The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 18, 2006
No. 05-14533 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00521-CR-T-23MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILBUR HENRY MARTINEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 18, 2006)
Before ANDERSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
The United States Coast Guard apprehended Wilbur Henry Martinez and
four other men aboard a “go-fast” vessel traveling in international waters off the
coast of Colombia. The Coast Guard recovered approximately 1682 kilograms of
cocaine that Martinez and the other men had thrown overboard prior to being
apprehended. After a jury trial, Martinez was convicted of conspiracy to possess
and possession with intent to distribute five or more kilograms of cocaine while on
board 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. app. § 1903(a), (g), and (j). He was
sentenced to 188 months’ incarceration. We affirm his convictions and sentence.
Martinez makes two arguments warranting discussion. First, he argues the
district court erred by allowing the Government to establish jurisdiction under
§ 1903(a) through inadmissible hearsay. Second, he argues the district court erred
by denying him a minor role reduction under U.S.S.G. § 3B1.2(b).1
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Martinez’s remaining arguments are foreclosed by prior precedent. He argues § 1903, the
Maritime Drug Law Enforcement Act (MDLEA), is an ultra vires exercise of congressional power
under the Piracies and Felonies Clause of the United States Constitution, U.S. Const., art. I, § 9, cl.
10. This argument is foreclosed by our decision in United States v. Estupinan, 453 F.3d 1336, 1338-
39 (11th Cir. 2006) (holding Congress did not exceed its authority in enacting the MDLEA). Insofar
as he argues the MDLEA is unconstitutional because it removes the element of jurisdiction from the
jury’s consideration, that argument is foreclosed by our decision in United States v. Tinoco, 304 F.3d
1088, 1107-12 (11th Cir. 2002) (rejecting this argument because “the jurisdictional provision here
is not a traditional element, or otherwise an essential ingredient, of a criminal offense”). He also
argues the MDLEA violates due process because (1) § 1903(a) does not require a nexus between
the criminal conduct and the United States, (2) § 1903(f) allows for forum shopping because it sets
venue at the point of entry into the United States, and (3) the provision in § 1903(d) precluding
defenses based on international law violates his liberty interest in ensuring that he not be prosecuted
in a jurisdiction bearing no ties to his offense. These arguments are foreclosed by United States v.
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Section 1903(a) provides, in pertinent part, “[i]t is unlawful for any person
. . . on board a vessel subject to the jurisdiction of the United States . . . to possess
with intent to . . . distribute . . . a controlled substance.” Id. § 1903(a). Section
1903(c)(1)(A), in turn, states that a “vessel subject to the jurisdiction of the United
States” includes “a vessel without nationality.” Id. § 1903(c)(1)(A). A “vessel
without nationality” is defined in § 1903(c)(2) as including:
(B) any vessel aboard which the master or person in charge
fails, upon request of an officer of the United States empowered to
enforce applicable provisions of United States law, to make a claim of
nationality or registry for that vessel; and
(C) a vessel aboard which the master or person in charge makes
a claim of registry and the claimed nation of registry does not
affirmatively and unequivocally assert that the vessel is of its
nationality.
Id. § 1903(c)(2)(B), (C). Section 1903(c)(3) states that a claim of nationality or
registry “only includes” the production of documents evidencing the vessel’s
nationality in accordance with the 1958 Convention on the High Seas, flying the
flag nation’s ensign or flag, or “a verbal claim of nationality or registry by the
master or person in charge of the vessel.” Id. § 1903(c)(3). Section 1903(f)
provides that “[a]ll jurisdictional issues arising under this chapter are preliminary
questions of law to be determined solely by the trial judge.” Id. § 1903(f).
Rendon, 354 F.3d 1320, 1325-26 (11th Cir. 2003) (holding a nexus to the United States is not
required and noting the venue provision comports with U.S. Const., art. III, § 2, cl. 3).
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We review for clear error the district court’s factual findings concerning
whether a vessel is a “vessel without nationality” and thus a “vessel subject to the
jurisdiction of the United States.” United States v. Tinoco, 304 F.3d 1088, 1114
(11th Cir. 2002). We review de novo a “district court’s interpretation and
application of statutory provisions that go to whether the court has subject matter
jurisdiction.” Id. (internal quotations omitted).
Martinez argues the district court erred by allowing the Government to
establish that the go-fast vessel was a “vessel without nationality” as defined in
§ 1903(c)(2)(C) through the admission of a document in which the Colombian
government stated, in response to the Coast Guard’s request, that it could neither
confirm nor deny the vessel was registered in Colombia. He asserts the document
was inadmissible hearsay and the district court erred in relying on it for its
jurisdiction determination. We need not decide whether the document was
inadmissible hearsay or whether the district court’s jurisdictional inquiry is
confined to admissible evidence because jurisdiction was established under
§ 1903(c)(2)(B) without resort to the Colombian government’s response.
