Petition for Writ of Certiorari — Adalberto Frickson Palacios-Solis, Petitioner v. United States
Supreme Court briefMar 31, 2020
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No. 19In the
Supreme Court of the United States
ADALBERTO FRICKSON PALACIOS-SOLIS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the United
States Court of A ppeals for the Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
Martin A. Feigenbaum
P.O. Box 545960
Surfside, FL 33154
Vincent Levy
Counsel of Record
Daniel M. Sullivan
Gregory Dubinsky
Evan H. Stein
Holwell Shuster &
Goldberg LLP
425 Lexington Avenue, 14th Floor
New York, NY 10017
(646) 837-5151
vlevy@hsgllp.com
Counsel for Petitioner
295487
A
(800) 274-3321 • (800) 359-6859
QUESTION PRESENTED
Whether the prosecution violates the Fifth Amendment’s Self-Incrimination Clause when it uses a criminal defendant’s post-arrest, pre-Miranda silence as
evidence of guilt in its case-in-chief.
ii
PARTIES TO THE PROCEEDING
Petitioner Adalberto Frickson Palacios-Solis was
the defendant in district court and appellant below.
Trinity Rolando Cabezas-Montano and Hector Leonardo Guagua-Alarcon were also defendants in district court and appellants below.
Respondent United States of America was the
plaintiff in district court and appellee below.
RELATED PROCEEDINGS
United States District Court (S.D. Fla.):
United States v. Adalberto Frickson PalaciosSolis, No. 4:16-cr-10050-KMM-2 (judgment
Sep. 26, 2017).
United States v. Trinity Cabezas-Montano, No.
4:16-cr-10050-KMM-1 (judgment Sep. 26,
2017).
United States v. Hector Guagua-Alarcon, No.
4:16-cr-10050-KMM-3 (judgment Sep. 26,
2017).
United States Court of Appeals (11th Cir.):
United States v. Adalberto Frickson PalaciosSolis, No. 17-14294 (judgment January 30,
2020).
United States v. Trinity Cabezas-Montano, No.
17-14498 (judgment January 30, 2020).
United States v. Hector Guagua-Alarcon, No.
17-14320 (judgment January 30, 2020).
iii
TABLE OF CONTENTS
QUESTION PRESENTED..........................................ii
PARTIES TO THE PROCEEDING ............................ii
RELATED PROCEEDINGS .......................................ii
TABLE OF APPENDICES......................................... iv
TABLE OF AUTHORITIES ........................................ v
PETITION FOR A WRIT OF CERTIORARI ............. 1
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
CONSTITUTIONAL PROVISION INVOLVED ........ 1
STATEMENT OF THE CASE .................................... 1
I. Factual Background ......................................... 2
II. Procedural Background .................................... 3
REASONS FOR GRANTING THE PETITION ......... 8
I. The Question Presented Has Divided The U.S.
Courts of Appeals and State Courts. ............... 8
II. The Question Presented Is Important. .......... 11
III.There Are No Vehicle Problems. .................... 12
IV. The Decision Below Was Incorrect. ............... 14
CONCLUSION .......................................................... 17
iv
TABLE OF APPENDICES
Appendix A
Opinion of the U.S. Court of Appeals for the Eleventh
Circuit, Dated January 30, 2020 ........ ………………1a
Appendix B
Excerpts of Transcripts of the United States District
Court for the Southern District of Florida, Dated
September 25, 2017 ..…………………………………97a
Appendix C
Excerpts of Transcripts of the United States District
Court for the Southern District of Florida, Dated
July 17, 2017 ……….……………………..…………103a
Appendix D
Order of the United States District Court for the
Southern District of Florida, Dated July 14,
2017 …………………………………………………..107a
v
TABLE OF AUTHORITIES
Cases
Akard v. State,
924 N.E.2d 202 (Ind. Ct. App. 2010) ..................... 10
Akard v. State,
937 N.E.2d 811 (Ind. 2010) .................................... 10
Barham v. United States,
724 F.2d 1529 (11th Cir. 1984) .............................. 14
Blackburn v. Foltz,
828 F.2d 1177 (6th Cir. 1987) ................................ 14
Boyd v. United States,
116 U.S. 616 (1886) ................................................ 12
Brecht v. Abrahamson,
507 U.S. 619 (1993) .................................................. 6
Combs v. Coyle,
205 F.3d 269 (6th Cir. 2000) .................................... 9
Fletcher v. Weir,
455 U.S. 603 (1982) .............................................. 7, 9
Griffin v. California,
380 U.S. 609 (1965) .................................................. 8
Hartigan v. Commonwealth,
522 S.E.2d 406 (Va. 1999) ................................ 10, 15
vi
Howes v. Fields,
565 U.S. 499 (2012) ................................................ 14
Kastigar v. United States,
406 U.S. 441 (1972) ................................................ 12
Malloy v. Hogan,
378 U.S. 1 (1964) .............................................. 12, 16
Miranda v. Arizona,
384 U.S. 467 (1966) .............................................. 7, 8
Mitchell v. United States,
526 U.S. 314 (1999) ................................................ 14
N. River Ins. Co. v. Stefanou,
831 F.2d 484 (4th Cir. 1987) .................................. 12
Oregon v. Elstad,
470 U.S. 298 (1985) .................................................. 5
Oregon v. Mathiason,
429 U.S. 492 (1977) ................................................ 13
People v. Tom,
331 P.3d 303 (Cal. 2014) ........................................ 10
Salinas v. Texas,
570 U.S. 178 (2013) ...................................... 6, 10, 11
Skunkcap v. Idaho,
2016 WL 5746355 (D. Idaho Sept. 30, 2016)......... 11
vii
State v. Fisher,
373 P.3d 781 (Kan. 2016) ......................................... 9
State v. Graves,
27 S.W.3d 806 (Mo. Ct. App. 2000)........................ 10
State v. Mitchell,
876 N.W.2d 1 (Neb. Ct. App. 2016) ......................... 9
United States v. Cabezas-Montano,
949 F.3d 567 (11th Cir. 2020) .................................. 1
United States v. Cornwell,
418 F. App’x 224 (4th Cir. 2011).............................. 9
United States v. Frazier,
408 F.3d 1102 (8th Cir. 2005) .................................. 9
United States v. Jaramillo Baque,
754 F. App’x 911 (11th Cir. 2018)............................ 2
United States v. Jones,
2014 WL 950025 (E.D.N.Y. Mar. 11, 2014) ........... 11
United States v. Long,
721 F.3d 920 (8th Cir. 2013) .................................. 10
United States v. Moore,
104 F.3d 377 (D.C. Cir. 1997) ...................... 9, 15, 16
United States v. Nunez-Rios,
622 F.2d 1093 (2d Cir. 1980) ................................. 16
viii
United States v. Oplinger,
150 F.3d 1061 (9th Cir. 1998) ................................ 15
United States v. Rivera,
944 F.2d 1563 (11th Cir. 1991) ............................ 6, 9
United States v. Whitehead,
200 F.3d 634 (9th Cir. 2000) .............................. 9, 15
United States v. Wilchcombe,
838 F.3d 1179 (11th Cir. 2016) .................. 10, 11, 13
Vick v. Lockhart,
952 F.2d 999 (8th Cir. 1991) .................................... 9
Watts v. Indiana,
338 U.S. 49 (1949) .................................................. 12
Wilchcombe v. United States,
137 S. Ct. 2265 (2017) ............................................ 14
Statutes
28 U.S.C. § 1254(1) ...................................................... 1
Maritime Drug Law Enforcement Act (“MDLEA”),
46 U.S.C. §§ 70501–70508 ................................... 2, 3
PETITION FOR A WRIT OF CERTIORARI
Petitioner respectfully petitions for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Eleventh Circuit in this case.
OPINIONS BELOW
The decision of the Court of Appeals is reported at
949 F.3d 567. App. 1a–96a. The judgment of the District Court is unreported. App. 107a–108a.
JURISDICTION
The Eleventh Circuit issued its opinion on January
30, 2020. App. 1a. This petition is timely, and the
Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fifth Amendment to the United States Constitution states, in relevant part, that “[n]o person . . .
shall be compelled in any criminal case to be a witness
against himself.”
STATEMENT OF THE CASE
This case squarely presents an important and recurring question of basic criminal procedure that has
intractably divided the circuits and state courts: May
the prosecution use as evidence of guilt in its case-inchief the silence of a criminal defendant after he is in
custody, but before he is given Miranda warnings?
The Eleventh Circuit acknowledged the deep split
on this issue but expressly held—in line with its circuit precedent—that the Constitution permits the
prosecution’s use of that silence. App. 43a. The case
thus directly raises, without any vehicle problems, an
acknowledged and entrenched split that will not resolve itself without this Court’s intervention.
2
I. Factual Background
Petitioner Adalberto Frickson Palacios-Solis, along
with co-defendants Trinity Rolanda Cabezas-Montano
and Hector Leonardo Guagua-Alarcon, were tried
twice. The prosecution’s first effort ended in mistrial
because the jury could not agree on a unanimous verdict. After a second trial, Palacios-Solis and his co-defendants were convicted for cocaine-related violations
of the Maritime Drug Law Enforcement Act
(“MDLEA”), 46 U.S.C. §§ 70501–70508.
On October 24, 2016, a U.S. Coast Guard cutter1
spotted a vessel traveling in the Pacific Ocean 200
miles off the coast of Central America. The Coast
Guard suspected drug-related activity and initiated a
helicopter pursuit. Witnesses for the prosecution testified that during the pursuit—which involved the helicopter “flash[ing] its blue law enforcement lights” and
firing warning shots—they saw individuals jettisoning packages overboard. App. 6a. The helicopter eventually ran low on fuel and returned to the cutter.
The Coast Guard then dispatched an “over-thehorizon” boat to track the vessel. While en route, this
boat stopped its pursuit to inspect a bale of cocaine
floating in the water. The Coast Guard then launched
a long-range interceptor to track the vessel.
The interceptor eventually stopped a vessel—which
the authorities believed to be the same vessel that the
helicopter had pursued—by using its “blue law enforcement light,” identifying itself as a Coast Guard
ship, and ordering the passengers to put their hands
up and move to the front of the boat. App. 6a. The officers boarded and found three individuals, including
1 “A cutter is a light and fast coastal patrol boat.” United States
v. Jaramillo Baque, 754 F. App’x 911, 913 n.1 (11th Cir. 2018).
3
Palacios-Solis and his co-defendants. Coast Guard officers asked right-of-visit questions to determine the
nationality and master of the vessel.
The officers did not, at any point relevant here, read
the individuals their Miranda rights. In response to
the questions, Palacios-Solis and his co-defendants remained silent. Eventually, Palacios-Solis told the officers that the vessel’s last port of call was Manta, Ecuador, and that the three of them had gone fishing but
had become lost at sea for 32 days.
The Coast Guard contacted Ecuador to obtain a
statement of no objection to American personnel conducting a full law-enforcement investigation. Ecuador
did not object, and the Coast Guard began the full investigation. After finding evidence purportedly connecting the vessel to drug smuggling, Palacios-Solis
and his co-defendants were taken to the Coast Guard
cutter. Later, multiple bales of cocaine were found in
the water in the general area of the vessel.
II. Procedural Background
Palacios-Solis and his co-defendants were charged
with conspiracy to possess with intent to distribute,
and possession with intent to distribute, over five kilograms of cocaine while on board a vessel subject to
the jurisdiction of the United States, in violation of the
MDLEA. See 46 U.S.C. §§ 70503(a)(1), 70506(b).
Palacios-Solis’s first trial, in which he was tried
jointly with his two co-defendants, began in February
2017. In its case-in-chief, the prosecution introduced,
as evidence of guilt, Palacios-Solis’s and his co-defendants’ pre-Miranda silence in the face of the Coast
Guard’s questioning after the officers first boarded the
vessel. See No. 16-cr-10050, Dkt. 61 at 8 (S.D. Fla.
Feb. 6, 2017) & Dkt. 62 at 10 (S.D. Fla. Feb 8, 2017).
4
As noted, the jury could not agree to a unanimous verdict, resulting in a mistrial.
Palacios-Solis’s second trial, also a joint trial, began
in July 2017. Before trial, Palacios-Solis moved in
limine to prevent the Government from using as evidence of Palacios-Solis’s guilt his post-arrest, pre-Miranda silence. The motion acknowledged that Eleventh Circuit precedent foreclosed the requested relief
but sought to preserve the issue for appellate review.
At a pretrial hearing, the Government confirmed that
it “intend[ed] to elicit” evidence concerning the three
individuals’ silence in response to the Coast Guard’s
initial questioning. App. 104a–106a. The District
Court denied Palacios-Solis’s motion in limine. App.
107a–108a.
At Palacios-Solis’s second trial, the Government—
in accordance with its stated intent—again used Palacios-Solis’s silence as evidence of guilt in its case-inchief. A Coast Guard officer testified that the defendants (including Palacios-Solis) remained silent in response to questioning after the vessel was boarded
and were not “jumping for joy” to see the Coast Guard.
No. 16-cr-10050, Dkt. 172 at 93 (S.D. Fla. July 18,
2017). At closing, the prosecutor again adduced that
evidence, telling the jury it was “very important”:
One very important thing. . . . [W]hen
they’re found, they’re not happy, and
what do they do?
Where’s the vessel from? Nobody says
a word. What’s the problem? Say, “Ecuador.” Nobody says a word. It’s not good
for me to say “Ecuador,” because if they
find those bales, game over. What happens? Who’s the master? (Gesturing.)
5
Why? Why, if you have nothing to
hide?
No. 16-cr-10050, Dkt. 172 at 71–72 (S.D. Fla. July 20,
2017). The second trial ended in convictions on all
counts.
Palacios-Solis filed a post-trial motion for acquittal
under Rule 29 of the Federal Rules of Criminal Procedure, arguing, among other things, that the Government’s use of Palacios-Solis’s post-arrest, pre-Miranda silence violated his rights under the Fifth
Amendment. No. 16-cr-10050, Dkt. 122 at ¶¶ 34–35
(S.D. Fla. July 31, 2017). The District Court denied
the motion in all respects.
The Eleventh Circuit affirmed Palacios-Solis’s conviction. Addressing Palacios-Solis’s Fifth Amendment
challenge, the Court of Appeals cited binding circuit
precedent and rejected it on the merits. In doing so,
the Court of Appeals acknowledged that the Government had used Palacios-Solis’s post-arrest, pre-Miranda silence as evidence of guilt in the case-in-chief,
and also acknowledged the existence of a circuit split
on the question whether this complied with the Fifth
Amendment, but considered itself bound:
Palacios-Solis argues that the district
court erred in denying his motion in
limine to preclude the government from
presenting evidence of the defendants’
post-arrest, pre-Miranda silence as “consciousness of guilt.”
As Palacios-Solis concedes, this
Court’s binding precedent forecloses his
argument. Once a defendant is in custody and receives Miranda warnings, he
indisputably has a Fifth Amendment
6
right to remain silent. See Oregon v. Elstad, 470 U.S. 298, 304-05, 311 (1985).
Yet, the Supreme Court has expressly
held that the Fifth Amendment allows
the use of a defendant’s post-arrest, preMiranda silence to impeach the defendant. Brecht v. Abrahamson, 507 U.S. 619,
628 (1993). This Court, in United States
v. Rivera, went one step further. 944
F.2d 1563, 1568 (11th Cir. 1991). In Rivera, this Court held that, in its case-inchief, the government may use a defendant’s post-arrest, pre-Miranda silence as
direct evidence tending to prove the defendant’s guilt.
Palacios-Solis points out a circuit split
on this issue. This Court has already
noted this circuit split . . . and again upheld our precedent. Given our precedent,
the district court did not abuse its discretion in denying Palacios-Solis’s motion in
limine on this basis.
App. 42a–43a (citation and footnote omitted).
In a concurring opinion, Judge Rosenbaum wrote
that, although the panel was “bound by Rivera,” she
“disagree[d] with [Rivera’s] holding.” In her view, Miranda’s “purpose was to avoid precisely this result.”
She explained, in part:
If an in-custody person’s silence before
the administration of Miranda rights
may be used against that person, then, in
violation of Miranda, that person is not
“assured a continuous opportunity to exercise” his right of silence while subject
to the “inherently compelling pressures”
7
of unwarned custodial interrogation. See
Salinas v. Texas, 570 U.S. 178, 184
(2013) (plurality opinion) (quoting Miranda, 384 U.S. at 467-68 & n.37). As a
result, allowing a detainee’s silence
while in custody, but before administration of this procedure, to be used against
that person in the government’s case in
chief eviscerates the purpose of Miranda.
Admissibility of in-custody, pre-Miranda
silence in response to an officer’s questions or comments also rewards the delayed administration of Miranda rights,
so it can encourage law enforcement to
engage in such a practice.
App. 91a–92a.
In addition to contravening Miranda, Judge Rosenbaum noted, the Eleventh Circuit’s decision in Rivera
permitting the use of custodial, pre-Miranda silence
at trial relied “sole[ly]” on the Supreme Court’s opinion in Fletcher v. Weir, 455 U.S. 603 (1982), but that
decision “held only that using in-custody, pre-Miranda silence to impeach a defendant who has taken
the stand does not violate due process.” App. 92a. The
Court in Fletcher “never endorsed or even suggested”
that such silence can be used “in the government’s
case in chief.” Ibid.
Last, Judge Rosenbaum explained that this Court’s
decision in Salinas “undermines [the Eleventh Circuit’s] holding in Rivera.” App. 93a. She observed that
“the Supreme Court held that in non-custodial settings (before Miranda warnings are issued), a person . . . must expressly invoke [his] right” of silence,
but, “significantly, the Court noted that ‘a witness’
failure to invoke the privilege must be excused where
8
governmental coercion makes his forfeiture of the
privilege involuntary.’” Ibid. Thus, Judge Rosenbaum
reasoned, “as recently as 2013, the Court reaffirmed
Miranda’s principle that an in-custody person’s silence, pre-Miranda rights, may not be used against
him, even if he does not expressly invoke his right to
remain silent.” Ibid. She also noted her view that the
other evidence of guilt adduced at trial was sufficient
to uphold the conviction regardless—although neither
the District Court nor the Court of Appeals addressed
that question, and the first trial ended in mistrial.
