United States v. Vilches-Navarrete

United States Court of Appeals
For the First Circuit

No. 06-1942

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS SEGUNDO VILCHES-NAVARRETE,

Defendant, Appellant.

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

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella, Lynch, and Howard,
Circuit Judges.

J. Michael McGuinness, with whom The McGuinness Law Firm was
on brief, for appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

April 10, 2008
 TORRUELLA, Circuit Judge, opinion of the court except as

to Part II(A); dissenting in Part II(A).1 Appellant Luis Segundo

Vilches-Navarrete ("Vilches") was convicted of: (1) possession with

intent to distribute five kilograms or more of cocaine, in

violation of the Maritime Drug Law Enforcement Act ("MDLEA"), 46

U.S.C. § 70503;2 and (2) conspiracy to possess with intent to

distribute more than five kilograms of cocaine, in violation of 46

U.S.C. § 70506(b) on multiple grounds. Vilches was apprehended for

trafficking drugs in international waters by the United States

Coast Guard ("USCG"). On appeal, he makes numerous arguments. He

argues that the MDLEA is unconstitutional and that the district

court lacked jurisdiction. He also challenges the district court's

refusal to suppress evidence, to grant a motion to dismiss, as well

as the sufficiency of the evidence upon which he was convicted. He

claims that his sentence was unreasonable and that the numerous

errors in the case prejudiced his right to a fair trial. After

careful consideration, we affirm his conviction and the sentence

imposed by the district court.

1
Judges Lynch and Howard write the opinion of the court as to the
issue considered in Part II(A). See infra at 35.
2
At the time of Vilches's conviction, the MDLEA was at 46 U.S.C.
app. § 1903(a). The MDLEA has since been recodified at 46 U.S.C.
§§ 70506 - 70507.

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 I. Background3

On January 31, 2005, during a routine drug patrol in the

eastern Caribbean Sea, USCG Lieutenant Adam Nolen Berkley, whose

boarding team was deployed on the British Royal Fleet's Auxiliary

Ship, the Wave Ruler, received information from a maritime patrol

aircraft about a vessel of interest in international waters. A

cargo vessel heading north had smaller vessels coming alongside it,

which raised the suspicion of the USCG. The USCG continued to

monitor the vessel.

The next morning, using the British ship's helicopter,

the USCG identified the vessel, the Babouth, which was flying the

Honduran flag. As the USCG approached and performed a visual

inspection, it made radio contact with the crew. Berkley was

suspicious of the answers to some of his questions. He noted that

the vessel had rub marks along the side; furthermore, it was

rocking slowly back and forth. Berkley knew this to be a sign of

a very heavy load. Additionally, the Babouth had an unusually

large number of antennae, indicative of a great deal of electronic

equipment on board for a vessel of this nature. Based on these

factors, Berkley believed he had reasonable suspicion to approach

the vessel. As he approached the Babouth, he raised the USCG flag,

3
We recite the facts as found by the district court, consistent
with record support. See United States v. Romain, 393 F.3d 63, 66
(1st Cir. 2004); see also United States v. Vilches-Navarrete, 413
F. Supp. 2d 60, 63-64 (D.P.R. 2006) (district court's factual
findings).

-3-
converting the Wave Ruler into a law enforcement vessel. Berkley

also faxed a report to the officer on duty at the USCG, Southern

District, and followed up with a phone call requesting that the

USCG contact the Honduran government for permission to board and

search the Babouth. Thereafter, the Honduran government granted

permission, first verbally, and later followed by an official,

written communication.

The Babouth was fifty nautical miles west of Grenada,

traveling in a north, northwesterly direction towards Puerto Rico

and St. Croix when the USCG intercepted it. This area is a known

drug trafficking area. Petty Officer Michael Christopher Acevedo,

who was familiar with the area and its history of drug trafficking,

boarded the Babouth with the permission of both the Government of

Honduras and Vilches, its captain. Acevedo remained on the vessel

for the duration of the search and was the officer in charge.

Upon inspection, Berkley noticed that the Babouth had too

much free board. He also noticed that the vessel was rusty and

looked to be in poor repair. The Babouth also had drums commonly

used by drug traffickers, including a 500-gallon fuel container

that smelled strongly of, and contained what looked like, gasoline.

Vilches told the officers that it was a septic tank for the

toilets. The officers inspected the tank, and observed that it did

not lead to a toilet but to the back of the boat and over the side.

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 Acevedo asked Vilches for the registration documents and

manifest of the Babouth. Vilches turned over a briefcase with

documents for the ship, and provided Acevedo with an affidavit

prepared in Trinidad stating that the registration had been lost.

Acevedo, however, found the vessel's registration in Vilches's

briefcase; it had expired on December 14, 2004.

After a safety inspection and a search for weapons, the

officers looked for indicators that the vessel was being utilized

for smuggling contraband. They found freshly painted areas,

spilled concrete, a bag of concrete mix, and fresh welds, all of

which are indicators of hidden compartments. The sweep team also

found other items which raised their suspicion about the contents

of the vessel and the real purpose for which it was being used.

Berkley and Acevedo found communication devices at the ship's

bridge, similar to those Acevedo had seen in other drug seizure

cases at sea.

The Babouth contained navigational charts without plot

marks and a global positioning system ("GPS") that was not being

used. Vilches claimed that he did not use them because he was an

experienced mariner. Despite this assertion, while on board the

Babouth, Acevedo noted that Vilches did utilize the charts and the

GPS.

On the third day, another inspection team came to

complete a space-accountability inspection. The concrete blocks on

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board, which Vilches had described as extremely sturdy, fell apart

as the officers tried to move them. The inspection team found that

the bill of lading for the ship's cargo conflicted with the ship's

invoice. Vilches could not provide a satisfactory explanation for

the discrepancy even though the ship's forms carried his seal and

signature. In addition, Acevedo asked Vilches why they had been

traveling so slowly since a cargo vessel would want to deliver its

cargo quickly. Vilches blamed the slowness of the vessel on engine

problems. He claimed that there was a hydraulic leak in the jacket

of the water pump. Acevedo, a qualified mechanic, inspected the

engine and found no hydraulic lines used for the jacket of the

water pump.

By February 5, 2005, the Babouth was in U.S. waters, and

a task force boarded the vessel and continued the search. Vilches

consented to the search. For safety reasons, the vessel was taken

to the USCG's station in San Juan, Puerto Rico. On February 7,

2005, while still searching the Babouth at the port, one of the

Babouth's crew members, Luis Fernando Piedrahita-Calle

("Piedrahita"), communicated by note that he wanted to speak to the

DEA.

Piedrahita met with the officers and told them where

drugs were hidden and how the plan to smuggle the drugs was

executed. Agents reboarded the Babouth and went to the area

identified by Piedrahita. Vilches's attitude, which had been

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cooperative, changed once the agents returned after receiving the

note from Piedrahita. As the agents searched the back part of the

vessel, Vilches became assertive and questioned the agents about

their search. Following Piedrahita's instructions, the agents

found a well-hidden hatch under the linoleum floor. Under about

six to ten inches of sand, sawdust, and ammonia, the officers found

a bolted manhole cover. Inside the manhole, they found several

white burlap sacks which tested positive for cocaine. The agents

recovered thirty-five bales of cocaine, weighing approximately 950

kilograms.4 Earlier, a canine had detected a narcotic odor in the

area later identified by Piedrahita.

A. Indictment and Trial

After the USCG found the drugs on the boat, Vilches was

arrested and charged with possession with the intent to distribute

under the § 70503 of the MDLEA and with conspiracy to possess with

intent to distribute under § 70506(b). On July 26, 2005, Vilches

joined a co-defendant's motions to suppress the evidence and

dismiss the indictment. The district court denied the motions.

Mardonio Chávez-Senti ("Chávez"), one of Vilches's

co-defendants, pled guilty and testified at trial on behalf of the

Government. He provided details of the conspiracy and of the day

that the Babouth was intercepted by the USCG.