The district court did not clearly err in finding the jurisdictional requirement
met in this case. The evidence at trial showed that the go-fast vessel flew no flag
and had no name, registration number, home port, or other indicia of nationality on
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it. There is no indication in the record that the crew possessed or produced
documentation evidencing the vessel’s nationality. When questioned, the crew
made no claims about the vessel’s nationality or registration. Each man denied
being the captain or master of the vessel, and the captain concealed his identity
until coming ashore in Tampa. The facts of this case are materially
indistinguishable from those of United States v. De La Cruz, 443 F.3d 830, 832
(11th Cir. 2006). In De La Cruz, we affirmed the district court’s finding of
jurisdiction under § 1903(a) where the vessel flew no flag, had no markings
indicating nationality, the crew made no claims about the vessel’s nationality, and
the captain concealed himself and failed to identify the vessel’s nationality. In this
case, the captain’s failure to identify himself and the nationality of the vessel
means that it was “a vessel without nationality” as defined in § 1903(c)(2)(B). As
such, it was subject to the jurisdiction of the United States. The district court,
therefore, did not need to rely on the definition of a stateless ship in
§ 1903(c)(2)(C) or the document evidencing the Colombian government’s failure
to confirm or deny the vessel’s nationality.
Martinez contends Lieutenant Kathryn Wunderlich’s testimony establishes
that a claim of Colombian nationality was made, and that, consequently, the district
court could not rely on § 1903(c)(2)(B). Wunderlich testified that once the men
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were on board the Coast Guard cutter, “a claim of nationality was made,” which
prompted her to request that the Colombian government confirm or deny the
vessel’s nationality. He asserts that because a claim of Colombian nationality was
made, the Colombian government’s response was necessary to establish
jurisdiction under the definition of a stateless vessel in § 1903(c)(2)(C).
The plain language of §1903(c)(2)(C) and (c)(3)(C) states that the claim of
nationality or registry of the vessel must be made by the “master or person in
charge” of the vessel. When the Coast Guard boarded the go-fast vessel, each man
denied being the captain. At trial, the captain testified that he hid among his crew
and did not identify himself as the master of the vessel until he came ashore in
Tampa. This means the claim of nationality of the vessel Wunderlich testified to
could not have been made by the master or person in charge of the vessel.
Therefore, the requirement in § 1903(c)(2)(C) that the claimed nation of registry be
contacted was never triggered and the vessel was correctly deemed “a vessel
without nationality” under § 1903(c)(2)(B).
Martinez next argues that the district court clearly erred in failing to grant
him a minor role reduction because the court relied, in large part, on the fact that he
was hired to transport 1,950 kilograms of cocaine, and because he was only a
courier in a multi-tiered drug enterprise.
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We review for clear error the district court’s findings regarding whether a
defendant qualifies for a minor-role adjustment under the Guidelines. United
States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The
defendant has the burden of establishing his minor role by a preponderance of
evidence. Id. at 939. The district court conducts a two-pronged analysis to
determine if the defendant warrants a minor role adjustment under U.S.S.G.
§ 3B1.2. Id. at 941, 944. “First, the district court must assess whether the
defendant is a minor or minimal participant in relation in relation to the relevant
conduct attributed to the defendant in calculating [his] base offense level.” Id. at
941. We have held that “the amount of drugs imported is a material consideration
in assessing a defendant’s role in [his] relevant conduct.” Id. at 943. The amount
of drugs can be dispositive of this issue in the extreme case. Id. Only if the first
prong is met does the district court reach the second prong, which requires the
district court to assess a defendant’s relative culpability vis-a-vis that of any other
participants. Id. at 944. A court cannot look to any wider conspiracies, and it must
limit its inquiry to those who were involved in the relevant conduct attributed to
the defendant. Id.
The district court did not clearly err in denying Martinez a minor role
reduction because Martinez did not show that his participation in the conspiracy to
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smuggle 1,950 kilograms of cocaine on the go-fast vessel was minor, or that he
was less culpable than the similarly situated crew members on the vessel.
Evidence introduced at trial shows (1) Martinez was hired to steer the vessel and
did steel the vessel; (2) Martinez, along with the other crew members, threw
cocaine overboard when they heard a helicopter approaching; and (3) although
Martinez received less compensation than the captain, he received more than at
least one of his crew mates.
AFFIRMED.
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