Petition for Writ of Certiorari — Juan Carrasquilla-Lombada, et al., Petitioners v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

JUAN CARRASQUILLA-LOMBADA,

WILLINGTON BARONA-BRAVO,

EDUARDO EMILIO ORTIZ-CERVANTES,

ROGER TEJADA-PIEDRAHITA,

VICTOR OTERO-POMARES,

JACINTO TORRES, and

RAFAEL ANTONIO PATINO-VILLALOBOS,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

J. JERVIS WISE

Brunvand Wise, P.A.

615 Turner Street

Clearwater, Florida 33756

Ph: (727) 446-7505

Email: jervis@acquitter.com

Florida Bar No. 0019181

Counsel of Record for Petitioner Carrasquilla

Brian Lucas Shrader

Dunlap Bennett & Ludwig PLLC

612 W Bay St

Tampa, FL 33606-2704

Ph: 813-360-1529

Email: bshrader@dbllawyers.com

Florida Bar No. 57251

Counsel for Petitioner Barona-Bravo

Mark Ciaravella

Law Offices of Mark Ciaravella

Post Office Box 1107

Tampa, FL 33601

Ph: 813-221-1640

Email: mwc@ciaravella.com

Florida Bar No. 46108

Counsel for Petitioner Ortiz-Cervantes

David Christopher Hardy

The Hardy Law Firm, PA

1710 N 19th St, Suite 215

Tampa, FL 33605

Ph: 813-990-9547

Email: dch@thehardylawfirm.com

Florida Bar No. 689661

Counsel for Petitioner Tejada

Nicholas Gianni Matassini

Matassini Law Firm, PA

2811 W Kennedy Blvd

Tampa, FL 33609

Ph: 813-879-6227

Email: ngm@matassinilaw.com

Florida Bar No. 737704

Counsel for Petitioner Otero-Pomares

Tim Bower-Rodriguez

Tim Bower Rodriguez, PA

601 N Ashley Dr., Suite 310

Tampa, FL 33602

Ph: 813-384-7555

Email: t@bowerrodriguez.com

Florida Bar No. 151890

Counsel for Petitioner Torres

Charles M. Britt , III

Law Office of Charles M. Britt, III, PA

1101 6th Ave W

Bradenton, FL 34205

Ph: 941-747-4440

Email: charlesbrittatty@aol.com

Florida Bar No. 17944

Counsel for Petitioner Patino

QUESTIONS PRESENTED

I.

Whether the Maritime Drug Law Enforcement Act, 46 U.S.C. 70501 et. seq., is

unconstitutional on its face and in violation of the Sixth Amendment rights to

confrontation and to a trial by jury because it precludes the jury from making a

determination of jurisdiction and, instead, permits the Government to establish

jurisdiction in a pre-trial hearing by submitting documents that were prepared in

anticipation of litigation without calling the declarants of those documents to testify?

ii

LIST OF PARTIES

The parties to the judgment from which review is sought are the Petitioners

and co-appellants in the lower court, Juan Carrasquilla-Lombada, Willington

Barona-Bravo, Eduardo Emilio Ortiz-Cervantes, Roger Tejada-Piedrahita, Victor

Otero-Pomares, Jacinto Torres, and Rafael Antonio Patino-Villalobos, and the

Respondent and appellee in the lower court, the United States of America.

ili

TABLE OF CONTENTS

Page

Questions Presented ...........cccccccesssseccessessseeeeseseeeeeeesscceccesssscsesesuseessussssssesuussaseecessnas il

List Of Parties .........ccccccccccccessssseceesesssseecseesaseeeeesssececccsssecsesesssssesscsssssssecsssseescesssaacessesas ili

Table of Contents ..........cccccccsccccesesssecceeeesseseeeessseeecssessseecessuseecseseesesssseseusssesecsnasesensaas iv

Table of Cited Authorities..............ccccccccccesscccesseccecccssssesccesssssssssssssssscsesasesconsensceeesuas vi

Opinion Below ..........ccceccccccssscceeessscceceessseeeeceeesseeecceseeseeecesssusssssesesssssesesssesecssseceseenaaess 1

Grounds for Jurisdiction .............ccccccccccesssscesesenccccccssscescscsssssssesssssscscsssecccesssasecesetaaecs 1

Constitutional and Statutory Provisions Involved ............iceeseesscccccecseeesssssessseeseeeeees 2

Statement of the Case oo... cccccsssssccssescccccsessscceccessssscessssscsecssscessesssscececesssaseceeseaaese 3

Reasons for Granting the Petition ............ccccccccssssccccssessssscsececesesesessnssusecsecesensnsenes 10

I. THE QUESTION OF WHETHER THE ADMISSION OF A

DOCUMENT PREPARED IN ANTICIPATION OF LITIGATION

VIOLATED THE SIXTH AMENDMENT WHEN THE PURPOSE OF

THE DOCUMENT WAS TO DETERMINE STATUTORY

JURISDICTION UNDER THE MDLEA AND THE GOVERNMENT

FAILED TO PRESENT TESTIMONY FROM THE DECLARANTS OF

THE ASSERTIONS CONTAINED WITHIN THE DOCUMENT................. 10

A. Jurisdiction Under the MDLEA ...............0.cccccccccessssssccccessssesessseeeeeceeseeeenes 10

B. The MDLEA Violates the Sixth Amendment Right to a Jury Trial

Because it Exempts the Government from its Requirement to Prove

at Jurisdiction to a Jury Beyond a Reasonable Doubt .................cceeeeeeeeeee 13