4
The DEA confirmed that the substance in the bales was in fact
cocaine with a ninety-one percent purity, valued between $2,500 and
$16,000 per kilogram (depending on the location of the sale).

-7-
 According to his testimony, Chávez, a naval mechanical

engineer, met with Pedro Valleadares, Antonio Ruiz, Aldo Lara, and

José Sandoval, and agreed to participate in the drug trafficking

venture for $30,000. He testified that Vilches joined them in

Haiti to help prepare for the drug run; the Babouth left Haiti for

Tortola to pick up drugs.

Chávez recounted that at around midnight on January 31,

2005, Vilches called him and told him that they were at the

prearranged point for the drug pick-up, but the boat bringing the

drugs had not arrived. About an hour later, a motorboat, which

Vilches was in contact with by radio, came up to the hull of the

Babouth and people on the boat passed the bales of drugs up to the

crew. The entire crew, with the exception of Vilches, who was

piloting the vessel, participated in loading the drugs. A total of

thirty-five bales were loaded. The motorboat then left. Chávez

testified that the crew hid the bales in an empty water tank under

the floor of the Babouth. The crew then informed Vilches that the

job was complete. Vilches continued sailing, but was soon

thereafter intercepted by the USCG.

Vilches was the only defense witness. He admitted being

the captain of the Babouth, but denied any knowledge of the drugs

on board. Vilches denied making any satellite phone calls and

denied any knowledge of a boat coming alongside the Babouth. He

claimed that there was no discrepancy as to the number of pallets,

-8-
despite the difference in quantity on the bill of lading and

invoices. Though he admitted to knowing them, Vilches denied

knowing how to contact either Sandoval or Lamberti. His address

book, however, had contact information for both men; their names

were highlighted in yellow. Vilches was also confronted with his

falsified navigation license, for which he gave no satisfactory

explanation.

Vilches moved for a Rule 29 dismissal under the Federal

Rules of Criminal Procedure at the conclusion of the Government's

case and again at the conclusion of his own case. The district

court denied both motions. The jury found Vilches guilty on both

counts. He did not move to set aside the verdict.

B. Sentencing

Vilches's Pre-Sentencing Report ("PSR") grouped the two

counts and calculated a base offense level of thirty-eight pursuant

to U.S.S.G. § 2D1.1(c)(1). Taking into account Vilches's role as

captain of the Babouth, the PSR added two levels pursuant to

U.S.S.G. § 2D1.1(b)(2), for a total offense level of forty.

Although Vilches had a prior record, the PSR calculated zero

criminal history points, resulting in a criminal history category

of I, because his convictions fell outside of the time limit for

inclusion. See U.S.S.G. § 4A1.2(e)(1). The PSR calculated an

advisory guideline range of 292 to 365 months. The PSR included

the statutory minimum term of ten years and a maximum of life. It

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noted that Vilches is a Chilean citizen with no legal status in the

United States and that he would face removal proceedings upon

completion of his sentence. No objections were filed to the PSR.

At the sentencing hearing held on May 19, 2006, Vilches's

counsel requested that the court take into account the 18 U.S.C.

§ 3553(a) sentencing factors, and argued that a sentence of 292

months, the bottom of the Guidelines range, would be adequate

considering Vilches's age. Counsel argued that a higher sentence

for Vilches's crime, which did not involve violence, "could be

interpreted as punishment because he exercised his right to jury

trial." When Vilches addressed the court, he insisted he was

innocent. The Government called attention to Vilches's history and

characteristics under § 3553(a) and requested a sentence at the top

of the guideline range, 365 months.

Consistent with the PSR, the district court calculated

Vilches's sentence between 292 and 365 months. Taking into account

the advisory guidelines and the § 3353(a) factors, the district

court sentenced Vilches to 365 months for each count, to be served

concurrently. The court noted that Vilches's prior drug-related

convictions were indicative of his recidivism. The court found

that "a sentence at the top of the guideline range is the

appropriate and the reasonable sentence." The court imposed an

additional sentence of concurrent five-year terms of supervised

-10-
release and a mandatory special monetary assessment, and upon

motion declined to reconsider the sentence.

Vilches appeals and challenges the constitutionality of

the MDLEA, the district court's jurisdiction, the district court's

refusal to suppress evidence, the sufficiency of the evidence, and

the reasonableness of his sentence, and argues for reversal based

on a totality of errors. We address these challenges in turn.

II. Discussion

A. Constitutionality of the MDLEA

Once again, we are asked to decide the constitutionality

of the jurisdictional element of the MDLEA. See United States v.

Gil-Carmona, 497 F.3d 52, 54 (1st Cir. 2007). The MDLEA makes it

a crime for any person on board "a vessel subject to the

jurisdiction of the United States," 46 U.S.C. § 70503(a)(1), to

"knowingly or intentionally manufacture or distribute, or possess

with intent to manufacture or distribute, a controlled substance,"

46 U.S.C. § 70503(a). A "vessel subject to the jurisdiction of the

United States" includes a "vessel registered in a foreign nation

where the flag nation has consented or waived objection to the

enforcement of United States law by the United States." Id. at

§ 70502(c)(1)(C).5

5
In 1996, Congress amended the MDLEA, with the Coast Guard
Authorization Act of 1996, Pub. L. No. 104-324, § 1138(a)(5), 110
Stat. 3901, and deemed jurisdiction over vessels a preliminary
question of law. See 46 U.S.C. § 70504 ("Jurisdiction of the
United States with respect to vessels subject to this chapter is

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 Although the concurrence feels compelled to resolve this

issue, the doctrine of constitutional avoidance requires us to

refrain from ruling on the constitutionality of this statute

because the posture of this case does not require us to pass upon

this issue.6 I believe we should not reach the merits of the

not an element of any offense. All jurisdictional issues arising
under this chapter are preliminary questions of law to be
determined solely by the trial judge."). Since the amendment,
judges have taken on the task of determining of whether a "vessel
[is] subject to the jurisdiction of the United States." Id. at
§ 70503(a)(1); see also United States v. Cardales, 168 F.3d 548,
554 n.3 (1st Cir. 1999) ("The MDLEA has since been amended to
eliminate jurisdiction as one of its elements, making it a
threshold question for the trial court to resolve.").
6
The maxim that courts should not decide constitutional issues
when this can be avoided is as old as the Rocky Mountains and
embedded in our legal culture for about as long. As early as 1885,
the Supreme Court said that the Court, "[i]n the exercise of
[deciding the constitutionality of laws], . . . is bound by two
rules, to which it has rigidly adhered: one, never to anticipate a
question of constitutional law in advance of the necessity of
deciding it; the other, never to formulate a rule of constitutional
law broader than is required by the precise facts to which it is to
be applied." Liverpool, N.Y. & Phila. S.S. Co. v. Comm'rs of
Emigration, 113 U.S. 33, 39 (1885). The first rule is clearly
applicable here. See United States v. Resendiz-Ponce, 127 S. Ct.
782, 785 (2007) ("'It is not the habit of the Court to decide
questions of a constitutional nature unless absolutely necessary to
a decision of the case.'" (quoting Ashwander v. Tenn. Valley Auth.,
297 U.S. 288, 347 (1936) (Brandeis, J., concurring))); Hein v.
Freedom From Religion Found., Inc., 127 S. Ct. 2553, 2562 (2007)
("[F]ederal courts . . . must 'refrai[n] from passing upon the
constitutionality of an act . . . unless obliged to do so in the
proper performance of our judicial function.'" (quoting Valley
Forge Christian Coll. v. Ams. United for Separation of Church and
State, Inc., 454 U.S. 464, 474 (1982))); Elk Grove Unified Sch.
Dist. v. Newdow, 542 U.S. 1, 11 (2004); Christopher v. Harbury, 536
U.S. 403, 417 (2002); Dep't of Commerce v. U.S. House of
Representatives, 525 U.S. 316, 343-44 (1999); Clinton v. Jones, 520
U.S. 681, 690 n.11 (1997) (quoting Rescue Army v. Mun. Court of Los
Angeles, 331 U.S. 549, 570 n.34 (1947)); Lyng v. Nw. Indian