REASONS FOR GRANTING THE PETITION
I. The Question Presented Has Divided The
U.S. Courts of Appeals and State Courts.
Where a defendant chooses not to testify at trial,
this Court long ago held, the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such
silence is evidence of guilt.” Griffin v. California, 380
U.S. 609, 615 (1965). By the same token, this Court
further explained in Miranda v. Arizona, “the prosecution may not . . . use at trial the fact that [a defendant] stood mute or claimed his privilege in the face of
accusation” while “under police custodial interrogation.” 384 U.S. 436, 468 n.37 (1966).
This Court has not resolved, however, whether the
Fifth Amendment prohibits the prosecution from using in its case-in-chief, as evidence of guilt, a defendant’s silence after he is arrested but before he receives
Miranda warnings. And there is a deep and entrenched split among the Courts of Appeals and state
courts on this question.
A. Three circuits—the Fourth, Eighth, and Eleventh Circuits—and at least two state courts have held
9
that post-arrest, pre-Miranda silence may be used as
substantive evidence of guilt in the prosecution’s casein-chief. See, e.g., App. 1a; United States v. Cornwell,
418 F. App’x 224, 227 (4th Cir. 2011) (per curiam);
United States v. Frazier, 408 F.3d 1102, 1110–11 (8th
Cir. 2005); State v. Fisher, 373 P.3d 781, 790 (Kan.
2016); State v. Mitchell, 876 N.W.2d 1, 11–12 (Neb. Ct.
App. 2016). These courts have relied on the notion
that, rather than arrest, “the receipt of Miranda
warnings is determinative of the constitutional issue.”
Frazier, 408 F.3d at 1111 (quoting Vick v. Lockhart,
952 F.2d 999, 1003 (8th Cir. 1991)). As discussed, the
Eleventh Circuit’s first holding to this effect, in 1991,
relied on Fletcher v. Weir, 455 U.S. 603, 607 (1982)
(per curiam)—a case permitting the use of this silence
for impeachment—as its “sole authority” in concluding
that this silence may be introduced in the prosecution’s case-in-chief as evidence of guilt. App. 92a (Rosenbaum, J., concurring) (discussing United States v.
Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991)).
B. On the other side of the split, the Sixth, Ninth,
and D.C. Circuits and several state courts have held
that use of post-arrest, pre-Miranda silence as substantive evidence of guilt violates the Fifth Amendment (and Fourteenth Amendment, in the case of
state proceedings). These courts generally proceed on
the logic, in line with the Constitution’s text, that
“comment on the defendant’s exercise of his right to
remain silent [is] unconstitutional,” which is true “regardless whether the Miranda warnings were actually given.” United States v. Whitehead, 200 F.3d 634,
638 (9th Cir. 2000); see also Combs v. Coyle, 205 F.3d
269, 283 (6th Cir. 2000); United States v. Moore, 104
F.3d 377, 385 (D.C. Cir. 1997) (“[N]either Miranda nor
any other case suggests that a defendant’s protected
10
right to remain silent attaches only upon the commencement of questioning as opposed to custody. . . .
[T]he defendant who stands silent must be treated as
having asserted it. Prosecutorial comment upon that
assertion would unduly burden the Fifth Amendment
privilege.”); Akard v. State, 924 N.E.2d 202, 209 (Ind.
Ct. App.), aff’d in part and rev’d in part on other
grounds, 937 N.E.2d 811 (Ind. 2010); State v. Graves,
27 S.W.3d 806, 812 (Mo. Ct. App. 2000); Hartigan v.
Commonwealth, 522 S.E.2d 406, 409–10 (Va. 1999).
C. In response to a previous petition raising the
question presented here—filed a few years after this
Court’s decision in Salinas v. Texas, 570 U.S. 178
(2013)—the Government acknowledged the split. It
argued, however, that Salinas, which addressed only
whether a defendant’s pre-arrest silence sufficed to invoke the privilege against self-incrimination, might
“prompt courts to revisit this issue and resolve any
conflict without the need for this Court’s intervention.” Wilchcombe v. United States, No. 16-1063, Brief
for the United States in Opposition, at 8 (May 12,
2017).
That has not come to pass. Not one of the circuits
has changed course on this important issue, and several courts on the Eleventh Circuit’s side of the split
have reaffirmed their positions, including in the decision below. See, e.g., United States v. Wilchcombe, 838
F.3d 1179, 1191 (11th Cir. 2016) (distinguishing Salinas from the question presented); United States v.
Long, 721 F.3d 920, 925 & n.2 (8th Cir. 2013) (reaffirming Eighth Circuit precedent and distinguishing
Salinas); People v. Tom, 331 P.3d 303, 311 (Cal. 2014)
11
(“Whether post[-]arrest, pre-Miranda silence [is admissible as evidence of guilt] has not yet been resolved
by this court or the United States Supreme Court.”). 2
It is not surprising that the Courts of Appeals have
not budged from their pre-Salinas positions; Salinas
addressed an entirely separate question. 3 At this
point, only this Court’s intervention—and not the passage of time—can resolve the split.
II. The Question Presented Is Important.
The use of post-arrest, pre-Miranda silence as substantive evidence of guilt violates a defendant’s privilege against self-incrimination. Moreover, as Judge
Rosenbaum’s concurring opinion recognized, the prosecution’s use of a defendant’s post-arrest, pre-Miranda silence “eviscerates the purpose of Miranda.”
App. 92a (Rosenbaum, J., concurring). See also Point
IV, below.
2 See also Skunkcap v. Idaho, 2016 WL 5746355, at *10 (D. Idaho
Sept. 30, 2016); United States v. Jones, 2014 WL 950025, at *5
(E.D.N.Y. Mar. 11, 2014). Circuits on the other side of the split
are unlikely to consider (let alone revisit) their position as well;
given circuit precedent barring the introduction of post-arrest,
pre-Miranda silence in those circuits, prosecutors are unlikely to
try to use that evidence, meaning the split is entrenched.
3 570 U.S. at 183 (plurality op.) (“We granted certiorari to resolve
a division of authority in the lower courts over whether the prosecution may use a defendant’s assertion of the privilege against
self-incrimination during a noncustodial police interview as part
of its case in chief. But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that
question.”) (citations omitted); id. at 192 (Thomas, J., concurring,
joined by Scalia, J.); see also Wilchcombe, 838 F.3d at 1191 (“The
fact that the Salinas defendant was not in custody at the time of
his silence was central to the Court’s determination that his silence could be used as substantive evidence of guilt.”).
12
The right against self-incrimination, enshrined in
the Constitution’s text, is the “most important” exception to the general “testimonial duty,” Kastigar v.
United States, 406 U.S. 441, 444 (1972), and “is one of
the ‘principles of a free government,’” Malloy v. Hogan, 378 U.S. 1, 9 (1964) (quoting Boyd v. United
States, 116 U.S. 616, 632 (1886)); see N. River Ins. Co.
v. Stefanou, 831 F.2d 484, 486 (4th Cir. 1987) (“The
privilege against self-incrimination, one of our most
cherished fundamental rights, is jealously guarded by
the courts.”); see also Watts v. Indiana, 338 U.S. 49,
59 (1949) (Jackson, J., concurring in part and dissenting in part) (“[A]ny lawyer worth his salt will tell the
suspect in no uncertain terms to make no statement
to police under any circumstances.”). And, as the
plethora of precedent addressing the issue shows—see
Point I, above—it arises with frequency.
III.
There Are No Vehicle Problems.
The question presented was raised and preserved
below, and it is squarely implicated here.
Before his second trial, Palacios-Solis unsuccessfully moved in limine to preclude the Government
from using his post-arrest, pre-Miranda silence as evidence of guilt. 4 At trial, the Government did just that,
and then told the jury in closing that the defendants’
4 In adjudicating the motion in limine, the District Court at first
noted, loosely, that the issue was “moot” because the Government’s responsive filing disclaimed any intent to rely on silence
in its case-in-chief. App. 108a. But, as discussed, the Government
stated at a later pre-trial hearing that it did “intend to elicit” that
evidence, App. 104a–106a, and in fact the Government did just
that at trial. The issue was then again raised post-trial (in a motion for acquittal, which the District Court denied), and the Eleventh Circuit decided the Fifth Amendment issue on the merits.
13
post-arrest, pre-Miranda silence was “very important”
evidence of their guilt. See Point II, above.
On appeal to the Eleventh Circuit, Palacios-Solis
again raised the issue. In its answering brief, the Government argued that the Eleventh Circuit should rule,
“[c]onsistent with its binding precedent,” that post-arrest, pre-Miranda silence may be used as substantive
evidence of guilt in the prosecution’s case-in-chief.
No. 17-14294, Brief for the United States, at 37–38
(11th Cir. Oct. 26, 2018). The Eleventh Circuit directly
addressed the question presented, and squarely rejected the challenge on the merits—on the law, and
solely based on controlling circuit precedent. App. 43a.
Thus, there is no question that Palacios-Solis’s silence came after he had been arrested and before he
was Mirandized 5; that the prosecution used PalaciosSolis’s post-arrest, pre-Miranda silence during its
case-in-chief as affirmative evidence of guilt; and that
the constitutional question presented was properly
raised in the District Court and has been preserved.
What’s more, the Eleventh Circuit did not offer an
alternative basis for its holding that there was no constitutional violation. Thus, although Judge Rosenbaum stated in a separate concurring opinion (while
criticizing the rule that the panel applied) that the evidence of guilt was strong, neither the District Court
nor the Court of Appeals considered, let alone held,
that any constitutional violation was harmless. App.
43a; contra Wilchcombe, 838 F.3d at 1191 (panel opinion holding, with respect to the question presented
here, that “any such error would have been harmless
5 This Court has defined “arrest” in this context to encompass
both “formal arrest” and a sufficient “restraint on freedom of
movement.” Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
14
in light of the ample evidence of his guilt that was presented at trial”), cert. denied, 137 S. Ct. 2265 (2017).
As a result, Judge Rosenbaum’s view of the evidence
is no reason to deny the petition. Indeed, given that
the first trial ended with a hung jury, the evidence of
guilt must not have been overwhelming. 6
In short, the question presented was squarely decided below. There are no vehicle problems that would
impede this Court’s resolving the split of authority by
way of this case.
IV.
The Decision Below Was Incorrect.
The Eleventh Circuit erred when it held that postarrest, pre-Miranda silence may be used in the Government’s case-in-chief as evidence of guilt, notwithstanding the Fifth Amendment privilege against selfincrimination. See Mitchell v. United States, 526 U.S.
314, 338 n.2 (1999) (Scalia, J., dissenting) (“[W]e did
say in Miranda v. Arizona that a defendant’s post[]arrest silence could not be introduced as substantive
evidence against him at trial.”) (citation omitted).
Whatever the scope of the Fifth Amendment before
custody, once in custody, a defendant is in “circumstances that are thought generally to present a serious
danger of coercion.” Howes v. Fields, 565 U.S. 499,
508–09 (2012). Thus, following arrest, “regardless
whether the Miranda warnings were actually given,
6 Blackburn v. Foltz, 828 F.2d 1177, 1186 (6th Cir. 1987) (“[T]he
fact that the evidence against Blackburn was not overwhelming
is clearly established by the fact that the jury was unable to reach
a verdict at the first trial.”); see also Barham v. United States,
724 F.2d 1529, 1535 n.1 (11th Cir. 1984) (Wisdom, J., concurring)
(“While the government’s evidence appears overwhelming, it is
instructive to remember that Barham’s first trial ended in a hung
jury.”).
15
comment on the defendant’s exercise of his right to remain silent [is] unconstitutional.” United States v.
Whitehead, 200 F.3d 634, 638–39 (9th Cir. 2000) (distinguishing case that concerned only “the period
‘[p]rior to custody,’” United States v. Oplinger, 150
F.3d 1061 (9th Cir. 1998)).
Indeed, “[i]t simply cannot be the case that a citizen’s protection against self-incrimination only attaches when officers recite a certain litany of his
rights.” United States v. Moore, 104 F.3d 377, 386
(D.C. Cir. 1997). The Constitution’s text speaks of a
right against self-incrimination, and does not condition it on the Government’s having advised the detained person that he has those rights. And “neither
Miranda nor any other case suggests that a defendant’s protected right to remain silent attaches only
upon the commencement of questioning as opposed to
custody.” Moore, 104 F.3d at 385; ibid. (“[C]ustody and
not interrogation is the triggering mechanism for the
right of pretrial silence under Miranda.”); Hartigan,
522 S.E.2d at 409 (“The privilege . . . has obviously attached once an accused is in custody.”).
That Palacios-Solis had not yet been read his
rights under Miranda at the time of his silence does
not mean that those rights did not exist. Indeed, the
whole point of a Miranda warning is to apprise a suspect of his rights—it does not create rights that did not
exist before. Moore, 104 F.3d at 386 (“Neither Doyle
nor any other case stands for the proposition advanced
by the prosecution that the defendant’s silence can be
used against him so long as he has not received his
Miranda warnings. Logically, none could.”).
The Eleventh Circuit’s rule, moreover, creates a
perverse incentive to delay reading suspects their Mi-
16
randa warnings, so as to maximize the chances for obtaining a suggestive silence for use as evidence of guilt
at trial. See United States v. Nunez-Rios, 622 F.2d
1093, 1101 (2d Cir. 1980) (“In the absence of such a
prophylactic rule, police might have an incentive to
delay Miranda warnings in order to observe the defendant’s conduct.”). That rule, as Judge Rosenbaum
observed below, turns Miranda from a device to protect the Fifth Amendment right to remain silent into
a technicality law enforcement can manipulate to subvert that right. Such a result makes little sense and
illustrates that the Eleventh Circuit’s rule must be
wrong.
In addition, the prosecution’s substantive use of
post-arrest silence burdens the defendant’s further
right to remain silent during trial. Informing the jury
of the defendant’s silence during his arrest calls “further attention to the fact that he has not arisen to remove whatever taint the pretrial but post-custodial silence may have spread.” Moore, 104 F.3d at 385. That
leaves the defendant with an untenable choice—let
the trial be tainted, or testify (and thus lose the right
the Constitution protects). But, as this Court has
made clear, a defendant should “suffer no penalty . . .
for . . . silence” at trial. Malloy, 378 U.S. at 8.
17
CONCLUSION
The petition for a writ of certiorari should be
granted.
MARTIN A. FEIGENBAUM
P.O. Box 545960
Surfside, FL 33154
Respectfully submitted,
VINCENT LEVY
Counsel of Record
DANIEL M. SULLIVAN
GREGORY DUBINSKY
EVAN H. STEIN
HOLWELL SHUSTER
& GOLDBERG LLP
425 Lexington Avenue
14th Floor
New York, NY 10017
(646) 837-5120
vlevy@hsgllp.com
Counsel for Petitioner
March 31, 2020
APPENDIX
1a
APPENDIX A — Appendix
OPINIONAOF THE UNITED
STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT, DATED JANUARY 30, 2020
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
949 F.3d 567
No. 17-14294
January 30, 2020
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TRINITY ROLANDO CABEZAS-MONTANO,
ADALBERTO FRICKSON PALACIOS-SOLIS,
HECTOR LEONARDO GUAGUA-ALARCON,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Florida. D.C.
Docket No. 4:16-cr-10050-KMM-2.
Before ROSENBAUM, TJOFLAT and HULL, Circuit
Judges.
2a
Appendix A
Opinion
HULL, Circuit Judge:
After a jury trial, defendants Trinity Rolando
Cabezas-Montano, Hector Leonardo Guagua-Alarcon,
and Adalbaerto Frickson Palacios-Solis appeal their
convictions and sentences under the Maritime Drug Law
Enforcement Act (“MDLEA”). See 46 U.S.C. §§ 7050170508. They were convicted of conspiracy to possess with
intent to distribute over five kilograms of cocaine while
on board a vessel subject to the jurisdiction of the United
States, in violation of 46 U.S.C. § 70506(b), and possession
with intent to distribute over five kilograms of cocaine
while on board a vessel subject to the jurisdiction of the
United States, in violation of 46 U.S.C. § 70503(a)(1).
As to their convictions, the defendants, either
together or separately, challenge: (1) the constitutionality
of the MDLEA; (2) the district court’s determination
of MDLEA subject matter jurisdiction; (3) the delay in
presentment for a probable cause hearing; (4) the denial of
their motion in limine to exclude evidence of post-arrest,
pre-Miranda1 silence; (5) the sufficiency of the evidence;
and (6) the denial of their motions for a mistrial based on
the government’s alleged Brady2 violation. As to their
sentences, the defendants, either together or separately,
1. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
2. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1963).
3a
Appendix A
challenge: (1) the constitutionality of the denial of safetyvalve relief in their MDLEA case; (2) the denial of a minorrole reduction; and (3) the denial of their motions for a
downward variance. They also claim the sentencing court
committed procedural error and imposed substantively
unreasonable sentences.
After careful review of the record and the parties’
briefs, and with the benefit of oral argument, we affirm
the defendants’ convictions and sentences. We start
by recounting the trial evidence about the defendants’
crimes. 3
I.
FACTUAL BACKGROUND
A. Coast Guard’s Detection of the Go-Fast Vessel
On the night of October 24, 2016, the U.S. Coast Guard
cutter Hamilton was patrolling in the eastern Pacific
Ocean at 10 degrees latitude and 91 degrees longitude,
which was approximately 200 miles off the coast of Central
America, namely Guatemala and El Salvador. During the
patrol, around 9:05 p.m., a Coast Guard marine patrol
aircraft notified the Hamilton cutter that it had detected
a go-fast vessel (“GFV”) that was traveling northbound at
a high rate of speed and was approximately six nautical
miles away from the cutter.4
3. While there were two jury trials, the first resulted in a
mistrial. The facts we recount are based on the evidence from the
second jury trial.