C. The MDLEA Likewise Violates the Sixth Amendment Because the

Procedure by Which it Allows the Government to Prove Jurisdiction

Violates Defendants’ Rights to Confrontation .................ccccesssccceeseeseeeeeens 16

1. The Confrontation Clause’s Application to the Pre-Trial

Determination of a Material Element of a Criminal Offense ................. 17

2. The Document at Issue in this Case was Testimonial in Nature........... 18

iv

D. The Reasons for Granting Certiorari ............0.cccccccecccessccesescesssecesseeeees 20

Conclusion 2.0... ec eecescescesseesceeeceeececeeeceseesseesseceseeseessucesseesecessessseesesssecessenseesseenseeseees 22

APPENDICES Page

Appendix A: The Eleventh Circuit Opinion Below ........0...ccceeccccccessecccceeseccceeessnanecee A

Appendix C: 46 U.S.C. §§ 70501, ef. SOQ. .....ccceccccccccccccseeecccssssssscescccssceccsssssscesensnaneees B

TABLE OF CITED AUTHORITIES

Cases Page(s)

Crawford v. Washington,

BAL U.S. 36 (2004) oo. ccccccecsscsccecssescsesecseccsscscsecscseceesscseseesscsscssesssessesssseenens 18-19

International Shoe Co. v. State of Washington,

326 U.S. 310, 316 (1945) oo. ccccccccscsscscssessescsscscsscscecscecsecsecscsecsecsesecsessesseseseeas 21

Melendez-Diaz v. Massachusetts,

“= US. =, 129 S. Ct. 2527 (2009) eee ceeceeseseseeseneseneseseseseeeeeensaeerseeeeees 18

Pennsylvania v. Ritchie,

480 U.S. 39, 52 (1987) .o..ccccccccccccccscsscsscssesecsecsecsecsessesecsecnscsecsecsecsesesesseasessasenenes 17

United States v. Archer,

531 F.3d 1347 (11th Cir. 2008) oo... eee ssseeeeescseseceeeesecseseseeeeaeseeeeeeaeseeaeeneeeas 8

United States v. Barona-Bravo, et. al.,

685 Fed.Appx. 761, No. 15-13024 (11th Cir. Apr. 14, 2017)... eeceeeeeeeeees 1

United States v. Campbell,

743 F.8d 802 (11th Cir. 2014) .o.ccccccccccccccscsscscsscsesecscsecsecscsecsecseeecsscsesscsecsesecseeees 8

United States v. Cardales,

168 F.3d 548 (1st Cir, 1999)... ccccccccscsscscsscsesscsscscsecseesesscsesecsecsececsecsscsesecneenens 20

United States v. Cruickshank,

837 F.8d 1182 (11th Cir. 2016) oo... cccccccscsecscsssscecsecsesscseeacsscsecsseseecsessees 8, 20

United States v. De La Garza,

516 F.3d 1266 (11th Cir. 2008) oo... eeeeeceeseseseseseeeeesceesesecaeenseneaneeeseees 11

Vi

TABLE OF CITED AUTHORITIES (Cont.)

Cases (Cont.) Page(s)

United States v. Gaudin,

515 U.S. 506 (1995) oo. eee es ecee cece ceeesseenssceceneseneseeseneseeseaceneesscsesesasseaeaseneeeaees 14

United States v. Mena,

863 F.2d 1522 (11th Cir, 1989) cc sececscscseseeseseseseseseseevevseeneaeeeseseeneensaeeeeees 20

United States v. Mitchell-Hunter,

663 F.8d 45 (1st Cir, 201)) ccc cccccccsccscsecscrscseescsecscescsessessesecseesceestenssseeseass 21

United States v. Passos-Paternina,

918 F.2d 979, 982 (1st Cir. 1990) .....ecccccccccesccsesssesscseseeecsesecsesseecscescscssessasseeseaees 12

United States v. Perez-Oviedo,

281 F.3d 400 (8d Cir. 2002)... cccccccccscsecsesscseescseesesscsecscsecsscseesessescsecseeseseereeees 20

United States v. Perlaza,

439 F.3d 1149 (Oth Cir. 2006) oo... eeceeeseecseesssseseseessssseeecacsesecseseeececseeeeecatenseceeens 20

United States v. Suerte,

291 F.3d 366 (Sth Cir. 2002)) oo... ccccccccsccsccsscscescseesescseesceecsesseesesesscsecseesseceeceess 20

United States v. Tinoco,

304 F.3d 1088 (11th Cir. 2002) oe esesseseseseseseeseseseseeeeeeeseeeeneeeeeeeeeeeees 8, 11, 13

United States v. Yousef,

327 F.3d 56, 111 (2d Cir. 2008)... cc cccccccccscsscsessesscscsscsscscsecsecscsscsesscsecseeecseeaees 20

United States v. Zakharov,

468 F.3d 1171 (9th Cir. 2006) .......cccccccccccsccccscccecsscccecscccecsscccesscscecsscecesssscessseceesace 20

Vii

TABLE OF CITED AUTHORITIES (Cont.)

