Petition for Writ of Certiorari — Osvaldo Gonzalez, Petitioner v. United States
Supreme Court briefNov 12, 2025
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No. ____
IN THE
Supreme Court of the United States
______________
OSVALDO GONZALEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
______________
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
______________
APPENDIX
______________
HECTOR A. DOPICO
FEDERAL PUBLIC DEFENDER
SRILEKHA JAYANTHI
Counsel of Record
ASS’T FED. PUBLIC DEFENDER
150 West Flagler St., Ste. 1700
Miami, FL 33130
(305) 530-7000
Srilekha_Jayanthi@fd.org
Counsel for Petitioner
November 12th, 2025
APPENDIX
TABLE OF APPENDICES
Appendix A: Order as to Rehearing En Banc by the U.S. Court of Appeals for the
Eleventh Circuit (July 14, 2025)............................................................ 1a
Appendix B: Opinion by the U.S. Court of Appeals for the
Eleventh Circuit (April 7, 2025) ............................................................ 3a
Appendix C: Brief for Petitioner Osvaldo Gonzalez (June 5, 2024)......................... 28a
Appendix D: Brief for the United States (August 13, 2024) .................................. 104a
Appendix E: Judgment of Conviction in the U.S. District Court for the
Southern District of Florida (Jan. 17, 2024) ..................................... 151a
Appendix F: Second Order (Upon Evidentiary Hearing) by the U.S. District Court
for the Southern District of Florida (Sept. 19, 2023) ........................ 158a
Appendix G: First Order (Partially Superseded) by the U.S. District Court for the
Southern District of Florida (July 18, 2023) ..................................... 160a
A
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In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10257
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL GABRIEL PALANCO,
HUMBERTO VASQUEZ DIAZ,
OSVALDO GONZALEZ,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:22-cr-20350-RKA-3
____________________
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Order of the Court
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ON PETITION(S) FOR REHEARING AND PETITION(S) FOR
REHEARING EN BANC
Before BRANCH, ANDERSON, and HULL, Circuit Judges.
PER CURIAM:
The Petition for Rehearing En Banc is DENIED, no judge in
regular active service on the Court having requested that the Court
be polled on rehearing en banc. FRAP 40. The Petition for Rehearing En Banc is also treated as a Petition for Rehearing before the
panel and is DENIED. FRAP 40, 11th Cir. IOP 2.
2a
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10257
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL GABRIEL PALANCO,
HUMBERTO VASQUEZ DIAZ,
OSVALDO GONZALEZ,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Southern District of Florida
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Opinion of the Court
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D.C. Docket No. 1:22-cr-20350-RKA-3
____________________
Before BRANCH, ANDERSON, and HULL, Circuit Judges.
PER CURIAM:
Defendants Angel Gabriel Palanco, Osvaldo Gonzalez, and
Humberto Vasquez Diaz were interdicted at sea on a vessel
carrying 972 kilograms of cocaine. After stipulating to the facts and
a bench trial on the cocaine-related charges, the district court found
the defendants guilty of the two charged drug crimes. The
defendants appeal their drug convictions under the Maritime Drug
Law Enforcement Act (“MDLEA”), 46 U.S.C. §§ 70501-70508. On
appeal, the defendants challenge only the denial of their joint
motion to dismiss the indictment for lack of subject matter
jurisdiction, and violations of Federal Rule of Criminal Procedure
5 and of their Sixth Amendment rights to a speedy trial. After
review, we affirm.
I. BACKGROUND
A.
July 8, 2022 Interdiction
On July 8, 2022, the United States Coast Guard (“USCG”)
interdicted and boarded a go-fast vessel approximately 130 nautical
miles south of the Dominican Republic, within the Dominican
Republic’s Exclusive Economic Zone (“EEZ”) but outside any
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nation’s 12-mile territorial seas. 1 The vessel had no visible indicia
of nationality.
The boarding team interviewed the three crewmen on
board—the defendants here. They gave their names but refused to
answer questions about the vessel’s master or nationality. After
receiving authorization to treat the vessel as one without
nationality, the boarding team searched the vessel and found
several packages of contraband that tested positive for cocaine.
The USCG reported an at-sea weight of 972 kilograms of cocaine.
The USCG transferred the defendants and the suspected cocaine to
the USS Wichita and destroyed the go-fast vessel.
B.
July 26, 2022 Complaint and Presentment to a Magistrate
Judge
Eighteen days later, on July 26, 2022, a criminal complaint
was filed in the Southern District of Florida charging the
defendants with one conspiracy count under the MDLEA.
On the same day, the USCG delivered the defendants to
Puerto Rico, where they were arrested and orally interviewed by
agents with the Drug Enforcement Agency (“DEA”). DEA agents
also took witness statements from USCG members and received
the evidence the USCG gathered at sea, including photographs,
1 The EEZ “sits just beyond a nation’s territorial waters but within 200 miles
of the coastal baseline.” United States v. Alfonso, 104 F.4th 815, 821 (11th Cir.
2024).
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videos, and tests performed on the drugs seized from the go-fast
vessel.
Also on July 26, 2022, the defendants appeared via video
teleconference before a U.S. magistrate judge in the District of
Puerto Rico. The magistrate judge advised the defendants of their
rights and of the charges in the criminal complaint in Case No. 2203262 filed in the Southern District of Florida. A federal defender
in Puerto Rico was appointed to represent defendant Gonzalez and
Criminal Justice Act counsel were appointed for defendants
Palanco and Vasquez Diaz.
C.
August 4, 2022 Indictment
On August 4, 2022, a federal grand jury in the Southern
District of Florida indicted the defendants for: (1) conspiracy to
possess with intent to distribute 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(b); and (2) possession with intent to
distribute cocaine on board a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. § 70503(a)(1) and 18
U.S.C. § 2.
On August 8, 2022, the defendants again appeared before a
magistrate judge in the District of Puerto Rico, who ordered that
the defendants remain detained and be removed to the Southern
District of Florida.
On September 22, 2022, defendant Palanco was flown from
Puerto Rico to Florida. On November 29, 2022, defendants
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Gonzalez and Vasquez Diaz were flown from Puerto Rico to
Florida.
On January 3, 2023, the defendants appeared before a
magistrate judge in the Southern District of Florida. The
magistrate judge appointed new counsel, and defendant Gonzalez
was arraigned. On January 5, 2023, defendants Palanco and
Vasquez Diaz were arraigned.
D.
February 13, 2023 Trial Date
On January 11, 2023, the district court set an initial trial date
of February 13, 2023, but the parties later jointly moved for a
60-day continuance, which was granted.
E.
March 22, 2023 Motion to Dismiss Indictment
On March 22, 2023, the defendants filed a joint motion to
dismiss the indictment on three grounds: (1) the district court
lacked subject matter jurisdiction because, inter alia, the MDLEA
was unconstitutional; (2) the government’s conduct violated
Federal Rule of Criminal Procedure 5; and (3) their Sixth
Amendment speedy trial rights were violated.
In a thorough order, the district court denied the defendants’
motion to dismiss the indictment on all grounds.
As to the defendants’ speedy trial arguments, the district
court concluded that any delay less than one year is not
presumptively prejudicial, thus ending the Sixth Amendment
speedy trial analysis under Barker v. Wingo, 407 U.S. 514 (1972). The
district court found that the pretrial delay in this case was at most
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seven months (depending upon how it is calculated) and fell “well
short of the one-year triggering point,” which ended the analysis.
That seven months was from the defendants’ July 8, 2022
interdiction to the first trial date of February 13, 2023 (which was
seven months and five days).
F.
Motion for Reconsideration and Evidentiary Hearing
After the defendants filed a motion for reconsideration as to
the speedy trial ruling, the district court held an evidentiary hearing
on the motion. The government presented two witnesses. First, a
DEA task force officer testified to, inter alia, arresting and
interviewing the defendants and collecting evidence from the
USCG in Puerto Rico on July 26, 2022.
Second, the Deputy U.S. Marshal David DiCicco testified
about the process for transporting detainees from Puerto Rico to
Florida.
Deputy DiCicco admitted that COVID-19 protocols for
transporting pretrial detainees, limited availability and timing of
flights out of Puerto Rico, and a mistake in requesting a transfer
delayed the defendants’ departures from Puerto Rico to Florida.
The defendants arrived in Puerto Rico on July 26, 2022 but
defendant Palanco flew to Florida on September 22, 2022. And
defendants Gonzalez and Vasquez Diaz flew to Florida on
November 29, 2022.
Deputy DiCicco also explained that then mistakes in
monitoring the constantly changing flight-arrival manifests—to
notify the parties in Florida, including pretrial services,
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prosecutors, and defense counsel when a detainee has arrived at a
federal detention center (“FDC”)—had resulted in delays once the
defendants arrived in Florida. However, Deputy DiCicco added
that the U.S. Marshals Service has since changed its system to
address such lapses.
The defendants did not present any evidence at the hearing.
After hearing extensive argument from the parties on the
speedy trial issue, the district court stated that it agreed with the
defendants’ argument that under Barker the threshold issue of
presumptive prejudice turns on “a more dynamic assessment of the
facts of each individual case” than “a strict one-year threshold” and
that it granted their motion for reconsideration to that extent.
The district court then considered multiple factors and again
concluded that the defendants did not make a threshold showing
of presumptive prejudice. Specifically, the district court stressed
that: (1) the case was neither complicated nor simple; (2) the
offense was very serious; (3) the defendants would never have
received bond or served sentences of less than six months had they
been assigned counsel in Florida earlier than January 3, 2023; (4)
the delay from July 26, 2022 to February 13, 2023 was only
“halfway” to the typical one-year triggering point; and (5) the delay
was due to “uncondoned” negligence. Referring to Deputy
DiCicco’s testimony, the district court stated, “I see mistakes that
were made, I see things that were missed. I see people not being
diligent, people missing manifests, people missing out on names as
they come in, the FDC not communicating with the marshals, the
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marshals not communicating with each other. That just all sounds
like negligence to me.”
The district court alternatively conducted a full analysis of
the four Barker factors and concluded that not all of the first three
factors—length of delay, reason for the delay, and defendants’
assertion of their speedy trial rights—weighed heavily against the
government. In particular, the district court found that the first
factor weighed in favor of the government and that the second
factor weighed in favor of the defendants, but “less heavily”
because there was only government negligence not deliberate
misconduct.
Thus, the defendants had to demonstrate the fourth Barker
factor—actual prejudice—which the district court determined they
did not do. As to actual prejudice, the district court emphasized
that the defendants did not show (1) oppressive conditions of
detention or (2) impairment of their defense. Thus, the district
court denied the motion for reconsideration to the extent it sought
dismissal of the indictment.
G.
Bench Trial and Sentencing
At a bench trial, the defendants waived specific findings of
fact and their rights to a jury trial and to testify. The parties also
agreed to a stipulation of the facts. The district court found the
defendants guilty as charged.
The district court sentenced each defendant to concurrent
77-month prison terms on each of the two drug crimes, with credit
for time served from July 8, 2022, the date the defendants were
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detained at sea. The defendants timely appealed their convictions
but do not challenge their sentences.2
II. STANDARDS OF REVIEW
Generally, we review for an abuse of discretion the denial of
a motion to dismiss an indictment based on non-constitutional
grounds, such as Rule 5 violations. See United States v. Alfonso, 104
F.4th 815, 820 (11th Cir. 2024); United States v. McPhee, 336 F.3d
1269, 1271 (11th Cir. 2003). But when the basis for the motion to
dismiss an indictment is a constitutional issue and lack of subject
matter jurisdiction, our review is de novo. Alfonso, 104 F.4th at 820.
