection to consideration of the [Welzant Certifications], nor did

they request to cross-examine Commander Welzant or anyone providing

responses on behalf of Colombia or Venezuela." The magistrate's

status conference report stated, "The Court takes this matter under

advisement. An order will be entered if the need for an

evidentiary hearing arises." Without holding any hearing, the

magistrate filed a Report and Recommendation, recommending that the

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motion to dismiss be denied, which was adopted by the district

court on April 9, 2008.

On November 28, 2008, now represented by new counsel,

Mitchell filed a motion to supplement his previous motion to

dismiss and again requested an evidentiary hearing. This time,

Mitchell argued that the two Welzant Certifications were

testimonial hearsay, and that under Crawford, their use in the

pretrial jurisdiction determination, without an opportunity for

cross-examination, constituted a violation of his Sixth Amendment

right to confrontation. The district court again referred the

matter to the magistrate judge. Finding that the right to

confrontation was a trial right and therefore inapplicable to the

pretrial jurisdiction determination, the magistrate filed a

Supplemental R & R recommending denial of the motion. Mitchell,

again represented by different counsel, timely filed objections to

the Supplemental R & R, citing Crawford and also Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527 (2009), as support for his Sixth

Amendment claim.

The district court agreed with the magistrate that the

Confrontation Clause and Crawford did not apply before trial and

found no other reason under the MDLEA to dismiss. The district

court issued its decision adopting the Supplemental R & R and

denying the motion on February 26, 2010. Nueci-Pena, 2010 WL

759160, at *6. Following the denial of the motion, Mitchell

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entered into a plea agreement, reserving the right to appeal the

issue of jurisdiction. The district court entered judgment against

Mitchell on September 15, 2010, and sentenced him to 70 months of

imprisonment.

II. Discussion

Determination of jurisdiction under the MDLEA is a

question of law subject to de novo review. United States v. Bravo,

489 F.3d 1, 6 (1st Cir. 2007). Confrontation Clause challenges

raising questions of law also merit de novo review. United States

v. Rodríguez-Durán, 507 F.3d 749, 768 (1st Cir. 2007).

A. The MDLEA

Finding that drug trafficking at sea was a "serious

international problem . . . present[ing] a specific threat to the

security and societal well-being of the United States," 46 U.S.C.

§ 70501, Congress, via the MDLEA, made it unlawful to "knowingly or

intentionally manufacture or distribute, or possess with intent to

manufacture or distribute, a controlled substance on board . . . a

vessel subject to the jurisdiction of the United States," id.

§ 70503(a), which applies "even though the act is committed outside

the territorial jurisdiction of the United States," id.

§ 70503(b).3

3
The MDLEA is derived from Congress's power to "define and
punish Piracies and Felonies committed on the high Seas . . . ."
U.S. Const. art I, § 8, cl. 10; United States v. Matos-Luchi, 627
F.3d 1, 3 (1st Cir. 2010).

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 Among other categories of vessels, a "vessel without

nationality" is "subject to the jurisdiction of the United States."

Id. § 70502(c)(1)(A). One type of vessel without nationality is "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."4 Id. § 70502(d)(1)(C). Therefore, assuming the

equivocal responses of Colombia and Venezuela were adequately

proven, the go-fast vessel qualified as a vessel without

nationality, and was thus subject to the jurisdiction of the United

States.

At the time of the events relevant to this case, the

MDLEA stated that only a denial of the registry claim, and not an

equivocal response, could be proved conclusively5 by State

Department certification. Id. § 70502(d)(2) (2006) (amended 2008)

("Verification or denial. A claim of registry under paragraph

(1)(A) or (C) may be verified or denied by radio, telephone, or

similar oral or electronic means. The denial of such a claim is

proved conclusively by certification of the Secretary of State or

4
Another definition of a vessel without nationality is a
vessel on which "the master or individual in charge makes a claim
of registry that is denied by the nation whose registry is
claimed." Id. § 70502(d)(1)(A).
5
"Conclusive proof" or "conclusive evidence" is that which is
"so strong as to overbear any other evidence to the contrary."
Black's Law Dictionary 636 (9th ed. 2009).