Constitutional Provisions Page(s)

U.S. CONST. amend. Voice cc ccecseececccccccceccccccssceccccceusceccceacseccccauerecessusuacesecsaas 14, 20

U.S. CONST. amend. VI... ccecccccesssccecesesseeeseesessesessssencesssseeesesseeesess 2, 4, 10, 13-16

Statutes and Rules

18 U.S.C. § 2 ee ecccceceseseseeseeseeseeseenseesceneeeseesessseesseseesesesecsecseecssseasesssessssessasenseseeesenees 3

18 U.S.C. § LOO nee ceccecccssceseesesceeseeseceeesessssseessesseeseessecsecssesecseseseessesseseseesaeeas 14

21 U.S.C. § 960 oo. ecccccccccssssceceessssseesesesseeeeseesseeeseseaseeccesseneseecesseesseeesssusesecseseeseaes 3

QB U.S.C. § 1254 ieccccccccccscccecscscscscssscscecsvscassvscacavavavavavavavavavacacasacacacasacacavavavacacsesesesees 1

AG U.S.C. §§ T0501, et. SOq....ecccccccccscssssssssssssssesecececscscacscecscecscecscecscsesssstsestseseseees 2, 10

AG U.S.C. § 70502 oo... ecccccccccecesessssscaeeecececesssceeeceseesessssssseesscsessusesseaseesoceese 9, 11-14

AG U.S.C. § 70508 ooo... cece ecccesssceccsesssseseseesseeceeseesecessssceccssssssceusenesansass 3, 12, 15, 17-18

AG U.S.C. § 70504 ooo... cccccesseceesssseccecesssceceessseecesessseecceessseeeesseeseesenensass 8, 12°14, 18

46 U.S.C. § T0506 ooo... cece ccccccssneceeesssseeeessesseecceseseeeesessaeeeceeesueeecessesseeecessseeesesesseeeeenees 3

SUP. OT. R. LO... eee ecccesscceessnecesseeeessneecesscecssaeecesssessesseeessseeessssecccsseecesaeeeessseseesseeneas 22

Vill

OPINION BELOW

The United States Court of Appeals for the Eleventh Circuit affirmed the

judgment of the district court in an unpublished opinion, United States v. Willington

Barona-Bravo, et. al., 685 Fed.Appx. 761, No. 15-13024 (11th Cir. Apr. 14, 2017),

which is attached hereto as Appendix A.

GROUNDS FOR JURISDICTION

The United States Court of Appeals for the Eleventh Circuit issued its panel

opinion on April 14, 2017. See Appendix A. On May 9, 2018, the Eleventh Circuit

entered an order denying a timely-filed motion for rehearing that concerned an issue

unrelated to the question presented in the instant petition. Petitioners, thereby, seek

the jurisdiction of this Court pursuant to 28 U.S.C. § 1254(1) through the filing of the

instant petition for writ of certiorari.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. CONST. amend. VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein

the crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and

cause of the accusation: to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defence.

46 U.S.C. §§ 70501, et. seg.

Attached hereto as Appendix C.

STATEMENT OF THE CASE

On August 27, 2014, thirteen individuals, including the seven petitioners, were

charged by indictment in the United States District Court for the Middle District of

Florida, Tampa Division, with one count of knowingly and willfully conspiring to

possess with intent to distribute five kilograms or more of a mixture or substance

containing cocaine while aboard a vessel subject to the jurisdiction of the United

States and one count of possessing with intent to distribute five kilograms or more of

a mixture or substance containing cocaine while aboard a vessel subject to the

jurisdiction of the United States in violation of 46 U.S.C. §§ 70503(a), 70506(a), (b);

21 U.S.C. § 960(b)(1)(B) Gi); and 18 U.S.C. § 2. (Doc. 1.) All of the defendants were

Colombian nationals.

The Coast Guard’s Interdiction

The charges stemmed from the Coast Guard’s interdiction of a 208-foot

freighter vessel in international waters off of Central America. (Doc. 1; 419 at 38-43.)

The events leading up to the instant case began when that freighter vessel, the

BOROCHO, left port in Puerto Nueva, Colombia in early September, 2014, bound for

Panama. (Doc. 419 at 203; 421 at 158-59.) The BOROCHO had been in service for

many years and was fully equipped for shipping freight. (Doc. 419 at 77-79, 89; 423

at 44-46.) During trial, the defendants entered evidence of the BOROCHO’s use in

prior freight shipping ventures, including photographs that depicted the BOROCHO

loaded with heavy volumes of legitimate cargo. (Doc. 423 at 44-46.)

On September 7, 2014, while the BOROCHO was in international waters,

approximately 70 miles off the coast of Panama, a U.S. Coast Guard cutter made a

right of visit contact with the BOROCHO. (Doc. 419 at 37-39, 77; 420 at 24-25.)

Neither the vessel, nor any of its occupants, were believed or alleged to have been

within United States territory prior to that time. The BOROCHO was flagged out of

Sao Tome and Principe. (Doc. 1 at 2.) According to documents later filed in the case,

Sao Tome allegedly later refuted the BOROCHO’s claim of nationality. (Doc. 1 at 2-

3, 424.)