We also review de novo the district court’s interpretation of a
statute and whether the statute is constitutional. Id.
Whether a defendant’s Sixth Amendment right to a speedy
trial was violated is a mixed question of law and fact. United States
v. Vargas, 97 F.4th 1277, 1286 (11th Cir. 2024). As such, we review
the district court’s legal conclusions de novo and its factual findings
for clear error. Id. A factual finding is clearly erroneous “only if we
are left with the definite and firm conviction that a mistake has
been committed.” Id.
2 At sentencing, defendant Palanco indicated the correct spelling of his last
name is Polanco. In his notice of appeal and appeal brief, however, he uses
Palanco, so we do as well.
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III. DISCUSSION
A.
Subject Matter Jurisdiction and Constitutionality of the
MDLEA
The MDLEA makes it a crime to knowingly and
intentionally possess a controlled substance with intent to
distribute while onboard a vessel subject to the jurisdiction of the
United States and to conspire to do the same. 46 U.S.C.
§§ 70503(a)(1), (e)(1), 70506(b). 3 The MDLEA “applies even
though the act is committed outside the territorial jurisdiction of
the United States.” Id. § 70503(b). Under the Felonies Clause in
Article I, Section 8, Clause 10 of the Constitution, Congress has the
power to “define and punish Piracies and Felonies committed on
the high Seas.” U.S. Const. art. I, § 8, cl. 10. The MDLEA is
constitutional as applied to vessels on the “high seas” under the
Felonies Clause. United States v. Cabezas-Montano, 949 F.3d 567, 587
(11th Cir. 2020); United States v. Valois, 915 F.3d 717, 722 (11th Cir.
2019); United States v. Cruickshank, 837 F.3d 1182, 1187-88 (11th Cir.
2016); United States v. Campbell, 743 F.3d 802, 806 (11th Cir. 2014).
On appeal, the defendants (1) do not dispute that in the
MDLEA Congress defined the “high seas” to include the EEZs of a
foreign nation, and (2) admit that their two drug offenses under the
MDLEA occurred within the Dominican Republic’s EEZ.
Nonetheless, the defendants argue that under international law,
3 On appeal, the defendants do not dispute that the go-fast vessel on which
they were found is a vessel without nationality and thus a covered vessel under
the MDLEA. See 46 U.S.C. § 70502(c)(1)(A).
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the EEZ is not part of the “high seas,” and thus Congress exceeded
its authority under the Felonies Clause.
As the defendants concede, this Court recently rejected this
argument in United States v. Alfonso, 104 F.4th 815 (11th Cir. 2024),
petition for cert. filed, (U.S. Dec. 19, 2024) (No. 24-6177). The
defendants in Alfonso, like the defendants here, were interdicted by
the USCG in a go-fast vessel in the Dominican Republic’s EEZ and
challenged the constitutionality of the MDLEA as a valid exercise
of Congress’s Felonies Clause power. Alfonso, 104 F.4th at 818-19.
The Alfonso Court held that “the EEZ is part of the ‘high
seas’ and thus within Congress’s authority under the Felonies
Clause” in the U.S. Constitution. Id. at 818, 823. The Court also
concluded that “international law does not limit the Felonies
Clause” and that “enforcement of the MDLEA in EEZs is proper.”
Id. at 826-27; see also United States v. Canario-Vilomar, 128 F.4th 1374,
1381-82 (11th Cir. 2025) (rejecting similar constitutional challenges
by defendants interdicted in Panama’s and Colombia’s EEZs as
foreclosed by Alfonso and other binding precedent).
The defendants acknowledge that Alfonso rejected their
particularized constitutional challenge but they maintain their
argument in good faith to preserve the issue for further review.
We are bound by Alfonso. See United States v. Archer, 531 F.3d 1347,
1352 (11th Cir. 2008). The district court thus did not err in denying
the defendants’ motion to dismiss the indictment for lack of subject
matter jurisdiction.
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B.
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Rule 5
The defendants contend that the government violated two
separate but related provisions of Rule 5 of the Federal Rules of
Criminal Procedure. Rule 5(a)(1)(B), entitled “Appearance Upon
an Arrest,” provides, inter alia, 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) (emphases added).
And Rule 5(b), entitled “Arrest Without a Warrant,”
provides that “[i]f a defendant is arrested without a warrant, a
complaint meeting Rule 4(a)’s requirement of probable cause must
be promptly filed in the district where the offense was allegedly
committed.” Fed. R. Crim. P. 5(b) (emphasis added).
For both Rule 5 purposes, all parties use the July 8, 2022
interdiction and detention of the defendants as their “arrest” date,
so we do too, without determining at what point the detention
became an arrest. The parties also use 18 days as the delay period:
from the July 8 interdiction on the high seas until the July 26 filing
of the criminal complaint in Florida and the July 26 presentment of
the defendants to the magistrate judge in Puerto Rico. We address
Rule 5(a) and then Rule 5(b).
1. Rule 5(a)(1)(B) - Appearance Upon Arrest
“[T]he 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.” Cabezas-Montano, 949
F.3d at 591 (quotation marks omitted). As to whether a
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presentment period is “unnecessary delay” under Rule 5(a), we
consider four “Purvis factors”: (1) the distance between the location
of the defendant’s arrest and the U.S. port to which he was brought;
(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, such as exigent circumstances or
emergencies. Id.; United States v. Purvis, 768 F.2d 1237, 1238-39
(11th Cir. 1985).
Importantly, the defendant bears the burden to show that a
delay was “unnecessary” and thus a Rule 5(a) violation. CabezasMontano, 949 F.3d at 592. To carry that burden, the defendant must
“develop the factual predicates for his claim.” Id. at 592 & n.20.
The defendant must present evidence in the district court of “the
reasons or circumstances behind the delay” and cannot rely on
“pure speculation” that is unsupported by the record. Id. at 592.
Here, to support their alleged Rule 5(a) violation, the
defendants’ motion relied solely on the 18-day length of this delay
from their July 8 interdiction to their July 26 presentment to the
magistrate judge in Puerto Rico. Specifically, the defendants’
motion merely pointed out that “[t]he delay in this case was more
than two weeks,” and stated in conclusory fashion and without any
evidentiary support that “this delay is far beyond what could be
considered reasonable or necessary.” In the district court, the
defendants did not cite Purvis (or its progeny), analyze any of the
Purvis factors, or allege any other facts relevant to the Purvis factors.
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More specifically, the defendants did not allege (or submit
evidence of) three Purvis factors: (1) the distance or the typical
amount of time needed to travel between the point of their
interdiction and the port in Puerto Rico (factor one);
(2) mistreatment or improper interrogation by the USCG (factor
three); or (3) the reason or reasons for the delay (factor four).
On appeal, the defendants point out that after their
interdiction, the USCG coordinated with the DEA to arrive in
Puerto Rico at the same time. The defendants ask us to infer from
this fact that “either the Coast Guard or the D.E.A. waited on the
other.” The defendants also argue that no exigent circumstances
or emergencies caused the delay because the government “had
ample opportunity to advise of any” exigent circumstances or
emergencies and did not. But these arguments merely ask us to
“speculate as to the cause of the delay,” something we do not do,
and also impermissibly shift the burden from the movants to the
government to develop the required factual predicates for the
defendants’ Rule 5(a) claim. See id. at 592 n.20.
In addition, as to the third Purvis factor, the defendants’
motion included only a news article published five years earlier in
2017 and describing conditions in which other interdicted drug
smugglers at sea allegedly reported being shackled to the USCG
ship’s deck and deprived of a toilet, bed, and adequate food. But
none of the defendants here reported being detained in such
conditions, and the defendants admit on appeal that the extent of
any mistreatment “is unknown.” In any event, this news article is
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not evidence, and the defendants presented no evidence of such
mistreatment. 4
The defendants suggest that merely being held for 18 days
without process or contact with friends, family, or counsel
constitutes mistreatment and satisfies this third Purvis factor. But
in United States v. Hurtado, this Court concluded the third Purvis
factor weighed against the defendant who was treated humanely
but had “no contact with family, attorneys, or a judge” for 48 days,
a full month longer than the defendants here. See 89 F.4th 881, 889,
898 (11th Cir. 2023); see also Cabezas-Montano, 949 F.3d at 592-93
(involving 49-day presentment delay in an MDLEA case); United
States v. Castillo, 899 F.3d 1208, 1217-18 (11th Cir. 2018) (Martin, J.,
concurring) (involving 19-day presentment delay in an MDLEA
case).
For all of these reasons, the defendants failed to carry their
burden to show the 18-day delay here was “unnecessary” under
Rule 5(a)(1)(B). 5 Accordingly, the district court did not abuse its
4 The defendants assert, but this Court has never adopted, an outrageous
government conduct defense. Even assuming this Court were to adopt it, the
outrageous government conduct doctrine does not apply when the defendant
alleges mistreatment “after the conclusion of his criminal acts and prior to
indictment.” See United States v. Jayyousi, 657 F.3d 1085, 1111-12 (11th Cir.
2011) (emphasis added).
5 We note that at the evidentiary hearing on the speedy trial issue, the
defendants did not ask to present evidence on other issues. On appeal,
defendants make a statement in passing that the district court “erroneously
denied” them an evidentiary hearing on their purported Rule 5 violations.
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discretion in denying the defendants’ motion to dismiss their
indictment based on a purported Rule 5(a) violation.
One final observation. Given that we conclude that the
defendants as movants failed to carry their burden to show the
presentment delay was “unnecessary,” we need not, and do not,
reach the issue of whether only suppression of evidence, and not
dismissal of an indictment, is the available remedy for a Rule
5(a)(1)(B) violation. See United States v. Macrina, 109 F.4th 1341,
1347 (11th Cir. 2024) (“This Court may affirm on any ground
supported by the record, regardless of whether that ground was
relied upon or even considered below.” (quotation marks
omitted)).
2. Rule 5(b) - Arrest Without a Warrant
As stated above, Rule 5(b) requires that “[i]f a defendant is
arrested without a warrant, a complaint meeting Rule 4(a)’s
requirement of probable cause must be promptly filed in the district
where the offense was allegedly committed.” Fed. R. Crim. P. 5(b)
(emphases added). Undisputedly, the criminal complaint filed on
July 26 set forth clear probable cause for defendants’ continued
detention and arrest on drug crimes. Further, under the MDLEA,
when defendants are interdicted with drugs on the high seas, the
government can file the criminal complaint “in any district” of the
United States. 46 U.S.C. § 70504(b)(2). Thus, it is not clear that
Such passing references are not sufficient to preserve an issue for appellate
review. See United States v. Stein, 846 F.3d 1135, 1151 n.15 (11th Cir. 2017).
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Rule 5(b)’s provision—about promptly filing a complaint in the
district where the offense was allegedly committed—has any
application to this “high seas” case.
Nonetheless, we need not decide this issue because the July
26 criminal complaint was “promptly filed” after the defendants’
July 8 interdiction and detention. Whether a complaint is
“promptly filed” for purposes of Rule 5(b) necessarily will depend
on the particular facts and circumstances. Here, the defendants
were interdicted and detained by the USCG on the high seas—130
nautical miles south of the Dominican Republic—and then
brought by ship to Puerto Rico to appear before a magistrate judge.