4. Coast Guard personnel testified that, while at sea, they use
an international military unit of time called “Zulu.” While it was
4a
Appendix A
The target GFV was 30-to-35 feet long, had two
outboard engines, and was carrying three passengers
on board. GFVs, also known as a “Panga” or “Pangastyle” vessels, are small vessels designed to cut through
the water with less friction so that they can travel at
higher speeds. GFVs are low-profile and have a very
different shape, style, and speed than a fishing boat. Drug
smugglers commonly use GFVs to transport drugs and
travel at night without navigation lights to avoid detection.
After being notified of the GFV, the Hamilton crew
met for a briefing in the cutter’s Combat Information
Center (“CIC”). The CIC was equipped with a ForwardLooking Infrared Radar (“FLIR”) system and various
other radars that enabled the Coast Guard to monitor
nighttime vessel activity on the high seas. The FLIR
system uses heat-based infrared detection to create a
video in black (the objects emitting more heat) and white
(the objects emitting less heat) depicting the activities or
objects being monitored. The FLIR system allowed the
Coast Guard to see vessels, passengers, and any jettisoned
objects at night.
Generally speaking, Coast Guard members in the CIC
stay in contact with all other Hamilton units throughout
interdictions and keep them updated on the course and
distance of target vessels. The three Hamilton units
included (1) a helicopter, (2) an over-the-horizon (“OTH”)
vessel, and (3) a long-range interceptor (“LRI”) vessel.
9:05 p.m. on October 24, local time when the Coast Guard aircraft
contacted the Hamilton cutter, under Zulu time it was 2:05 a.m. on
October 25. To avoid confusion, we will refer to local time.
5a
Appendix A
The helicopter also was equipped with a FLIR monitoring
system that recorded its observations on video too. The
OTH vessel was equipped with search lights, radar,
and weapons. The crew on these Hamilton units were
equipped with and used night-vision goggles.
After the CIC briefing, the Hamilton crew decided
to dispatch all three units—the helicopter, OTH vessel,
and LRI vessel—to intercept the target GFV. At launch
time, it was very dark due to lack of moonlight, but the
weather and sea conditions were calm and without wind.
B. Helicopter Chase
At 9:34 p.m., the Hamilton helicopter launched. At
9:45 p.m., the helicopter located the 30-to-35-foot GFV
with two outboard engines that was carrying three
individuals. The GFV appeared to be “dead-in-water” but
started moving again.5 The helicopter moved alongside the
GFV. At this point, the GFV and the helicopter still were
approximately 200 to 250 nautical miles from the coast
of Central America. The CIC on the Hamilton cutter
eventually picked up the GFV on its FLIR and other radar
systems and continuously monitored it.
While pursuing the GFV, the Hamilton helicopter
crew obtained a statement of no objection from Coast
Guard headquarters, entitling it to request that the vessel
stop and to fire warning and disabling shots if necessary.
5. ”Dead-in-water” means that the vessel has stopped and is
motionless in the water.
6a
Appendix A
The helicopter crew broadcasted orders in English and
Spanish for the GFV to stop, ordered the passengers to
put their hands up and move to the front of the vessel,
and flashed its blue law enforcement lights and Coast
Guard emblem. The GFV disregarded the instructions
and continued moving in an evasive, zig-zag path. This
prompted the helicopter crew to continue its chase and
to fire three rounds of warning shots. Every fifth round
that the helicopter crew fired contained a “tracer round,”
a large and easily-visible red glow that detached from the
projectile before entering the water. The GFV continued
to disobey the orders.
As the helicopter continued to chase the GFV, its
crew saw the GFV’s passengers jettisoning packages
overboard. One package remained attached to the vessel
and dragged behind in the water. The helicopter crew
marked the location where the packages were jettisoned
with chemical lights and relayed the coordinate positions
to the Hamilton cutter. The helicopter FLIR video showed
that the GFV’s left side engine was cooler than the right
side engine.
The GFV slowed down and came to a stop, at which
point the passengers appeared to crank the engines to
restart them. The GFV began moving again. Because the
GFV passengers were next to the vessel’s engines, the
helicopter crew fired two rounds of warning shots near the
aft of the GFV to get them to move toward the front of the
vessel. The passengers complied, but the helicopter crew
was unable to fire disabling shots at the GFV’s engines
without endangering the passengers. At this point, the
7a
Appendix A
helicopter was running low on fuel, so it communicated
to the Hamilton cutter the GFV’s last-known coordinate
position and headed back to the cutter to refuel. Around
11:00 p.m., the helicopter crew lost its visual of the GFV
and landed back at the Hamilton cutter at 11:05 p.m.
C. OTH and LRI Vessel Searches and Recovery of a
Cocaine Bale
Around 10:00 p.m., the OTH vessel launched. After the
helicopter headed back to the Hamilton cutter, the OTH
vessel spent 20 to 30 minutes searching the area that the
helicopter crew indicated was the last known coordinate
location of the GFV but was unsuccessful. The Hamilton
cutter instructed the OTH crew to suspend its search for
the GFV and instead head to the scene of the jettisoned
packages. The OTH crew found the chemical lights left
by the helicopter crew and searched the area but found
no packages.
Approximately 31 minutes after the helicopter crew
lost its visual of the GFV, the Hamilton cutter reacquired
the GFV’s location using its CIC’s FLIR and other radar
systems. The Hamilton cutter crew observed on the CIC’s
FLIR system that the GFV was dead-in-water and that
one of the passengers was flailing and frantically trying
to fix the engine. The cutter crew informed the OTH crew
that it had reacquired sight of the GFV and redirected
the OTH vessel to that coordinate position. While en
route to the specified location, the OTH crew recovered a
20-kilogram cocaine bale floating in the water along with
a buoy tied to a black line. The OTH crew relayed to the
8a
Appendix A
Hamilton cutter the coordinate location of the recovered
cocaine bale and continued its search for the GFV.
While the OTH crew was recovering the bale, the
LRI vessel launched around 11:33 to 11:43 p.m. Soon
thereafter, the Hamilton cutter instructed the OTH crew
to resume its search for the jettisoned packages because
the LRI vessel had reached the GFV and was preparing
to approach. The Hamilton cutter crew observed the
LRI’s approach of the GFV on the CIC’s FLIR system.
Meanwhile, the OTH crew searched for about two hours
but recovered no additional bales. Samples of the recovered
bale’s contents, which consisted of 20 individually wrapped
1-kilogram packages, field-tested positive for cocaine.
D. LRI Crew’s Boarding and Search of the GFV
The LRI vessel approached a dead-in-water GFV
that had two outboard engines and three passengers. The
GFV, which had no navigation lights, was in international
waters, 200-plus miles away from the closest land mass.
The LRI vessel illuminated its blue law enforcement light
and announced over a loud hailer in English and Spanish,
“United States Coast Guard, put your hands in the air
and move towards the front of the vessel.” The GFV’s
passengers complied with these orders.
After receiving permission for right-of-visit boarding,
a boarding team from the LRI vessel then boarded the
GFV. While conducting an initial safety sweep, the LRI
boarding team members observed that much of the GFV
had been wiped down with fuel.
9a
Appendix A
The LRI boarding team, which included a Spanish
translator, began asking right-of-visit questions to
determine the nationality of the vessel. The team noticed
the vessel was not flying any flag and had no other indicia
of nationality. The team twice asked the GFV’s passengers
if anyone wished to make a claim of nationality for the
vessel. The passengers—Cabezas-Montano, GuaguaAlarcon, and Palacios-Solis—did not respond either
time. When asked to identify the master of the vessel, the
defendants did not respond. When asked a second time,
Guagua-Alarcon and Palacios-Solis pointed to CabezasMontano, who in turn pointed to Palacios-Solis. The
boarding team asked Cabezas-Montano and Palacios-Solis
if either of them was the master, but they did not answer
and continued to point at each other. The LRI boarding
team concluded that there was no claim of nationality for
the vessel and that no one claimed to be the master.
When asked about the GFV’s last port of call, PalaciosSolis stated that it was Manta, Ecuador. According to one
LRI boarding team member, without a claim of nationality
for the vessel or a master to take the claim from, the Coast
Guard “take[s] the last port of call as the nationality of the
vessel.” The boarding team also observed an Ecuadorian
maker’s mark on the back of the GFV indicating that the
vessel was manufactured in Ecuador. When asked about
the date of last port of call, Palacios-Solis stated that he
and the other two defendants had gone fishing but ended
up lost at sea for 32 days. The team observed, however,
that the defendants did not seem happy to see Coast
Guard personnel and declined the Coast Guard’s offer of
food and water.
10a
Appendix A
The LRI boarding team conveyed to the Hamilton
cutter that the GFV bore an Ecuadorian maker’s mark
and that its last port of call was in Ecuador. The Hamilton
cutter contacted Ecuador to obtain a statement of no
objection to permit the U.S. Coast Guard to conduct a
full law enforcement boarding. According to the Coast
Guard personnel’s testimony, a foreign government, in
response to the Coast Guard’s request for a statementof-no-objection, could claim the vessel and deny boarding,
make no claim, or claim the vessel and permit boarding.
Here, Ecuador provided its statement of no objection to a
Coast Guard Flag Officer early on the morning of October
25. The LRI boarding team detained the defendants,
placed them on the LRI vessel, and began its full boarding
onto the GFV.
The LRI boarding team swabbed the GFV’s surfaces
that were not saturated with fuel and the defendants’
hands for trace quantities of drugs. The defendants
appeared visibly concerned when the swabbing began.
Ultimately, the Coast Guard found trace amounts of drugs:
(1) one defendant tested positive for trace amounts of
cocaine and PCP; and (2) trace amounts of cocaine were
detected on the GFV’s bow and tiller.
The LRI boarding team also conducted a full search
of the GFV. The team found: (1) a buoy and black line
similar in appearance to the buoy and black line that were
recovered where the jettisoned cocaine bale was found; (2)
the same brown packing tape that was wrapped around
the recovered bale; (3) eleven 25-gallon fuel drums, most
of which were full; (4) a phone charger; (5) a satellite
11a
Appendix A
phone battery; (6) a document containing satellite phone
numbers; and (7) a document containing coordinates.
Although no phones were on board, a team member
testified that drug smugglers in GFVs sometimes throw
their electronic equipment overboard to prevent the Coast
Guard from recovering stored data. The team observed
a wet shirt covering the left engine, which lessened the
engine’s heat signature and made detection more difficult.
As to the defendants’ fishing trip story, the LRI
boarding team found fishing hooks and knives but did not
find any bait, fish, or remnants of fish. The team found
lines, but they appeared to be unserviceable and not usable
for fishing. The team also found large quantities of water
and sports drinks, as well as fresh fruit and food items
that did not appear to be 32 days old. The bottom of the
GFV appeared extremely clean and free from growth,
which was an unusual state for a vessel that was allegedly
adrift at sea for 32 days.
After being onboard for 12 hours, the LRI crew left
the GFV and sank the vessel because it was a navigation
hazard. The LRI vessel headed back to the Hamilton
cutter, where the defendants were taken for processing.
E. Coast Guard’s Recovery of 24 More Cocaine Bales
After conducting a drift analysis based on factors
such as current and wind movement to determine where
to search for the jettisoned packages, the OTH vessel
dispatched in the daytime, responded to the designated
area, and recovered 24 additional bales along with buoys
12a
Appendix A
equipped with GPS trackers. The 25 total recovered bales
collectively weighed 614 kilograms. Lab testing, based on
a representative 10-kilogram sample, confirmed that the
substance in the recovered bales was cocaine. The tested
sample had an estimated purity level of 86 and 89 percent,
which was very high and indicated that the drugs were
close to their original source. The cocaine bales’ total
wholesale value was over $10 million.
The Coast Guard also found GPS trackers attached
to some of the cocaine bales themselves, which charted
their movement as follows. Three trackers launched
between October 15 and 16, 2016, some from the coast of
Esmeraldas, Ecuador and others from the coast of the
Ecuadorian and Colombian border. All three trackers
converged when they traveled within the coastal region of
Ecuador. Next, the trackers moved away from the coast
of Ecuador, northwest towards the Galapagos Islands.
The trackers then changed course and moved northeast
towards the coast of the Guatemalan and El Salvadorian
border. However, the GPS trackers suddenly stopped
moving and then started drifting slowly in a south or
southeast direction—indicating that the trackers were
no longer on a vessel—in the area where the Coast Guard
found them on October 24 and 25. The GPS trackers’
trajectories were consistent with the Hamilton cutter’s
and helicopter’s coordinate range data for the target GFV
and the document containing coordinates found on the
defendants’ vessel. Four Coast Guard personnel testified
that they neither saw nor heard any other vessels in the
vicinity during the entirety of the interdiction.
13a
Appendix A
F. Defendants’ Version of Events
The defendants told a different story. According to
Palacios-Solis’s testimony at trial, he and his codefendants
departed from the Esmeraldas, Ecuador, port for a short,
four-day fishing trip on the boat. Palacios-Solis testified
that the boat, of which he was the captain, was a typical
Ecuadorian fishing boat. Palacios-Solis claimed that, while
he initially lied to the Coast Guard about not being the
captain, he admitted to his role once he arrived in Florida.
The defendants quickly returned to the Esmeraldas port
because the boat’s engines were not working well. They
had a mechanic fix the engine, but Palacios-Solis forgot
to change the oil after the engine was fixed.
They again set out for their fishing trip. On the second
day of their fishing trip, once they were approximately 150
to 200 miles from the Esmeraldas, the engines failed and
Palacios-Solis was not able to repair them. They assumed
that another fishing boat would come along and help them,
but none did and they were left adrift for 27 to 30 days.
Accord i ng t o Pa la c ios - S ol i s’s t est i mony, he
intentionally covered the engines to protect them from
pirates. The documents discovered during the search of
the GFV were left by previous users and Palacios-Solis
denied any knowledge of their contents. He testified that
the lines on the vessel were for fishing and that they were
rendered unusable by the Coast Guard personnel during
their search. He conceded that the buoy and black line
found in the water looked just like the buoy and black line
found on the vessel, which were his. The brown packing
14a
Appendix A
tape on the vessel, however, was not his and PalaciosSolis denied knowing where it came from. Palacios-Solis
testified that the food was 30 days old and was not fresh
and that there was not much food left over by the time
the Coast Guard arrived. The defendants were asleep
when the Coast Guard approached their boat, they were
confused by the lights and yelling, and they were scared
that the Coast Guard personnel were going to kill them.
Throughout trial, the government’s witnesses testified
as to the coordinate locations of the critical points during
the interdiction of the GFV and of the recovered cocaine
bales. In their case, however, the defendants called
a maritime expert who created a model pointing out
discrepancies in the government’s plotted coordinates.
Nonetheless, on cross-examination, the maritime expert
conceded that at least some portions of his method and
model were erroneous, incomplete, and/or misleading.
Notably too, a Coast Guard maritime expert, who
conducted a drift analysis, testified that the defendants’
story about being adrift for about 30 days was physically
impossible given the claimed starting point of the fishing
trip, the weather and currents, and the coordinate location
of the interdiction. The Coast Guard expert disagreed
with the accuracy of the defense expert’s model. The Coast
Guard expert testified that the southward location, where
the Hamilton crew searched for and recovered the bales,
was consistent with information regarding the direction
of the GFV.
A Coast Guard health services technician also testified
that she observed and examined the defendants once they
15a
Appendix A
were detained and brought aboard the Hamilton cutter
on October 25. The health services technician testified
the defendants did not require any medical intervention
and exhibited no signs of malnourishment, dehydration,
malnutrition, lethargy, or extended exposure to the
elements.
II. FIRST JURY TRIAL
On December 12, 2016, Palacios-Solis, CabezasMontano, and Guagua-Alarcon made their first entry into
the United States, when they were brought to Key West,
Florida, in the Southern District of Florida.
On December 13, a criminal complaint issued against
the defendants and their initial appearances were held
before a magistrate judge. The complaint charged all
defendants with conspiracy to possess with intent to
distribute five kilograms or more of cocaine on board a
vessel subject to the jurisdiction of the United States. In
an attached probable-cause affidavit, a Drug Enforcement
Agency (“DEA”) Special Agent stated how: (1) on October
25, the Coast Guard detained the defendants and the GFV
and then transferred the defendants to the Hamilton
cutter, approximately 215 nautical miles off the coast of
Guatemala/El Salvador; and (2) on December 12, the Coast
Guard brought the defendants to Key West.
On December 16, the defendants were indicted
on charges of: (1) conspiracy to possess with intent to
distribute five or more kilograms of cocaine on board a
vessel subject to the jurisdiction of the United States, in
16a
Appendix A
violation of 46 U.S.C. §§ 70503(a)(1), 70506(a) and (b), and
21 U.S.C. § 960(b)(1)(B) (Count 1); and (2) possession with
intent to distribute five or more kilograms of cocaine on
board a vessel subject to the jurisdiction of the United
States, in violation of 46 U.S.C. §§ 70503(a)(1) and 70506(a),
21 U.S.C. § 960(b)(1)(B), and 18 U.S.C. § 2 (Count 2).
On February 4, 2017, the government filed a motion
for the district court to make a pretrial determination
of jurisdiction regarding whether the defendants’ vessel
was subject to the jurisdiction of the United States. The
government submitted that: (1) the stateless GFV was
interdicted in international waters and upon high seas by
the Coast Guard on October 24, 2016; (2) at the time of
the interdiction, there were three passengers on board,
who were the defendants; (3) when asked by the Coast
Guard, none of the defendants claimed to be the master
of the vessel and none made a claim of nationality for it;
and (4) thus, the United States determined the vessel
to be “without nationality” subjecting the vessel to the
jurisdiction of the United States under 46 U.S.C. § 70502(c)
(1)(A) and (d)(1)(B).