Coast Guard personnel first boarded the BOROCHO at approximately 9:00

A.M. on September 7th for a right of visit. (Doc. 419 at 60.) Sometime later, the Coast

Guard then attempted to communicate with the host nation of Sao Tome to confirm

the claim of nationality. (Doc. 419 at 40.) At approximately 7:00 P.M., the Coast

Guard allegedly received authorization to search the vessel. (Doc. 419 at 40.) It went

on to conduct an at sea space accountability assessment. (Doc 419 at 41.) Throughout

that time, the BOROCHO’s crew was cooperative with the Coast Guard and did

nothing to inhibit or hinder them. (Doc. 419 at 55.)

The following evening, at approximately 6:45 P.M. on September 8th, the Coast

Guard found bales of cocaine weighing approximately 55 kilograms inside a lube oil

tank within the ship. (Doc. 419 at 42-43, 124.) The lube oil tank in question was

located in the engine room of the ship, a large, multi-story section of the ship that

contained several catwalks. (Doc. 419 at 190.) According to the testimony of Coast

Guard personnel, the tank was not easily accessible. (Doc. 419 at 192.)

At approximately 1:00 A.M. on September 9th, after additional searching, the

several other bales of cocaine were found in sealed barrels located in the back of a

large, sealed off ballast tank inside a cargo hold within the ship. (Doc. 419 at 131; 420

at 31-42.) All told, the Coast Guard recovered approximately 641 kilograms of cocaine

from within the ship. (Doc. 427 at 18.)

Upon the initial recovery of cocaine, all members of the crew were taken into

custody at sea. (Doc. 1.) The Government went on indict the entire 13-member crew

of that ship on the two charges set forth above. (Doc. 1.) Two of the thirteen

defendants later pled guilty, while the remaining eleven proceeded to trial. (Doc. 119,

123, 180, 187, 203.)

The Trial

When the case later proceeded to trial, the Government presented various

members of the Coast Guard LEDET team to discuss the facts set forth above. (Doc.

419-422.) The Government further presented the testimony of the two co-defendants

who had pled guilty to the indictment, Yensi Medrano-Blanquiseth and Andres

Fontalvo-Martinez. (Doc. 421-424.) Medrano and Fontalvo both held themselves out

as the two leaders of the purported conspiracy. (Doc. 419 at 84-174; 423 at 129.)

Despite giving largely inconsistent accounts of the events, those two co-defendants

alleged the various defendants to have been involved in the purported cocaine

conspiracy in various roles.

The Jurisdictional Determination

At the close of its case, the Government asked the district court to make a

ruling on jurisdiction. (Doc. 424 at 220-21.) The Government had not sought a pretrial ruling from the district court on the question of MDLEA jurisdiction. Prior to

the start of trial, the Government had filed a certification from the Department of

State that had attached as an exhibit an affidavit from a Coast Guard Commander,

Gregory M. Tozzi. (Doc. 124; 424 at 222-23.) Commander Tozzi did not testify during

the trial. Commander Tozzi’s affidavit was titled “Certification for the Maritime

Drug Law Enforcement Act Case Involving Motor Vessel BOROCHO (Without

Nationality) Federal Drug Identification Number (FDIN) 2014008289.” (Doc. 124-1

at 2.) The affidavit went on to state that Gregory Tozzi has been designated by the

Department of State to make certifications for MDLEA purposes. (Doc. 124-1 at 2.)

The affidavit then recounted the interdiction of the BOROCHO on September 7, 2014

and alleged that, on September 8th, the “Government of the United States” made a

request of Sao Tome and Principe that it confirm or deny the BOROCHO’s registry

and then, if confirming, authorize the boarding and search of the vessel. (Doc. 124-1

at 2.) The affidavit gave no indication as to who, or even what division of the

Government, made the contact with Sao Tome. (Doc. 124-1.) The affidavit then stated

that, on September 9, 2014, Sao Tome purportedly refuted the vessel’s claim of

registry. (Doc. 124-1 at 2.) Again, the document did not provide a name of the Sao

Tome official who allegedly refuted the BOROCHO’s registry, nor did it include any

documentation or other information to corroborate the alleged denial of registry by

Sao Tome. (Doc. 124-1.)

When the Government presented the affidavit, the defense objected to the

admission of the document in question on Confrontation Clause grounds. (Doc. 424

at 224.) The district court overruled the objection and found that the vessel is subject

to the jurisdiction of the United States. (Doc. 424 at 223-24.)

The jury found five of the defendants guilty as charged on both counts. (Doc.

259, 260, 262-64.) The jury found Petitioners Carrasquilla-Lombada and Tejada-

Piedrahita not guilty as to the substantive possession charge, but guilty as to the

conspiracy charge. (Doc. 256, 261.) It further found three of the remaining defendants

not guilty as to both counts. (Doc. 254, 257, 265.)

On July 7, 2015, the case proceeded to sentencing. (Doc. 427.) The district

court sentenced all of the defendants to 235 months of imprisonment to be followed

by five years of supervised release, despite the fact that each of the defendants had

had varying degrees of culpability and had presented various different grounds for

sentencing departures and variances.