-12-
Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988) ("A fundamental
and longstanding principle of judicial restraint requires that
courts avoid reaching constitutional questions in advance of the
necessity of deciding them." (citing Three Affiliated Tribes of Ft.
Berthold Reservation v. Wold Eng'g, P.C., 467 U.S. 138, 157
(1984))); Jean v. Nelson, 472 U.S. 846, 854 (1985); United States
v. Locke, 471 U.S. 84, 93 (1985); Gulf Oil Co. v. Bernard, 452 U.S.
89, 99 (1981); N.Y. City Transit Auth. v. Beazer, 440 U.S. 568, 582
(1979); Culombe v. Connecticut, 367 U.S. 568, 636 (1961) (the Court
should "declare legal principles only in the context of specific
factual situations, and . . . avoid expounding more than is
necessary for the decision of a given case") (Warren, C.J.,
concurring); Tenn. Valley Auth., 297 U.S. at 346 ("The Court
developed, for its own governance in the cases confessedly within
its jurisdiction, a series of rules under which it has avoided
passing upon a large part of all the constitutional questions
pressed upon it for decision.") (Brandeis, J., concurring); id. at
347 ("The Court will not pass upon a constitutional question
although properly presented by the record, if there is also present
some other ground upon which the case may be disposed of. This rule
has found most varied application. Thus, if a case can be decided
on either of two grounds, one involving a constitutional question,
the other a question of statutory construction or general law, the
Court will decide only the latter." (citations omitted)); Ala.
State Fed'n of Labor v. McAdory, 325 U.S. 450, 461 (1945); Spector
Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944) ("If there is
one doctrine more deeply rooted than any other in the process of
constitutional adjudication, it is that we ought not to pass on
questions of constitutionality . . . unless such adjudication is
unavoidable."); Blair v. United States, 250 U.S. 273, 279 (1919)
("Considerations of propriety, as well as long-established
practice, demand that we refrain from passing upon the
constitutionality of an act of Congress unless obliged to do so in
the proper performance of our judicial function."); Light v. United
States, 220 U.S. 523, 538 (1911); Siler v. Louisville & Nashville
R.R. Co., 213 U.S. 175, 193 (1909); Burton v. United States, 196
U.S. 283, 295 (1905).

The circuit courts, including this one, have repeatedly heeded
the Supreme Court's command mandating avoidance of unnecessary
constitutional rulings. See Fox Television Stations, Inc. v. Fed.
Commc'ns Comm'n, 489 F.3d 444, 462 (1st Cir. 2007) ("'A fundamental
and longstanding principle of judicial restraint requires that
courts avoid reaching constitutional questions in advance of the
necessity of deciding them.'" (quoting Lyng, 485 U.S. at 445));
United States v. Coker, 433 F.3d 39, 50-51 (1st Cir. 2005). Within

-13-
constitutionality of this law because Vilches has not demonstrated

the last decade alone, every circuit has wisely followed the
Court's lead. See, e.g., Pa. Prison Soc. v. Cortés, 508 F.3d 156,
162 (3d Cir. 2007); Neumont v. Florida, 451 F.3d 1284, 1285 (11th
Cir. 2006); Bechtel v. Competitive Techs., Inc., 448 F.3d 469, 475
(2d Cir. 2006); Lee v. Walters, 433 F.3d 672, 677 (9th Cir. 2005);
Nicholson v. Scoppetta, 344 F.3d 154, 167 (2d Cir. 2003); United
States v. Lamont, 330 F.3d 1249, 1251 (9th Cir. 2003); Doe v. Heck,
327 F.3d 492, 528 (7th Cir. 2003); City of Abilene v. E.P.A., 325
F.3d 657, 660 (5th Cir. 2003); Campanelli v. Allstate Life Ins.
Co., 322 F.3d 1086, 1093 (9th Cir. 2003); Stillman v. C.I.A., 319
F.3d 546, 548 (D.C. Cir. 2003); SOB, Inc. v. County of Benton, 317
F.3d 856, 885 (8th Cir. 2003); Olympic Arms, et al. v. Buckles, 301
F.3d 384, 388 (6th Cir. 2002); United States v. Elkins, 300 F.3d
638, 647 (6th Cir. 2002); United States v. Suerte, 291 F.3d 366,
368 (5th Cir. 2002); Koch v. Town of Brattleboro, Vt., 287 F.3d
162, 166 (2d Cir. 2002); Univ. of Great Falls v. N.L.R.B., 278 F.3d
1335, 1340-44 (D.C. Cir. 2002); Grid Radio v. F.C.C., 278 F.3d
1314, 1322 (D.C. Cir. 2002); Coleman v. Mitchell, 268 F.3d 417, 432
(6th Cir. 2001); Allstate Ins. Co. v. Serio, 261 F.3d 143, 149-50
(2d Cir. 2001); ISI Int'l Inc. v. Borden Ladner Gervais LLP, 256
F.3d 548, 552 (7th Cir. 2001); Adams v. City of Battle Creek, 250
F.3d 980, 986 (6th Cir. 2001); Eldred v. Reno, 239 F.3d 372, 378
(D.C. Cir. 2001); United States v. Westmoreland, 240 F.3d 618, 629
(7th Cir. 2001); Wyzykowski v. Dep't of Corr., 226 F.3d 1213, 1219
(11th Cir. 2000); Fla. Ass'n of Rehab. Facilities, Inc. v. State of
Fla. Dep't of Health & Rehabilitative Servs., 225 F.3d 1208, 1227
n.14 (11th Cir. 2000); Kalka v. Hawk, 215 F.3d 90, 97 (D.C. Cir.
2000); Bell Atlantic Md., Inc. v. Prince George's County, Md., 212
F.3d 863, 865 (4th Cir. 2000); West v. Derby Unified Sch. Dist. No.
260, 206 F.3d 1358, 1367 (10th Cir. 2000); United States v. Kaluna,
192 F.3d 1188, 1197 (9th Cir. 1999); Kelly v. Marcantonio, 187 F.3d
192, 197 (1st Cir. 1999); Osage Tribal Council ex rel. Osage Tribe
of Indians v. U.S. Dep't of Labor, 187 F.3d 1174, 1180 n.1 (10th
Cir. 1999); Nelson v. Miller, 170 F.3d 641, 648 (6th Cir. 1999);
United States v. Cisneros, 169 F.3d 763, 768 (D.C. Cir. 1999).

Bickel's arguments in favor of constitutional avoidance are no
less true today than they were over forty-five years ago. See
generally, Alexander M. Bickel, The Least Dangerous Branch (1962);
Alexander M. Bickel, The Supreme Court, 1960 Term -- Foreword: The
Passive Virtues, 75 Harv. L. Rev. 40 (1961). See also Abner J.
Mikva, Why Judges Should Not Be Advicegivers, 50 Stan. L. Rev.
1825, 1831 (1998); Cass R. Sunstein, The Supreme Court, 1995 Term
-- Forward: Leaving Things Undecided, 110 Harv. L. Rev. 6 (1996).

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that the district court committed plain error. I thus disagree

with the reaching of this issue by the concurring opinion by Judges

Lynch and Howard and express no opinion at this time on this

matter.

The standard of review for a defendant's claim that his

constitutional rights were violated by congressional removal of an

element of a charged offense from the jury's consideration is

ordinarily harmless error. See Neder v. United States, 527 U.S. 1,

15 (1999). Here, however, we apply plain error because Vilches did

not object to the constitutionality of the statute in the district

court. See United States v. Brown, 510 F.3d 57, 72 (1st Cir.

2007). Under the plain error standard, Vilches must prove "(1) an

error, (2) that is plain, and (3) that affects substantial rights,"

United States v. Connolly, 341 F.3d 16, 31 (1st Cir. 2003) (quoting

United States v. Downs-Moses, 329 F.3d 253, 263 (1st Cir. 2003))

(internal quotation marks omitted), and that the error "seriously

impaired the fairness, integrity, or public reputation of judicial

proceedings." Id. (quoting United States v. Matos, 328 F.3d 34, 43

(1st Cir. 2003) (internal quotation marks omitted).