For the same reasons the defendants did not show an unnecessary
delay in presentment to the magistrate judge under Rule 5(a), we
conclude the defendants as movants did not establish a Rule 5(b)
violation. Indeed, the government filed the criminal complaint in
the Southern District of Florida on July 26, 2022, the same day the
defendants arrived in Puerto Rico and before they were presented
to the magistrate judge and appointed counsel. Under the
particular circumstances of this case, we conclude that the criminal
complaint was promptly filed for Rule 5(b) purposes.
We also note that, similar to this case, the criminal
complaint in Cabezas-Montano was filed the same day the defendant
was presented to the magistrate judge. Id. at 582. While CabezasMontano explicitly addressed a Rule 5(a) presentment-delay claim,
without explicitly mentioning Rule 5(b), the fact remains that the
49-day delay in that case was as to both presentment under Rule
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5(a) and the filing of the complaint under Rule 5(b). Id. at 582; see
also Hurtado, 89 F.4th at 889-90; Castillo, 899 F.3d at 1211. In any
event, the criminal complaint in this case was “promptly filed” in
Florida 18 days after the USCG interdicted and detained the
defendants on the high seas in the EEZ of the Dominican Republic.
Furthermore, the main thrust of the defendants’ Rule 5(b)
argument is that generally a judicial determination of probable
cause is required within 48 hours of a warrantless arrest and thus
18 days is too long. But Rule 5(b) itself does not mention or require
a “judicial determination.” Rather, presentment to the magistrate
judge is under Rule 5(a). In any event, the general 48-hour rule for
showing probable cause—to which defendants refer—was
developed in Fourth Amendment cases involving warrantless
arrests inside the United States. See Cnty of Riverside v. McLaughlin,
500 U.S. 44, 47-48 (1991) (involving individuals arrested and jailed
in Riverside County, California without a warrant who waited up
to 10 days for a probable cause determination at a preliminary
hearing); Gerstein v. Pugh, 420 U.S. 103, 105 & n.1 (1975) (involving
individuals arrested and jailed in Dade County, Florida without a
warrant and subsequently charged by information without a
judicial determination of probable cause). The defendants ignore
that this Court has held that “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.” Cabezas-Montano, 949 F.3d at 593. So, this
constitutional 48-hour rule under the Fourth Amendment does not
apply to the defendants’ arrest here or Rule 5(b).
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Sixth Amendment Speedy Trial Claim
The Sixth Amendment guarantees criminal defendants the
right to a speedy trial. U.S. Const. amend. VI. In the district court
and on appeal, the defendants did not assert a violation of the
Speedy Trial Act, 18 U.S.C. §§ 3161-74, and indeed they moved for
a continuance of their trial. So only the Sixth Amendment is at
issue.
To determine whether a defendant’s Sixth Amendment
speedy trial rights were denied, courts balance these four Barker
factors: (1) the length of the delay, (2) the reason for the delay,
(3) the defendant’s assertion of the right to a speedy trial, and (4)
the actual prejudice to the defendant. United States v. Villareal, 613
F.3d 1344, 1350 (11th Cir. 2010); see Barker v. Wingo, 407 U.S. 514,
530 (1972). The first Barker factor—the length of the delay—
“serves a triggering function: it must first be satisfied for the court
to analyze the other factors.” United States v. Ogiekpolor, 122 F.4th
1296, 1305 (11th Cir. 2024) (quotation marks omitted); see also
Barker, 407 U.S. at 530 (“Until there is some delay which is
presumptively prejudicial there is no necessity for inquiry into the
other factors that go into the balance.”).
A delay “approach[ing] one year” is considered
“presumptively prejudicial.” United States v. Dunn, 345 F.3d 1285,
1296 (11th Cir. 2003); see also Doggett v. United States, 505 U.S. 647,
652 n.1 (1992). An eight-month delay, however, is “insufficient to
merit a Sixth Amendment speedy trial violation inquiry.” United
States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (citing Doggett
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and concluding defendants had “not demonstrated that their Sixth
Amendment rights to a speedy trial had been implicated”).
Here, as to the first Barker factor—the length of the delay—
the parties disagree on the proper start date. The defendants argue
the speedy trial clock began to run on July 8, 2022, when they were
first detained by the USCG. In the district court, the government
argued the clock began to run on August 4, 2022, when the
defendants were indicted. The district court concluded the clock
began on July 26, 2022, when the criminal complaint was filed and
the defendants appeared before a magistrate judge in Puerto Rico.
Because the defendants’ Sixth Amendment speedy trial claims fail
even when using the defendants’ proposed start date of July 8, we
need not resolve this issue. We explain why there was no Sixth
Amendment violation.
Using the July 8 start date, the parties agree that the period
of delay ended on February 12, 2023, their initial trial date, resulting
in a pretrial delay of seven months and five days. This period of
pretrial delay is even shorter than the eight-month pretrial delay in
Derose that this Court determined fell too far short of the
“approaching one year” threshold to trigger a full Sixth
Amendment analysis under Barker. See 74 F.3d at 1185. Thus, we
agree with the district court that there was no need to evaluate the
remaining Barker factors.
In an abundance of caution, however, the district court
alternatively undertook a full Barker analysis and properly
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concluded that the defendants’ Sixth Amendment speedy trial
claims still fail when all the Barker factors are considered.
For starters, the seven-month delay here is not
presumptively prejudicial. And even assuming arguendo that a
seven-month delay is long enough to weigh against the
government, it cannot be said to do so heavily. This is especially
true when the length of the delay here is considered in relation to
the second Barker factor, the reason for the delay. See Vargas, 97
F.4th at 1289-90 (examining the first and second Barker factors
together). “Different reasons for delay are accorded different
weights,” with intentional delays weighing heavily against the
government and valid reasons justifying the delay. United States v.
Oliva, 909 F.3d 1292, 1301 (11th Cir. 2018). While negligence “falls
between the two extremes” and is considered “more neutral,” it
“still falls on the wrong side of the divide between acceptable and
unacceptable reasons.” Id. at 1302 (quotation marks omitted).
The record reflects, and the defendants do not dispute, that
the delay here was due to government negligence, primarily
mistakes made by the U.S. Marshals Service in monitoring the
defendants as they were transported from Puerto Rico to Florida
and alerting the appropriate parties when the defendants arrived at
a federal detention center in Florida. As the district court observed,
this sort of bureaucratic oversight is not to be condoned and must
weigh against the government, but not heavily. See Vargas, 97 F.4th
at 1295 (concluding negligent government conduct causing a 35month delay did not weigh heavily against the government); Oliva,
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909 F.3d at 1305 (concluding investigator’s negligent mistakes
causing a 23-month post-indictment delay did not weigh heavily
against the government).
The defendants argue that the government’s conduct was
“more egregious” than run-of-the-mill negligence and in “callous
disregard” of the fact that the defendants were being held in
custody with no access to the evidence or a meaningful chance to
seek release on bond in Florida.6 The district court found,
however, that there was “no evidence of egregious or intentional
misconduct by the government” and that, in any event, the
defendants would have remained in pretrial custody during the
seven-month period because under the circumstances—no lawful
status, job, residence, or family in the United States and subject to
significant mandatory-minimum sentences—they “would never
have received a bond.” In light of the testimony of Deputy U.S.
Marshal DiCicco presented at the evidentiary hearing, we see no
error in the district court’s finding of ordinary negligence, rather
than callous disregard.
In short, neither of the first two Barker factors weigh heavily
against the government. See Vargas, 97 F.4th at 1288. Thus,
6 In Puerto Rico, at the defendants’ initial presentation on July 26, 2022, the
magistrate judge appointed defendants counsel. Then, on August 8, the
magistrate judge held a preliminary hearing, at which the government moved
that the defendants remain detained. Defense counsel represented that they
were not contesting identity as to the criminal complaint but requested that
the bail hearing be held in the Florida district where the defendants were
sought.
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regardless of the weight accorded the third Barker factor, the
defendants must show the fourth Barker factor—actual prejudice.
See Ogiekpolor, 122 F.4th at 1305; Vargas, 97 F.4th at 1289.
“To show actual prejudice, the defendant must show
(1) oppressive pretrial incarceration, (2) his own anxiety and
concern, or (3) the possibility that his defense was impaired because
of the delay.” United States v. Machado, 886 F.3d 1070, 1081-82 (11th
Cir. 2018); Barker, 407 U.S. at 532. “[M]ere conclusory allegations
are insufficient to establish actual prejudice.” Machado, 886 F.3d at
1082.
The defendants argue they were prejudiced because they did
not have access to attorneys in Florida or the evidence during the
seven-month delay. Importantly, though, the defendants concede
that their defense was not impaired by this lack of access.
This is not surprising. At the evidentiary hearing on the
defendants’ speedy-trial motion, the DEA task force officer
established that all of the evidence in the case was gathered by the
time of the defendants’ Mirandized interviews in Puerto Rico on
August 26, 2022. And that evidence was rock solid—the defendants
were on the go-fast vessel with 972 kilograms of cocaine.
Accordingly, the defendants do not identify any investigatory trails
that went cold, any witnesses or evidence that were lost, or any
other effect on their legal defenses or strategies as a result of the
seven-month delay.
Instead, the defendants suggest that the mere fact that they
“languished so long” in pretrial detention in Florida establishes
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actual prejudice. The defendants stress that they were in a foreign
country, did not speak English, were poor, and lacked education.
But there is no evidence the defendants’ time in pretrial
detention in Florida was prolonged by the delay. Indeed, the
district court found that the defendants would not have been
released from pretrial detention even if they promptly had gained
access to counsel and appeared before a magistrate judge in the
Southern District of Florida. The district court gave all three
defendants credit toward their sentences for their time in pretrial
detention from their interdiction on July 8, 2022. And the
defendants’ conclusory allegations of anxiety and oppression are
not beyond that of any pretrial detainee in federal custody.
We also find no merit to the defendants’ claims that the 18day period at sea in the USCG’s custody shows actual prejudice
because they were held “in secret” and in “abhorrent conditions.”
There is no evidence in the record that the USCG either
intentionally hid the defendants or held them in unacceptable
conditions.
Under the circumstances, we conclude the district court did
not err in finding that the defendants’ Sixth Amendment speedy
trial rights were not violated. 7
7 Because no Sixth Amendment speedy trial violation was shown, Palanco’s
related argument that dismissal was warranted under Federal Rule of Criminal
Procedure 48(b) also fails. See United States v. Knight, 562 F.3d 1314, 1324 (11th
Cir. 2009) (“When a defendant fails to establish that his Sixth Amendment
right to a speedy trial was violated, there is no basis for concluding that the
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IV. CONCLUSION
After thorough review, we conclude that the district court
did not err in denying the defendants’ joint motion to dismiss the
indictment and affirm the defendants’ convictions and sentences.
AFFIRMED.
district court abused its discretion in refusing to grant appellant’s motion
insofar as it relied on Rule 48(b).” (quotation marks omitted, alteration
adopted)); Hurtado, 89 F.4th at 899 n.20; Dunn, 345 F.3d at 1297.
27a
C
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NO. 24-10257-C
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
UNITED STATES OF AMERICA,
v.
Plaintiff/Appellee,
OSVALDO GONZALEZ,
Defendant/Appellant.
On Appeal from the United States District Court
for the Southern District of Florida
BRIEF OF THE APPELLANT
OSVALDO GONZALEZ
HECTOR DOPICO
INTERIM FEDERAL PUBLIC DEFENDER
SRILEKHA JAYANTHI
ASS’T FEDERAL PUBLIC DEFENDER
Counsel for Appellant
150 West Flagler Street, Suite 1700
Miami, Florida 33130-1555
Telephone No. (305) 536-6900
THIS CASE IS ENTITLED TO PREFERENCE
(CRIMINAL APPEAL)
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CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
United States v. Osvaldo Gonzalez
Case No. 24-10257-C
Appellant files this Certificate of Interested Persons and Corporate
Disclosure Statement, listing the parties and entities interested in this
appeal, as required by 11th Cir. R. 26.1.