The first trial resulted in a mistrial after the jury was
unable to reach a unanimous verdict. As outlined below,
the district court explicitly addressed its jurisdiction
before the second trial.
17a
Appendix A
III. SECOND JURY TRIAL
A. Defendants’ Motion to Dismiss the Indictment
Prior to the second jury trial, all defendants moved
to dismiss the indictment for lack of subject-matter
jurisdiction on three enumerated grounds containing
multiple sub-issues.6 The defendants argued that: (1) there
was no evidence that their vessel was outside the territorial
waters of a foreign nation, precluding jurisdiction based on
the vessel’s status as one without nationality; (2) there was
no evidence that the cocaine allegedly being transported
by the vessel was destined for the United States, such
that there was no U.S. “nexus” permitting the exercise
of extraterritorial jurisdiction; (3) without a requirement
that the trafficking crime have a “nexus” to the United
States, the MDLEA’s jurisdictional element violates due
process; (4) the MDLEA’s requirement that the district
court determine the jurisdictional element, rather than the
jury, violates the Fifth and Sixth Amendment, especially
in cases where a vessel is declared “stateless” and the
parties dispute material facts regarding the alleged
statelessness; and (5) the admission of a certification
of the Secretary of State to establish extraterritorial
jurisdiction in such a case would violate the Confrontation
Clause and constitute inadmissible hearsay.
In response, the government argued, inter alia, that:
(1) the defendants were interdicted in international waters
6. While Palacios-Solis filed the motion to dismiss the
indictment, the district court granted Cabezas-Montano’s and
Guagua-Alarcon’s motion to adopt it.
18a
Appendix A
and upon the high seas when their GFV was stopped
approximately 215 nautical miles southwest of the coast
of Guatemala in the Pacific Ocean; (2) their GFV was
without nationality and was subject to the jurisdiction
of the United States; and (3) the defendants’ remaining
arguments were foreclosed by this Court’s precedent.
At a pre-trial hearing before a magistrate judge,
defendants’ counsel made their jurisdictional arguments.
The magistrate judge’s report (“R&R”) recommended the
denial of the defendants’ motion to dismiss the indictment.
The magistrate judge found that: (1) the vessel was in
international waters at the time it was intercepted by the
Coast Guard; (2) jurisdiction existed under § 70502(c)(1)
(A) of the MDLEA because the defendants’ vessel was
“without nationality”; and (3) this Court’s precedent
foreclosed the defendants’ constitutional arguments. Over
the defendants’ objections, the district court adopted the
R&R and denied their motion to dismiss the indictment.
B. Defendants’ Post-Arrest, Pre-Miranda Silence
Next, Palacios-Solis filed a motion in limine to exclude
evidence of the defendants’ post-arrest, pre-Miranda
silence in response to the Coast Guard’s interrogation.
Palacios-Solis conceded that this Court’s precedent
foreclosed his argument but sought to preserve the issue.
Guagua-Alarcon adopted the motion.
In response, the government submitted that it did
not intend to elicit, in its case-in-chief, the defendants’
silence or statements other than their silence or answers
19a
Appendix A
to the Coast Guard’s questions regarding: (1) the master
or captain of the GFV; (2) the nationality of the GFV;
(3) the last port of call; and (4) the next port of call. The
government reserved the right to elicit any silence or
statements during the defense’s case and in rebuttal.7
The district court denied Palacios-Solis’s and GuaguaAlarcon’s motion in limine as moot. The district court
highlighted: (1) the defendants’ concession that this Court’s
precedent foreclosed their challenge; (2) the admissibility
of their silence or answers to the questions identified by
the government; (3) the government’s indication that it
otherwise would not elicit any other silence or statements
by the defendants; and (4) the government’s rights
pertaining to cross-examination during the defense’s case
and in rebuttal.
C. Pretrial Hearing
Before trial, the district court held a pretrial hearing
during which it granted the defendants’ motion to deem
any objection made by one defendant as adopted by all
defendants, unless a defendant opted out. The government
clarified that it intended to elicit during their case-inchief: (1) the defendants’ silence when asked about the
GFV’s nationality; (2) their actions of pointing to CabezasMontano and Palacios-Solis when asked about the vessel’s
master; (3) any statements or silence about the last and
next ports of call; and (4) the defendants’ statement that
7. As explained later, the defendants on appeal challenge only
the admission of their post-arrest, pre-Miranda silence.
20a
Appendix A
they were adrift at sea for about 30 days. Palacios-Solis
reiterated that this Court’s precedent permitted the
admission of such evidence, but that he preserved his
challenge to it.
D. Government’s Case-In-Chief
The second jury trial began on July 17, 2017. The
government called seven witnesses: (1) six Coast Guard
members who carried out the October 24-through-25
interdiction operation and testified about the above events;
and (2) the DEA forensic chemist who tested the seized
evidence for cocaine.
When Petty Officer Robert Tetzlaff testified as to
his observations from the CIC’s FLIR system—namely,
that he observed one of the GFV passengers flailing and
frantically trying to fix the engine—Palacios-Solis moved
for a mistrial on Brady grounds. Palacios-Solis asserted
that Officer Tetzlaff’s testimony indicated that there was
a CIC FLIR video—showing the GFV passengers flailing
and trying to restart the vessel—which the government
had not turned over to the defense. The government
responded that it learned of this aspect of Officer Tetzlaff’s
testimony only the day before trial, that it did not possess
the CIC’s FLIR video because it was already recorded
over, and that it did not notify the defense because it did
not view the evidence as exculpatory.
The district court agreed that the evidence was
inculpatory, not exculpatory, but directed the government
to investigate whether the FLIR video actually was
21a
Appendix A
recorded and /or recorded over. The next day, the
government notified the district court that, while the
Coast Guard records its FLIR videos, it records over them
if no preservation request is made, and that it no longer
had the October 24/25, 2016 FLIR video. Palacios-Solis
renewed his mistrial motion, which Cabezas-Montano
and Guagua-Alarcon joined. The district court denied the
motion and the trial continued. 8
E. Defendants’ Evidence, Government’s Rebuttal, and
Rule 29 Motions
The government rested on the third day of trial. The
defendants moved for a judgment of acquittal under Rule
29 of the Federal Rules of Criminal Procedure. They
argued that there was insufficient evidence of their guilt
and the court lacked subject-matter jurisdiction. 9 The
district court denied the defendants’ Rule 29 motions.
8. On direct examination, Officer Tetzlaff testified that
the October 24/25 FLIR video likely was recorded over. During
the defense’s cross-examination, Officer Tetzlaff agreed that it
would have been helpful to compare the CIC’s and the helicopter’s
FLIR videos and testified further about his observations from
the CIC’s FLIR video on the night of the interdiction. Then, on
redirect examination, Officer Tetzlaff confirmed that he did not tell
prosecutors about his CIC FLIR observations until just before the
second trial.
9. Palacios-Solis renewed his motion to dismiss the indictment.
Guagua-Alarcon adopted both codefendants’ Rule 29 arguments.
The district court stated that after trial it would revisit the renewed
motion to dismiss but that it did not hear anything that would change
its prior determination.
22a
Appendix A
The defense then called a maritime expert who
prepared a coordinate model for this case. PalaciosSolis also testified. The defense rested. In rebuttal,
the government called the Coast Guard health services
technician and its own maritime expert who conducted a
drift analysis of the defendants’ vessel. The defendants
renewed their Rule 29 motions, which the district court
denied.
F. Jury Verdict and Post-Trial Motions
After deliberations, the jury found all three defendants
guilty on both counts. Palacios-Solis filed a post-trial Rule
29 motion claiming again that: (1) there was insufficient
evidence to support his convictions; (2) the court lacked
subject-matter jurisdiction; and (3) the government’s
introduction of the defendants’ post-arrest, pre-Miranda
silence violated his Fifth Amendment rights against
self-incrimination. Ultimately, at sentencing, the district
court denied Palacios-Solis’s post-trial Rule 29 motion.
Among other things, the district court determined that
no defendant had claimed to be the master of the vessel
or claimed any nationality, that the Coast Guard could not
confirm or deny the vessel’s nationality, and thus the vessel
was without nationality and subject to the jurisdiction of
the United States. This is the defendants’ appeal.
IV. MDLEA
Before addressing the defendants’ appellate claims,
we give some background about the MDLEA.
23a
Appendix A
The Constitution empowers Congress “[t]o define and
punish Piracies and Felonies committed on the high Seas,
and Offences against the Law of Nations.” U.S. Const.
Art. I, § 8, cl. 10. “The Supreme Court has interpreted
that Clause to contain three distinct grants of power: to
define and punish piracies, to define and punish felonies
committed on the high seas, and to define and punish
offenses against the law of nations.” United States v.
Campbell, 743 F.3d 802, 805 (11th Cir. 2014). This MDLEA
appeal involves a conviction for a felony offense defined by
an act of Congress under the second grant of power. See id.
Congress enacted the MDLEA to prohibit any
person from “knowingly or intentionally . . . possess[ing]
with intent to manufacture or distribute, a controlled
substance” on board “a vessel subject to the jurisdiction of
the United States,” 46 U.S.C. § 70503(a)(1) and (e)(1), and
from conspiring to do the same, id. § 70506(b). Specifically,
§ 70503(a)(1) provides that, “[w]hile on board a covered
vessel, an individual may not knowingly or intentionally
. . . possess with intent to manufacture or distribute, a
controlled substance. Id. § 70503(a)(1) (emphasis added).
The MDLEA defines a “covered vessel” to include, among
other things, “a vessel subject to the jurisdiction of the
United States.” Id. § 70503(e). In turn, the MDLEA
defines a “vessel subject to the jurisdiction of the United
States” to include, among other things, “a vessel without
nationality.” Id. § 70502(c)(1)(A).
In 1996, Congress amended the MDLEA to provide
that “[j]urisdiction of the United States with respect to
a vessel subject to this chapter is not an element of an
24a
Appendix A
offense.” Id. § 70504(a); see Campbell, 743 F.3d at 805.
That section continues 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). Congress made clear that the MDLEA “applies
even though the act is committed outside the territorial
jurisdiction of the United States.” Id. § 70503(b).
V. DEFENDANTS’ CONSTITUTIONAL CLAIMS
As a threshold matter, all defendants argue that the
MDLEA is unconstitutional because: (1) Congress’s power
to define and punish felonies on the high seas is limited to
felonies bearing a “nexus” to the United States; (2) due
process prohibits the prosecution of foreign nationals for
offenses bearing no “nexus” to the United States; and (3)
the MDLEA violates the Fifth and Sixth Amendments by
removing the determination of jurisdictional facts from
the jury.10
As the defendants concede, each of these constitutional
arguments is foreclosed by our binding precedent. First,
this Court has held that the MDLEA is a valid exercise of
Congress’s power under the Felonies Clause as applied to
drug trafficking crimes without a “nexus” to the United
States. See Campbell, 743 F.3d at 809-10; see also United
States v. Valois, 915 F.3d 717, 722 (11th Cir.) (following
Campbell and reaching the same holding), cert. denied,
10. We review de novo a district court’s interpretation of a
statute and whether a statute is constitutional. United States v.
Valois, 915 F.3d 717, 722 n.1 (11th Cir.), cert. denied, 140 S. Ct. 263,
205 L. Ed. 2d 155 (2019).
25a
Appendix A
140 S. Ct. 263, 205 L. Ed. 2d 155 (2019); United States
v. Cruickshank, 837 F.3d 1182, 1187-88 (11th Cir. 2016)
(following Campbell and reaching the same holding);
United States v. Estupinan, 453 F.3d 1336, 1338-39 (11th
Cir. 2006).
Second, this Court has held that the Fifth Amendment’s
Due Process Clause does not prohibit the trial and
conviction of aliens 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. See United States v.
Rendon, 354 F.3d 1320, 1326 (11th Cir. 2003); see also
Valois, 915 F.3d at 722 (following Rendon and reaching
the same holding). The defendants’ MDLEA convictions
thus do not violate their due process rights even if their
offenses lack a “nexus” to the United States. See, e.g.,
United States v. Wilchcombe, 838 F.3d 1179, 1186 (11th
Cir. 2016); Campbell, 743 F.3d at 812.
Third, this Court has held that, because the MDLEA’s
jurisdictional requirement goes to the subject-matter
jurisdiction of the courts and is not an essential element
of the MDLEA substantive offense, it does not have to be
submitted to the jury for proof beyond a reasonable doubt.
See United States v. Tinoco, 304 F.3d 1088, 1109-12 (11th
Cir. 2002); see also Valois, 915 F.3d at 722 (following Tinoco
and reaching the same holding); Cruickshank, 837 F.3d at
1192 (following Tinoco and reaching the same holding);
Campbell, 743 F.3d at 809 (following Tinoco and Rendon
and reaching the same holding); Rendon, 354 F.3d at 132628 (following Tinoco and reaching the same holding).
26a
Appendix A
The defendants also claim that: (1) the admission of
a certification of the U.S. Secretary of State to establish
extraterritorial jurisdiction, especially where a vessel is
declared “stateless,” violates the Confrontation Clause and
constitutes inadmissible hearsay; and (2) the certification
procedure as to the jurisdictional element violates the Due
Process Clause of the Fifth Amendment by allowing an
act of foreign omission to substitute for the government’s
burden of proof on a “material element.” See 46 U.S.C. §
70502(d)(2) (providing that, when a master or individual in
charge makes a claim of registry, the foreign nation may
respond “by radio, telephone, or similar oral or electronic
means,” and the foreign nation’s response “is proved
conclusively by certification of the Secretary of State or
the Secretary’s designee”). Ultimately, the government
never introduced a certification from the Secretary of
State, and thus we need not address these issues.
In any event, as the government points out, this Court
has already held that the introduction of a Secretary of
State certification to establish extraterritorial jurisdiction
under the MDLEA does not violate the Confrontation
Clause and does not constitute inadmissible hearsay. See
Campbell, 743 F.3d at 806-08 (“The Confrontation Clause
does not bar the admission of hearsay to make a pretrial
determination of jurisdiction when that hearsay does
not pertain to an element of the offense.”); Cruickshank,
837 F.3d at 1192 (“A United States Department of State
certification of jurisdiction under the MDLEA does
not implicate the Confrontation Clause because it does
not affect the guilt or innocence of a defendant.”); see
also Valois, 915 F.3d at 722-23 (following Campbell
27a
Appendix A
and Cruickshank and reaching the same holding). In
Campbell, we determined that because the stateless
nature of the defendant’s vessel was not an element of
his MDLEA offense to be proved at trial, the admission
of the Secretary of State certification did not violate a
defendant’s right to confront the witnesses against him.
743 F.3d at 806.11
11. In his brief, Guagua-Alarcon argues that the MDLEA’s
certification procedure also violates separation of powers by
unconstitutionally delegating the jurisdiction determination to the
executive branch, as opposed to the judiciary or the jury. Prior
to the 1996 amendment to the MDLEA, this Court held that the
MDLEA’s certification procedure did not implicate separation of
powers. United States v. Rojas, 53 F.3d 1212, 1214-15 (11th Cir. 1995),
superseded by statute as recognized in Campbell, 743 F.3d at 803-04.
We explained that the certification procedure “merely provide[d] a
method by which the Executive Branch [could] evidence that it ha[d]
obtained a foreign nation’s consent to jurisdiction,” and that nothing
in the procedure “deprive[d] the court of its ability and obligation
to determine whether the requirements of the MDLEA ha[d] been
met.” Id. at 1214-15 (explaining that the MDLEA left courts “free
to determine, and [t]o decide, whether a proffered certificate [was]
sufficient evidence of jurisdiction”).
While we have not directly addressed in a published case
whether the revised MDLEA statute’s certification procedure
implicates separation of powers, we have stated that “courts must
still determine whether the MDLEA’s jurisdictional requirements
have been met,” regardless of the MDLEA assigning conclusive
proof to a certification provided by the Secretary of State or
designee. Wilchcombe, 838 F.3d at 1186-88; accord United States
v. Mejia, 734 F. App’x 731, 734-35 (11th Cir.) (unpublished), cert.
denied, 139 S. Ct. 593, 202 L. Ed. 2d 434 (2018) (rejecting, in dicta,
the defendant’s separation of powers challenge under Rojas and
Wilchcombe and concluding that “nothing in [§ 70502(d)(2)] deprives
28a
Appendix A
Based on our binding precedent, we conclude that
the defendants have not shown that the MDLEA is
unconstitutional.12
VI. MDLEA SUBJECT-MATTER JURISDICTION
Guagua-Alarcon and Palacios-Solis contend that, even
if the MDLEA is constitutional, the district court erred
in concluding that its statutory requirements for subjectmatter jurisdiction were met.13 The government bears the
burden of establishing that the statutory requirements
of MDLEA subject-matter jurisdiction are met. Tinoco,
304 F.3d at 1114.
As noted above, a vessel is covered by the MDLEA
if it is “subject to the jurisdiction of the United States.”
the district court of its power to determine whether the MDLEA’s
jurisdictional requirements have been met”). Ultimately, because
the district court did not rely on a Secretary of State certification in
finding that the defendants’ vessel was subject to the jurisdiction of
the United States, we need not rule on Guagua-Alarcon’s separation
of powers claim.
12. In a letter notice of supplemental authority, Palacios-Solis
argues that the MDLEA is void for vagueness. Because PalaciosSolis failed to raise this issue at all in his brief, he has abandoned
it. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003).
13. We review de novo a district court’s interpretation and
application of statutory provisions regarding whether the district
court has subject-matter jurisdiction. Tinoco, 304 F.3d at 1114.
However, we review for clear error the district court’s factual
findings with respect to jurisdiction. Id.