Like in Gil-Carmona, the district court record clearly

shows that the jury was presented with evidence that the Babouth

was subject to the jurisdiction of the United States. At trial,

Berkley testified that while the Babouth was apprehended in

international waters, he requested and was granted both verbal and

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written permission, through the USCG, Seventh District, by the

Government of Honduras to board and search the Babouth pursuant to

the Honduran-U.S. Counter Drugs Operations bilateral agreement.

See Certification for the Maritime Drug Law Enforcement Act Case

Involving the Vessel Babouth (Honduras). The MDLEA allows for U.S.

officials to conduct searches on foreign flagged vessels with

permission of the foreign state. See 46 U.S.C. § 70502(c)(2)(A),

(B).7 The Government presented the district court with

documentation containing the Seal of the United States Department

of State which stated that the Government of Honduras had granted

the United States permission to enforce U.S. law against the

Babouth, its cargo, and the people on board. See United States v.

Guerrero, 114 F.3d 332, 340 n.9 (1st Cir. 1997) ("We acknowledge

that the 1996 amendments to § 1903 provide that the Secretary of

State's certification 'conclusively' proves a foreign nation's

consent.").

Vilches did not object to the Government's arguments

regarding jurisdiction at trial. His failure to object alone

suggests that the asserted error was not plain. Cf. Gil-Carmona,

497 F.3d at 55. In fact, at trial, Vilches had the opportunity to

question the Government's presentation with regard to jurisdiction,

7
"Consent or waiver of objection by a foreign nation to the
enforcement of United States law by the United States . . . may be
obtained by radio, telephone, or similar or electronic means, and
is conclusively proved by certification of the Secretary of State
or the Secretary's designee." 46 U.S.C. § 70502(c)(2)(A).

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but he chose merely to question how long it took between the time

Berkley saw the Honduran flag and when he received permission to

board the vessel. "[T]he record establishes beyond a reasonable

doubt that jurisdiction over the vessel existed under [§70504]."

Id. Even if the jury had been expressly presented with the

question of jurisdiction, any reasonable jury would have found

Vilches guilty. It cannot be said that any error in failing to

submit the question of jurisdiction to the jury "seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001); cf. Gil-Carmona, 497 F.3d at 55; Neder, 527 U.S. at 19.

There was no plain error.

B. Jury Instruction on Jurisdiction

Vilches argues that the district court's jury instruction

was erroneous because it "improperly invaded the province of the

jury determinations and violated the Apprendi principle."8

Normally, this issue would be subject to de novo review. See

United States v. Bravo, 489 F.3d 1, 7 (1st Cir. 2007). Vilches,

however, made no objection below, and we review a claim of error

not properly preserved below for plain error. See United States v.

v. Cotton, 535 U.S. 625, 627-29 (2002) (holding that a defendant's

8
The Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466
(2000), that "[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." Id. at 490.

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failure to object to Apprendi error at trial requires plain error

review); United States v. Portes, 505 F.3d 21, 25 (1st Cir. 2007).

The MDLEA provides that "[j]urisdictional issues arising

under this chapter are preliminary questions of law to be

determined solely by the trial judge." 46 U.S.C. § 70504(a). The

district court correctly instructed the jury that the

"[j]urisdiction of the United States with respect to vessels

subject to this chapter is not an element of any offense." Id. In

its jury instruction, the district court plainly said: "I'm

instructing you that as a matter of law the motor vessel Babouth

was subject to the jurisdiction of the United States." This was a

correct statement of the law. See Guerrero, 114 F.3d at 340 n.9

("United States jurisdiction over vessels is no longer an element

of an offense, but rather, a preliminary question of law for the

trial judge"); United States v. Tinoco, 304 F.3d 1088, 1106 (11th

Cir. 2002) ("The statutory language of the MDLEA now unambiguously

mandates that the jurisdictional requirement be treated only as a

question of subject matter jurisdiction for the court to decide.").

At the conclusion of the jury instructions the district court asked

whether there were any objections to the instruction. Vilches's

counsel said no. There was no plain error.

C. Motions to Suppress and Dismiss

"We apply a mixed standard of review to the district

court's denial of a suppression motion, reviewing the court's

-18-
findings of fact for clear error and the application of the law to

those facts de novo." Bravo, 489 F.3d at 8 (citing Tinoco, 304

F.3d at 1116).

Vilches argues that his Fourth Amendment rights were

violated because the USCG lacked reasonable suspicion to search

the Babouth. Vilches further argues that Rule 5(a) of the Federal

Rules of Criminal Procedure were violated because it took five days

for the USCG to get the Babouth to port in San Juan.9

Vilches further contends that he was erroneously denied

a suppression hearing and that this error unconstitutionally

precluded him from properly developing and supporting his motion to

suppress. Vilches also argues that the district court erred in

holding that he lacked standing to challenge the constitutionality

of the stop and seizure. Vilches further argues that the

warrantless detention of his person for several days constituted a

de facto arrest and that the scope of the detention was

unreasonable. We are unconvinced by any of Vilches's arguments and

take them in turn.

1. Alleged Fourth Amendment Violation

As we have said before, "the Fourth Amendment does not

apply to activities of the United States against aliens in

9
The rule provides that "any person making arrest without a
warrant shall take the arrested person without unnecessary delay
before the nearest available federal magistrate." Fed. R. Crim. P.
5(a).

-19-
international waters." Bravo, 489 F.3d at 8; see also United

States v. Verdugo-Urquídez, 494 U.S. 259, 267 (1990) ("There is

. . . no indication that the Fourth Amendment was understood by

contemporaries of the Framers to apply to activities of the United

States directed against aliens in foreign territory or in

international waters."). Vilches is Chilean, and he was not

residing in the United States. He was in international waters when

he was approached by the USCG. The district court properly

dismissed Vilches's Fourth Amendment claim pertaining to the USCG's

actions in international waters.

The district court also properly extended the same

reasoning when it dismissed Vilches's Fourth Amendment claim based

on the search of the Babouth at the port in San Juan. In

Verdugo-Urquídez, the Supreme Court held that the defendant did not

have constitutional rights based on his presence in the United

States because constitutional protections only attach to aliens who

"come within the territory of the United States and developed

substantial connections with this country." Verdugo-Urquídez, 494

U.S. at 271. Vilches can claim no such "substantial connections."

Like Verdugo-Urquídez, who was imprisoned in California and had "no

previous significant voluntary connection to the United States,"

id., Vilches was brought to the United States for the sole purposes

of conducting a safe search of the vessel he captained. "[T]his

sort of presence -- lawful but involuntary -- is not of the sort to

-20-
indicate any substantial connection with our country." Id. In

this case, we are unable to say that Vilches's presence at the port

in San Juan was completely involuntary because he consented to the

search and the USCG's docking the Babouth in San Juan.

But even if Verdugo-Urquídez does not apply, Vilches

lacks standing to challenge the search. It is "well settled that

a defendant who fails to demonstrate a legitimate expectation of

privacy in the area searched or the item seized will not have

'standing' to claim that an illegal search or seizure occurred."

United States v. Mancini, 8 F.3d 104, 107 (1st Cir. 1993) (citing

Rakas v. Illinois, 439 U.S. 128, 138-48 (1978)). In order to make

such a showing, Vilches must show that he had both a subjective

expectation of privacy and that society accepts that expectation as

objectively reasonable. California v. Greenwood, 486 U.S. 35, 39

(1988); cf. United States v. Scott, 975 F.2d 927, 928 (1st Cir.

1992). The burden of proving a reasonable expectation of privacy

lies with Vilches. United States v. Sánchez, 943 F.2d 110, 113

(1st Cir. 1991). Vilches must demonstrate an expectation of

privacy in both the item seized and the place searched. United

States v. Salvucci, 448 U.S. 83, 93 (1980). Vilches cannot make

that showing here.