Altman, Hon. Roy K., United States District Judge
Cabrera, Roger De Jesus, Counsel for Co-Defendant
Caruso, Michael, Former Federal Public Defender
Casabielle, Manuel Lazaro, Counsel for Co-Defendant
Charest-Turken, Gabrielle, Assistant United States Attorney
Damian, Hon. Melissa, United States Magistrate Judge
D’Angelo, Ellen, Assistant United States Attorney
Diaz, Humberto Vasquez, Co-Defendant
DiCicco, David, Witness
Dopico, Hector, Interim Federal Public Defender
Gonzalez, Osvaldo, Defendant/Appellant
Goodman, Hon. Jonathan, United States Magistrate Judge
C-1 of 2
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Hosch, Lewis, Witness
Jayanthi, Srilekha, Assistant Federal Public Defender
Lapointe, Markenzy, United States Attorney
Lopez, Bernardo, Assistant Federal Public Defender
Matzkin, Daniel, Assistant United States Attorney
Mollison, Kate, Assistant Federal Public Defender
Polanco, Angel Gabriel, Co-Defendant
Reid, Hon. Lisette M., U.S. Magistrate Judge
Vigilance, Michele S., Assistant United States Attorney
Wilson, Jenny, Assistant Federal Public Defender
United States of America, Plaintiff/Appellee
/s/ Srilekha Jayanthi
Srilekha Jayanthi
C-2 of 2
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STATEMENT REGARDING ORAL ARGUMENT
The primary issue in this appeal is the denial of a motion to dismiss
for a Sixth Amendment speedy trial violation, and the issue raises
important questions on which district courts require guidance. While this
Court has routinely and summarily authorized the review of speedy trial
claims based on pretrial delays approaching or exceeding a year, there
remains a significant and surprisingly unresolved question as to when a
shorter delay crosses from the ordinary to the “presumptively
prejudicial,” such that review is required. The district court here agreed
the law is “open-ended” as to that triggering length but thought this
Court had “a one-year guidepost, perhaps not a one-year automatic hard
threshold.” DE 100:142. The district court went on to set its own factors
for finding “presumptive prejudice at less than one year.” Id. at 136.
There is also an unresolved question as to what, besides negligence,
exists in the middle ground between governmental diligence and bad
faith in explaining a significant pretrial delay.
Oral argument is needed to justly resolve these questions, and will
enhance this Court’s review of the relevant mixed issues of law and fact.
i
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT ....................................... C-1
STATEMENT REGARDING ORAL ARGUMENT ................................... i
TABLE OF CITATIONS .......................................................................... iv
STATEMENT OF JURISDICTION .......................................................... 1
STATEMENT OF THE ISSUES ............................................................... 2
STATEMENT OF THE CASE .................................................................. 3
Course of Proceedings, Statement of Relevant Facts,
And Disposition in the District Court.............................................. 3
Standards of Review....................................................................... 13
SUMMARY OF THE ARGUMENT ........................................................ 15
ARGUMENT AND CITATIONS OF AUTHORITY ............................... 18
I.
Mr. Gonzalez’s Sixth Amendment right to a speedy trial was
violated; this Court should therefore vacate his conviction and
dismiss the indictment in this case. .............................................. 18
A. The pretrial delay in this case was beyond ordinary, and
a speedy trial analysis was thus triggered. ............................ 19
B. The district court erred in determining that there was no
speedy trial violation under the Barker factors. ..................... 30
C. Dismissal is the only remedy. ................................................. 40
II.
The Government failed to present Mr. Gonzalez to a
magistrate judge without unnecessary delay and failed to
promptly file charges; this Court should therefore vacate the
conviction and dismiss the indictment, or alternatively,
remand for an evidentiary hearing regarding the delay ............... 41
ii
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A. In finding that dismissal is not an available remedy for a
Rule 5 violation, the district court made an error of law;
the court thus abused its discretion by definition. ................. 42
B. The astonishing eighteen-day presentment delay in this
case warrants dismissal of the indictment, or, at a
minimum, remand for an evidentiary hearing. ...................... 46
III. Mr. Gonzalez’s offense did not occur on the “high seas,” as that
term is defined by international law; his prosecution thus fell
outside of Congress’ limited authority, and his conviction
must be vacated. ............................................................................. 51
A. The term “high seas,” within the meaning of the Felonies
Clause, is defined by international law. ................................. 52
B. Under international law, the Exclusive Economic Zone is
not part of the High Seas. ....................................................... 59
CONCLUSION ........................................................................................ 63
CERTIFICATE OF COMPLIANCE ........................................................ 64
CERTIFICATE OF SERVICE................................................................. 65
iii
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TABLE OF CITATIONS
CASES:
*Barker v. Wingo,
407 U.S. 514 (1972) ................................ 10,12,15,19,21,22,31,32,36,39,40
Betterman v. Montana,
578 U.S. 437 (2016) ................................................................................. 18
Corley v. United States,
556 U.S. 303 (2009) ........................................................................... 42, 45
*Dillingham v. United States,
423 U.S. 64 (1975) .............................................................................. 25,26
*Doggett v. United States,
505 U.S. 647 (1992) ........................... 19,20,22,23,24,25,27,33,35,36,37,39
Jesner v. Arab Bank, PLC,
584 U.S. 241 (2018) ................................................................................. 56
Klopfer v. North Carolina,
386 U.S. 213 (1967) ..................................................................... 18, 32, 33
*Mallory v. United States,
354 U.S. 449 (1957) ............................................................. 41,42,43,44,45
*McNabb v. United States,
318 U.S. 332 (1943) ................................................... 35,43,44,45,48,49,50
Smith v. Hooey,
393 U.S. 374 (1969) ................................................................................. 37
Tucker v. Wolf,
581 F.2d 235 (9th Cir. 1978) ................................................................... 24
iv
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United States v. Alfonso,
21-CR-20306-ALTONAGA (S.D. Fla. Nov. 22, 2021) ................... 29,48,49
*United States v. Bellaizac-Hurtado,
700 F.3d 1245 (11th Cir. 2012) ................................. 52,53,54,56,57,58,59
United States v. Beltrez,
23-20366-CR-HUCK (S.D. Fla. Sept. 22, 2023) ...................................... 28
United States v. Butler,
426 F.2d 1275 (1st Cir. 1970) ............................................................. 10,21
*United States v. Cabezas-Montano,
949 F.3d 567 (11th Cir. 2020) .................................................. 14,47,50,51
United States v. Castillo,
899 F.3d 1208 (11th Cir. 2018) ............................................................... 47
United States v. Clark,
83 F.3d 1350 (11th Cir. 1996) ................................................................. 22
United States v. Contreras,
197 F.Supp.2d 1173 (N.D. Iowa 2002) .................................................... 46
United States v. Davila-Mendoza,
972 F.3d 1264 (11th Cir. 2020) ............................................................... 52
United States v. Dávila-Reyes,
23 F.4th 153 (1st Cir. 2022) .......................................................... 56,57,58
United States v. Dennard,
722 F.2d 1510 (11th Cir. 1984) ............................................................... 22
United States v. Derose,
74 F.3d 1177 (11th Cir. 1996) ................................................................. 24
v
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United States v. Dixon,
901 F.3d 1322 (11th Cir. 2018) ............................................................... 14
United States v. Dunn,
345 F.3d 1285 (11th Cir. 2003) ............................................................... 22
United States v. Furlong,
18 U.S. (5 Wheat.) 184 (1820) ....................................................... 53,54,58
United States v. Gonzalez,
671 F.2d 441 (11th Cir. 1982) ................................................................. 25
United States v. Greer,
655 F.2d 51 (5th Cir. 1981) ..................................................................... 22
United States v. Harris,
376 F.3d 1282 (11th Cir. 2004) ............................................................... 22
United States v. Hayes,
40 F.3d 362 (11th Cir. 1994) ................................................................... 37
United States v. Hurtado,
89 F.4th 881 (11th Cir. 2023) ............................................................. 44,45
*United States v. Ingram,
446 F.3d 1332 (11th Cir. 2006) ................................. 13,20,35,36,37,39,41
United States v. Johnson,
579 F.2d 122 (1st Cir. 1978) .................................................................... 23
United States v. Knight,
562 F.3d 1314 (11th Cir. 2009) ............................................................... 23
United States v. MacDonald,
456 U.S. 1 (1982) ..................................................................................... 33
vi
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United States v. Marino-Garcia,
679 F.2d 1373 (11th Cir. 1982) ............................................................... 54
United States v. Osunde,
638 F. Supp. 171 (N.D. Cal. 1986) .......................................................... 46
United States v. Palmer,
16 U.S. (3 Wheat.) 610 (1818) ................................................................. 58
United States v. Pair,
84 F.4th 577 (4th Cir. 2023) .................................................................... 23
*United States v. Purvis,
768 F.2d 1237 (11th Cir. 1985) ................................................ 42,43,46,47
United States v. Schlei,
122 F.3d 944 (11th Cir. 1997) ................................................................. 23
United States v. Simmons,
536 F.2d 827, 829-31 (9th Cir. 1976) ...................................................... 23
United States v. Smith,
318 Fed. Appx. 780 (11th Cir. 2009) (unpublished) ......................... 23, 53
United States v. Tinoco,
304 F.3d 1088 (11th Cir. 2002) ............................................................... 14
*United States v. Vargas,
97 F.4th 1277 (11th Cir. 2024) ................................................. 15,22,31,33
United States v. Villarreal,
613 F.3d 1344 (11th Cir. 2010) ............................................................... 39
United States v. Walters,
591 F.2d 1195 (5th Cir. 1979) ................................................................. 25
vii
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U.S. CONSTITUION, STATUTES, REGULATIONS, RULES:
U.S. Const. Art. I., § 8, cl. 10 ........................................... 19, 56, 58, 62, 65
U.S. Const. Amend. VI ............................................................................ 20
18 U.S.C. § 3231 ........................................................................................ 1
18 U.S.C. § 3742 ........................................................................................ 1
21 U.S.C. § 841 ...................................................................................... 3, 9
21 U.S.C. § 846 ...................................................................................... 3,9
28 U.S.C. § 1291 ........................................................................................ 1
Fed. R. Crim. P. 5 ......................................................................... 5,9,44,47
TREATIES:
U.N.T.S. 397, 21 ILM 1261 (1982) (“UNCLOS”) ..................... 59,60,61,62
OTHER AUTHORITIES:
Eugene Kontorovich, Beyond the Article I Horizon: Congress’s
Enumerated Powers and Universal Jurisdiction, 93 MINN. L. REV.
1191 (2009) ......................................................................................... 61
Eugene Kontorovich, The ‘Define and Punish’ Clause and the Limits of
Universal Jurisdiction, 103 NW. U. L. REV. 149 (2009) .................... 57
George V. Galdorisi & Alan G. Kaufman, Military Activities in the
Exclusive Economic Zone: Preventing Uncertainty and Defusing
Conflict, 32 CAL. W. INT'L L.J. 253 (2002) ................................. 60,61,62
Seth Freed Wessler, The Coast Guard’s ‘Floating Guantanamos,’ N.Y.