The Direct Appel to the Eleventh Circuit

The defendants then appealed the convictions and sentences to the United

States Court of Appeals for the Eleventh Circuit. The defendants raised various

grounds, including the question of whether the method utilized by the Government

for establishing jurisdiction under the MDLEA violated the Confrontation Clause.

On April 14, 2017, the Eleventh Circuit issued a panel opinion affirming the

defendants’ convictions, but vacating all of the defendants’ sentences and remanding

the case to the district court for resentencing.

Concerning the Confrontation Clause issue, the Eleventh Circuit denied relief,

relying largely on its prior precedent, and reasoning:

This Court has squarely held that the Confrontation Clause does not bar

the admission of a certification from the Secretary of State to establish

jurisdiction under the MDLEA because the “stateless nature” of the

vessel is not an element of the offense that must be proved at trial.

United States v. Campbell, 743 F.3d 802, 807 (11th Cir. 2014). This

Court pointed out that this pretrial determination of jurisdiction did not

implicate any guilt or innocence issue but instead bears only on “the

diplomatic relations between the United States and foreign

governments.” /d. at 807-08. Thus, this Court held that the admission of

the certification did not violate the defendant’s Confrontation Clause

rights. Jd. at 807.

Although the defendants recognize Campbell, they argue, without

support, that the MDLEA jurisdictional requirement is the “functional

equivalent” of an element of the offense. They argue that, while this

element does not go to the jury, “jurisdiction remains a material element

to be proven by the Government as a prerequisite to a conviction under

the MDLEA.” Campbell binds us in this case, so the defendants’

argument necessarily fails. See United States v. Cruickshank, 837 F.3d

1182, 1188, 1192 (11th Cir. 2016), cert. denied, __ S. Ct. __, 2017 WL

1199489 (2017) (citing Campbell and rejecting as “foreclosed by our prior

precedent” the defendant’s argument that a Department of State

certification for MDLEA purposes violates the Confrontation Clause);

see also United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)

(“[A] prior panel’s holding is binding on all subsequent panels unless and

until it is overruled or undermined to the point of abrogation by the

Supreme Court or by this court sitting en banc.”). Moreover, the timing

of the district court’s jurisdictional determination (during trial rather

than before trial) has no bearing on whether jurisdiction is an “element.”

The MDLEA clearly states that “[j]urisdiction of the United States with

respect to a vessel subject to this chapter is not an element of an offense.”

46 U.S.C. § 70504(a); see also United States v. Tinoco, 304 F.3d 1088,

1108 (11th Cir. 2002) (“[TIhe MDLEA jurisdictional requirement does

not raise factual questions that traditionally would have been treated as

elements of an offense under the common law.”). And to the extent the

defendants argue that the certification was vague, insufficient to prove

jurisdiction, or inconsistent with the trial testimony, the certification is,

by law, conclusive proof of the foreign nation’s response under the

MDLEA. 46 U.S.C. § 70502(d)(2).

App. A at 14-15.

Appellant Roger Tejada-Piedrahita filed a timely motion for rehearing on an

unrelated issue on May 4, 2017. The Eleventh Circuit issued an order denying the

motion for rehearing on May 9, 2018.

This petition follows.

REASONS FOR GRANTING THE PETITION

I.

THE QUESTION OF WHETHER THE ADMISSION OF A

DOCUMENT PREPARED IN ANTICIPATION OF LITIGATION

VIOLATED THE SIXTH AMENDMENT WHEN THE PURPOSE OF

THE DOCUMENT WAS TO DETERMINE STATUTORY

JURISDICTION UNDER THE MDLEA AND THE GOVERNMENT

FAILED TO PRESENT TESTIMONY FROM THE DECLARANTS OF

THE ASSERTIONS CONTAINED WITHIN THE DOCUMENT.

The Petitioners respectfully submit that the Maritime Drug Law Enforcement

Act (““MDLEA”), 46 U.S.C. 70501 et. seq., is facially unconstitutional and in violation

of the Sixth Amendment rights to confrontation and to a fair trial by jury. As

explained in more detail below, the MDLEA’s constitutional shortcomings are at least

two-fold. First, the MDLEA violates the Sixth Amendment because it requires that

statutory jurisdiction, an implicit element of MDLEA offenses, be decided by the trial

court rather than by the jury. Second, the MDLEA permits the Government to obtain

that pretrial determination of jurisdiction through the submission of documents that

were prepared in anticipation of litigation, and which typically contain declarations

from representatives of foreign nations, without calling as witnesses the declarants

of the statements contained with the documents.

A. Jurisdiction Under the MDLEA

Because the instant charges arose on international waters aboard a non-U.S.