"[T]he circumstances and exigencies of the maritime

setting afford people on a vessel a lesser expectation of privacy

than in their homes, obviating the usual fourth amendment

-21-
requirements of a warrant." United States v. Green, 671 F.2d 46,

53 (1st Cir. 1982). As the Government argues, Vilches had no

reasonable expectation of privacy in the secret compartment in

which the drugs were found. Cf. United States v. Cardona-Sandoval,

6 F.3d 15, 22 (1st Cir. 1993) (distinguishing "substantial vessels

such as cargo ships and freighters" from "a small pleasure craft

used for fishing" where captain had reasonable expectation of

privacy).

Even if Vilches had a subjective expectation of privacy,

it was not an objectively reasonable expectation. The district

court rightly noted that "society would not recognize a justifiable

expectation of privacy in a hidden compartment created for the

express purpose of hiding illicit contraband. To hold otherwise

would grant smugglers standing under the Fourth Amendment solely

because they were careful in hiding their illicit merchandise."

Vilches-Navarrete, 413 F. Supp. 2d at 73-74; see also United States

v. Sarda-Villa, 760 F.2d 1232, 1235 (11th Cir. 1985) ("[W]e are not

willing to say that society is prepared to recognize a justifiable

expectation of privacy solely on the basis of appellants' efforts

to secret the contraband. Drug smugglers cannot assert standing

solely on the basis that they hid the drugs well and hoped no one

would find them."). As the Supreme Court said in Kyllo v. United

States, 533 U.S. 27 (2001), "a Fourth Amendment search does not

occur . . . unless 'the individual manifested a subjective

-22-
expectation of privacy in the object of the challenged search,' and

'society [is] willing to recognize that expectation as

reasonable.'" Id. at 33 (quoting California v. Ciraolo, 476 U.S.

207, 211 (1986)).

The search was valid in any event because the USCG's

"authority under 14 U.S.C. § 89(a) to stop and board a vessel on

the high seas is quite broad."10 Cardona-Sandoval, 6 F.3d at 23

(internal footnotes omitted). In the instant case, the USCG had

consent from Honduras, the vessel's flag country, to board the

Babouth and to take it to a U.S. port to complete the search. The

USCG also possessed the requisite "reasonable and articulable

grounds for suspecting that the vessel or those on board [we]re

engaging in criminal activity." Green, 671 F.2d at 53.

10
14 U.S.C. § 89(a) provides, in relevant part:

The Coast Guard may make inquiries, examinations,
inspections, searches, seizures, and arrests upon the
high seas and waters over which the United States has
jurisdiction, for the prevention, detection, and
suppression of violations of laws of the United States.
For such purposes, commissioned, warrant, and petty
officers may at any time go on board of any vessel
subject to the jurisdiction, or the operation of any law,
of the United States, address inquiries to those on
board, examine the ships documents and papers, and
examine, inspect, and search the vessel and use all
necessary force to compel compliance. When from such
inquiries, examination, inspection, or search it appears
that a breach of the laws of the United States rendering
a person liable to arrest is being, or has been
committed, by any person, such person shall be
immediately pursued and arrested on shore, or other
lawful appropriate action shall be taken.

-23-
 As the USCG's monitored the Babouth, it observed smaller

vessels coming into contact with it the night before the USCG

boarded the vessel. The following day the USCG detected rub marks

along the port side of the Babouth but not its starboard,

confirming their belief in suspicious activity. On board, the

USCG's found even more evidence of suspicious activity. For

example, there was a discrepancy between the number of pallets that

the Babouth was carrying and those that were slated for delivery,

and the GPS and navigational charts had been erased.

Each step of the USCG's search was based on "a

corresponding level of suspicion supported by specific facts."

Cardona-Sandoval, 6 F.3d at 23. In United States v. Berryman, 717

F.2d 651 (1st Cir. 1983), we said that "although some encounters

[with the Government] do not implicate fourth amendment concerns at

all, more intrusive encounters short of arrests must be justified

by reasonable suspicion proportional to the degree of the

intrusion. That suspicion cannot be inchoate, but must be based on

'specific and articulable facts . . . together with rational

inferences from those facts' in order to establish a basis for

review of the police actions." Id. at 653 (internal citations

omitted). The USCG had the requisite reasonable suspicion.

Furthermore, as the district court found, Vilches "gave

his permission to the boarding team 'to access any space on the

vessel.'" Vilches-Navarrete, 413 F. Supp. 2d at 72. Both at sea

-24-
and at the port in San Juan, Vilches consented to the USCG's

boarding of the Babouth and the search of the vessel. At no point

did he object to the boarding of the vessel, the search of the

vessel, or the taking of the vessel to San Juan. "It is . . . well

settled that one of the specifically established exceptions to the

[Fourth Amendment] requirements of both a warrant and probable

cause is a search that is conducted pursuant to consent."

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); see also

United States v. Meléndez, 301 F.3d 27, 32 (1st Cir. 2002).

Additionally, as mentioned above, Honduras, under whose flag the

Babouth sailed, consented to the search of the boat both at sea and

in U.S. territory.

Accordingly, the denial of the motion to suppress is

affirmed.

2. Motion to Suppress Hearing

"The test for granting an evidentiary hearing in a

criminal case [is] substantive: did the defendant make a sufficient

threshold showing that material facts were in doubt or dispute?"

United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990).

Vilches made no such showing. A hearing was not necessary to

address the suppression issues because in support of his motion,

Vilches merely presented the same statements by the USCG as the

Government had. Vilches did not dispute the Government's version

of events and instead relied upon then. This makes an evidentiary

-25-
hearing unnecessary since there were no material facts that were in

dispute. See id. at 1273-74; United States v. McGill, 11 F.3d 223,

225 (1st Cir. 1993) ("[E]videntiary hearings on motions are the

exception, not the rule.").

3. Vilches's Arrest

Vilches's challenge to his arrest is without merit.

There was no unreasonable delay between the arrest and Vilches's

initial appearance before a magistrate judge. Vilches was arrested

the same day that the USCG discovered the drugs on the Babouth,

February 7, 2005. He was taken before a magistrate judge the

following day. Furthermore, the short interval between when the

USCG first boarded and inspected the Babouth and the travel time

before the Babouth arrived in San Juan did not result in a

custodial detention. See United States v. Baker, 641 F.2d 1311,

1319 (9th Cir. 1981) ("routine Coast Guard boarding of vessels does

not create a custodial situation"); cf. United States v. Elkins,

774 F.2d 530, 535 n.3 (1st Cir. 1985) ("It is well recognized that

a routine inspection and boarding of an American flagship vessel on

the high seas does not give rise to a custodial detention."). The

one day between the time Vilches was arrested and when he was

brought before the magistrate judge was reasonable, and the

district court properly denied his motion to dismiss.

-26-
 D. Sufficiency of the Evidence

We review a sufficiency of the evidence claim de novo.

See United States v. Carucci, 364 F.3d 339, 343 (1st Cir. 2004).

We will affirm a conviction if, "after assaying all the evidence in

the light most amiable to the government, and taking all reasonable

inferences in its favor, a rational factfinder could find, beyond

a reasonable doubt, that the prosecution successfully proved the

essential elements of the crime." United States v. O'Brien, 14

F.3d 703, 706 (1st Cir. 1994). "All 'reasonable evidentiary

inferences' are to be drawn 'in harmony with the verdict,' and 'all

issues of credibility' are to be resolved 'in the light most

favorable to the government.'" United States v. Washington, 434

F.3d 7, 15 (1st Cir. 2006) (quoting United States v. Casas, 356

F.3d 104, 126 (1st Cir. 2004)).

Vilches argues that no rational trier of fact could have

found all of the essential elements of the crimes of possession

with intent to distribute cocaine and conspiracy to possess with

intent to distribute. He claims that the Government offered "thin

isolated points of purported circumstantial evidence," which under

scrutiny are easily explained away. A review of the evidence

presented at trial indicates otherwise.