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the Secretary's designee.") (emphasis added).6 Though the Welzant

Certifications did not rise to the level of conclusive proof in

this case, the district court was correct in its finding that the

Certifications were still relevant and admissible prima facie

evidence of statelessness. Nueci-Pena, 2010 WL 759160, at *6

(citing United States v. Tinoco, 304 F.3d 1088, 1114 (11th Cir.

2002)). The only other evidence submitted pertaining to

statelessness was that the go-fast vessel displayed no registry

numbers, hailing port, or national flag, any of which would have

indicated nationality under international law. See United States

v. Matos-Luchi, 627 F.3d 1, 5 (1st Cir. 2010). Considering the

totality of the evidence presented to the district court, and as

the burden of proof is merely a preponderance, id., there was no

error in concluding that the go-fast was a "vessel without

nationality" under § 70502(d)(1)(C).7

6
After the events relevant here, the statute was amended to
clarify that any response, equivocal or definite, could be
conclusively proven by State Department certification for purposes
of establishing jurisdiction. 46 U.S.C. § 70502(d)(2) (2008)
("Response to a claim of registry. The response of a foreign
nation to a claim of registry under paragraph (1)(A) or (C) 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.") (emphasis added).
7
Citing no cases, Mitchell argues that the fact that the
Second Welzant Certification was not submitted until nearly a year
after Mitchell's arrest makes the evidence unfit for use in the
jurisdictional determination. However, jurisdiction under the
MDLEA may be established at any time prior to trial, United States
v. Greer, 285 F.3d 158, 162 (2d Cir. 2002), and this Court has in
the past upheld jurisdiction under the MDLEA that was established

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B. The MDLEA's Jurisdiction Determination and the Confrontation
Clause

Mitchell's primary argument on appeal is that it was a

violation of his Sixth Amendment right to confrontation for the

district court to use the Welzant Certifications as evidence in the

determination of jurisdiction under the MDLEA. Because the MDLEA's

jurisdiction determination is relegated by statute to a pretrial

conclusion of law by the judge, and because the confrontation right

has never been extended beyond the context of a trial, this

argument is without merit.

The MDLEA's jurisdiction determination is explicitly "not

an element of an offense," and "[j]urisdictional issues arising

under [the MDLEA] are preliminary questions of law to be determined

solely by the trial judge." 46 U.S.C. § 70504(a). In addition to

being statutorily defined as such, the jurisdictional determination

would not be an "element" at common law either, because the

"question of whether a vessel is subject to the jurisdiction of the

United States . . . does not relate to whether a defendant

committed the proscribed actus reus or possessed the necessary mens

rea." United States v. Vilches-Navarrete, 523 F.3d 1, 21 (1st Cir.

when response from the claimed nation of registry was received five
days after the vessel was boarded. United States v. Cardales, 168
F.3d 548, 551-52, 554 (1st Cir. 1999). Other circuits have held
similarly. See United States v. Bustos-Useche, 273 F.3d 622,
627-28 (5th Cir. 2001); United States v. Medjuck, 48 F.3d 1107,
1111 (9th Cir. 1995). Thus, there was no error in basing
jurisdiction on a certificate that was created after boarding and
arrest but prior to trial.

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2008), cert. denied, 129 S. Ct. 208 (2008). The MDLEA's

"jurisdictional requirement, therefore, does not affect the

defendant's blameworthiness or culpability, which is based on the

defendant's participation in drug trafficking activities, not on

the smoothness of international relations between countries."

Tinoco, 304 F.3d at 1109.

In fact, the purpose of the MDLEA's jurisdictional

requirement is not to protect a defendant's rights, but instead to

maintain comity between foreign nations; the MDLEA's "subject to

jurisdiction" provision is "a matter of diplomatic comity."