29a
Appendix A
46 U.S.C. § 70503(e)(1). Here, the government asserted
subject-matter jurisdiction under 46 U.S.C. § 70502(c)
(1)(A): that the vessel was “subject to the jurisdiction
of the United States” because it was “a vessel without
nationality.” In § 70502(d)(1), the MDLEA defines “a vessel
without nationality” as including each of the following
three statutory options:
(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.
Id. § 70502(d)(1)(A)-(C). From the outset, the government
invoked jurisdiction over the defendants’ vessel under §
70502(d)(1)(B), based on the defendants’ failure to make
a claim of nationality for the vessel.
Based on the record evidence, we conclude that the
government established that the defendants’ vessel was
a “vessel without nationality” under the § 70502(d)(1)(B)
30a
Appendix A
definition and was thus subject to the jurisdiction of the
United States under § 70502(c)(1)(A). At trial, the Coast
Guard boarding team members testified that they asked
the defendants to identify the master of the vessel and in
response the defendants pointed at each other but no one
identified himself as the master.
The LRI boarding team then also asked the defendants
individually if anyone wished to make a claim of nationality
for the vessel, but no one responded.14 Despite being given
two opportunities, the defendants did not produce any
nationality documents, did not fly any nation’s flags, and
did not make any verbal claim of nationality or registry.
Id. § 70502(e)(1)-(3).
We recognize that, on appeal, Guagua-Alarcon
alleges that the defendants verbally claimed Ecuadorian
nationality for the vessel, that the Ecuadorian government
was unable to confirm the claim, and that, without
a Secretary of State certification, the Coast Guard
improperly assumed that the vessel was stateless, seized
the defendants, and destroyed the vessel. The record
evidence, however, does not show that any defendant
claimed a nationality in response to the LRI boarding
team’s questions. Rather, the record shows that the LRI
14. We recognize that the LRI boarding team did not also ask
who was “the individual in charge,” but the team’s questions were
nevertheless sufficient because they did ask all defendants if anyone
wished to make a claim of nationality for the vessel. As such, any
individual who possessed the authority to make a claim of registry
or nationality for the vessel was given the opportunity to do so at the
request of a duly authorized officer. See 46 U.S.C. § 70502(d)(1)(B).
31a
Appendix A
boarding team asked the defendants individually if anyone
wished to make a claim of nationality for the vessel and the
defendants did not respond. Because the defendants made
no claim of nationality, the statelessness of their vessel is
clear under subsection (d)(1)(B), and a Secretary of State
certification was unnecessary. Id. § 70502(d)(1)(B), (d)(2).15
We do acknowledge that the Coast Guard learned
that the vessel’s last port of call was Ecuador, found the
vessel’s Ecuadorian maker’s mark, and took an additional
step beyond its statutory obligation when it contacted
Ecuador to receive its statement of no objection. This
courtesy call, however, did not create a nationality claim on
behalf of the defendants and their vessel where no master
presented himself or actively made a claim of nationality.
See United States v. Obando, 891 F.3d 929, 933, 938 (11th
Cir. 2018) (explaining that, because no crew member
made a claim of nationality for their vessel, their vessel
was “without nationality” under § 70502(d)(1)(B) even
though the Coast Guard “out of an abundance of caution”
did more than what was required by the MDLEA by
contacting the Ecuadorian government when the vessel’s
master indicated that a painted flag on the vessel’s hull was
Ecuadorian); United States v. Hernandez, 864 F.3d 1292,
1304 (11th Cir. 2017) (recognizing that, once “the statutory
15. Even so, the defendants’ claim that the government must
produce a certification when subject-matter jurisdiction is based
on subsections (d)(1)(A) or (C) is unsupported by the language of
subsection (d)(2). While a certification provides conclusive proof of
the foreign nation’s response, the subsection does not state that the
response cannot be proven by other means. See 46 U.S.C. § 70502(d)
(2).
32a
Appendix A
requirements for MDLEA prosecution in U.S. courts have
been met . . . any further jurisdictional complaint over that
U.S. prosecution is to be handled by the executive branch,
nation-to-nation, in the international arena”). Rather, the
vessel remained stateless under § 70502(d)(1)(B).
It also is of no matter that the Coast Guard takes
the last port of call as the nationality of the vessel and
contacts that corresponding government when no claim
is made. Whatever the foreign government’s response (or
non-response), the Coast Guard’s taking of that additional
step does not void a statelessness finding under §§ 70502(c)
(1)(A) and 70502(d)(1)(B).
Consequently, the defendants’ vessel was a “vessel
without nationality,” 46 U.S.C. § 70502(d)(1), and thus a
“vessel subject to the jurisdiction of the United States,”
id. § 70502(c)(1)(A), and therefore a “covered vessel,”
id. § 70503(e)(1), to which the MDLEA’s criminal
prohibition against possessing a controlled substance with
distributary intent extends, id. § 70503(a)(1). The district
court properly exercised jurisdiction over the defendants
and their offenses under the MDLEA.
VII. DELAY IN GUAGUA-ALARCON’S
PRESENTMENT
For the first time on appeal, Guagua-Alarcon argues
that his convictions should be vacated because the
government deliberately and tactically took seven weeks
in order to transport him to Florida—rather than bringing
him promptly before a magistrate judge in California, the
33a
Appendix A
closest U.S. state—for a probable cause determination.16
He asserts that the government purposely delayed his
presentment to a magistrate judge in order to forum
shop because federal courts in California require the
government to prove a U.S. “nexus” to establish subjectmatter jurisdiction, whereas federal courts in Florida do
not.
Nonetheless, Guagua-Alarcon concedes that we should
review his delay challenge for plain error since he raises
it for the first time on appeal. Under the plain-error
standard, we will vacate a judgment only if there is (1) an
error, (2) that is plain, and the error both (3) affected the
defendant’s substantial rights, and (4) seriously affected
the fairness of the judicial proceedings. United States
v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir. 2014);
United States v. Hernandez, 906 F.3d 1367, 1370 (11th Cir.
2018). A defendant cannot prevail on plain-error review
“where there is no precedent from the Supreme Court
or this Court directly resolving” the issue in favor of the
defendant. United States v. Lange, 862 F.3d 1290, 1296
(11th Cir. 2017) (quotation marks omitted).
As a preliminary matter, we note that the MDLEA
does not prohibit the government from taking offenders
to Florida rather than California. A person violating the
MDLEA “may be tried in any district,” “if the offense
was begun or committed upon the high seas,” as was the
case here. 46 U.S.C. § 70504(b)(2); see also 18 U.S.C. §
3238 (assigning jurisdiction over all offenses committed
16. Only Guagua-Alarcon makes this delay claim on appeal.
34a
Appendix A
upon the high seas to the district in which the offender is
arrested or is first brought). Accordingly, the issue here
is not where the defendant was taken, but why it took the
government 49 days to present the defendant arrested
outside the United States before a magistrate judge in
the United States for a probable cause hearing.
In this regard, Rule 5(a)(1)(B) of the Federal Rules of
Criminal Procedure expressly provides that “[a] person
making an arrest outside the United States must take the
defendant without unnecessary delay before a magistrate
judge, unless a statute provides otherwise.” Fed. R. Crim.
P. 5(a)(1)(B) (emphasis added). In Mallory v. United States,
the Supreme Court indicated that the purpose of Rule 5(a)
is to prevent oppressive police interrogations and other
“third-degree” tactics before bringing the accused in front
of an officer of the court; the remedy was the exclusion
of evidence which was gained during the delay by the
use of such tactics. 354 U.S. 449, 451-54, 77 S. Ct. 1356,
1357-59, 1 L. Ed. 2d 1479 (1957); see McNabb v. United
States, 318 U.S. 332, 345, 63 S. Ct. 608, 615, 87 L. Ed. 819
(1943) (“[T]o permit such evidence to be made the basis
of a conviction in the federal courts would stultify the
policy which Congress has enacted into law.”);17 United
17. The McNabb-Mallory exclusionary rule—under which
an arrestee’s confession, whether voluntary or involuntary, is
inadmissible if given after an unreasonable delay in bringing him
before a judge—was superseded in part by 18 U.S.C. § 3501, which
immunizes voluntary confessions given within six hours of a suspect’s
arrest. See Corley v. United States, 556 U.S. 303, 306-11, 322, 129 S.
Ct. 1558, 1562-64, 1571, 173 L. Ed. 2d 443 (2009). The Supreme Court
in Corley held that Congress intended merely to modify McNabb-
35a
Appendix A
States v. Mendoza, 473 F.2d 697, 702 (5th Cir. 1973) (“A
violation of [Rule 5(a)] renders the evidence obtained per
se inadmissible.”).18
In United States v. Purvis, this Court expressly
addressed “unnecessary delay” under Rule 5(a)(1)(B). 768
F.2d 1237, 1238-39 (11th Cir. 1985). This Court held that
various factors are considered in determining whether a
delay was unnecessary, including: (1) the distance between
the location of the defendant’s arrest in international
waters and the U.S. port he was brought to; (2) the time
between the defendant’s arrival at the U.S. port and his
presentment to the magistrate judge; (3) any evidence of
mistreatment or improper interrogation during the delay;
and (4) any reason for the delay, like exigent circumstances
or emergencies. Id.
Here, the timeline and location of defendant GuaguaAlarcon’s arrest are not disputed. Guagua-Alarcon was
brought onboard the Hamilton cutter on October 25,
and the cutter was located 200-plus miles off the coast
of Guatemala/El Salvador. On December 12, GuaguaAlarcon made his first entry into the Key West port. On
December 13, he was presented for his initial appearance
before a magistrate judge. There was a 49-day delay
between Guagua-Alarcon’s arrest and his presentment.
Mallory’s exclusionary rule, rather than supplant it, when it enacted
§ 3501. Id. at 306, 322, 129 S. Ct. at 1562, 1571.
18. This Court adopted as binding precedent all Fifth Circuit
decisions prior to October 1, 1981. Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir. 1981) (en banc).
36a
Appendix A
As to the first Purvis factor, the distance between
the arrest location outside the United States and Key
West was quite lengthy. As to the second Purvis factor,
Guagua-Alarcon arrived at Key West on December 12
and was presented immediately to the magistrate judge
on December 13. As to the third Purvis factor, there is no
claim that Guagua-Alarcon was mistreated or improperly
interrogated during transit. Thus, the first, second, and
third Purvis factors arguably help the government.
As to the fourth Purvis factor, the problem for
Guagua-Alarcon is that he did not raise this delay issue
below, much less claim the delay was “unnecessary,”
and thus he has presented no evidence (at trial or a pretrial hearing) indicating the reasons or circumstances
behind the delay. Guagua-Alarcon’s allegation that the
government deliberately and tactically delayed in order
to forum shop is pure speculation and unsupported by
any record evidence.19 By failing to develop the factual
predicates for his claim in the district court, GuaguaAlarcon has failed to carry his burden to show the
particular delay here was “unnecessary” and thus a Rule
5(a) violation. 20
19. Guagua-Alarcon argues that California was closer to the
location of his arrest than Florida. There is no record evidence
regarding the distances between Guagua-Alarcon’s arrest and
those U.S. states. Because of the Panama Canal route, geographical
calculations are needed to reveal the distances.
20. The government (without evidence too) asserts that the
delay could have been caused by any number of valid reasons,
such as the Coast Guard opting to continue their normal law
enforcement patrolling activities through the conclusion of their
37a
Appendix A
Given this problem, Guagua-Alarcon argues that
we should remand for an evidentiary hearing, but such
further hearing and fact finding at this point in the
proceedings would undermine the plain-error doctrine.
See United States v. Bonavia, 927 F.2d 565, 570 (11th Cir.
1991) (“We note that the plain error doctrine should be
applied sparingly lest the contemporaneous objection rule,
requiring timely objections to preserve issues for appeal,
be swallowed by the plain error exception.”).
In any event, Guagua-Alarcon points to no controlling
precedent from the Supreme Court or the Eleventh
Circuit establishing that a 49-day delay, no matter the
circumstances of this interdiction on the high seas 200 miles
off the coast of Guatemala/El Salvador, presumptively
constitutes “unnecessary delay” under Rule 5(a). In other
MDLEA cases, this Court has concluded that delays,
albeit shorter ones, were reasonable. See Purvis, 768 F.2d
at 1239 (holding that a five-day delay was reasonable for
defendants arrested on the high seas approximately 350
miles from Key West); United States v. Odom, 526 F.2d
mission, “diplomatic wrangling” between the U.S. and Ecuadorian
governments, a mechanical mishap, or some other emergency. In
short, both Guagua-Alarcon and the government speculate as to
the cause of the delay.
However, on appeal, Guagua-Alarcon has moved to vacate
his convictions based on “unnecessary delay” under Rule 5(a),
and thus he as movant has the burden to establish the delay was
“unnecessary.” Yet, he has not developed the required factual
predicate to do so. To be clear, our ruling is based on the lack of
evidence or factual predicate for the “unnecessary delay” claim, not
on the merits of the claim.
38a
Appendix A
339, 342-43 (5th Cir. 1976) (holding that a five-day delay
was reasonable for a defendant arrested on the high
seas approximately 200 miles from the United States);
see also United States v. Castillo, 899 F.3d 1208, 121718 (11th Cir. 2018) (Martin, J., concurring) (discussing
Rule 5(a)(1)(B) and determining that a 19-day delay was
reasonable for a defendant arrested off of “[t]he Pacific
coast of Guatemala,” “approximately 1,000 miles from the
port of Miami”), cert. denied, 139 S. Ct. 796, 202 L. Ed.
2d 571 (2019). 21 No case, however, has addressed a 49day delay or held what circumstances or reasons would
make such a delay unnecessary. Because no Supreme
Court or Eleventh Circuit precedent has ruled whether
a delay in presentment similar to Guagua Alarcon’s was
“unnecessary delay” under Rule 5(a), Guagua-Alarcon
has failed to show plain error.
Despite Rule 5(a), Guagua-Alarcon asserts that his
case is controlled by the constitutional, 48-hour rule
established by the Supreme Court in County of Riverside
v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L. Ed. 2d
49 (1991). Prior to McLaughlin, the Supreme Court held
that “the Fourth Amendment requires a timely judicial
determination of probable cause as a prerequisite to
detention.” Gerstein v. Pugh, 420 U.S. 103, 126, 95 S. Ct.
854, 869, 43 L. Ed. 2d 54 (1975). Then, in McLaughlin, the
Supreme Court ruled that “a jurisdiction that provides
judicial determinations of probable cause within 48
hours of arrest will, as a general matter, comply with the
21. The majority in Castillo held that the defendant’s guilty
plea waived his right to challenge his detention and did not address
the Rule 5(a) issue. 899 F.3d at 1214-15.
39a
Appendix A
promptness requirements of Gerstein.” McLaughlin, 500
U.S. at 56, 111 S. Ct. at 1670.
Guagua-Alarcon contends McLaughlin established
a per se 48-hour outer-limit rule and thus his detention
violated the Fourth Amendment. However, McLaughlin
did not establish 48 hours as a per se outer limit. See id.
at 56, 111 S. Ct. at 1670 (“[W]e hesitate to announce that
the Constitution compels a specific time limit.”). Rather,
in McLaughlin, the Supreme Court held that, generally,
when a probable cause determination does not happen
within 48 hours, “the burden shifts to the government to
demonstrate the existence of a bona fide emergency or
other extraordinary circumstance.” Id. at 47, 56, 111 S.
Ct. at 1665, 1670; Powell v. Nevada, 511 U.S. 79, 83-84, 114
S. Ct. 1280, 1283, 128 L. Ed. 2d 1 (1994). Again, because
Guagua-Alarcon did not raise his McLaughlin claim in
the district court, we must review his McLaughlin claim
too for plain error.
Here, Guagua-Alarcon has not shown error, much less
plain error, because the Fourth Amendment does not apply
to searches and seizures (arrests) by the United States of
a non-citizen/non-resident alien arrested in international
waters or a foreign country. See United States v. VerdugoUrquidez, 494 U.S. 259, 274-75, 110 S. Ct. 1056, 1066, 108
L. Ed. 2d 222 (1990) (holding that the Fourth Amendment
protects only “the people” of the United States and has
no application to search-and-seizure challenges where
the challenger is a non-citizen/non-resident alien with no
voluntary attachment to the United States and the area
40a
Appendix A
searched is located outside of the United States);22United
States v. Vilches-Navarrete, 523 F.3d 1, 13 (1st Cir. 2008)
(applying Verdugo-Urquidez and holding the district
court properly dismissed the MDLEA defendant’s Fourth
Amendment claim regarding the U.S. Coast Guard’s
actions because the defendant was Chilean, he was not
residing in the United States, and the Coast Guard’s
actions occurred in international waters); United States v.
Bravo, 489 F.3d 1, 8-9 (1st Cir. 2007) (holding the district
court properly denied the MDLEA defendants’ motion
to suppress evidence seized from their vessel because,
under Verdugo-Urquidez, “the Fourth Amendment does
not apply to activities of the United States against aliens
in international waters”); United States v. Zakharov, 468
F.3d 1171, 1179-80 (9th Cir. 2006) (holding that, because
the alleged unconstitutional delay took place outside of
the United States in international waters and there was
no suggestion that Zakharov, as neither a U.S. citizen
nor U.S. resident, had any substantial connection to
this country, the Fourth Amendment did not apply to
him and his claim); see also United States v. Rojas, 812
F.3d 382, 388, 397-98 (5th Cir. 2016) (holding that, under
Verdugo-Urquidez, the defendants—Colombian citizens
and residents—had no Fourth Amendment protections to
22. The Supreme Court explained in Verdugo-Urquidez that,
“[t]here is likewise 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.” 494 U.S. at 267, 110 S. Ct. at 1061. Rather,
“aliens receive constitutional protections when they have come
within the territory of the United States and developed substantial
connections with this country.” Id. at 271, 110 S. Ct. at 1064.