1. Conspiracy

Vilches notes that a conviction for conspiracy requires

proof beyond a reasonable doubt of three elements: (1) the

-27-
existence of an agreement to commit an unlawful act; (2) knowledge

and intent to join the agreement; and (3) knowing participation in

the conspiracy. United States v. Sepúlveda, 15 F.3d 1161, 1173

(1st Cir. 1993). He argues that the Government's evidence at trial

was insufficient to establish any of the three elements. We

disagree.

At trial, the Government established beyond a reasonable

doubt "the existence of a conspiracy, [Vilches's] knowledge of the

conspiracy, and [Vilches's] voluntary participation in the

conspiracy." United States v. Gómez-Pabón, 911 F.2d 847, 852 (1st

Cir. 1990). As we made clear above, the Government proved beyond

a reasonable doubt that the Babouth was "subject to the

jurisdiction of the United States." 46 U.S.C. § 70503(a)(1).

There is no question or dispute that the USCG found cocaine,

undoubtedly a controlled substance, on the Babouth. The Government

also proved at trial that Vilches "knowingly or intentionally

possessed the controlled substance with the intent to distribute

it." Guerrero, 114 F.3d at 339.

Chávez specifically testified to the details of the

conspiracy. See United States v. Cardales, 168 F.3d 548, 554-55

(1st Cir. 1999). Chávez testified to Vilches's involvement in the

conspiracy. Specifically, once the Babouth departed Haiti, Vilches

was in constant contact with the owner of the drugs, Félix

Lamberti. While sailing, Vilches informed Chávez when they reached

-28-
the predetermined meeting place for receiving the drugs. Vilches

is the one who received the call from the motorboat that was

carrying the drugs giving its location. Vilches ordered that the

Babouth reduce its speed so the drugs could be loaded onto the

boat. After the crew loaded the cocaine and hid it under a hatch,

they informed Vilches that the drugs were safely on board. Vilches

then ordered them to resume their normal speed. The Government met

its burden.

2. Possession

With respect to the possession charge, Vilches again

argues that there was insufficient evidence that he knowingly

possessed the narcotics found on the Babouth. He maintains that

the Government failed to meet its burden of proving that he had

both knowledge of and access to the narcotics. See United States

v. Patterson, 472 F.3d 767, 779 (10th Cir. 2006). The facts --

recounted above -- belie his assertions of innocence.

Viewed in the light most favorable to the verdict, the

evidence is sufficient to sustain the jury's verdict because it is

clear that a reasonable factfinder could find that the Government

proved the essential elements of crimes with which Vilches was

accused.

3. Circumstantial Evidence

Vilches claims that the Government's circumstantial

evidence does not withstand scrutiny and should be discounted.

-29-
Contrary to Vilches's claims, the Government introduced sufficient

circumstantial evidence at trial to support his conviction. "In

circumstantial cases . . ., the evidence is sufficient to convict

if it adequately supports 'the requisite two-step inference': (1)

that the vessel was engaged in obviously illegal activity, and (2)

that each Appellant was ready to assist in the criminal

enterprise." Bravo, 489 F.3d at 9 (quoting United States v.

Jiménez-Pérez, 869 F.2d 9, 11 (1st Cir. 1989)); Guerrero, 114 F.3d

at 342 ("proof of sufficient participation in the crime, as well as

knowledge of it, is required to convict: the defendant's 'mere

presence' at the scene of the criminal activity is not enough").

Vilches's challenge to the sufficiency of the evidence supporting

his convictions attacks only the weight of the evidence; that is

insufficient here. He fails to demonstrate that the circumstantial

evidence the Government offered is somehow inadequate to meet the

test we laid out in Bravo. There was substantial evidence

establishing each element of the possession and conspiracy

convictions. His arguments are unavailing.

The reason the Babouth came to the attention of the USCG

is that they detected vessels coming alongside it under the cover

of darkness. The Government presented evidence that the USCG found

this suspicious because a vessel of the size of the Babouth would

be unlikely to stop in the dark, in the middle of the ocean, for

any legitimate reason to take small boats alongside it. The

-30-
Government also presented evidence that the vessel had unusually

excessive electronic equipment, which was inconsistent with its

condition; this was consistent with other drug trafficking

ventures. Moreover, the USCG intercepted the Babouth in an area

well-known for drug trafficking.

There was also evidence that on board the Babouth the

officers found indicators of illicit activity and supplies that

were consistent with the possibility of empty space behind a false

wall. The USCG found fifty-gallon drums, typical of those which

could be used by vessels to refuel smaller vessels transporting

contraband. A large 500-gallon container, which Vilches claimed to

be a septic tank, was also found by the USCG. Upon inspection, the

USCG found evidence indicating that it contained gasoline and was

not used as a septic tank. Additionally, the Babouth's GPS and

navigational charts did not display the ship's prior course.

Despite Vilches's explanation that he was a seasoned mariner and

did not need to use the GPS and charts, the officers witnessed

Vilches use them later.

The Babouth's registration, which Vilches claimed he

lost, was later discovered in his briefcase by agents during the

search. Furthermore, Vilches's navigational license was

fraudulent. The Government also introduced evidence that Vilches

was hired by Sandoval, who was present at the meeting in which

Chávez was hired for the drug smuggling venture. Vilches testified

-31-
that as the captain, he was the one to give the orders; nothing

could occur on the boat without his orders. Vilches attempted to

explain away the suspicions at trial; the jury chose not to believe

him. The circumstantial evidence overwhelmingly weighs against

Vilches. The evidence presented at trial is more than sufficient

to sustain the jury's verdict.

E. Sentence

We "review challenges to sentencing process -– i.e.,

errors of law –- de novo." United States v. Rivera, 448 F.3d 82,

84 (1st Cir. 2006) (citing United States v. Robinson, 433 F.3d 31,

35 (1st Cir. 2005)). "Reasonableness challenges -– i.e.,

challenges to errors of judgment -– are reviewed with 'some

deference . . . [a]ssuming a plausible explanation and a defensible

overall result.'" Id. (quoting United States v. Jiménez-Beltre,

440 F.3d 514, 519 (1st Cir. 2006)); see also Gall v. United States,

128 S. Ct. 586, 602 (2007) ("On abuse-of-discretion review, the

Court of Appeals should have given due deference to the District

Court's reasoned and reasonable decision that the § 3553(a)

factors, on the whole, justified the sentence.").

Vilches argues that the 365-month sentence imposed on him

was a "de facto life sentence." He argues that the sentence was

unreasonable under United States v. Booker, 543 U.S. 220 (2005),

because it was not predicated on the factors listed in § 3553(a).

The question for this court is whether the district court's

-32-
conclusion is supported by "a reasoned explanation [and] a

plausible outcome." Jiménez-Beltre, 440 F.3d at 519; see also

United States v. Zapete-García, 447 F.3d 57, 60-61 (1st Cir. 2006).

The district court imposed a 365-month sentence after

noting that the Guidelines are advisory and after considering the

sentencing factors listed in § 3553(a). The district court noted

Vilches's conduct, including his knowledge of the drug smuggling

operation despite his assertion of ignorance. The district court

also discussed his prior criminal record, including his 1981

conviction for possession with intent to distribute, and his 1983

conviction, where he received 120 months for possession of

marijuana. The district court did not count Vilches's previous

convictions towards his criminal history because of their dates but

found them to be indicative of his recidivism. See 18 U.S.C.

§ 3553(a)(2)(B) (giving judges latitude to imposes sentences that

"afford adequate deterrence to criminal conduct"). Finally, the

district court considered the fact that Vilches had used a

different name in the past. Given the district court's

consideration of the § 3553(a) factors and its reasoned

articulation for the sentence, Vilches's 365-month sentence is

reasonable. The district court's reasoning was persuasive and

explicit, and the result was proper. The district court's sentence

is affirmed.