Viches-Navarrete, 523 F.3d at 22; see also Tinoco, 304 F.3d at 1109

(noting that the MDLEA's jurisdiction requirement is "unique

because it is not meant to have any bearing on the individual

defendant, but instead is meant to bear only on the diplomatic

relations between the United States and foreign governments"). The

MDLEA's jurisdiction provision therefore is not concerned with a

defendant's interests at trial, but instead with the rights of

governments, determined by a judge prior to trial.8

Meanwhile, the Confrontation Clause has the opposite

focus, providing that "[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses

8
This is not to say that a defendant does not have an
interest in the court having proper jurisdiction over him, or that
a defendant does not have the right to contest such jurisdiction.
The burden of establishing jurisdiction remains with the
government.

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against him . . . ." U.S. Const. amend. VI. This explicitly

defendant-focused right has historically applied to testimony

elicited at, and evidence produced for, trial. See Pennsylvania v.

Ritchie, 480 U.S. 39, 52, 54 n.10 (1987) (opinion of Powell, J.)

("[T]he right to confrontation is a trial right, designed to

prevent improper restrictions on the types of questions that

defense counsel may ask during cross-examination," and does not

"require the government to produce witnesses whose statements are

not used at trial.")(internal quotation marks omitted); California

v. Green, 399 U.S. 149, 157 (1970) ("[I]t is this literal right to

'confront' the witness at the time of trial that forms the core of

the values furthered by the Confrontation Clause.") (emphasis

added); Barber v. Page, 390 U.S. 719, 725 (1968) ("The right to

confrontation is basically a trial right."), overruled on other

grounds by Crawford, 541 U.S. 36.

Mitchell does not point to a single case extending the

right to confrontation beyond the context of trial, although there

is extensive case law declining to apply the confrontation right to

various pre- and post-trial proceedings. See, e.g., United States

v. Andrus, 775 F.2d 825, 836 (7th Cir. 1985) ("[T]he sixth

amendment does not provide a confrontation right at a preliminary

hearing."); United States v. Harris, 458 F.2d 670, 677-78 (5th Cir.

1972) ("There is no Sixth Amendment requirement that [defendants]

. . . be allowed to confront [witnesses] at a preliminary hearing

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prior to trial."); Peterson v. California, 604 F.3d 1166, 1170 (9th

Cir. 2010) (concluding that the holdings of Andrus and Harris are

not disturbed by the Supreme Court's holding in Crawford, which

deals only with the admission of testimonial hearsay evidence at

trial). See also United States v. Beydoun, 469 F.3d 102, 108 (5th

Cir. 2006) (holding, in line with the majority of circuits, that

the confrontation right as defined by Crawford does not apply at a

sentencing hearing); United States v. Hernandez, 778 F. Supp. 2d

1211, 1227 (D.N.M. 2011) (the right to confrontation does not apply

at detention hearings); United States v. Bibbs, 488 F. Supp. 2d

925, 926 (N.D. Cal. 2007) (same); United States ex rel. Smith v.

Pate, 305 F. Supp. 225, 227 (N.D. Ill. 1969) (right to

confrontation does not apply at suppression hearing) (citing McCray

v. Illinois, 386 U.S. 300, 313-14 (1967)).

Finally, recent Supreme Court jurisprudence on the

Confrontation Clause has not extended its reach beyond the context

of trial. The question posed in Crawford was whether, in addition

to the right to cross-examine witnesses whose testimony was

elicited at trial, the defendant has the right to cross-examine

declarants who produced evidence prior to trial that later would be

introduced at trial. Crawford, 541 U.S. at 42-43 (explaining that

the resolution of the case depended on whether the Court determined

that the right to confrontation solely applied to witnesses who

testify at trial or whether it also applied to witnesses whose

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"statements are offered at trial"). While Crawford made clear that

the admission of certain testimonial hearsay would violate the

Confrontation Clause absent an opportunity for cross-examination

and the unavailability of the declarant, id. at 68, a violation

would only occur if these statements were introduced at trial, see

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2713 (2011) ("As a rule,

if an out-of-court statement is testimonial in nature, it may not

be introduced against the accused at trial unless the witness who

made the statement is unavailable and the accused has had a prior

opportunity to confront that witness.") (emphasis added); see also

Peterson, 604 F.3d at 1170 (holding that Crawford applies only to

statements introduced at trial).