41a
Appendix A
challenge the admission of wiretap conversations, which
were recorded in Colombia, in their drug trafficking
prosecutions under 21 U.S.C. §§ 959, 960, and 963).
While not in a drug trafficking case under the
MDLEA, this Court similarly has applied the VerdugoUrquidez rule in drug trafficking cases brought against
non-resident aliens. See, e.g., United States v. ValenciaTrujillo, 573 F.3d 1171, 1173, 1182-83 (11th Cir. 2009)
(holding that, under Verdugo-Urquidez, “[t]he Fourth
Amendment . . . does not apply to actions against foreign
citizens on foreign soil” and thus a non-resident alien
charged with drug smuggling crimes could not challenge
on Fourth Amendment grounds the district court’s
denial of an evidentiary hearing in which he sought
to invalidate his arrest and involuntary extradition in
Colombia);23United States v. Emmanuel, 565 F.3d 1324,
1332 (11th Cir. 2009) (holding, in a drug trafficking case,
that “[t]he Fourth Amendment exclusionary rule does not
apply to the interception of wire communications in the
Bahamas of a Bahamian resident”).
In this drug trafficking case under the MDLEA,
we too must follow Verdugo-Urquidez and conclude that
defendant Guagua-Alarcon, who is a non U.S. citizen and
non-U.S. resident, and who has no significant connection
to the United States, cannot challenge under the Fourth
23. In Valencia-Trujillo, this Court added that “[t]he allegedly
improper seizure of Valencia-Trujillo occurred in Colombia,” and “[b]
ecause there can be no violation of our Fourth Amendment in that
country, there can be no entitlement to a Franks hearing to establish
that one occurred there.” Id. at 1183.
42a
Appendix A
Amendment and McLaughlin the Coast Guard’s conduct
in taking 49 days on the high seas outside of the United
States to transport him to Florida for presentment to
the magistrate judge. 24 Rather, the correct analytical
framework for Guagua-Alarcon’s delay-in presentment
challenge is under Rule 5(a) and the Purvis factors as
outlined above. Thus, Guagua-Alarcon has shown no plain
error to establish his Fourth Amendment and McLaughlin
claims. 25
VIII. DEFENDANTS’ POST-ARREST,
PRE-MIRANDA SILENCE
Palacios-Solis argues that the district court erred in
denying his motion in limine to preclude the government
24. Once Guagua-Alarcon was brought to Florida on December
12, he appeared before a magistrate judge on December 13. The issue
here is only about the Coast Guard’s conduct in taking 49 days to
transport Guagua-Alarcon to Florida (or, as Guagua-Alarcon alleges,
deliberately delaying his transit).
25. In his initial brief, Guagua-Alarcon stated that his remedy
for the unreasonable delay in presentment was to vacate his
convictions. While we need not, and do not, reach this issue, we note
that federal courts have concluded that the remedy for a McLaughlin
or Rule 5(a) delay-in presentment violation is suppression of the
evidence obtained during the delay, not the vacatur of a conviction.
See Corley, 556 U.S. at 309, 129 S. Ct. at 1563 (explaining that,
generally, confessions made during periods of detention that violate
the prompt presentment requirement of Rule 5(a) are rendered
inadmissible); Gerstein, 420 U.S. at 119, 95 S. Ct. at 865 (explaining
the “established rule that illegal arrest or detention does not void a
subsequent conviction” and that “a conviction will not be vacated on
the ground that the defendant was detained pending trial without a
determination of probable cause”); Mendoza, 473 F.2d at 702.
43a
Appendix A
from presenting evidence of the defendants’ post-arrest,
pre-Miranda silence as “consciousness of guilt.” 26
As Palacios-Solis concedes, this Court’s binding
precedent forecloses his argument. Once a defendant is in
custody and receives Miranda warnings, he indisputably
has a Fifth Amendment right to remain silent. See Oregon
v. Elstad, 470 U.S. 298, 304-05, 311, 105 S. Ct. 1285, 129091, 1294, 84 L. Ed. 2d 222 (1985). Yet, the Supreme Court
has expressly held that the Fifth Amendment allows the
use of a defendant’s post-arrest, pre-Miranda silence to
impeach the defendant. Brecht v. Abrahamson, 507 U.S.
619, 628, 113 S. Ct. 1710, 1716, 123 L. Ed. 2d 353 (1993).
This Court, in United States v. Rivera, went one step
further. 944 F.2d 1563, 1568 (11th Cir. 1991). In Rivera,
this Court held that, in its case-in-chief, the government
may use a defendant’s post-arrest, pre-Miranda silence as
direct evidence tending to prove the defendant’s guilt. Id.
Palacios-Solis points out a circuit split on this
issue. This Court has already noted this circuit split in
Wilchcombe and again upheld our precedent in Rivera.
Wilchcombe, 838 F.3d at 1190-91 (“Whatever the state of
the law in other circuits, in our circuit it was permissible
for the government to comment on [the defendant’s]
silence.”). Given our precedent, the district court did not
abuse its discretion in denying Palacios-Solis’s motion in
limine on this basis.
26. We review evidentiary rulings for an abuse of discretion.
United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007).
44a
Appendix A
IX. SUFFICIENCY OF THE EVIDENCE
As to both counts, Cabezas-Montano and Palacio-Solis
argue that there was insufficient evidence to convict them
of violating the MDLEA because the government offered
no evidence that they were the ones responsible for the
drugs the Coast Guard found floating in the Pacific Ocean
two-and-a-half hours after the helicopter initially spotted
the target GFV’s passengers jettisoning packages. 27
To prove the existence of a conspiracy, “the government
must establish that an agreement existed between two
or more persons and that the defendant knowingly and
voluntarily participated in it.” Tinoco, 304 F.3d at 1122
(quotation marks omitted) (reviewing the sufficiency of the
evidence supporting conspiracy and substantive MDLEA
convictions). The government may meet its burden using
circumstantial evidence. Id. While a defendant’s presence
is not determinative, it is a material factor when weighing
evidence of a conspiracy. Id. at 1122-23.
The government also may use circumstantial evidence
to meet its burden of proving possession of a controlled
27. We review de novo whether the record contains sufficient
evidence to support the jury’s guilty verdict, viewing the evidence
in the light most favorable to the government and resolving all
reasonable inferences and credibility evaluations in favor of the
verdict. Tinoco, 304 F.3d at 1122. We will not overturn the jury’s
verdict “unless no trier of fact could have found guilt beyond a
reasonable doubt.” Id. (quotation marks omitted). The evidence need
not “exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, provided that
a reasonable trier of fact could find that the evidence established
guilt beyond a reasonable doubt.” Id. (quotation marks omitted).
45a
Appendix A
substance with intent to distribute. Id. A defendant’s
possession may be either actual or constructive. Id. A
defendant constructively possesses contraband when
he exercises some measure of dominion or control over
it, either exclusively or in association with others. Id.
Moreover, we may infer a defendant’s intent to distribute
from the large quantity of narcotics seized. Id.
As this Court has pointed out, “conspiracy and
possession cases involving narcotics-laden vessels present
repetitive fact patterns.” Id. In Tinoco, we identified
these factors to consider when determining whether a
jury reasonably could conclude that a defendant found on
the target vessel was guilty of the drug conspiracy and
possession charges:
(1) probable length of the voyage, (2) the size
of the contraband shipment, (3) the necessarily
close relationship between captain and crew,
(4) the obviousness of the contraband, and (5)
other factors, such as suspicious behavior or
diversionary maneuvers before apprehension,
attempts to flee, inculpatory statements made
after apprehension, witnessed participation
of the crew, and the absence of supplies or
equipment necessary to the vessel’s intended
use.
Id. Once the government shows that a large quantity of
contraband was present on a vessel, its “remaining burden
of showing that the crew knowingly participated in the
drug trafficking operation is ‘relatively light,’” and can be
met by proving any one of the other Tinoco factors. Id.
46a
Appendix A
In this case, the jury had ample evidence demonstrating
that the defendants were guilty of the MDLEA conspiracy
and possession crimes. First, the evidence showed that
the defendants’ vessel was the same GFV the Coast Guard
was targeting on the night of October 24. Multiple units
of the Hamilton cutter monitored and chased the target
GFV for almost three hours, stayed in contact with each
other and shared coordinate locations throughout this time
period, and only lost its visual of the GFV for 31 minutes.
The target GFV was a 30-to-35-foot high-speed vessel
with two outboard engines carrying three passengers,
and the three defendants and their vessel matched that
description. The Hamilton crew found the defendants’
vessel in the vicinity it had been searching for and chasing
the GFV. And, importantly, the Hamilton crew neither
saw nor heard of any other vessels in the vicinity during
the entirety of the interdiction.
Additionally, the results of the Coast Guard’s searches
of the defendants’ vessel and the GPS trackers matched
their observations during the chase of the GFV. The
FLIR video showed that the GFV’s left side engine was
emitting less heat than the right side engine, which was
consistent with the LRI boarding team’s discovery of a
wet shirt covering the left engine. The buoys and black
line recovered from the water matched those discovered
on the defendants’ vessel and claimed by Palacios-Solis.
And the trajectories of the GPS trackers on the recovered
bales were consistent with the Hamilton cutter’s and
helicopter’s coordinate range data for the target GFV as
well as the coordinate document found on the defendants’
vessel.
47a
Appendix A
Moreover, the defendants’ story that they had gone
on a four-day fishing trip but had been lost or adrift at
sea for about 30 days was contradicted by substantial
evidence: (1) the defendants’ vessel was a GFV and not a
fishing boat; (2) the GFV’s bottom side was clean and had
no growth; (3) the defendants had no bait, fish, or useable
fishing lines onboard; (4) they had a substantial amount of
fuel for a short fishing trip; (5) they had large quantities
of food and liquids, which appeared to be fresh; (6) they
did not seem happy to see the Coast Guard after being
adrift for about 30 days; (7) they needed no medical care
and showed no signs of lethargy, extended exposure to
the elements, or malnutrition; and (8) a drift analysis
showed that their story was impossible based on their
claimed starting point, the weather and currents, and the
coordinate location of the interdiction.
In short, while the Hamilton crew lost a visual of the
GFV for 31 minutes, there was a wealth of other evidence
establishing that the defendants’ later-captured vessel
was the observed target GFV which was jettisoning the
bales of cocaine.
Second, the evidence also showed that the recovered
bales of cocaine were the same ones that were jettisoned
by the target GFV, which was the defendants’ vessel.
While aboard the target GFV, the defendants jettisoned
numerous packages overboard during the chase and then
the helicopter crew communicated the location of the
jettisoned packages by using chemical lights and relaying
the coordinate position. Although the OTH crew did not
find the jettisoned packages at the specified location, the
48a
Appendix A
OTH crew recovered one package of cocaine and a buoy
with a black line floating in the water while en route to the
location where the defendants’ vessel had been visually
reacquired. Then, the OTH crew recovered 24 more bales
of cocaine and buoys equipped with GPS trackers after
conducting a drift analysis to calculate the likely location
of the jettisoned packages given the current and wind
movement. And, according to the Coast Guard maritime
expert’s testimony, the southward location where the
Hamilton crew searched for and recovered the bales
was consistent with information regarding the direction
of the GFV.
Once again, the results of the vessel and GPS-tracker
searches matched the Hamilton crew’s observations
during the chase of the GFV. The buoys, black line, and
brown packing tape wrapped around the cocaine bales
matched those discovered on the defendants’ vessel. The
GPS trackers’ trajectories on the recovered bales were
consistent with the coordinate range data for the GFV,
the coordinate document found on the defendants’ vessel,
and Palacios-Solis’s statement to the LRI boarding team
that the defendants’ last port of call was in Ecuador.
The GPS trackers also showed the sudden stopping and
slow drifting of the bales, which is consistent with the
defendants jettisoning the bales off the GFV and the bales
drifting in the water into the area where the Coast Guard
eventually found them.
Still yet, other evidence established the link between
the defendants and the recovered bales of drugs. By the
time the LRI boarding team boarded the defendants’
49a
Appendix A
vessel, it had been wiped down almost entirely with
fuel, so as to hide any remaining evidence of drugs.
The defendants appeared visibly concerned when the
LRI boarding team began the swabbing process, which
revealed that one of the defendants and the GFV’s bow
and tiller recently were in contact with trace amounts of
cocaine. And, as discussed earlier, the defendants’ fishing
story was contradicted by substantial evidence.
Although the Hamilton crew discovered the bales of
cocaine in areas outside of the immediate location where
they reacquired sight of the GFV and where they dropped
chemical lights, there was plenty of other evidence
establishing that these were the packages that the
defendants jettisoned off their vessel. In sum, sufficient
evidence established that the defendants’ vessel was the
target GFV and that the recovered cocaine bales were the
ones that had been jettisoned from the GFV.
With that established, we now turn to the Tinoco
factors and why a jury could reasonably find the defendants
were involved in a conspiracy to traffic and possess the
drugs on their vessel. The size of the contraband shipment
is relevant to show: (1) the passengers’ knowledge of the
contraband’s presence on the vessel; (2) the passengers’
intent to use the contraband for large-scale distribution,
rather than for personal use; and (3) participation in the
drug trafficking conspiracy by all the vessel’s passengers.
See Tinoco, 304 F.3d at 1121, 1123 (“The value of the
cocaine also was relevant to showing that the cocaine most
likely was not for personal consumption, but for largescale distribution, which went to whether the appellants
50a
Appendix A
acted with an intent to distribute the cocaine.”); United
States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir. 1985)
(explaining that large drug quantities on a small vessel
“make it most unlikely that the persons on board will be
ignorant of its presence” and that “it is highly improbable
that drug smugglers would allow an outsider on board a
vessel filled with millions of dollars worth of contraband”).
Indeed, the packages jettisoned from the defendants’
vessel contained a large amount of cocaine—25 total bales
of cocaine collectively weighing 614 kilograms and worth
$ 10 million wholesale. See United States v. Hernandez,
864 F.3d 1292, 1304-05 (11th Cir. 2017) (stating that 290
kilograms of cocaine within ten previously jettisoned bales
indicated cocaine smuggling). Although the defendants’
vessel was carrying a large cocaine shipment, only three
crew members were aboard. See Tinoco, 304 F.3d at 1123
(“The presence of a large amount of contraband on a
small vessel with a small crew evidenced the defendants’
knowing participation in the drug smuggling operation.”).
And, at trial, Palacios-Solis testified and eventually
admitted that he was the captain aboard a small 30-to35-foot vessel for possibly up to ten days, given the GPS
tracker evidence. Given the small size of the boat, the
few number of crew members, and the large amount of
cocaine, that evidence made it reasonable for the jury to
find beyond a reasonable doubt that the defendants knew of
and agreed to participate in the charged drug conspiracy
and possession crimes.
Yet, the government also proved three other Tinoco
factors indicative of guilt of the charged crimes: (1)
51a
Appendix A
suspicious behavior or diversionary maneuvers before
apprehension; (2) attempts to flee; and (3) absence of
equipment necessary to the vessel’s purported use as a
fishing boat. The evidence established that the defendants
led the Hamilton crew on a two-hour chase, despite
the crew’s repeated orders and warning shots to signal
the vessel to heave to. The defendants covered at least
one of their engines to reduce its visibility, restarted
their engines and began moving each time the Coast
Guard reacquired them, and engaged in evasive, zig-zag
movements. The defendants also wiped down their vessel
with fuel before the boarding crew came aboard. And,
other than some fishing hooks and knives, there were no
usable fishing supplies or equipment aboard.
Ultimately, a jury reasonably could conclude that
the defendants were guilty of the drug conspiracy
and possession charges given their presence and close
proximity on the small GFV for several days, the large
amount and high monetary value of the cocaine, their
diversionary maneuvers and attempts to flee, and the
absence of necessary fishing supplies on their vessel. Id.
at 1122-23. We thus conclude sufficient evidence supported
the defendants’ convictions. 28
28. We recognize that the government stresses that the
defendants did not verbally respond when asked the right-of-visit
questions and pointed at each other when asked to identify the master
of the vessel. However, we need not rely on that evidence to uphold
the jury’s verdict here.
52a
Appendix A
X. PALACIOS-SOLIS’S MOTION FOR A MISTRIAL
Palacios-Solis argues that the district court abused
its discretion in denying his motion for a mistrial based on
the government’s alleged Brady violation for not disclosing
the CIC’s FLIR video on the Hamilton cutter and the
fact that Petty Officer Tetzlaff observed critical events as
recorded by that video. 29 Palacios-Solis takes issue with
Officer Tetzlaff’s testimony that he observed on the video
that one of the defendants “looked . . . very frantic trying
to get the engine fixed.”
Palacios-Solis has not shown that the prosecution’s
failure to disclose this evidence violated his rights under
Brady. The Supreme Court in Brady held that “the
suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87, 83 S. Ct. at 1196-97 (emphasis
added). Here, Palacios-Solis has not shown that the subject
evidence was “favorable” or exculpatory, but concedes
that Officer Tetzlaff’s testimony about the contents of
the CIC’s FLIR video was “highly-incriminating” and
“contradicted” the defendants’ innocent version of events.
Palacios-Solis made the same concession when arguing his
motion for a mistrial before the district court. Because the
purportedly suppressed evidence is neither favorable nor
material, Palacios-Solis failed to show a Brady violation
29. ”We review for abuse of discretion the denial of a motion
for a mistrial.” Valois, 915 F.3d at 723 n.2.
53a
Appendix A
and the district court did not abuse its discretion in
denying his motion for a mistrial.
XI. SENTENCING
A. Defendants’ Presentence Investigation Reports
(“PSR”)
Cabezas-Montano’s and Guagua-Alarcon’s PSRs
assigned them a base offense level of 38 for Counts 1
and 2, under U.S.S.G. § 2D1.1(a)(5) and (c)(1), because
they were responsible for transporting 614 kilograms of
cocaine. 30 The PSRs did not apply either an aggravating
or mitigating role adjustment. Their total offense level of
38 and criminal history category of I yielded an advisory
guidelines range of 235 to 293 months’ imprisonment for
both counts.