10

flagged vessel, the Government bore the burden of proving that the BOROCHO was

a vessel subject to the jurisdiction of the United States under the MDLEA. See

United States v. De La Garza, 516 F.3d 1266, 1271 (11th Cir. 2008); United States

v. Tinoco, 304 F.3d 1088, 1114 (11th Cir. 2002). The MDLEA provides that a “vessel

subject to the jurisdiction of the United States” includes--

(A) a vessel without nationality;

(B) a vessel assimilated to a vessel without nationality under paragraph

(2) of article 6 of the 1958 Convention on the High Seas;

(C) a vessel registered in a foreign nation if that nation has consented

or waived objection to the enforcement of United States law by the

United States;

(D) a vessel in the customs waters of the United States;

(E) a vessel in the territorial waters of a foreign nation if the nation

consents to the enforcement of United States law by the United States;

and

(F) a vessel in the contiguous zone of the United States, as defined in

Presidential Proclamation 7219 of September 2, 1999 (43 U.S.C. 1331

note), that--

(i) is entering the United States;

(ii) has departed the United States; or

(iii) is a hovering vessel as defined in section 401 of the Tariff Act of 1930

(19 U.S.C. 1401).

46 U.S.C § 70502(c)(1). The MDLEA similarly holds that a “vessel without

nationality” includes--

(A) a vessel aboard which the master or individual in charge makes a

claim of registry that is denied by the nation whose registry is claimed;

(B) a vessel aboard which the master or individual in charge fails, on

request of an officer of the United States authorized 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 individual in charge makes a

claim of registry and for which the claimed nation of registry does not

affirmatively and unequivocally assert that the vessel is of its

nationality.

11

46 U.S.C § 70502(d)(1). In due course, “[t]he 1958 Convention on the High Seas, to

which [the MDLEA] refers, provides that ‘[a] ship which sails under the flags of two

or more States, using them according to convenience, may not claim any of the

nationalities in question with respect to any other State, and may be assimilated to

a vessel without nationality.” United States v. Passos-Paternina, 918 F.2d 979, 982

(1st Cir. 1990) quoting Convention on the High Seas, art. 6(2), opened for signature

April 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200.

The substantive MDLEA offense at issue in this case, 46 U.S.C. § 70503 holds,

in relevant part:

(a) Prohibitions.--An individual may not knowingly or intentionally

manufacture or distribute, or possess with intent to manufacture or

distribute, a controlled substance on board--

(1) a vessel of the United States or a vessel subject to the jurisdiction of

the United States; or

(2) any vessel if the individual is a citizen of the United States or a

resident alien of the United States.

46 U.S.C. § 705038.

As set forth above, § 70502 fastidiously sets forth the methods for acquiring

jurisdiction under the MDLEA. Section 70503, the substantive criminal offense,

likewise, proscribes conduct on board “a vessel of the United States or a vessel subject

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

follow-up subsection of the MDLEA, states in relevant part, “[jlurisdiction 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.” 46 U.S.C. § 70504(a). Prior to 1996,

jurisdiction was an element under that was required to be proven to the jury beyond

a reasonable doubt in MDLEA cases. See Tinoco, 304 F.3d at 1102-04 citing United

States v. Medina, 90 F.3d 463-64 (11th Cir. 1996).

B. The MDLEA Violates the Sixth Amendment Right to a Jury Trial Because it

Exempts the Government from its Requirement to Prove at Jurisdiction to a

Jury Beyond a Reasonable Doubt

The MDLEA violates the Sixth Amendment right to a jury trial because it

requires that a material element of the offense be determined by the court prior to

trial, rather than being determined by the jury during trial. More specifically, the

MDLEA criminalizes conduct on vessels “subject to the jurisdiction of the United

States,” but then mandates that courts make a judicial determination of the

jurisdictional element of the offense, rather than allowing a jury to make that factual

finding beyond a reasonable doubt. See 46 U.S.C. § 70504, supra. Relying on the

language of 46 U.S.C. § 70504, the Eleventh Circuit has, however, found that “the ...

jurisdictional requirement is not an essential ingredient or an essential element of

the MDLEA substantive offense, and, as a result, it does not have to be submitted to

the jury for proof beyond a reasonable doubt.” Tinoco, 304 F.3d at 1109-1110.

Aside from unconstitutionally lessening the Government’s burden of proving

jurisdiction beyond a reasonable doubt to the jury, the MDLEA permits the Executive

Branch to perform an essentially judicial function. Concerning the question of

jurisdiction, the MDLEA states that a foreign nation’s consent or waiver to

jurisdiction under the MDLEA “is proved conclusively by certification of the Secretary

of State or the Secretary's designee.” 46 U.S.C. § 70502(c)(2)(B). The MDLEA

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provides for the identical certification procedure as evidence of a foreign nation’s

response to a claim of registry. 46 U.S.C. § 70502(d)(2). As set forth above, the

question of jurisdiction is material to a prosecution under the MDLEA. Under the

MDLEA’s certification procedure, however, the Executive Branch may extrajudicially establish that it has purportedly obtained consent to jurisdiction from a

foreign nation. That procedure flies in the face of the Sixth Amendment.

