Opinion

Ortiz Salazar v. United States

Court
District Court, M.D. Florida
Filed
Sep 19, 2023
Cited by
0 cases
Authority
More cited than 20.0%

“[T]he Due Process Clause of the Fifth Amendment does not prohibit the trial and conviction of an alien captured on the high seas while drug trafficking, because the [MDLEA] provides clear notice that all nations prohibit and condemn drug trafficking aboard stateless vessels on the high seas.”

How later courts described this case

  • “[T]he Due Process Clause of the Fifth Amendment does not prohibit the trial and conviction of an alien captured on the high seas while drug trafficking, because the [MDLEA] provides clear notice that all nations prohibit and condemn drug trafficking aboard stateless vessels on the high seas.”
  • “[T]he MDLEA [i]s a constitutional exercise of Congressional authority under the Felonies Clause, and . . . the conduct proscribed by the MDLEA need not have a nexus to the United States.”
  • “Conclusory allegations of ineffective assistance are insufficient.”
  • explaining that a pro se litigant’s mere discussion of a superficial claim does not give an opposing party fair notice of that claim

Written by the judges who cited it.

The opinion

UMNIIDTDEDLE S TDAISTTERSI DCTIS OTRF IFCLTO CROIDUAR T

TAMPA DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 8:19-cr-278-SDM-SPF

8:20-cv-1467-SDM-SPF

SEGUNDO ORTIZ SALAZAR

____________________________________

ORDER

Segundo Ortiz Salazar moves under 28 U.S.C. § 2255 to vacate his conviction

and sentence for conspiring to possess with intent to distribute cocaine while aboard

a vessel subject to the jurisdiction of the United States, for which he is imprisoned for

188 months. Salazar challenges the district court’s jurisdiction.

Under a plea agreement Salazar pleaded guilty to conspiracy to possess with

intent to distribute five kilograms or more of cocaine while aboard a vessel subject to

the jurisdiction of the United States in violation of 21 U.S.C. § 960 (b)(1)(B)(ii) and

46 U.S.C. §§ 70503(a), 70506(a) and (b). Salazar admitted to the following facts that

support his guilty plea (Crim. Doc. 46 at 20–22):

On or about June 23, 2019, a military patrol aircraft

(MPA) sighted a low-profile vessel (LPV) in the international

waters of the Eastern Pacific Ocean, approximately 170 nautical

miles west of Punta Arenas, Costa Rica. The U.S. Coast Guard

Cutter (USCGC) VIGOROUS was patrolling in the vicinity,

diverted to intercept, and eventually launched its embarked small

boat to pursue the vessel.

Once on scene, the small boat gained positive control of

the GFV, and the embarked law enforcement boarding team

nationality, if any, of the vessel. The defendants, Prudencio

Panameno Ramos, Sandro Pedrea Nunez, and Segundo

Aristbulo Ortiz Salazar were the three (3) crewmembers of the

LPV. During the ROV boarding, defendant, Prudencio

Panameno Ramos identified himself as the master of the vessel

and made a verbal claim of Colombian nationality for the vessel.

The vessel was not flying a flag, and had no other indicia of

nationality.

Pursuant to the United States-Columbian Bilateral

Agreement, the U.S. Coast Guard approached the Government

of Colombia and requested confirmation of the registry and

nationality of the subject GFV. The Colombian government

responded that it could neither confirm nor deny the nationality

of the subject vessel. Therefore and in accordance with 46 U.S.C.

§§ 70502(c)(1)(A) and (d)(1)(C), the U.S. Coast Guard treated

the GFV as one without nationality and therefore a vessel subject

to the jurisdiction of the United States. At the time of interdiction

by the Coast Guard, the GFV was seaward of the territorial seas

of any nation and in international waters.

During a subsequent search of GFV, the boarding team

located 158 bales containing approximately 2,130 kilograms of

cocaine concealed in the bow of the vessel. The boarding team

conducted two (2) NIK filed test[s] on the seized contraband,

both of which tested positive for cocaine.

The defendant, Segundo Aristbulo Ortiz Salazar,

willingly agreed to transport approximately 2,130 kilograms of

cocaine aboard the subject vessel with his codefendants and

others. The purpose of this agreement was to smuggle this

cocaine into Central America through international waters and

distribute the cocaine to other persons. The defendant knew that

the bales onboard the subject vessel and seized by the U.S. Coast

Guard contained five (5) or more kilograms of cocaine and knew

that the planned voyage was a drug smuggling venture.

The district court adjudicated Salazar guilty and sentenced him to 188

months. He filed no appeal.

Salazar now moves to vacate his conviction and sentence and raises four

grounds for relief. Although Salazar procedurally defaulted his claims by not

raising them on direct appeal, the district court rejects his claims as meritless. See

Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020) (“[A] federal court may skip

over the procedural default analysis if a claim would fail on the merits in any

event.”)