-33-
 F. Totality of the Errors

Vilches argues that under the "cumulative error

doctrine," "[i]ndividual errors, insufficient in themselves to

necessitate a new trial, may in the aggregate have a more

debilitating effect." Sepúlveda, 15 F.3d at 1195-96. Vilches

asserts that in this case, the numerous errors prejudiced his

rights to a fair trial and violated due process under the Fifth and

Sixth Amendments. We find these arguments unconvincing. For the

reasons elaborated above, we find that even if there were errors --

a question we need not answer -- they were harmless. Vilches's

claim necessarily fails. See United States v. Flemmi, 402 F.3d 79,

95 n.23 (1st Cir. 2005) ("[B]ecause we have found that none of [the

defendant's] individual complaints resulted in substantial

prejudice and that most are completely without merit, we reject the

final contention that his conviction was tainted by cumulative

error." (quoting United States v. DeMasi, 40 F.3d 1306, 1322 (1st

Cir. 1994))) (internal quotation marks omitted).

III. Conclusion

For the reasons explained above, we affirm Vilches's

conviction and sentence.

Affirmed.

"Opinion in part and Concurrence in part follows"

-34-
 LYNCH and HOWARD, Circuit Judges, opinion of the court in

part and concurring in part. We join Judge Torruella's opinion

except as to Part II(A) ("Constitutionality of the MDLEA"). We

write separately to address the constitutionality of 46 U.S.C.

§ 70504(a), a question Judge Torruella's opinion bypasses.

We hold that there is no constitutional infirmity in

Congress's explicit allocation in § 70504(a) of the question of

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

States" to the court rather than the jury for decision. That

allocation was well within the power of Congress.

Vilches did not raise a challenge to the statute's

constitutionality in the district court and so our review is for

plain error. United States v. JG-24, Inc., 478 F.3d 28, 32 (1st

Cir. 2007). To establish plain error, Vilches must demonstrate

that "(1) there was error; (2) the error was plain; (3) the error

affected [his] substantial rights; and (4) the error adversely

impacted the fairness, integrity, or public reputation of judicial

proceedings." United States v. Riggs, 287 F.3d 221, 224 (1st Cir.

2002). We resolve this claim at the first step on the grounds that

there was no error at all. See, e.g., United States v. Arango, 508

F.3d 34, 43 (1st Cir. 2007); United States v. Vargas, 471 F.3d 255,

264 (1st Cir. 2006); United States v. Morales-Rodríguez, 467 F.3d

1, 16 (1st Cir. 2006).

-35-
 Under 46 U.S.C. § 70503(a)(1), an individual "may not

knowingly or intentionally manufacture or distribute, or possess

with intent to distribute, a controlled substance on board . . . a

vessel of the United States or a vessel subject to the jurisdiction

of the United States." In 1996, Congress moved to end the

disagreement among lower courts as to whether the determination

that a vessel was subject to the jurisdiction of the United States

was committed to a jury or a judge. Congress did so by inserting

a provision explicitly providing that jurisdiction under this

statute is a preliminary question for the judge and is not an

element of the crime that must be submitted to the jury. The

statute, 46 U.S.C. § 70504(a), provides that "[j]urisdiction of the

United States with respect to a vessel subject to this chapter is

not an element of an offense. Jurisdictional issues arising under

this chapter are preliminary questions of law to be determined

solely by the trial judge."

To date one circuit has upheld the constitutionality of

this provision. United States v. Tinoco, 304 F.3d 1088, 1111 (11th

Cir. 2002). One circuit has held the provision unconstitutional.

United States v. Perlaza, 439 F.3d 1149, 1167 (9th Cir. 2006).

In this case, the Coast Guard sought permission from

Honduras to board the vessel Babouth, which was flying a Honduran

flag. The prosecution submitted a certificate from the Secretary

of State as verification that the United States received such

-36-
permission from Honduras.11 Vilches argues that the vessel was not

subject to the jurisdiction of the United States and the government

failed to make the required showing that it was. The argument we

address is his contention that § 70504(a) is unconstitutional

because, by assigning the issue to a judge, the statute violates

his Fifth and Sixth Amendment rights to have every element of a

criminal offense decided by a jury beyond a reasonable doubt. We

disagree. This issue is not an element of the crime in the

requisite sense and may be decided by a judge.

Congress enjoys latitude in determining what facts

constitute elements of a crime which must be tried before a jury

and proved beyond a reasonable doubt and which do not. See, e.g.,

Staples v. United States, 511 U.S. 600, 604 (1994) (noting that the

"definition of the elements of a criminal offense is entrusted to

the legislature, particularly in the case of federal crimes, which

are solely creatures of statute" (quoting Liparota v. United

States, 471 U.S. 419, 424 (1985)) (internal quotation mark

omitted)); McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986) ("[W]e

should hesitate to conclude that due process bars the State from

pursuing its chosen course in the area of defining crimes and

prescribing penalties.").

11
Under 46 U.S.C. § 70502(c)(2)(B), the consent of a foreign
nation to the enforcement of United States law by the United States
is "proved conclusively by certification of the Secretary of State
or the Secretary's designee."

-37-
 This discretion about allocation of functions between

judge and jury is subject to some limits. See Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000).12 Congress acted well within

constitutional boundaries in determining that the question of

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

States" is not an essential element of § 70503(a)(1) for several

reasons.

First, § 70504(a) is constitutional under the Supreme

Court's teaching in McMillan. The Pennsylvania statute at issue

there provided that anyone convicted of certain felonies was

subject to a mandatory minimum sentence of five years' imprisonment

if the sentencing judge (and not the jury) found, by a

preponderance of the evidence, that the person visibly possessed a

firearm while committing the offense. McMillan, 477 U.S. at 81.

The Supreme Court upheld this allocation of functions on the basis

of several factors, see id. at 86-90, noting that it was unable "to

lay down any 'bright line' test" but concluding that Pennsylvania's

Mandatory Minimum Sentencing Act "falls on the permissible side of

the constitutional line," id. at 91. The Court did point out that

the statute did not create any presumption against the defendant's

innocence, that the finding of visible possession did not increase

the penalty to which the defendant was subject but rather cabined

12
Apprendi does not govern § 70504(a) because this provision does
not increase the statutory penalty but rather serves as a
prerequisite for guilt.

-38-
the court's discretion within the statutory range, and that

Pennsylvania did not appear to be restructuring an existing crime

in order to evade the constitutional requirement of proof beyond

reasonable doubt.13 Id. at 86-90. All of these considerations

apply equally to Congress's decision that the "subject to

jurisdiction" issue is not an element of § 70503(a)(1) and may be

decided by a judge: the presumption of a defendant's innocence is

not affected; the underlying determination does not subject the

defendant to an increased penalty; and there is no evidence that

Congress was attempting to evade defendants' constitutional

rights.14

Second, in determining whether legislatures have

transgressed constitutional boundaries in defining elements of a

crime, the Supreme Court has given great weight to the historic

treatment of particular categories of facts. This is true whether

the allocation concerns sentencing, see, e.g., Harris v. United

States, 536 U.S. 545, 560-61 (2002) (considering historical

practice in determining that facts increasing a minimum sentence

13
The Court also noted that it was irrelevant that other state
legislatures had treated visible possession as an element of
various crimes. McMillan, 477 U.S. at 90.
14
McMillan remains good law after the Supreme Court's holding in
Apprendi. Apprendi, 530 U.S. at 487 n.13; see also Harris v.
United States, 536 U.S. 545, 563 (2002) ("Apprendi's conclusions do
not undermine McMillan's. There was no comparable historical
practice of submitting facts increasing the mandatory minimum to
the jury, so the Apprendi rule did not extend to those facts.").

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need not be submitted to a jury), or the elements of a statutory

crime, see, e.g., United States v. Gaudin, 515 U.S. 506, 515 (1995)

("We do not doubt that historical practice is relevant to what the

Constitution means by such concepts as trial by jury . . . and it

is precisely historical practice that we have relied on in

concluding that the jury must find all the elements.").