The question of jurisdiction must be decided by a jury to satisfy the rights to

due process and to a fair trial by jury. See United States v. Gaudin, 515 U.S. 506

(1995) (holding that the Fifth and Sixth Amendments require that every element of

criminal conviction be based upon a jury determination and, therefore, finding that

proof of the materiality element of 18 U.S.C. 1001, though a mixed question of law

and fact, must be an issue for the jury). Prior to 1996, the jurisdictional element of

MDLEA offenses was essentially a question for the jury, as is the case with the

material elements of nearly every other criminal offense in the United States. Jd. at

1102 citing Pub.L. 104-324, § 1138(a)(5), 110 Stat. 3901 (1996). In 1996, however,

Congress revised the MDLEA and took the jurisdictional element out of the hands of

the jury by promulgating the statute now codified at 46 U.S.C. § 70504. Jd. The

question of jurisdiction in a case involving a foreign vessel in international waters is,

however, like the “interstate commerce” element in domestic offenses, an essential

element of the charged offense because it bears on Congress’ power to criminalize and

regulate extraterritorial conduct. Therefore, though Congress has attempted to

classify the jurisdictional element of the MDLEA as a non-element, the statutory

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language of the substantive MDLEA offense, 46 U.S.C. § 70503, clearly sets forth a

jurisdictional element. See 46 U.S.C. § 70503 (proscribing offenses committed on “a

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

Id. at (a)(1) (emphasis added)). Congress’ removal of the jurisdictional element from

the jury, therefore, violates the Sixth Amendment to the Constitution and renders

the MDLEA unconstitutional.

Based on the facts of the instant case, in which the jurisdiction of the United

States is clearly in great dispute, this case is a prime example of the constitutional

need for a jury determination of the jurisdiction element in any such criminal

prosecution. The Government exercised jurisdiction over the Petitioners and their

ship despite the fact that the offenses charged against them under the MDLEA bore

no ties or nexus to the United States. Petitioners assert that Due Process requires

that a nexus to the United States, akin to minimum contacts under a personal

jurisdiction analysis, are required in order for an exercise of United States

jurisdiction over a foreign-registered vessel. Indeed, in the instant case, the

Petitioners and the ship on which they were arrested bore absolutely no ties to United

States. In this case, none of the crewmembers had any ties whatsoever to the United

States. Their ship, likewise, had not departed from, headed towards, nor even passed

through United States waters. Under the circumstances, and given the text of the

MDLEA statutes, proof that the Government had jurisdiction to prosecute the instant

case was a material element of the offense that must have been proven to the jury.

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C. The MDLEA Likewise Violates the Sixth Amendment Because the Procedure

by Which it Allows the Government to Prove Jurisdiction Violates

Defendants’ Rights to Confrontation

The process by which the Government is permitted to establish jurisdiction

under the MDLEA through a pretrial judicial determination violates the

Confrontation Clause of the Sixth Amendment. The process for determining

jurisdiction under the MDLEA deprives defendants from their ability to explore or

challenge the Government’s alleged bases for obtaining jurisdiction over foreign

vessels that are interdicted in international waters and which otherwise bear no

connection to the United States. In the instant case, for instance, the district court

admitted into evidence and relied on an unauthenticated hearsay document, which

contained suspect hearsay from an identified declarant in a foreign governmental

agency. Because the Government opted not to call as witnesses the author of that

document, nor any other any other declarant who might be cross-examined in regards

to that document, the Defendants were left to blindly and helplessly accept the

Government’s claim of jurisdiction. The instant case, thereby, poses the questions of

1) whether the Confrontation Clause applies when a trial court makes a

determination of jurisdiction under the MDLEA, which is akin to proof of a material,

substantive element of a criminal offense and, if so, 2) whether the Government’s

reliance on the Government’s jurisdictional certificate in attempting to prove the

jurisdictional element of the MDLEA offenses at issue in this case violates the

Confrontation Clause.

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1. The Confrontation Clause’s Application to the Pre-Trial Determination of a

Material Element of a Criminal Offense

This Court has long held that the right to confrontation is a trial right.

Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987). Consequently, the right typically

does not attach in pre-trial settings. As set forth above, however, the MDLEA

requires that the trial court make a pre-trial determination of the statutory element

of jurisdiction. As such, the MDLEA essentially requires that the Government prove

an element of a criminal offense in a pretrial hearing. Elements of an offense are, of

course, generally required to be proven at trial. To illustrate, in the instant case, the

Government neglected to seek a pretrial determination of jurisdiction and, instead,

asked the district court to make its jurisdictional finding just prior to the time it

rested its case-in-chief during trial. It made that request, of course, outside the

presence of the jury.

When, in 1996, Congress made the decision to remove the jurisdictional

element of the MDLEA from the province of the jury, it did not remove the

jurisdictional element from the language of the substantive criminal offense. See 46

U.S.C. § 70503 (proscribing offenses committed on “a vessel of the United States or a

vessel subject to the jurisdiction of the United States.” Jd. at (a)(1)); see also supra

Question I. As a result, jurisdiction remains a material element to be proven by the

Government as a prerequisite to a conviction under the MDLEA. That element must,

however, now be proven to the court (prior to trial per the statute), rather than to the

jury during the trial. Proof of that element is now the Government’s gateway to trial

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in MDLEA cases. Because, however, jurisdiction remains a material prerequisite to

the Government’s proof of the substantive offense, jurisdiction remains the functional

equivalent of a trial proof. Moreover, because the substantive MDLEA offenses still

proscribe acts committed on “a vessel of the United States or a vessel subject to the

jurisdiction of the United States,”! the MDLEA still bears a jurisdictional element,

even in light of 46 U.S.C. § 70504. In the all-too-often quoted words of Shakespeare,

“a rose by any other name would smell as sweet.”2 Therefore, because jurisdiction

remains a critical statutory prerequisite to an MDLEA prosecution, the right to

confrontation must attach during trial courts’ determinations of jurisdiction.