In Ground One Salazar claims that the United States failed to demonstrate

that the vessel was without nationality and subject to its jurisdiction. (Civ. Doc. 2 at

3) Contrary to his admissions in the plea agreement, he asserts that the Coast Guard

neglected to request that the government of Columbia confirm or deny the

nationality of the vessel. (Id. at 4) And, he erroneously claims that he “did not

admit to facts that gave rise to jurisdiction.” (Id. at 7)

Under the Maritime Drug Law Enforcement Act (“MDLEA”),

46 U.S.C. § 70503(a), et seq., jurisdictional issues “are preliminary questions of law to

be determined solely by the trial judge.” 46 U.S.C. § 70504. A “covered vessel”

under the MDLEA is “a vessel subject to the jurisdiction of the United States[,]”

which includes “a vessel without nationality” and “a vessel registered in a foreign

1 Neither a claim of ineffective assistance of counsel nor a challenge to the voluntary nature

of Salazar’s guilty plea are properly before the district court. Without any explanation, Salazar

complains that he “was misinformed of the element[s] of the offense resulting in a prejudicial

jurisdictional defect in [his] guilty plea.” (Civ. Doc. 2 at 2) Also, in one sentence, Salazar

complains that his “ineffective counsel did not advise [him] of [his] right to appeal nor did [counsel]

exercise such right on [his] behalf.” (Civ. Doc. 1 at 4). These vague complaints are insufficient to

properly raise claims of ineffective assistance of counsel or an involuntary guilty plea. See Wilson v.

United States, 962 F.2d 996, 998 (11th Cir. 1992) (“Conclusory allegations of ineffective assistance

are insufficient.”); Walker v. Dugger, 860 F.2d 1010, 1011 (11th Cir. 1988) (explaining that a pro se

litigant’s mere discussion of a superficial claim does not give an opposing party fair notice of that

claim); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (explaining that a petitioner is not

entitled to an evidentiary hearing “when his claims are merely conclusory allegations unsupported

by specifics or contentions that in the face of the record are wholly incredible”) (citations omitted).

nation if that nation has consented or waived objection to the enforcement of United

States law by the United States.” 46 U.S.C. §§ 70502(c)(1)(A), (C) and 70503(e)(1).

Consent or waiver of objection by a foreign nation “is proved conclusively by

certification of the Secretary of State or Secretary’s designee.” Id. at § 70502(c)(2)(B).

The record refutes Salazar’s claim. In the plea agreement Salazar admitted

that (1) the vessel had no indicia of nationality, (2) its master claimed Colombian

nationality, and (3) the government of Colombia neither confirmed nor denied the

vessel’s nationality thereby rendering it a vessel without nationality and subject to the

jurisdiction of the United States. (Crim. Doc. 46 at 21) Consistent with those

admissions, the Department of State certifies that the government of Columbia

neither confirmed nor denied the vessel’s registry or nationality, and therefore, the

vessel was without nationality and subject to the jurisdiction of the United States.

(Crim. Doc. 96) “[T]he [Department of State] certification is conclusive proof of a

response to a claim of registry” and “therefore provide[s] conclusive proof that the

vessel [is] within the jurisdiction of the United States under the [MDLEA].” United

States v. Campbell, 743 F.3d 802, 809 (11th Cir. 2014).

In Ground Two Salazar claims that the district court lacked jurisdiction

because “there is no accusation that [he] intended to distribute the contraband in the

U.S., or cause any other effect there.” (Civ. Doc. 2 at 10–17) Circuit precedent

forecloses this claim. “[C]onduct proscribed by the [MDLEA] need not have a

nexus to the United States because universal and protective principles support its

extraterritorial reach.” Campbell, 743 F.3d at 810. “[T]he protective principle does

not require that there be proof of an actual or intended effect inside the United

States.” Id. (quotations omitted); see also United States v. Hernandez, 864 F.3d 1292,

1303 (11th Cir. 2017) (“[T]he MDLEA [i]s a constitutional exercise of Congressional

authority under the Felonies Clause, and . . . the conduct proscribed by the MDLEA

need not have a nexus to the United States.”).

In Ground Three Salazar claims that his prosecution violates due process

because the conspiracy lacked any nexus to the United States. (Civ. Doc. 2 at 17)

The circuit court has repeatedly rejected such due process challenges to the MDLEA.

Campbell, 743 F.3d at 812 (“[T]he Due Process Clause of the Fifth Amendment does

not prohibit the trial and conviction of an alien captured on the high seas while drug

trafficking, because the [MDLEA] provides clear notice that all nations prohibit and

condemn drug trafficking aboard stateless vessels on the high seas.”); United States v.

Cruickshank, 837 F.3d1182, 1188 (11th Cir. 2016) (same).

In Ground Four Salazar claims that the MDLEA is an unconstitutional abuse

of congressional power because “the felonies clause is textually limited to conduct on

the high seas[.]” (Civ. Doc. 2 at 21) This claim fails because the constitutionality of

the MDLEA is well established by circuit precedent. See United States v. Napa

Moreira, 810 F. App’x 702, 705 (11th Cir. 2020) (“[T]he Piracies and Felonies Clause

empowers Congress to prosecute crimes committed on the high seas and, given that

trafficking narcotics is ‘condemned universally by law-abiding nations,’ it is not

‘fundamentally unfair’ to punish those who traffic drugs on the high seas.”) (quoting

Campbell, 743 F.3d at 810).

Salazar’s motion under Section 2255 to vacate, set aside, or correct his

sentence is DENIED. The clerk is directed to enter a judgment against Salazar,

close this case, and enter a copy of this order in the criminal case.

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Salazar is not entitled to a certificate of appealability (“COA”). A prisoner

moving under Section 2255 has no absolute entitlement to appeal a district court’s

denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must

first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant

has made a substantial showing of the denial of a constitutional right.” To merit a

certificate of appealability, Salazar must show that reasonable jurists would find

debatable both (1) the merits of the underlying claims and (2) the procedural issues

she seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478

(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show

that reasonable jurists would debate either the merits of the claims or the procedural

issues, Salazar is entitled to neither a certificate of appealability nor an appeal in

forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis is

DENIED. Salazar must obtain permission from the circuit court to appeal in forma

pauperis.

ORDERED in Tampa, Florida, on September 19th, 2023.

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

-7-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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