TIMES MAGAZINE, Nov. 11, 2020 ......................................................... 45
viii
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STATEMENT OF JURISDICTION
Although Mr. Gonzalez objects to the United States’ exercise of
jurisdiction over his offense, the district court exercised jurisdiction
pursuant to 18 U.S.C. § 3231 because the defendant was charged with an
offense against the laws of the United States. The court of appeals has
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742, which give the courts of appeals jurisdiction over all final
decisions and sentences of the district courts.
Mr. Gonzalez filed a timely notice of appeal on January 31, 2024,
DE 86, from the final judgment entered on January 18, 2024, DE 76,
which disposes of all claims between the parties to this cause.
1
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STATEMENT OF THE ISSUES
I.
Whether Mr. Gonzalez’s conviction must be vacated and
the indictment dismissed due to the Government’s
violation of his Sixth Amendment right to a speedy trial?
II.
Whether Mr. Gonzalez’s conviction must be vacated and
the indictment dismissed, or in the alternative, the case
remanded, because of the Government’s unnecessary
delay in presenting him to a magistrate judge, in violation
of Fed. R. Crim. P. 5(a)(1)(B), and failure to promptly file
charges, in violation of Fed. R. Crim. P. 5(b) and 4(a)?
III.
Whether Mr. Gonzalez’s conviction must be vacated
because his offense did not occur on the “high seas,” as
that term is defined by international law, and because his
prosecution fell outside Congress’ authority to define and
punish “Felonies committed on the high Seas?”
2
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STATEMENT OF THE CASE
The appellant, Mr. Gonzalez, was the defendant in the district
court, and he will be referred to by name. The two co-appellants were his
co-defendants in the district court, and will either be referred to by name,
or together with Mr. Gonzalez, as the defendants. The appellee, United
States of America, will be referred to as the Government. The record will
be noted by reference to the document number, followed by page number.
Mr. Gonzalez is incarcerated.
Course of Proceedings, Statement of Relevant Facts,
And Disposition in the District Court
The Arrest
Mr. Gonzalez, Mr. Humberto Vasquez Diaz, and Mr. Angel Polanco
were arrested at sea by U.S. Coast Guard officers on July 8, 2022. DE
80:5. The three men—all citizens of the Dominican Republic—were on a
vessel approximately 130 nautical miles south of the Dominican
Republic, on a trajectory heading toward that country. Id. at 4-5. They
were within 200 miles of the Dominican Republic’s coast, in waters that
are part of that country’s Exclusive Economic Zone. Id. There is no
indication they were going to or coming from the United States. See id.
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Coast Guard officers arrested the men after stopping them, asking
them questions about the vessel’s nationality, securing authorization to
treat the vessel as one without nationality, boarding and searching the
vessel, and finding cocaine on board. Id. Then, Mr. Gonzalez and his codefendants were transferred onto a Coast Guard vessel, and “physically
restrained.” Id. at 5; DE 26, at 10. They went on to be held on U.S. vessels
for eighteen days before being brought ashore. DE 80:5.
Charges in S.D. Fla. and Appearances in D.P.R.
While Mr. Gonzalez and his co-defendants were detained at sea, the
Government decided to prosecute the three men in the Southern District
of Florida, assigning a lead case agent in this district—D.E.A. Task Force
Officer Lewis Hosch—and a lead prosecutor—AUSA Michele Vigilance.
DE 100:7, 33. Arresting Coast Guard officers sent Officer Hosch photos,
videos, drug tests, and statements, all obtained at arrest. Id. at 23-24.
Officer Hosch reviewed these materials and prepared a sworn affidavit
setting forth probable cause for a criminal complaint. Id. at 32.
The arresting officers maintained “close contact” with Officer
Hosch, and at some point, told him they would take the men to Puerto
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Rico on July 26, 2022. Id. at 13. There is no explanation in the record for
this timing, or port of entry. Id. at 34. Officer Hosch wrote his complaint
before July 26th, but it was not filed before then, and no warrant issued.
Id. at 32; DE 1. Still, it is clear the men were taken to Puerto Rico solely
to face the charges that all officers knew would proceed in Florida. Id. at
34. Officer Hosch traveled to Puerto Rico, and met the men there on July
26th. Id. The D.E.A. then interviewed all three men (obtaining
confessions) before first taking them to court, later that day. Id. at 25.
Ultimately, Mr. Gonzalez and his co-defendants were presented to
a magistrate for the first time on July 26, 2022, eighteen days after arrest.
DE 80:5. And AUSA Vigilance first filed a criminal complaint, causing
the issuance of a warrant, on the same date, also eighteen days after
arrest. DE 1. There are no facts in the record as to the reason for this
delay in presentment or the filing of charges, or as to how or why the two
events were coordinated to occur on the same date, so many days after
arrest. In any event, pursuant to the warrant, the magistrate ordered the
men removed, without objection, to Florida. DE 26, 2-3.
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On August 12, 2022, AUSA Vigilance secured indictments against
the three men and they were each charged in Florida on two counts that
they engaged in drug crimes while on board a vessel subject to the
jurisdiction of the United States, in violation of the Maritime Drug Law
Enforcement Act, 46 U.S.C. § 70503 et. seq. (“MDLEA”). DE 3.
Initial Appearances and Arraignments in S.D. Fla.
Mr. Gonzalez and his co-defendants did not go on to make initial
appearances in the Southern District of Florida until January 3, 2023.
DE 7-9. At this time, the presiding magistrate judge noted the “troubling”
delay in the men’s appearance in court, ordered AUSA Vigilance—who
was not initially present—to appear in person, and halted the proceeding
to await her arrival. DE 110:9-12. The magistrate judge asked her, “as
the assigned AUSA,” for an explanation for the delay. Id. at 13. AUSA
Vigilance said she did not know, and, “I had not been aware that they
were in Puerto Rico for any extended length of time.” Id. at 14-15. The
court ordered her to file a written explanation within two days. Id. at 16.
The Government’s filing set forth the following: First, Mr. Vazquez
Diaz was removed from Puerto Rico to Florida on September 22, 2022,
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and Mr. Gonzalez and Mr. Polanco were removed on November 29, 2022.
DE 10:1-2. (It was later discovered Mr. Mr. Polanco was the one who was
removed in September). DE 100:63. The Government had no information
regarding the reason for this delay in removal, including whether
transport requests for the men were properly entered and received by the
marshals. Id. at 2. Second, all three men were at FDC Miami for at least
a month (and in Mr. Polanco’s case, more than three months) before being
brought to court. Id. That was the result of a “regrettable oversight.” Id.
The filing made no mention of how or why the three men eventually
arrived in court on January 3rd; meaning, why the delay did not
continue. See DE 10. On this point, the record is that no one in the
Government—not AUSA Vigilance, Officer Hosch, or the marshals—
identified the error or caused the appearance. Indeed, on September 21,
2022, the district court had transferred all three defendants to fugitive
status, and still neither the lead agent nor AUSA took any action,
although both knew at that point that all three men were in federal
custody on the charges in this case. DE 5. Deputy DiCicco testified that
typically, in a situation like this, “it's the prisoner complaining to the jail”
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that ends the delay. DE 100:69. It is unknown how many times Mr.
Gonzalez and his co-defendants requested a court date before they were
brought to court on January 3rd. Ultimately, the district court first set
trial for February 13, 2023, seven months and five days after the arrests.
Mr. Gonzalez was arraigned on the date of his initial appearance in
Florida—January 3, 2023—and the magistrate court entered the
district’s Standing Discovery Order, ordering the production of discovery
within fourteen days. DE 9. Until then, the Government was under no
obligation to provide any discovery to Mr. Gonzalez, and did not do so.
The Government went on to miss the deadline imposed at arraignment,
and for that reason, all parties jointly moved to continue trial. DE 15.
Motion to Dismiss and Order of Denial
On March 22, 2023, Mr. Gonzalez and his co-defendants filed a joint
motion seeking dismissal of the indictment on three grounds: (i) there
was no jurisdiction as applied because, in indicting an offense that
occurred in the EEZ of another nation and not on the “high Seas,” the
Government had exceeded its authority under the Constitution’s Felonies
Clause, (ii) the Government violated Fed. R. Crim. P. 5(a) and 5(b), and
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the outrageous government conduct doctrine, by holding Mr. Gonzalez
and his co-defendants under arrest at sea for eighteen days without
presentment or any formal charge, and (iii) the Sixth Amendment’s
guarantee of a speedy trial was violated where the defendants were made
to wait seven months and five days for an initial trial date. DE 17.
The district court initially denied all three claims without an
evidentiary hearing. DE 26. As to the second issue relating to prompt
presentment and the filing of charges, the district court ruled based on a
finding that dismissal was not a legally available remedy. Id. at 5.
As to the third issue, first, the district court calculated a shorter
pretrial delay—six months and eighteen days—that began with the July
26, 2022, filing of the complaint. Id. at 9. According to the court, although
the defendants were “physically restrained” on July 8th, they were not
yet “h[eld] to answer a criminal charge,” and the Sixth Amendment’s
speedy trial clock did not begin until such formal charge was brought. Id.
at 9-10. Second, the court ruled this pretrial delay too short as a matter
of law, because “anything less than a year is just not long enough to
trigger a full Barker analysis” under this Court’s precedents. Id., at 12.
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Motion to Reconsider, Evidentiary Hearing, and Denial
Mr. Gonzalez filed a motion to reconsider as to the speedy trial
issue, pointing out that the law contains no bright-line rule as to the
triggering length of delay. DE 27 (motion). Mr. Gonzalez cited to Barker
v. Wingo, 407 U.S. 514 (1972), which found, “because of the imprecision
of the right to speedy trial, the length of delay that will provoke such an
inquiry is necessarily dependent upon the peculiar circumstances of the
case.” DE 27:1-2. For example, “the delay that can be tolerated for an
ordinary street crime is considerably less than for a serious, complex
conspiracy charge.” Id. Mr. Gonzalez explained that on that point, Barker
itself cited to a First Circuit decision in which a delay of only nine months
was sufficient to trigger review. Barker, 407 U.S. at 531 n. 31 (1972)
(citing United States v. Butler, 426 F.2d 1275, 1277 (1st Cir. 1970)).
On September 18, 2023, the district court held an evidentiary
hearing on the speedy trial issue. At the hearing, Officer Hosch, the lead
agent, testified that this case “is really a very simple, straightforward
case for the DEA.” DE 100:26. He agreed the case was based entirely on
evidence collected as of the July 8th arrests, testimony of those present
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at the time, and the defendants’ statements at their July 26th interviews.
Id. at 23-25. He testified that all information the prosecution relied on
was available as of July 26th. Id. Officer Hosch stated that he left Puerto
Rico on July 27th, and other than preparing reports of the interviews he
had conducted there, he did not do anything else to investigate the case,
nor did the AUSA ask him to. Id. at 19, 28. And there were no other
delays of any sort attributable to the conduct of the defendants. Id. at 27.
The Government also called Supervisor Deputy U.S. Marshal David
DiCicco, who testified generally about the mechanics of how the marshals
move persons in their custody, but stated that he did not know why the
transport delays occurred in this case. Id. at 84-85. He said he became
aware of the case when the magistrate at the initial appearances asked
for information about the “unusually long delay.” See id. at 70. Deputy
DiCicco testified that the delay here is “rare… We had individuals
arrested in California, and we get them here in a timely manner. It’s rare
that they fall through like this appears to have done.” Id. at 68.
After a nearly four-hour-long hearing, the district court issued an
order partly granting and partly denying the motion to reconsider. DE
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DE 37. The district court agreed that, “under Barker v. Wingo, 407 U.S.
