“[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
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