Under historical practice the determination of whether a

vessel is subject to the jurisdiction of the United States would

not be an essential element of the offense. At common law, the

elements of an offense included "each part of the actus reus,

causation, and the mens rea" that the government needed to

establish in order to obtain a conviction. Tinoco, 304 F.3d at

1108 (citing Black's Law Dictionary 520 (6th ed. 1990)). Section

70503(a)(1) criminalizes the knowing or intentional manufacture,

distribution, or possession with intent to distribute a controlled

substance on board a vessel. Whether a vessel was subject to the

jurisdiction of the United States has no bearing on whether

defendants manufactured, distributed, or possessed with intent to

distribute a controlled substance or whether they did so knowingly

or intentionally. The question of whether a vessel is subject to

the jurisdiction of the United States thus does not relate to

whether a defendant committed the proscribed actus reus or

possessed the necessary mens rea. As such it does not meet the

common law definition of an element.

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 The Supreme Court's decision in Ford v. United States,

273 U.S. 593 (1927), provides strong historical support that the

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

United States is not an element of a crime involving a vessel. In

Ford, the defendants were charged with a Prohibition-era conspiracy

to transport liquor into the United States in violation of a treaty

between the United States and Great Britain. Id. at 600. The

Supreme Court held that whether the vessel was seized within the

zone covered by the treaty and therefore subject to the

jurisdiction of the United States was not an issue a jury needed to

decide: "The issue whether the ship was seized within the

prescribed limit did not affect the question of the defendants'

guilt or innocence. It only affected the right of the court to

hold their persons for trial." Id. at 606.

Third, the argument that this "subject to jurisdiction"

question is not an element of the § 70305(a)(1) crime is

strengthened by the fact that Congress did not need to include a

provision in the MDLEA that the vessel be subject to the

jurisdiction of the United States. Under the "protective

principle" of international law, Congress can punish crimes

committed on the high seas regardless of whether a vessel is

subject to the jurisdiction of the United States. Under the

protective principle, "[a] state has jurisdiction to prescribe a

rule of law attaching legal consequences to conduct outside its

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territory that threatens its security as a state or the operation

of its governmental functions, provided the conduct is generally

recognized as a crime under the law of states that have reasonably

developed legal systems." United States v. González, 776 F.2d 931,

940 n.11 (11th Cir. 1985) (quoting Restatement (Second) of Foreign

Relations Law of the United States § 33(1)) (internal quotation

marks omitted); see also Restatement (Third) of Foreign Relations

Law § 402 & cmt. f (restating protective principle). In United

States v. Cardales, 168 F.3d 548 (1st Cir. 1999), this court noted

that "application of the MDLEA to the defendants is consistent with

the protective principle of international law because Congress has

determined that all drug trafficking aboard vessels threatens our

nation's security." Id. at 553; accord United States v. González,

311 F.3d 440, 446 (1st Cir. 2002) (Torruella, J., concurring in the

judgment) (because the protective principle applies, "the MDLEA

does not require a jurisdictional statement to place it within

Congress's regulatory power. The jurisdictional statement of the

MDLEA is therefore not an essential element of the crime, as it may

be in other statutes that lack outside authority."). If the

statute need not have had a "subject to jurisdiction" component at

all, that component is not an essential element of the crime unless

Congress so intends.

In fact, there is a ready explanation for the presence of

the "subject to jurisdiction" provision in the statute, an

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explanation which reinforces the conclusion that the finding as to

jurisdiction is not an element of the crime. Congress inserted the

requirement that a vessel be subject to the jurisdiction of the

United States into the statute as a matter of diplomatic comity.

See Tinoco, 304 F.3d at 1108 ("[T]he jurisdictional requirement was

inserted into the statute as a diplomatic courtesy to foreign

nations and as a matter of international comity . . . ."). To put

the concept in different terms, "It is misleading . . . to consider

[a foreign nation's] consent an element of the offense; rather, it

is a diplomatic requisite illustrating the international

partnership that ensures the rule of law on the high seas."

González, 776 F.2d at 940 (emphasis omitted).

We acknowledge that one circuit has decided the question

differently. The Ninth Circuit held in Perlaza that § 70504(a)'s

allocation of the jurisdictional issue to the judge is

unconstitutional based on two primary rationales. First, the court

reasoned that because many courts had thought, before the

congressional clarification in 1996, that a jury was required to

determine the jurisdiction question, Congress could not alter that

arrangement. Perlaza, 439 F.3d at 1167. Second, Perlaza reasoned

that because the jurisdictional inquiry involves factual questions,

that meant it had to be an element of the crime. Id. We disagree

on both points. Congress ordinarily defines crimes and can alter

statutes to clarify or overrule judicial opinions. See, e.g.,

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Cleveland v. United States, 531 U.S. 12, 19-20 (2000) (describing

how Congress amended the federal mail fraud statute to expand the

coverage given to it by the Court). A congressional decision on

how to define elements of a crime is usually dispositive. See

Staples, 511 U.S. at 604-05. Judicial interpretations given to

allocations of functions between judge and jury under one version

of a statute do not determine the constitutionality of a later,

revised version in which Congress has made a different allocation.

Moreover, as to the second rationale, it is well established that

juries need not decide all questions with factual components. For

example, the admissibility of evidence and the legality of searches

and seizures are committed to judges. See, e.g., Gaudin, 515 U.S.

at 525-26 (Rehnquist, C.J., concurring).

Judge Torruella is of the view the question should be

avoided, citing the doctrine of constitutional avoidance. The

doctrine of constitutional avoidance is no bar to reaching the

question of the constitutionality of § 70504(a) in this case. The

Supreme Court has not treated constitutional avoidance as a strict

rule but rather as a prudential consideration that judges should

take into account on a case-by-case basis. Rescue Army v. Mun.

Court of Los Angeles, 331 U.S. 549, 574 (1947); see also, e.g.,

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 7-8 (1993)

(majority reaches constitutional issue over the dissent's

constitutional avoidance argument). In particular, the Supreme

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Court has departed from the doctrine in the contexts of harmless

error analysis, see, e.g., Pope v. Illinois, 481 U.S. 497, 501-04

(1987), and the good-faith exception to the exclusionary rule, see,

e.g., United States v. Leon, 468 U.S. 897, 925 (1984). And, in the

qualified immunity context, the Court has told lower courts to

reach constitutional issues in order to provide guidance on

constitutional issues. See Saucier v. Katz, 533 U.S. 194, 201

(2001); County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)

("[I]f the policy of avoidance were always followed . . .,

standards of official conduct would tend to remain uncertain, to

the detriment of both officials and individuals."); see also Pierre

N. Leval, Judging Under the Constitution: Dicta About Dicta, 81

N.Y.U. L. Rev. 1249, 1277 (2006) (noting tension between the

Saucier rule and the doctrine of constitutional avoidance).

The constitutionality of 46 U.S.C. § 70504(a) is a

recurring issue which this court has avoided reaching before. See,

e.g., United States v. Gil-Carmona, 497 F.3d 52, 54 (1st Cir.

2007); see also González, 311 F.3d at 443 (holding that defendant

waived this argument by pleading guilty). The avoidance doctrine,

of course, is not meant to thwart the even more fundamental

doctrine governing all judges that the view of the majority is the

holding of the court. We think it is important to resolve the

question now in order to provide clear guidance to the district

judges of this circuit and to litigants on how to handle this

-45-
issue. Cf. Leon, 468 U.S. at 925 ("If the resolution of a

particular Fourth Amendment question is necessary to guide future

action . . ., nothing will prevent reviewing courts from deciding

that question before turning to the good-faith issue."). The

question is clearly raised in this case. We do not think the issue

is particularly difficult and so there is no reason to avoid the

question because it is hard or close. Indeed, the outcome is

mandated by Supreme Court precedent.

We hold that § 70504(a) is constitutional and dispose of

the plain error inquiry at the first step. We otherwise join in

Judge Torruella's opinion.

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