514 (1972), the issue of presumptive prejudice turns, not so much on a
strict one-year threshold, but on a more dynamic assessments of the facts
of each individual case.” Id. at 1. But the court nonetheless found that
the delay here was too short to trigger speedy trial review, and that in
any event, Mr. Gonzalez and his co-defendants would not be entitled to
relief under such review. Id. Specifically, the district court addressed the
four speedy trial factors set forth in Barker v. Wingo, and ruled as follows:
(i) the length of delay weighed “strongly” in favor of the Government, (ii)
the reason for the delay was negligence, and it weighed “moderately” in
favor of the defense, (iii) the assertion of the speedy trial right
“unquestionably weighs” in favor of the defense, and (iv) the issue of
prejudice weighs “heavily” in favor of the government. DE 100:143-50.
As to the cause and extent of the delay, the court stated: “By the
way, it's terrible. I don't condone it. And you saw I followed up with a
bunch of questions that I wouldn't have done in other cases. I think it's
wrong. I think we haven't gotten essentially to the bottom of it.” DE
100:99. The court noted this was “serious error,” observed that the U.S.
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Marshal for the Southern District of Florida was present throughout the
lengthy hearing, and apologized to the defendants. Id. at 152-53.
Bench Trial
On October 18, 2023, after the defendants waived their rights to
trial by jury, to special findings of fact under Fed. R. Crim. P. 23(c), and
to testify, the Court held a bench trial in which all three defendants
agreed to stipulated facts that acknowledged their conduct in this case
but preserved their claims seeking dismissal of the indictment. DE 103;
DE 42-50. The district court adjudged them each guilty. DE 51.
Sentence
At a combined sentencing hearing, Mr. Gonzalez and his two codefendants were each sentenced to 77 months’ imprisonment on both
counts, to run concurrently. DE 76-78. Mr. Gonzalez filed a timely notice
of appeal, as did Mr. Vasquez Diaz and Mr. Polanco. DE 86.
This appeal, which consolidates all three cases, follows.
Standards of Review
Whether a defendant’s constitutional right to a speedy trial has
been violated is a mixed question of law and fact. United States v. Ingram,
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446 F.3d 1332, 1336 (11th Cir. 2006). Pure questions of fact are reviewed
under the clearly erroneous standard. Ingram, 446 F.3d at 1336.
Questions of law, and the application of law to facts is reviewed de novo.
United States v. Dixon, 901 F.3d 1322, 1338 (11th Cir. 2018).
This Court reviews the denial of a motion to dismiss based on nonconstitutional grounds for abuse of discretion. See United States v.
Mc.Phee, 336 F.3d 1269, 1271 (11th Cir. 2003). “A district court by
definition abuses its discretion when it makes an error of law.” Koon v.
United States, 518 U.S. 81, 100 (1996).
The constitutionality of the MDLEA is a question of law subject to
de novo review. See United States v. Cabezas-Montano, 949 F.3d 567, 586
n.10 (11th Cir. 2020). Whether the Government established that the
vessel was subject to the jurisdiction to the United States presents an
issue of subject matter jurisdiction. United States v. Tinoco, 304 F.3d
1088 (11th Cir. 2002). De novo review applies to “a district court’s
interpretation and application of statutory provisions regarding whether
the district court has subject-matter jurisdiction.” Cabezas-Montano, 949
F.3d at 588 (citing Tinoco, 304 F.3d at 1114).
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SUMMARY OF THE ARGUMENT
I.
The seven months and five days that Mr. Gonzalez spent
awaiting trial constituted, under the circumstances of this case, a
violation of the Sixth Amendment’s guarantee of a Speedy Trial. First,
for decades, courts have maintained that, “because of the imprecision of
the right to speedy trial, the significance of the length of delay is
necessarily dependent upon the peculiar circumstances of the case.”
United States v. Vargas, 97 F.4th 1277, 1287 (11th Cir. 2024) (citing
Barker v. Wingo, 407 U.S. 514, 530-31 (1972)) (internal quotations
omitted). Length is thus a double enquiry that both triggers a full review,
when, under the circumstances, it crosses the threshold from the
“ordinary” to the “presumptively prejudicial,” and also serves as one
factor to be considered in determining whether a violation has occurred.
Second, while courts have routinely authorized a full review as to
delays approaching or exceeding a year, regardless of circumstances, this
Court has not dealt squarely with a circumstance-based claim regarding
a shorter pretrial delay. This case presents such a claim. Mr. Gonzalez
was detained and brought into this country solely to face charges in a
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relatively simple and straight-forward case, but for the better part of a
year, no trial was set. For the first eighteen days, he was held at sea
without a criminal charge, warrant, or access to any process at all. For
the first six months, he had no lawyer nor access to evidence. This
situation implicates the values at the heart of the speedy trial guarantee.
Third, this delay is not attributable to simple negligence; that
understates the issue and its implications. Negligence cases typically
involve law enforcement falling short in attempts to locate or apprehend
an individual who was, ultimately, living his life, often unaware that he
stood accused. Here, the Government’s actions took place in a context
where it knew the defendants were in its custody without access to
process or evidence, but was indifferent. While negligence suggests a lowpriority prosecution, the delay here reflects profound apathy to the three
men’s abject conditions of confinement in light of the Government’s
knowledge that it got its arrests, the prosecution was underway, and
there could be no recourse or consequences no matter the course of that
prosecution. Ultimately, the delay’s end came only after Mr. Gonzalez
sought to bring himself to trial. This Court should remedy this wrong.
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II. The Government’s practices here, perhaps unsurprisingly, also
violated another set of safeguards: Fed. R. Crim. P. 5(a) and 5(b). For the
first eighteen days after his arrest, Mr. Gonzalez was held in the sole
custody of the U.S. Coast Guard, without a warrant or any other probable
cause showing by the Government, and without access to any judge or
process at all. After that period, once he was brought ashore, the D.E.A.
interrogated him and extracted a confession before taking him to a
magistrate. This conduct implicates all of the concerns underlying the
longstanding prompt presentment requirement, and indeed the Coast
Guard and D.E.A. practices hark back to a past time before the important
safeguards at Rule 5 existed at all. The text and purposes of Rule 5
compel a remedy of dismissal. This Court should either find such remedy
appropriate based on the facts in the record, or remand the case for an
evidentiary hearing, which the district court improperly denied here.
III. The MDLEA rests exclusively on Congress’ power to define and
punish “Felonies committed on the high Seas.” U.S. Const. Art. I., § 8, cl.
10. Here, the conviction must be vacated because the offense did not occur
on the high seas, as explicitly required, but in another country’s EEZ.
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ARGUMENT AND CITATIONS OF AUTHORITY
I.
Mr. Gonzalez’s Sixth Amendment right to a speedy trial was
violated; this Court should therefore vacate his conviction
and dismiss the indictment in this case.
The Sixth Amendment guarantees, explicitly, that, “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public
trial.” U.S. CONST. AMEND. VI. The roots of this guarantee trace as far
back as the Magna Carta (1215) and the Assize of Clarendon (1166), and
they reflect the value that an “innocent shall not be worn and wasted by
long imprisonment, but speedily come to his trial.” Betterman v.
Montana, 578 U.S. 437, 442-43 (2016) (citing Klopfer v. North Carolina,
386 U.S. 213, 223 (1967) and 1 E. Coke, Second Part of the Institutes of
the Laws of England 315 (1797)) (quotations removed).
Indeed, “[p]rior to conviction, the accused is shielded by the
presumption of innocence, the bedrock…principle whose enforcement lies
at the foundation of the administration of our criminal law.” Betterman,
578 U.S. at 442 (citing Reed v. Ross, 468 U.S. 1, 4 (1984)) (quotations
removed). A speedy trial “implements that presumption by prevent[ing]
undue and oppressive incarceration prior to trial, minimizing anxiety
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and concern accompanying public accusation, and limiting the
possibilities that long delay will impair the ability of an accused to defend
himself.” Id. (citing United States v. Marion, 404 U.S. 307, 320 (1971))
(quotations removed). And of those values, the first two reflect the “major
evils against which the Speedy Trial Clause is directed,” as the “core
concern is the impairment of liberty.” Doggett v. United States, 505 U.S.
647, 660 (1992) (Thomas, J., dissenting) (citing Marion, 404 U.S. at 320).
Here, for the sole purpose of addressing the charges in this case,
Mr. Gonzalez was physically restrained at sea and brought into this
country by a Government that knew he had no life, family, or meaningful
opportunity for release here while those charges were pending. Yet the
Government held him in custody for 7 months and 5 days without trial.
The explicit guarantee of a speedy trial—and the longstanding values
that guarantee enshrines—were violated. Mr. Gonzalez’s conviction
should be vacated, and the same charges against him dismissed.
A.
The pretrial delay in this case was beyond ordinary,
and a speedy trial analysis was thus triggered.
In its seminal decision in Barker v. Wingo, the Supreme Court
weighed the interests underlying the Sixth Amendment and set forth, for
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the first time, a balancing test of four non-exhaustive and non-mutually
exclusive factors that would guide courts in determining when the right
has been violated. 407 U.S. 514, 530 (1972). The first of those factors—
length—“is to some extent a triggering mechanism.” Id. The length of the
delay must “cross[] the threshold dividing ordinary from ‘presumptively
prejudicial’ delay” in order for analysis of the remaining Barker factors
to be warranted. United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir.
2006) (quoting Doggett, 505 U.S. at 651-52).
In this context, “[p]resumptive prejudicial” refers to the “point at
which courts deem the delay unreasonable enough to trigger the Barker
inquiry,” since, after all, a person cannot “complain that the government
has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with
customary promptness.” Doggett, 505 U.S. at 652, 652 n.1. Whether the
person must show actual prejudice in a case depends, separately, on how
much the delay exceeds that “bare minimum” by, and how other factors
are weighed. Ingram, 446 F.3d at 1336 (citing Doggett, 505 U.S. at 651).
The instant case was not prosecuted with customary promptness;
to the contrary, the circumstances make clear that the pretrial delay here
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was well beyond the ordinary. Thus, there is “a presumption of prejudice
sufficient to proceed with the other considerations in the Barker
analysis.” See Ingram, 446 F.3d at 1336-37.
1.
The length of pretrial delay that triggers a Barker
analysis depends on the circumstances of the case.
The “length of delay that will provoke [speedy trial] inquiry is
necessarily dependent upon the peculiar circumstances of the case.”
Barker, 407 U.S. at 530-31. The inquiry is case-specific: “[t]o take but one
example, the delay that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy charge.” Id. at
531 (pointing, at 531 n.31, to United States v. Butler, 426 F.2d 1275, 1277
(1st Cir. 1970), where a nine-month delay was “overly long” in that case).
As the Barker Court noted, the speedy trial right is “generically
different” from other procedural rights in the Constitution because it
protects both the interests of the accused and those of the public, and it
is difficult to quantify “with precision when the right has been denied” or
who benefits from a delay. Id. at 519-21. Accordingly, the Court could not
“definitely say how long is too long in a system where justice is supposed
to be swift but deliberate.” Id. at 521, 524 (finding “no constitutional basis
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for holding that the speedy trial right can be quantified into a specified
number of days or months.”). Instead, “any inquiry into a speedy trial
claim necessitates a functional analysis of the right in the particular
context of the case.” United States v. Vargas, 97 F.4th 1277, 1286-87 (11th
Cir. 2024) (citing Barker, 407 U.S. at 522).
Twenty years later, in Doggett, the Supreme Court observed, “lower
courts have generally found post-accusation delay ‘presumptively
prejudicial’ at least as it approaches one year.” 505 U.S. at 652 n.1.