Palacios-Solis’s PSR assigned him a base offense
level of 38 for Counts 1 and 2, under § 2D1.1(a)(5) and
(c)(1), because he too was responsible for transporting
614 kilograms of cocaine. 31 The PSR added a two-level
increase for his role as the captain of the vessel and a
two-level increase for obstruction of justice by giving
false trial testimony about being adrift for about 30 days.
30. The base-offense-level paragraph in Guagua-Alarcon’s PSR
actually states that he was held accountable for “612 kilograms” of
cocaine, but this appears to be a typo, as the quantity of cocaine is
otherwise documented as “614 kilograms” elsewhere in his PSR.
31. The base-offense-level paragraph of Palacios-Solis’s PSR
includes the same “612 kilogram” typo as in Guagua-Alarcon’s PSR.
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The PSR pointed out that Palacios-Solis admitted at
trial to being the captain of the vessel. Palacios-Solis’s
total offense level of 42 and criminal history category of
I yielded an advisory guidelines range of 360 months’ to
life imprisonment for both counts.
B. Defendants’ Objections and Motions for Downward
Variance
All defendants filed written objections to their PSRs
and then made or expanded upon their objections at
the sentencing hearing. All defendants objected to not
receiving a two-level minor-role reduction under U.S.S.G.
§ 3B1.2(b). Palacios-Solis also objected: (1) to the PSR’s
factual basis, maintaining his innocence; (2) to his twolevel aggravating role increase under U.S.S.G. § 2D1.1(b)
(3)(C); (3) to his not receiving a two-level reduction under
the “safety valve” provision of U.S.S.G. § 5C1.2; and (4)
to his receiving the two-level increase for obstruction of
justice.
All defendants also moved for downward variances
pursuant to 18 U.S.C. § 3553(a), requesting the 120-month
statutory mandatory minimum sentence. GuaguaAlarcon highlighted his poverty, poor education, physical
disabilities, familial relationships in Ecuador, efforts to
support his family, and minor role in the offense. CabezasMontano emphasized his age, lack of prior crimes, minor
role in the offense, familial relationships in Colombia, and
efforts to support his family. Palacios-Solis stressed his
“background and characteristics” and the severity of a
360-month sentence. Each defendant made only $ 80 to
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$100 a week, lived in poverty, was poorly educated, and
had family members in their home countries who depended
upon them financially.
C. Government’s Response
In response, the government argued that none of
the defendants should receive a minor-role reduction
because: (1) they were held accountable only for the
quantity of cocaine they jettisoned from their vessel; (2)
they jettisoned a huge quantity of cocaine; (3) they each
played a vital role in the drug trafficking conspiracy and
in attempting to destroy the evidence of their crimes; and
(4) their transportation of such a large cocaine shipment
was an essential component of their drug trafficking. The
government emphasized that Palacios-Solis’s role increase
applied given his admission that he was the captain. The
government stressed that Palacios-Solis was not eligible
for the safety-valve relief because he had not provided the
government with any information about his offenses and
there was no precedent supporting his Fifth Amendment
challenge to that requirement for safety-valve relief.
And his false trial testimony warranted his obstructionofjustice increase.
D. Sentencing Hearing
The defendants were sentenced together at a combined
hearing. The district court addressed the defendants’
arguments as to their alleged minor roles, which largely
overlapped with their arguments for downward variances.
Cabezas-Montano and his counsel led these arguments,
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which were adopted and brief ly expanded upon by
Palacios-Solis’s and Guagua-Alarcon’s attorneys.
The defendants argued that they were the “little
guys” in the drug trafficking operation, as they did not
own the drugs, package the drugs, make arrangements
for the drugs’ transportation or receipt, or make “millions
and millions” of dollars off of the drugs’ distribution.
For example, Cabezas-Montano, as a “little guy,” lived in
poverty in his home country, only made up to a hundred
dollars a week as a career fisherman, and stood to make
more money in one week than he’d make in 20 years if
he succeeded in this drug trafficking trip. While the
defendants were not minor participants with respect
to the transported drugs in this case, they were “very
small fish in a very large [drug trafficking] pond” with
respect to “the real world.” While the “little fish” risked
long sentences if they got caught, the “big guys” would
continue to run the operation and make millions. The
defendants also had no decision-making authority within
the conspiracy. The defendants did not plan or organize
the drug operation but only transported the drugs. They
pointed out that the Guidelines reference transporting
drugs as an example of conduct that could be eligible for
a minor-role reduction. 32
The government reiterated that the defendants
were not entitled to a minorrole reduction because they
were entrusted with a large quantity of cocaine, they
32. This is a compilation of the defendants’ arguments in their
written objections and at sentencing.
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evaded the Coast Guard and created a substantial risk
to those involved in the interdiction efforts, and they
acted together in navigating the vessel and throwing the
cocaine overboard.
The district court then engaged in a lengthy colloquy
with Cabezas-Montano’s counsel regarding his argument
that the defendants were just the “little guys” in a
larger operation. The district court asked how it would
know whether a defendant aboard a vessel was a “little
guy” or was a “big guy” representing the owners of the
cocaine. Cabezas-Montano stated that those facts would
be based on the government’s intelligence on particular
trafficking organizations or networks, investigation into
the particular case, or cooperation of the defendants.
Cabezas-Montano argued that the government presented
no evidence indicating he was anything other than what
he said: a low-income fisherman.
The district court also inquired about deterrence
and asked about how much couriers typically make for
successfully transporting cocaine. Cabezas-Montano
stated that a typical courier could make $ 20,000 for
transporting a load of cocaine, which was a lot more than
he made per week back at home. The district court was
concerned that an individual like Cabezas-Montano would
not be deterred from attempting a successful run given
the possible reward. Cabezas-Montano responded that he
already was deterred by the remorse of being separated
from his family and the guilt of no longer being able to
provide for them. He argued that many people in his home
country do not realize the risk they face by transporting
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drugs and that general deterrence would be better served
if he were able to return home and relay what happened
to him. Cabezas-Montano reiterated that 120 months was
very severe and would be sufficient to deter him.
Ultimately, the district court was unpersuaded by
the defendants’ deterrence argument given the number
of individuals who make similar trips, some of which are
successful and report their successes to their villages.
The district court indicated that MDLEA penalties were
significant partly because of the harm these drug offenses
wreak on our society. The district court concluded:
(1) that transportation was a critical role in the drug
trafficking industry; (2) that defendants are accountable
for their role in the conspiracy that was charged, not in
a larger conspiracy that involved drug manufacturers
or distributors somewhere else; and (3) that each of the
defendants was an essential member of this conspiracy.
The district court overruled the defendants’ minorrole objections. After hearing from Cabezas-Montano’s
counsel, the district court denied Cabezas-Montano’s
downward-variance request.
Palacios-Solis and his counsel went next. The district
court overruled Palacios-Solis’s objections to the PSR’s
factual basis, noting that it had heard the trial evidence
and found that the evidence supported that factual basis.
Palacios-Solis again raised his mitigating-role objection,
which the district court overruled as well. Palacios-Solis
then raised his objection to the denial of safety-valve relief.
Although claiming he met the first four requirements of
the safety valve, Palacios-Solis conceded that he did not
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meet the fifth requirement (to provide the government
with information about his offenses), but argued that
the fifth requirement violated his right against selfincrimination under the Fifth Amendment. The district
court observed that Palacios-Solis did not provide all he
knew about the case and lied about his role at trial and
in any event controlling precedent foreclosed his Fifth
Amendment challenge. The district court overruled the
safety-valve objection.
Palacios-Solis also challenged his obstructionof-justice increase and argued he did not lie at trial.
Overruling the objection, the district court found that
Palacios-Solis testified about being adrift for about 30
days, that the Coast Guard expert testified that this story
was physically impossible, and that there was plenty of
evidence that the defendants attempted to conceal and
destroy evidence during the chase.
Palacios-Solis also raised his request for a downward
variance to the 120-month statutory mandatory minimum
sentence. The district court denied his request. After
ruling on each of Palacios-Solis’s PSR objections, the
district court found that his total offense level was 42,
his criminal history category was I, and his advisory
guidelines range was 360 months to life.
Guagua-Alarcon and his counsel went last, but noted
that his only remaining objection was to not receiving the
minor-role reduction, which the district court overruled. 33
33. At this juncture, Guagua-Alarcon did not mention his motion
for a downward variance but appeared to assume the district court
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The district court found that Guagua-Alarcon’s total
offense level was 38, his criminal history category was I,
and his advisory guidelines range was 235 to 293 months.
E. Counsel’s Final Sentencing Arguments
After the defendants’ personal allocutions, 34 their
counsel presented arguments for sentences well below
the guidelines range. For example, the defendants argued
that a shorter term of U.S. imprisonment would better
promote general deterrence because they could go home
and relay what happened. They also argued that: (1) they
came from poverty and had a poor education; (2) the large
drug quantity was irrelevant because they had no control
over the amount transported; (3) they would not do well
in a U.S. prison as non-English speakers with no family
or support system here; and (4) a within-guidelines-range
sentence would be extreme and unwarranted. CabezaMontano’s counsel also stressed that, in two of his other
MDLEA cases, his clients had been found guilty after
a trial but nevertheless were granted large downward
had already denied his motion too when the district court denied
those of Cabezas-Montano and Palacios-Solis.
34. In allocution, Cabezas-Montano stated that he was
concerned about his family’s welfare and asked to be deported
back to his home country. Palacios-Solis stressed that there was no
cocaine found on the defendants’ vessel, that they were asleep when
the Coast Guard apprehended them, and that he was concerned
about his inability to provide for his family, and he asked for mercy.
Guagua-Alarcon maintained his innocence, denied being involved
with cocaine, and asked to be deported back to his home country to
be with his family.
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variances and received sentences between 120 and 188
months’ imprisonment.
In opposing 120-month sentences, the government
argued that sentences must have meaning and that
if a defendant goes to trial, loses, and then receives a
downward variance to the bare statutory mandatory
minimum sentence of 120 months, there would be no
incentive for defendants to take responsibility for their
criminal actions. The government noted that only one
district court judge had granted the downward variances
Cabezas-Montano’s counsel referred to and that none
of the judges in the district who presided over MDLEA
cases had ever given a minor-role reduction, whether the
defendants pled guilty or went to trial. The government
emphasized that the defendants’ advisory guidelines
ranges were reasonable and requested 240 -month
sentences for Cabezas-Montano and Guagua-Alarcon and
at least a 360-month sentence for Palacios-Solis.
F. District Court’s Sentences
The district court then addressed the § 3553(a)
factors. The district court explained that it had presided
over several MDLEA cases in the past and would seek to
be consistent with himself, rather than with other judges,
especially given the defendants’ advisory guidelines
ranges in this case. The district court noted: (1) the large
quantity of drugs involved in this case; (2) the drugs were
valued at many millions of dollars; (3) there had been
an uptick in MDLEA cases recently; and (4) these drug
trafficking operations have a profound impact on U.S.
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communities and law enforcement. The district court
observed that, in order to promote respect for the law
and to provide deterrence, “the message needs to be sent
home to these individuals who are contemplating engaging
in this kind of criminal behavior, that the United States
intends on doing something about” drug trafficking.
The district court explicitly stated that it considered the
parties’ statements, the PSRs containing the advisory
guidelines ranges, and the § 3553(a) factors. The district
court determined that, for each defendant, sentences at
the lower end of the advisory guidelines range would
provide sufficient punishment and deterrence.
The district court sentenced: (1) Cabezas-Montano
and Guagua-Alarcon to 240 months’ imprisonment,
concurrently on both counts; and (2) Palacios-Solis to 360
months’ imprisonment, concurrently on both counts. The
defendants renewed all prior objections, but made no new
objections.
XII.
SAFETY-VALVE RELIEF
Turning back to the arguments on appeal, PalaciosSolis and Cabezas-Montano challenge the constitutionality
of the “safety-valve” provisions of 18 U.S.C. § 3553(f) and
U.S.S.G. § 5C1.2. 35 They concede, however, that they are
not eligible for safety-valve relief because, at the time
of their MDLEA convictions under Title 46, no Title 46
offense was covered by the safety valve in § 3553(f) or
35. We review de novo a district court’s interpretation of a
statute and whether a statute is constitutional. Valois, 915 F.3d at
722 n.1.
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§ 5C1.2. See United States v. Pertuz-Pertuz, 679 F.3d
1327, 1328 (11th Cir. 2012) (holding that, because no Title
46 offense appeared in the plain terms of the safety valve,
defendants convicted under Title 46—which includes
MDLEA offenses—were not eligible for safety-valve
relief). 36
36. Congress recently amended § 3553(f) to add MDLEA
offenses to the list of crimes eligible for safety-valve relief. See First
Step Act of 2018, Pub. L. No. 115-391, § 402(a)(1)(A)(ii), 132 Stat. 5194,
5221 (2018). However, Congress made the amendment applicable to
convictions entered on or after the date of enactment, December 21,
2018. First Step Act § 402(b), 132 Stat. at 5221. That amendment
thus does not apply to the defendants in this case because they were
convicted in 2017.
The prior version of § 3553(f) in effect in 2017 provided that, “in
the case of an offense under section 401, 404, or 406 of the Controlled
Substances Act (21 U.S.C. [§§] 841, 844, 846) or section 1010 or 1013
of the Controlled Substances Import and Export Act (21 U.S.C. [§§]
960, 963), the court shall impose a sentence pursuant to guidelines
. . . without regard to any statutory minimum sentence, if the court
finds at sentencing, after the Government has been afforded the
opportunity to make a recommendation, that” the defendant has
met five requirements. 18 U.S.C. § 3553(f) (effective May 27, 2010,
to Dec. 20, 2018). Importantly, the fifth requirement was that, “not
later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence
the defendant has concerning the offense or offenses that were part
of the same course of conduct or of a common scheme or plan.” Id.
§ 3553(f)(5).
Similarly, § 5C1.2 provides that, “in the case of an offense under
21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose
a sentence in accordance with the applicable guidelines without
regard to any statutory minimum sentence, if the court finds that the
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Further, this Court has held that the safety valve’s
prior exclusion of Title 46 defendants does not violate the
Fifth Amendment’s Equal Protection Clause. Castillo, 899
F.3d at 1212-13; see also Valois, 915 F.3d at 729 (following
Castillo and reaching the same holding). In doing so, we
applied rational-basis review and concluded that Congress
had “legitimate reasons to craft strict sentences for
violations of the [MDLEA].” Castillo, 899 F.3d at 1213.
We highlighted the “pressing concerns about foreign
relations and global organizations” and the difficulties
inherent in policing “drug trafficking on the vast expanses
of international waters.” Id. Palacio-Solis’s and CabezasMontano’s equal-protection challenges to the safety-valve
thus are foreclosed by Castillo.
Palacio-Solis and Cabezas-Montano also contend that
the safety-valve’s fifth requirement—that defendants
provide information to the government about their
offenses—violates their Fifth Amendment right against
self-incrimination. “[T]his Court has not addressed in a
published opinion this Fifth Amendment issue as to the
safety valve.” See Valois, 915 F.3d at 730. In Valois, we
briefly discussed the issue but ultimately did not decide
it. Id. Namely, we pointed out that, in United States v.
Henry, 883 F.2d 1010, 1011 (11th Cir. 1989), this Court
concluded that “U.S.S.G. § 3E1.1, the acceptance-ofresponsibility provision of the Guidelines, does not violate
the Fifth Amendment right against self-incrimination.”
Valois, 915 F.3d at 730 (explaining that “[s]ection 3E1.1(a)
defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5).” U.S.S.G.
§ 5C1.2(a). Both provisions are known as the “safety valve.” United
States v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004).
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is not a punishment; rather, the reduction for acceptance
of responsibility is a reward for those defendants who
express genuine remorse for their criminal conduct”
(quotation marks omitted)). We also pointed out that
“[s]everal of our sister circuits have concluded that the
same is true for the safety valve in 18 U.S.C. § 3553(f) and
U.S.S.G. § 5C1.2(a).” Id. (citing United States v. Warren,
338 F.3d 258, 266-67 (3d Cir. 2003); United States v.
Cruz, 156 F.3d 366, 374 (2d Cir. 1998); United States v.
Washman, 128 F.3d 1305, 1307 (9th Cir. 1997); United
States v. Arrington, 73 F.3d 144, 149-50 (7th Cir. 1996)).
Nevertheless, in Valois, we declined to decide the
issue given our conclusions that safety-valve relief was
unavailable to the Title 46 MDLEA defendants in that
case and that such unavailability did not violate the Equal
Protection Clause and is constitutional. Id. Similarly,
here, because Palacio-Solis and Cabezas-Montano are not
eligible for safety-valve relief in the first place, we need
not consider these defendants’ claim that the substantive
requirements for safety-valve relief violate their Fifth
Amendment right against self-incrimination. See id.
XIII. PROCEDURAL AND SUBSTANTIVE
REASONABLENESS
A ll defendants raise va r ious procedural and
substantive reasonableness arguments related to their
sentences. Generally, we review the reasonableness of a
sentence under a deferential abuse-of-discretion standard
using a two-step process. United States v. Pugh, 515 F.3d
1179, 1190 (11th Cir. 2008). First, we look at whether the
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district court committed any significant procedural error,
such as miscalculating the advisory guidelines range,
treating the guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to explain adequately the chosen
sentence. 37Id. Then, we examine whether the sentence is
substantively unreasonable in light of the § 3553(a) factors
and the totality of the circumstances. Id. The defendants,
as the parties challenging their sentences, bear the burden
to show that their sentences are unreasonable. Id. at 1189.