2. The Document at Issue in this Case was Testimonial in Nature

Assuming that the Confrontation Clause applied at the MDLEA jurisdictional

hearing, the document that the Government presented to the district court in support

of its allegation of jurisdiction should have been precluded from evidence because the

document was testimonial in nature. In deciding Crawford v. Washington, this Court

held that testimonial evidence included, among many other classes of evidence,

“statements that were made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a later

trial.” Crawford v. Washington, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2004).

This Court further expanded on the testimonial definition in Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), which

'46 U.S.C. § 70503(a)(1).

2 William Shakespeare, Romeo and Juliet, 1594.

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addressed whether the Confrontation Clause applied to the admission of affidavits

reporting the results of forensic analyses of substances believed to be illegal drugs.

The Court ultimately found that such documents were well within the “core class of

testimonial statements” that implicate Confrontation Clause protections. Jd. at 310-

11. In reaching its holding, this Court relied on the fact that the documents in

question contained “a solemn declaration or affirmation made for the purpose of

establishing or proving some fact.” Jd. citing Crawford, 541 U.S. at 51 (internal

quotations omitted).

The document that the Government relied on in the instant case, which is

representative of the documents that the Government typically uses to establish

jurisdiction in other MDLEA cases, was clearly a “declaration or affirmation made

for the purpose of establishing or proving some fact.” Jd. Moreover, that document

was not merely maintained in the regular course of business, but instead, was a

document that the Government requested solely for the purpose of attempting to

establish that the BOROCHO was a vessel subject to the jurisdiction of the United

States, as required by the MDLEA. The sole purpose for that document was,

consequently, for use to prove some fact in the litigation of the instant case.

Correspondingly, when the Government requested the document in question from the

respective foreign state agency, the agency almost certainly would have expected the

United States Government to be using that document in the instant prosecution. As

a result, the document was clearly testimonial in nature and was, thereby, subject to

exclusion from evidence under the Confrontation Clause. Based on the forgoing, the

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Petitioners request this Honorable Court to grant this Petition for a Writ of Certiorari

to determine whether the admission of the document in question at the pretrial

jurisdictional hearing violated the Confrontation Clause.

D. The Lower Circuit Courts are Split in their Interpretation of the MDLEA

A steady flow of MDLEA cases have passed through the courts of appeal in

recent years and the courts of appeal have become split on the instant issue. The

lower court, the Eleventh Circuit, has declined to find a nexus requirement in other

cases involving foreign registered vessels. See United States v. Cruickshank, 837 F.3d

1182 (11th Cir. 2016); United States v. Mena, 863 F.2d 1522, 1527 (11th Cir. 1989).

In contrast to the Eleventh Circuit, the Second and Ninth Circuits have found a nexus

requirement. See United States v. Yousef, 327 F.3d 56, 111 (2d Cir. 2003); United

States v. Zakharov, 468 F.3d 1171, 1177 (9th Cir. 2006). The Ninth Circuit, for

instance, has held that, in cases involving registered vessels, “due process requires

the Government to demonstrate that there exists ‘a sufficient nexus between the

conduct condemned and the United States’ such that the application of the statute

would not be arbitrary or fundamentally unfair to the defendant.” United States v.

Perlaza, 439 F.3d 1149, 1160 (9th Cir. 2006). The First, Third, and Fifth Circuits, on

the other hand, have joined the Eleventh Circuit in rejecting any such nexus

requirement. See United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999); United

States v. Perez-Oviedo, 281 F.3d 400, 403 (3d Cir. 2002); United States v. Suerte, 291

F.3d 366 (5th Cir. 2002). The First Circuit has similarly agreed with the Eleventh

Circuit that the Confrontation Clause does not apply to pretrial determinations of

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jurisdiction under the MDLEA. United States v. Mitchell-Hunter, 663 F.3d 45, 49

(1st Cir. 2011).

While recognizing that the lower courts are undecided on the instant issue, the

Petitioners respectfully maintain that the Government’s exercise of jurisdiction over

similarly situated individuals, who have no ties whatsoever to the United States, is

contrary to this Court’s recognized “traditional notions of fair play and substantial

justice.” See International Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945)

(holding that, in order to subject a defendant to a civil judgment, due process requires

that the individual “have certain minimum contacts with [the forum state] such that

the maintenance of the suit does not offend ‘traditional notions of fair play and

substantial justice”) (internal citation omitted). The Petitioners had lived their lives

in Colombia and had never deliberately availed themselves to the privileges and

benefits of United States. Likewise, the Petitioners had never carried on any

business or activity in the United States. No evidence has ever been presented to

suggest that the Petitioners’ ship would have proceeded to the United States or even

to North America.

As set forth above, prosecutions of foreign vessels under the MDLEA remain

constant across the lower district courts. In nearly all such cases, jurisdiction will be

a material element of the substantive offense. Furthermore, as it continues to

promulgate legislation in any ever-shrinking world, Congress would indeed be well

guided by an answer to the question of whether the Constitution requires a jury

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