Consistent with this observation, in the years before and after Doggett,
this Court has summarily authorized full Barker analyses, regardless of
the specific circumstances of a case, where the pretrial delay approached
or exceeded one year. See, e.g. United States v. Greer, 655 F.2d 51, 53 (5th
Cir. 1981) (pre-Eleventh Circuit opinion finding 11 and ¾-month delay
presumptively prejudicial); United States v. Dennard, 722 F.2d 1510,
1513 (11th Cir. 1984) (15-month delay); United States v. Clark, 83 F.3d
1350, 1352 (11th Cir. 1996) (17-month delay); United States v. Dunn, 345
F.3d 1285 (11th Cir. 2003) (18-month delay); United States v. Harris, 376
F.3d 1282, 1290 (11th Cir. 2004) (“more than 18 months” delay); United
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States v. Knight, 562 F.3d 1314, 1323 (11th Cir. 2009) (“almost two-year”
delay); Ingram, 446 F.3d at 1336-37 (two-year delay, without government
objection); United States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997)
(“more than two year” delay, without government objection); see also
United States v. Smith, 318 Fed. Appx. 780, 791 (11th Cir. 2009)
(unpublished) (12-month and 6-day delay); United States v. Pair, 84 F.4th
577, 589 (4th Cir. 2023) (13-month delay, without government objection).
On the other hand, while courts before and after Doggett have not
summarily authorized full Barker analyses for delays of less than one
year, courts have found such delays presumptively prejudicial in view of
the circumstances in individual cases—this too is consistent with the
observation in the Doggett footnote. See, e.g., United States v. Simmons,
536 F.2d 827, 829-31 (9th Cir. 1976) (“hold[ing] that the six-month delay
here was sufficiently prejudicial to trigger an inquiry into the other
factors,” where incriminating statements were obtained prior to
indictment and despite defendant being out on personal recognizance);
United States v. Johnson, 579 F.2d 122, 123 (1st Cir. 1978) (finding,
without government objection, that eight months warranted a Barker
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analysis in a “simple” bail-jumping case); Tucker v. Wolf, 581 F.2d 235,
237 (9th Cir. 1978) (remanding the case for a full Barker evidentiary
hearing on a nine month delay, which was “a long wait for a trial date in
a simple burglary case”). In the years since Doggett, this Court has had
limited occasion to consider a pretrial delay of under one year. See United
States v. Derose, 74 F.3d 1177, 1181 (11th Cir. 1996) (ruling that the
Sixth Amendment period of delay was not two years, as the defendants
argued, but eight months, which was not presumptively prejudicial in
that case). It appears this Court has never squarely addressed a claim
post-Doggett that a months-long period of delay was presumptively
prejudicial in its own right, under the circumstances of the case.
In sum, it is the specific circumstances of a case and not any brightline rule that will determine whether the period of pretrial delay in a
given case meets the “bare minimum needed to trigger judicial
examination of the claim.” See Doggett, 505 U.S. at 652.
2.
The length of the pretrial delay in this case is
properly calculated as 7 months and 5 days.
The “Sixth Amendment right to a speedy trial attaches at the time
of arrest or indictment, whichever comes first, and continues until the
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date of trial.” United States v. Gonzalez, 671 F.2d 441, 444 (11th Cir.
1982) (quoting United States v. Walters, 591 F.2d 1195, 1200 (5th Cir.
1979)). Thus, the speedy trial right is “triggered by arrest” just as well as
a formal accusation. Doggett, 505 U.S. at 655. This is because “[a]rrest is
a public act that may seriously interfere with the defendant's liberty,
whether he is free on bail or not, and that may disrupt his employment,
drain his financial resources, curtail his associations, subject him to
public obloquy, and create anxiety in him, his family and his friends.”
Dillingham v. United States, 423 U.S. 64, 65 (1975) (quoting United
States v. Marion, 404 U.S. 307, 320 (1971)).
In this case, Mr. Gonzalez and his co-defendants were interdicted
at sea on July 8, 2022, and they were arrested by Coast Guard officers on
the same date. The district court was correct in its factual finding that
Mr. Gonzalez was “physically restrained” as of the interdiction date. DE
26, at 10; see also DE 80 (“PSI”), ¶ 11 (“On July 8, 2022, Gonzalez,
Vasquez, and Polanco were arrested at sea.”). Indeed, the Coast Guard
took “positive control” of the interdicted vessel, removed Mr. Gonzalez
from the vessel (such that he lost all access to it), and placed him on a
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Coast Guard vessel. Id. ¶¶ 5-7. Coast Guard officers took these actions
after “receiv[ing] authorization to treat the vessel as one without
nationality,” and discovering cocaine on board the vessel. Id. ¶¶ 8-9.
Clearly, Mr. Gonzalez was arrested on that day.
The district court ruled that although Mr. Gonzalez was “physically
restrained” on July 8th, this “didn’t trigger the Sixth Amendment clock”
because there was no formal charge. DE 26, at 9-10. The district court
ruled that the clock should instead start on the day the complaint was
filed, which was July 26, 2022. Id. This was legal error. See Dillingham,
423 U.S. at 65 (stating that “[i]nvocation of the speedy trial provision
thus need not await indictment, information, or other formal charge.”).
Under established law, the day that Coast Guard officers arrested and
detained Mr. Gonzalez was the day that his speedy trial right began, and
the length of the pretrial delay was thus 7 months and 5 days.
3.
The pretrial delay here crossed the threshold, for
Sixth Amendment purposes, between the ordinary
and the presumptively prejudicial.
Under the circumstances here, that pretrial delay was neither
“ordinary” nor reflective of “customary promptness;” thus, it crossed the
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threshold into the “presumptively prejudicial,” and meets the “bare
minimum needed to trigger judicial” review. Doggett, 505 U.S. at 652.
First, under Barker, a review of the circumstances begins with the
nature of the case, and on this point, the record is clear: as the lead agent
stated, this “is really a very simple, straightforward case for the DEA.”
DE 100:26. Indeed, all investigation was complete before Mr. Gonzalez
made his initial appearance in Puerto Rico on July 26, 2022. On the very
date of his July 8th arrest, Coast Guard agents questioned Mr. Gonzalez
and his co-defendants, and the United States assumed jurisdiction over
the case based on their responses. PSI, ¶ 6. On the same date, the
arresting officers found and weighed the cocaine for which Mr. Gonzalez
was held responsible. DE 42, ¶ 4. Photographs, videos, and witness
statements were prepared and transmitted to D.E.A. within a few days.
See DE 100:23-24. And after Mr. Gonzalez was brought ashore on July
26th, even before he was taken before the magistrate, he admitted his
conduct, including his knowledge and intent. PSI, ¶ 13. The investigation
ended there. The lead agent received no other information from the Coast
Guard and did nothing else to investigate, nor did the prosecuting AUSA
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ask him to. DE 100:25, 28. If Barker says that the tolerable delay for an
ordinary street crime is considerably less than for a complex conspiracy
charge, this case is much more like the former. Indeed, the Government
has had no trouble prosecuting other nearly identical Title 46 cases
within a matter of days. See, e.g., United States v. Melvin Beltrez, 2320366-CR-HUCK (S.D. Fla. Sept. 22, 2023), DE 11, DE 34, (22 days
between arrest—88 nautical miles South of the Dominican Republic—
and trial in case with identical charges and essentially identical facts).
Second, this leaves the only circumstance in the case that actually
gave rise to any delay here: the need for removal from Puerto Rico to
Florida. But this too did not render the delay “ordinary.” As a preliminary
matter, Deputy DiCicco explicitly explained that the length of time it took
for removal here was “rare.” DE 100:68. The marshals have had,
“individuals arrested in California, and we get them here in a timely
manner. It’s rare that they fall through like this appears to have done.”
Id. So even accounting for removal, the delay here was not ordinary.
Separately, it bears emphasis that there has been no explanation
for why removal was necessary in this case in the first place. This is not
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a case where Mr. Gonzalez was found in Puerto Rico. To the contrary, the
Coast Guard made a deliberate decision to take him there, and they did
so for the sole purpose of bringing him to face charges they already knew
were forthcoming in Florida. Had the Coast Guard done this within a few
days of Mr. Gonzalez’s arrest at sea, perhaps this Court would be justified
in assuming an attempt to comply with prompt presentment rules. See
Fed. R. Crim. P. 5(a). But despite the fact that the defendants here were
arrested in the Caribbean Sea, close to Puerto Rico and Florida, the Coast
Guard in fact held them out at sea for eighteen days before bringing them
ashore anywhere. This, as is further described in Issue II, clearly
contravened presentment rules. Cf. United States v. Alfonso, 21-CR20306-ALTONAGA (S.D. Fla. Nov. 22, 2021), DE 47, at 10 (finding an
eleven-day presentment delay unnecessary in a Title 46 case involving a
similar Caribbean Sea arrest). Thus, where the Government created the
only circumstance in the case that led to the delay, and has made no
explanation for why it did so, this Court should not find that that
circumstance supports a resulting delay, much less that the delay is
“ordinary,” particularly where there is clear evidence that it was not.
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Finally, it bears emphasis that every judge who encountered the
delay here was taken aback by it. The magistrate judge who presided
over Mr. Gonzalez’s initial appearance in the Southern District of Florida
halted proceedings altogether and ordered the assigned AUSA into court
to explain the delay, and then ordered a written explanation. At a hearing
two days later, Supervisor Deputy U.S. Marshal David DiCicco appeared
directly to answer to the judge. At the motions hearing in district court,
the district judge apologized to Mr. Gonzalez and his co-defendants “for
the delay that was imposed on you,” and ruled “with a heavy heart for
what has happened in this case.” DE 100:152-154. The court noted the
U.S. Marshal for the District had sat through the full hearing. Id. at 153.
Where a pretrial delay is so long that, in context, it provokes such
extraordinary reactions from judges and other experienced stakeholders,
the law should not be so dissonant as to find that same delay “ordinary.”
This was a presumptively prejudicial delay that compelled review.
B.
The district court erred in determining that there was
no speedy trial violation under the Barker factors.
The Barker approach requires a “difficult and sensitive balancing
process,” and offers the following four factors to aid in the analysis:
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“Length of delay, the reason for the delay, the defendant’s assertion of
his right, and prejudice to the defendant.” 407 U.S. at 530, 533. Barker
requires that these factors be evaluated with regard to the values
underlying the speedy trial guarantee. See id. at 530-31 (regarding
length) and 532 (regarding prejudice). Thus, by design, the factors
overlap; they are “related factors and must be considered together with
such other circumstances as may be relevant.” Vargas, 97 F.4th at 1287
(quoting Barker, 407 U.S. at 533). They are “viewed on a sliding scale,
with few hard and fast rules.” Vargas, 97 F.4th 1287.
The Barker analysis in this case compels the conclusion, in light of
the values underlying the speedy trial guarantee and the circumstances
of the pretrial delay here, that the Sixth Amendment was violated.
1.
First and Fourth Factors: Length and Prejudice.
It is instructive to take length and prejudice together. Cf. Vargas,
97 F.4th at 1289 (considering the first two factors together in that case
because they overlapped); United States v. Stapleton, 39 F.4th 1320, 1327
(11th Cir. 2022) (“[T]he length of delay doesn't weigh heavily against the
Government unless the reason for the delay also weighs against the
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Government.”). Here, the prejudice factor underscores why length should
weigh heavily against the Government.