Mitchell claims that Melendez-Diaz provides support for

his claim that he is entitled to cross-examine Commander Welzant.

While Melendez-Diaz did hold that certain government-prepared

certificates were testimonial hearsay and their use, without cross-

examination, constituted a Confrontation Clause violation, the

Court noted that the certificates were "made under circumstances

which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial," and in

fact their "sole purpose" was to provide evidence of the offense at

issue. 129 S. Ct. at 2532 (first emphasis added; second emphasis

in original). Under the MDLEA, the Welzant Certifications

explicitly do not go toward proving an element of the offense, see

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Vilches-Navarrete, 523 F.3d at 21, and an objective State

Department designee would not expect that the certifications would

be used at trial, as they are relegated by statute to the pretrial

jurisdiction determination, see 46 U.S.C. § 70504(a). The

certifications at issue here are therefore entirely dissimilar to

those used in Melendez-Diaz in purpose and function. Mitchell is

no closer to showing a Confrontation Clause violation than was the

defendant in the pre-Melendez-Diaz case, United States v. Angulo-

Hernández, 565 F.3d 2 (1st Cir. 2009), where we declared our

"serious[] doubt" that admission of State Department certificates

constituted a Confrontation Clause violation, id. at 12. In this

non-trial context, where evidence does not go to guilt or

innocence, courts have not applied the Confrontation Clause, and we

need not do so here. To be clear, we need not and do not decide

whether the Confrontation Clause could ever apply to pretrial

determination, but only find that it does not apply in the

circumstances of this case.

C. Mitchell's Right to an Evidentiary Hearing

Given that Mitchell's confrontation claim fails, his

ultimate complaint boils down to the fact that he never received a

live evidentiary hearing on the motion to dismiss for lack of

jurisdiction. To begin, Mitchell was in fact offered the

opportunity for this very evidentiary hearing by the magistrate on

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January 23, 2008, which he declined when the parties agreed the

matter could be decided on the papers.

In addition, "the decision of whether to conduct an

evidentiary hearing is left to the sound discretion of the district

court," subject to review for abuse of discretion. United States

v. Brown, 621 F.3d 48, 57 (1st Cir. 2010) (citing United States v.

Calderon, 77 F.3d 6, 9 (1st Cir. 1996)). The test for whether an

evidentiary hearing is required is whether the defendant made "a

sufficient threshold showing that material facts were in doubt or

dispute." United States v. Panitz, 907 F.2d 1267, 1273-74 (1st

Cir. 1990) (citing Franks v. Delaware, 438 U.S. 154, 155-56

(1978)).

Here, there was no abuse of discretion in denying the

request for an evidentiary hearing. No material facts regarding

jurisdiction were in doubt or dispute at the time Mitchell

re-requested an evidentiary hearing in his motion filed on November

28, 2008. The First Welzant Certification was submitted on March

20, 2007, and the second was filed on January 15, 2008. At that

stage, either the vessel was stateless because Colombia could not

confirm nor refute its registry, or it was stateless because

Venezuela had issued the same equivocal response. Mitchell made no

argument that the vessel was registered with a third country or was

otherwise outside the jurisdiction of the United States under the

MDLEA. The district court therefore had sufficient evidence to

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conclude that the Welzant Certifications together established

statelessness, and that no material facts regarding the

jurisdictional determination were in dispute. There was no abuse

of discretion in denying the evidentiary hearing when Mitchell

re-requested it.

III. Conclusion

Finding no merit in Mitchell's arguments on appeal, we

affirm.

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