A. Minor-Role Reduction
All three defendants argue that the district court
erred in denying them a two-level minor-role reduction
under U.S.S.G. § 3B1.2(b). 38
37. The § 3553(a) factors include, of relevance: (1) the nature and
circumstances of the offense and the history and characteristics of
the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the
offense; (3) the need for deterrence; (4) the need to protect the public
from the defendant’s future crimes; (5) the sentencing guidelines
range; and (6) the need to avoid unwarranted sentence disparities.
18 U.S.C. § 3553(a)(1)-(2), (4), (6).
38. ”We review a district court’s denial of a role reduction
for clear error.” Valois, 915 F.3d at 730 n.8. This Court will not
disturb a district court’s findings regarding the denial of a role
reduction “unless we are left with a definite and firm conviction that
a mistake has been made.” Id. at 731. “The court’s choice between
two permissible views of the evidence will rarely constitute clear
error, so long as the basis of the trial court’s decision is supported
by the record and the court did not misapply a rule of law.” Id. The
defendant bears the burden of establishing, by a preponderance of
the evidence, his minor role in the offense. Id.
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Section 3B1.2(b) provides that a defendant is entitled
to a two-level decrease in his offense level if he was a
“minor participant in any criminal activity.” U.S.S.G. §
3B1.2(b). A defendant is a “minor participant” if he was
“less culpable than most other participants in the criminal
activity,” but his role “could not be described as minimal.”
Id. § 3B1.2, cmt. n.5. In determining whether a defendant
is entitled to a minor-role reduction, the district court must
consider the totality of the circumstances and the facts of
the particular case. Id. § 3B1.2, cmt. n.3(C).
In United States v. De Varon, this Court established
two principles to “guide the determination of whether a
defendant played a minor role in the criminal scheme: (1)
‘the defendant’s role in the relevant conduct for which [he]
has been held accountable at sentencing,’ and (2) ‘[his]
role as compared to that of other participants in [his]
relevant conduct.’” United States v. Presendieu, 880 F.3d
1228, 1249 (11th Cir. 2018) (quoting United States v. De
Varon, 175 F.3d 930, 940 (11th Cir. 1999) (en banc)). “In
making the ultimate finding as to role in the offense, the
district court should look to each of these principles and
measure the discernable facts against them.” De Varon,
175 F.3d at 945.
In De Varon, this Court pointed to these examples
of relevant factors for the district court to consider in
the drug courier context: “amount of drugs, fair market
value of drugs, amount of money to be paid to the courier,
equity interest in the drugs, role in planning the criminal
scheme, and role in the distribution.” Id. (stressing that
this is a non-exhaustive list, wherein no one factor is more
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important than another). This determination is highly
fact-intensive and “falls within the sound discretion of
the trial court.” Id.
The amended commentary to § 3B1.2 presents a
non-exhaustive list of factors “[s]imilar to the factintensive, multi-faceted approach this Court established
in De Varon.” Presendieu, 880 F.3d at 1249; see also
Cruickshank, 837 F.3d at 1193 (explaining that the purpose
of Amendment 794 to the commentary to § 3B1.2 was to
“further clarify the factors for a court to consider for a
minor-role adjustment” in a way that “still continue[s] to
embrace the approach we took in De Varon”). These factors
include: (1) “the degree to which the defendant understood
the scope and structure of the criminal activity”; (2) “the
degree to which the defendant participated in planning
or organizing the criminal activity”; (3) “the degree to
which the defendant exercised decision-making authority
or influenced the exercise of decision-making authority”;
(4) “the nature and extent of the defendant’s participation
in the commission of the criminal activity”; and (5) “the
degree to which the defendant stood to benefit from the
criminal activity.” U.S.S.G. Supp. to App. C, Amend. 794;
U.S.S.G. § 3B1.2, cmt. n.3(C) (2015).
“The court must consider all of [the § 3B1.2] factors
to the extent applicable, and it commits legal error in
making a minor role decision based solely on one factor.”
Valois, 915 F.3d at 732 (quotation marks omitted); see,
e.g., Cruickshank, 837 F.3d at 1194-95 (concluding that,
“although nothing in De Varon or Amendment 794 [to
§ 3B1.2’s commentary] precludes a district court from
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considering the drug quantity with which the defendant
was involved as an indicator of his role, we think it was
legal error for the district court to say that this is the only
factor to be considered in a case like this one”).
Here, based on the totality of the circumstances, the
district court did not clearly err in denying the defendants’
request for a minor-role reduction. Under De Varon’s
first principle, the inquiry is whether the defendant
“played a relatively minor role in the conduct for which
[he] has already been held accountable—not a minor role
in any larger criminal conspiracy.” De Varon, 175 F.3d
at 944; United States v. Martin, 803 F.3d 581, 591 (11th
Cir. 2015). The record shows that all three defendants
knowingly participated in the illegal transportation of
a large quantity of high-purity and high-value cocaine,
that they and their transportation roles were important
to that scheme, and that they were held accountable for
that conduct only. See U.S.S.G. § 3B1.2, cmt. n.3(C); De
Varon, 175 F.3d at 941-43; see also United States v. Monzo,
852 F.3d 1343, 1347 (11th Cir. 2017) (considering, as part
of the totality of the circumstances, that the defendant
“participated in the distribution of high-purity [drugs],
. . . that he was responsible only for his direct role in the
conspiracy, and that he was important to the scheme”).
While these facts do not render the defendants
ineligible for the minor-role reduction, they support the
district court’s denial of the reduction. Further, the fact
that the defendants’ transportation roles—moving a large
quantity of high-purity cocaine through international
waters—were important, and indeed critical, to the drug
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trafficking scheme was relevant to the fourth factor in
§ 3B1.2’s commentary about the nature of the defendants’
participation in the criminal activity. See U.S.S.G. § 3B1.2,
cmt. n.3(C). That the defendants each were to receive
$20,000 for their significant transportation roles showed
the defendants stood to benefit from the criminal act,
which is the fifth factor in § 3B1.2’s commentary. See id.
In addition, under De Varon’s second principle, the
record indicates that none of the defendants were “less
culpable than most other participants in the criminal
activity.” U.S.S.G. § 3B1.2, cmt. n.5. If anything, PalaciosSolis was the most culpable of the three defendants
because, as he testified, he was the captain of the vessel.
While Cabezas-Montano and Guagua-Alarcon appear to
have had less of a role than Palacios-Solis, that fact alone
does not make them minor participants. “The fact that a
defendant’s role may be less than that of other participants
engaged in the relevant conduct may not be dispositive
of role in the offense, since it is possible that none are
minor or minimal participants.” De Varon, 175 F.3d at
944. Simply put, the three defendants here did not carry
their burden to show how they were less culpable than
“most other participants” in the criminal activity, as they
presented no supporting evidence at trial or at sentencing.
See U.S.S.G. § 3B1.2, cmt. n.5; Valois, 915 F.3d at 731.
The defendants do principally argue that they were less
culpable than other participants in the larger conspiracy,
such as those who recruited and trained the defendants,
those who planned the scheme, and those with a financial
interest in the drugs. In this vein, the defendants argue
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that the district court denied them minor-role adjustments
solely because the other participants were not charged and
the defendants were held accountable only for the drug
amounts charged against them.
Subsequent amendments to the Sentencing Guidelines
clarify that, “[i]n considering a § 3B1.2 adjustment, a court
must measure the defendant’s role against the relevant
conduct for which the defendant is held accountable at
sentencing, whether or not other defendants are charged.”
See U.S.S.G. App. C, Amend. 635, Reason for Amendment.
We also recognize the Sentencing Commission’s statement,
in agreement with our decision in De Varon, that Ҥ 3B1.2
does not automatically preclude a defendant from being
considered for a mitigating role adjustment in a case in
which the defendant is held accountable under § 1B1.3
solely for the amount of drugs the defendant personally
handled.” See id.
Nevertheless, the district court is not required to
consider the culpability of any unknown conspirators or
a hypothetical conspiracy. See De Varon, 175 F.3d at 944.
This Court has explained that the district court should
consider “other participants only to the extent that they
are identifiable or discernable from the evidence” and
“may consider only those participants who were involved
in the relevant conduct attributed to the defendant.” Id.
The trial evidence pointed to only the three defendants
as participants involved in the relevant conduct that was
attributed to each of them. The defendants submitted no
evidence at trial or at sentencing regarding any other coconspirators, let alone anyone who recruited or trained
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the defendants, plotted the offense, or owned the drugs.
“Despite having the burden of proof, [the defendants] did
not put forth evidence showing who else was involved or
what their roles were. Without such evidence, the district
court could not compare the roles of the other conspirators
or ‘determine that the defendant[s] w[ere] less culpable
than most other participants in [their] relevant conduct.’”
See United States v. Wright, 862 F.3d 1265, 1278 (11th Cir.
2017) (quoting De Varon, 175 F.3d at 944).
To the extent that the defendants argue that the
district court denied them minor-role reductions on the
sole ground that they were being held accountable for
only their conduct and the drug amount on their vessel,
the record shows that the district court considered not
one but several grounds in denying the reduction. See
U.S.S.G. App. C, Amend. 635, Reason for Amendment;
Valois, 915 F.3d at 732. During the sentencing colloquy,
Cabezas-Montano’s counsel argued and the district court
considered: (1) the defendants’ argument that they were
just the “little guys” in a larger operation, rather than,
as the district court put it, “big guy[s]” representing
the owners of the cocaine; (2) how much money couriers
stood to make in these operations; (3) the critical role of
transportation within the drug trafficking industry; and
(4) that the defendants were being held accountable under
§ 1B1.3 solely for the amount of drugs they personally
handled. This discussion related to numerous factors
outlined by De Varon and the commentary to § 3B1.2,
and the defendants have failed to show that any of these
factors was improper. See U.S.S.G. § 3B1.2, cmt. n.3(C);
De Varon, 175 F.3d at 945.
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Based on the totality of the circumstances and the
record in this case, the district court did not clearly err
in denying the defendants minor-role reductions under
§ 3B1.2.
B. 18 U.S.C. § 3553(c)(1)
Cabezas-Montano and Palacios-Solis argue that the
district court procedurally erred under 18 U.S.C. § 3553(c)
(1) because it “gave no indication or explanation” as to why
it chose a sentence at the particular point in the advisory
guidelines range or as to why a sentence at the low-end of
that range was sufficient. 39 Under § 3553(c)(1), a district
court “at the time of sentencing, shall state in open court
the reasons for its imposition of the particular sentence.”
18 U.S.C. § 3553(c)(1). In doing so, the district court should
“tailor its comments to show that the sentence imposed is
appropriate” in light of the § 3553(a) factors. United States
v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006) (quotation
marks omitted).
That said, the district court is not required to incant
specific language or articulate its consideration of each
individual § 3553(a) factor, so long as the whole record
reflects the district court’s consideration of the § 3553(a)
factors. Id. at 1181-82. When the district court fails to
mention the § 3553(a) factors, we look to the record to
see if the district court did, in fact, consider the relevant
39. We review de novo whether the district court’s explanation
of its sentence complied with § 3553(c)(1), regardless of whether the
defendant objected on such grounds at sentencing. United States
v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006); United States v.
Williams, 438 F.3d 1272, 1274 (11th Cir. 2006).
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factors. See United States v. Dorman, 488 F.3d 936, 944
(11th Cir. 2007). When pronouncing its chosen sentence,
the district court need only set forth enough to satisfy
us that it considered the parties’ arguments and had a
reasoned basis for exercising its own legal decisionmaking
authority. United States v. Carpenter, 803 F.3d 1224, 1232
(11th Cir. 2015).
Here, the record shows that the district court provided
a sufficient explanation of its imposed sentences under
§ 3553(c)(1). Before pronouncing its sentences, the district
court judge expressly articulated that it had considered
the parties’ arguments, the PSRs containing the advisory
guidelines ranges, and the § 3553(a) factors. In the
downward-variance arguments before the district court,
the parties had also discussed the majority of the § 3553(a)
factors—namely, the nature and circumstances of the
offenses, the defendants’ histories and characteristics,
the advisory guidelines ranges, and the needs for
deterrence, to reflect the seriousness of the offenses, to
protect the public, and to promote respect for the law.
Though the district court did not discuss the defendants’
individual circumstances, the district court stated it had
considered the parties’ arguments and the PSRs, both of
which contained discussions of the defendants’ individual
circumstances. That is sufficient. See Bonilla, 463 F.3d at
1181; United States v. Irey, 612 F.3d 1160, 1194-95 (11th
Cir. 2010) (en banc) (explaining that the district court need
not discuss each individual factor on the record).
In fact, the district court provided a sufficiently indepth explanation of its sentences, explicitly highlighting
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Appendix A
several § 3553(a) factors, including: (1) the sentences
given in other recent MDLEA cases in comparison to the
applicable advisory guidelines ranges; (2) the seriousness
of the defendants’ drug trafficking crime, which involved
a large quantity of drugs with high monetary value; and
(3) the needs to promote respect for the law, to protect
the public, and for deterrence, given the recent uptick in
MDLEA cases and their profound impact on communities
and law enforcement. The district court stated that lowend guidelines range sentences would provide sufficient
punishment and deterrence and sentenced CabezasMontano to 240 months’ imprisonment (towards the bottom
of the applicable 235-to-293 months advisory guidelines
range) and Palacios-Solis to 360 months’ imprisonment
(at the very bottom of the applicable 360-months-to-life
advisory guidelines range).
Therefore, the district court complied with § 3553(c)
(1)’s mandate to “state in open court the reasons for its
imposition of the particular sentence.” 18 U.S.C. § 3553(c)
(1). Cabezas-Montano and Palacios-Solis have not shown
that the district court erred in explaining their sentences.
See Pugh, 515 F.3d at 1190; Bonilla, 463 F.3d at 1181.
C. Denial of Downward Variances
All defendants argue that, in denying their motions
for a downward variance, the district court erroneously
considered that they exercised their right to trial, thereby
unconstitutionally penalizing them for exercising this
right and violating § 3553(a). The defendants allege that
their decision to go to trial was the determining factor
in the district court’s decision to impose high sentences.
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Appendix A
Generally, when a district court recognizes its
authority to grant a variance, we review for abuse of
discretion its decision not to grant a downward variance.
United States v. Cubero, 754 F.3d 888, 897-98 & n.8 (11th
Cir. 2014). However, while the defendants moved for
downward variances below, none raised any argument
regarding the district court’s alleged reliance on their
exercise of their right to trial in denying the motions.
Thus, their new challenge on appeal is reviewed for plain
error. See Ramirez-Flores, 743 F.3d at 822.
“[T]he district court has considerable discretion in
deciding whether the § 3553(a) factors justify a variance
and the extent of such a variance.” United States v.
Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). “We give
that decision due deference because the district court
has an institutional advantage in making sentencing
determinations.” Cubero, 754 F.3d at 892 (quotation marks
omitted).
Here, the record shows no error regarding the
district court’s denial of the defendants’ downwardvariance motions, let alone any plain error affecting
their substantial rights. Cabezas-Montano and GuaguaAlarcon have not shown any error because, in denying
their specific downward-variance motions, the district
court never mentioned that they exercised their right to
trial. Rather, in denying their motions, the district court:
(1) rejected the defendants’ argument that they were
just the “little guys” in a larger operation; (2) rejected
their argument that they and/or other couriers would be
deterred from making future trafficking trips when the
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Appendix A
possible reward for a successful trip was so high; (3) noted
that MDLEA penalties were significant because of the
harm drug offenses wreak on society; and (4) found that
each defendant was an essential member of the conspiracy.
It was not until Palacios-Solis raised his downwardvariance argument—several pages of transcript after
Cabeza-Montano’s and Guagua-Alarcon’s motions already
were denied—that the district court made the complainedof comments. In denying Palacios-Solis’s downwardvariance motion, the district court commented:
Also, the motion for a downward variance, I
think we’re treading on some difficult waters
if we come in and say—I mean, I think every
defendant has an absolute right to go to trial
and exercise it and understand what the
consequences are.
But what I’m hearing from you and others in
these types of cases is that the guideline amount
of time is just a lot of time; so why not just give
us the mandatory-minimum every time. So
let us have two bites at the apple: Let us go to
trial and maybe we’ll be acquitted, we can all
go home. And sometimes we have acquittals in
these cases and sometimes we have mistrials.
But if we don’t get acquitted, then at least give
us the minimum-mandatory with a downward
departure so that we can kind of hedge our bets.
We want our cake and eat it. We don’t want to
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have to face the guideline sentence. We want to
go to trial and hopefully get acquitted. But if
we do go to trial and we get convicted, then we
want the mandatory-minimum. You know, if we
start setting up that precedent, then everybody
is going to want to roll the dice with one hand
tied behind their back.
Anyway, I don’t think a downward departure
or variance is justified.
In making the comments, the district court made no
reference to Cabeza-Montano or Guagua-Alarcon, or
their motions.
Even if the district court’s comments were made in
reference to each of the defendants’ downward-variance
motions, the defendants still have not shown error. The
defendants describe the district court’s comments as
denying their downward-variance motions solely in an
effort to punish them for going to trial. The record does
not support such a portrayal. Rather, the district court
actually acknowledged the defendants’ “absolute right
to go to trial,” and then the remainder of the district
court’s comments were its efforts at characterizing the
nature of Palacios-Solis’s argument for the statutory
mandatory minimum sentence. Notably, the district court
characterized Palacios-Solis’s argument as being that, no
matter what, a defendant every time should still receive
only the mandatory statutory minimum sentence after
trial because the length of the guidelines sentences in
these types of drug cases is “just a lot of time.” The district
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Appendix A
court rejected this argument and stated, “Anyway, I don’t
think a downward departure or variance is justified,”
indicating that it was denying Palacios-Solis’s motion on
the merits, just as it had earlier denied Cabeza-Montano’s
and Guagua-Alarcon’s motions on the merits. Thus, given
the record as a whole, the defendants have not shown that
the district co
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