Like length, prejudice is “assessed in the light of the interests of
defendants which the speedy trial right was designed to protect,”
including “(i) to prevent oppressive pretrial incarceration; (ii) to minimize
anxiety and concern of the accused; and (iii) to limit the possibility that
the defense will be impaired.” Barker, 407 U.S. at 532. Mr. Gonzalez
concedes that the delay here did not impair his defense; this is not the
form of prejudice he claims. “But the major evils protected against by the
speedy trial guarantee exist quite apart from actual or possible prejudice
to an accused’s defense.” Id.
Sir Edward Coke wrote: “[H]ave not suffered the prisoner to be long
detained, but at their next coming have given the prisoner full and speedy
justice, without detaining him long in prison.” Klopfer, 386 U.S. at 22425. To Coke, who was apparently studied by every law student in the
American Colonies, “prolonged detention without trial would have been
contrary to the law and custom of England; but [also]…the delay in trial,
by itself, would be an improper denial of justice.” Id. Accordingly, and in
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keeping with a very long history, that guarantee became enshrined in the
first of the colonial bills of rights, the constitutions of all fifty states, and,
in 1791, the U.S. Constitution. See Vargas, 97 F.4th at 1286; Klopfer, 386
U.S. at 226; see also United States v. MacDonald, 456 U.S. 1, 8 (1982)
(noting that the “guarantee is designed to minimize the possibility of
lengthy incarceration prior to trial, to reduce the lesser, but nevertheless
substantial, impairment of liberty imposed on an accused while released
on bail, and to shorten the disruption of life caused by arrest and the
presence of unresolved criminal charges.”). Thus, the Sixth Amendment’s
“core concern is the impairment of liberty.” See Doggett, 505 U.S. at 660
(Thomas, J., dissenting) (citing Marion, 404 U.S. at 320).
These “major evils” are precisely what lie at the heart of this case.
This is not a case where Mr. Gonzalez freely lived his life during the
pretrial delay, “blissfully unaware” that he stood accused of a crime. See
Doggett, 505 U.S. at 660. Nor is it a case where he lived freely but under
the cloud of a public accusation. Instead, for eighteen days after arrest,
Mr. Gonzalez was detained in secret without any charges to speak of. At
the end of that time, having been charged and brought to this country for
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the sole purpose of addressing those charges, he was denied any such
chance for seven months and five days. Throughout nearly the entire
period, he had no trial date. He had no lawyer preparing his case. He had
no access to evidence. Neither he nor his loved ones had any access to
information as to the strength of the case, whether charges in the United
States were appropriate, or when, if ever, any sentence would end and he
would be allowed to go home. Because the Government took Mr. Gonzalez
to Puerto Rico, he had no right to an arraignment until after removal.
And although the Government knew this, not only did it not provide early
evidence, it went on to violate the Florida court’s deadline once he was
arraigned, forcing the parties to jointly continue trial. In sum, at a time
when Mr. Gonzalez was entitled to a presumption of innocence, he was
instead left to be “worn and wasted” in Government custody indefinitely.
Finally, as Mr. Gonzalez languished for so long in this way, his
confinement was his only life. He was in a new country far from anyone
he knew. He did not come here by choice, so he had no immigration status
or chance for release. He did not speak the language—indeed, he grew up
so poor and without education that he cannot read or write any word in
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any language other than his first name: OSVALDO. See McNabb v.
United States, 318 U.S. 332, 335 (1943) (noting the accused’s education
and upbringing in recognizing the real impact of a presentment delay).
A pretrial delay of seven months and five days, standing alone, may
not weigh heavily against the Government. But putting the length
together with the immense prejudice Mr. Gonzalez suffered throughout
each day of that time—a type of prejudice that is in fact rarely seen today
precisely because of the longstanding speedy trial guarantee and other
modern procedural safeguards—these factors weigh heavily in his favor.
2.
Second Factor: Reason For The Delay.
For equally serious reasons, the second factor also weighs heavily
in favor of Mr. Gonzalez. Under any circumstance, it is the “prosecutor
and the court” that have an “affirmative constitutional obligation to try
the defendant in a timely manner.” Ingram, 446 F.3d at 1337. The burden
is thus “on the prosecution to explain the cause of the pre-trial delay.” Id.
Courts have found that delays worthy of scrutiny have resulted, on
the one hand, from “official bad faith,” and on the other, even where there
is “diligent prosecution.” See Doggett, 505 U.S. at 656-57. Between the
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two is a broad middle ground, and in that middle ground, courts have
recognized, for instance, “official negligence.” Id. Naturally, “different
weights are to be assigned to different reasons for delay.” Id. at 657
(citing Barker, 407 U.S. at 531). And even negligence exists in varying
degrees, including degrees that weigh heavily in favor of the accused. See
Ingram, 446 F.3d at 1339 (finding negligence, ruling it “more egregious”
than in a prior case, and finding it weighed heavily for the defense). Here,
the district court was right to conclude that, even after a lengthy hearing,
“we haven’t gotten essentially to the bottom” of how the removal delay
occurred. But the district court erred in finding why it occurred. This was
not “run-of-the-mill negligence” that weighed “moderately.” DE 100:114.
“Negligence,” as that idea exists in speedy trial law and was seen
in Doggett and Ingram, refers to a situation where the Government has
not done enough to start a prosecution; meaning, it has charged but not
arrested a defendant. See, e.g. Ingram, 446 F.3d at 1339 (finding
negligence because “there was much more that the Government could
have done to arrest Ingram.”). A pretrial delay in that situation is
reflective of “an uncommonly feeble interest in bringing an accused to
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justice,” because, of course, “the more weight the Government attaches
to securing a conviction, the harder it will try to get it.” Doggett, 505 U.S.
at 657. But even that situation “falls on the wrong side of the divide
between acceptable and unacceptable reasons for delaying a criminal
prosecution once it has begun.” Id. This is because the Government has
an explicit “constitutional duty to make a diligent, good-faith effort” to
apprehend and bring a defendant to trial. Smith v. Hooey, 393 U.S. 374,
383 (1969); United States v. Hayes, 40 F.3d 362, 365 (11th Cir. 1994), cert.
denied, 516 U.S. 812 (1995). The accused, on the other hand, has no duty
to bring himself to trial.” Ingram, 446 F.3d at 1337.
But none of this describes the cause of the delay here, or, in context,
explains how it factors for Barker analysis purposes. The delay here did
not begin with Government inaction, but action. The Government
arrested Mr. Gonzalez and his co-defendants, and brought them into this
country. Having done so, it knew the three men were in custody, knew
they had no access to evidence, and knew they had no meaningful chance
to seek release or have any life other than their confinement. And it was
in the context of that knowledge that the Government proceeded not to
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follow up on its own prosecution. In context, the delay here was not the
natural result of a low-priority prosecution, but of the knowledge that the
defendants were in custody with nowhere to go, and that the prosecution
would proceed no matter what happened next. If negligent conduct is
unacceptable because it is the Government’s explicit duty to bring an
accused to trial, then the conduct here was far more egregious. Here, the
Government violated that duty with a callous disregard for the abject
conditions of confinement it had caused, and—at a time when these men
should have been presumed innocent—with an indifference to the letter
and spirit of the Speedy Trial Clause’s guarantee in their case.
Moreover, unlike with negligence, the Government’s conduct forced
a Hobbesian choice on Mr. Gonzalez: he could either continue to languish
in endless detention, or bring himself to trial, something this Court has
consistently protected against. Had Mr. Gonzalez not chosen the latter,
there is no telling how long the delay here would have lasted. Certainly,
the Government had no plans to end the delay; the record is clear that no
Government actor was mindful, let alone checked, what happened to the
men they had arrested and abandoned in custody months ago.
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Even in cases where the defendant had a third choice—the choice
to continue living his life without bringing himself to trial—Doggett and
Ingram nonetheless granted dismissal because, “[c]ondoning prolonged
and unjustifiable delays in prosecution would both penalize many
defendants for the state's fault and simply encourage the government to
gamble with the interests of criminal suspects.” 505 U.S. at 657. The
Government’s knowing indifference in this case not only gambled with,
but entirely trampled, those interests. This Court should enforce the
Sixth Amendment’s guarantee and remedy those profound wrongs.
3.
Third factor: Assertion of the speedy trial right.
The third Barker factor, assertion of the speedy trial right, is
“entitled to strong evidentiary weight in determining whether a
defendant is being deprived of the right” because “a timely demand for a
speedy trial often supports an inference the defendant was not at fault
for the delay and the delay prejudiced the defendant.” United States v.
Villarreal, 613 F.3d 1344, 1353 (11th Cir. 2010) (citing Barker, 407 U.S.,
at 531-32). “The strength of [the defendant's] efforts will be affected by
the length of the delay, to some extent by the reason for the delay, and
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most particularly by the personal prejudice, which is not always readily
identifiable, that he experiences.” Id.
Mr. Gonzalez has asserted his right strongly, and repeatedly, by
way of his motion to dismiss and motion to reconsider. The district court
was right: this factor “unquestionably” weighs in favor of the defendants.
DE 100:146. Even more tellingly, it was Mr. Gonzalez’s persistent
assertion of the right to prison staff that ultimately led to the end of the
pretrial delay here. In this way, Barker was prescient: Mr. Gonzalez’s
assertion of his right here was a reflection of the serious prejudice he was
experiencing every day that the right was denied to him.
C.
Dismissal is the only remedy.
The facts and circumstances of this case are unusual in this day
and age, but it is clear that they reflect profound apathy and knowing
indifference by the Government to both the rights of Mr. Gonzalez and
the interests of the public, and thus amount to an egregious violation of
the constitution’s explicit speedy trial guarantee. As the district court put
it, “it’s terrible. I don’t condone it.” DE 100:99. The only remedy for this
terrible outcome is to dismiss the charges. See Barker, 407 U.S. at 522.
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The perhaps “unsatisfactorily severe” nature of the dismissal
remedy was not lost on the Barker Court, which recognized that “it means
that a defendant who may be guilty of a serious crime will go free.” Id.
But considering the unique nature of the speedy trial right, Barker held
that dismissal “is the only possible remedy.” Id. And this Court too has
required dismissal for violations of the speedy trial guarantee. See, e.g.,
Ingram, 446 F.3d at 1340. This case compels the same result.
II.
The Government failed to present Mr. Gonzalez to a
magistrate judge without unnecessary delay and failed to
promptly file charges; this Court should therefore vacate
the conviction and dismiss the indictment, or alternatively,
remand for an evidentiary hearing regarding the delay.
Fed. R. Crim. P. 5 codifies two separate but related rights regarding
the start of criminal proceedings. Rule 5(a) provides, a “person making
an arrest outside the United States must take the defendant without
unnecessary delay before a magistrate judge.” And Rule 5(b) provides,
“[i]f a defendant is arrested without a warrant, a complaint meeting Rule
4(a)'s requirement of probable cause must be promptly filed.” In effect:
The scheme for initiating a federal prosecution is plainly
defined. The police may not arrest upon mere suspicion but
only on ‘probable cause.’ The next step in the proceeding is to
arraign the arrested person before a judicial officer as quickly
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as possible so that he may be advised of his rights and so that
the issue of probable cause may be promptly determined.
Mallory v. United States, 354 U.S. 449, 454 (1957). The common law
presentment rule required that an arresting officer take a prisoner before
a judge “as soon as he reasonably could.” Corley v. United States, 556 U.S.
303, 306 (2009) (emphasis added). Rule 5(a) further requires that the
officer “take the defendant without unnecessary delay before a
magistrate.” Cabezas-Montano, 949 F.3d at 591 (emphasis in original).
In holding Mr. Gonzalez at sea for eighteen days without presenting
or charging him, the Government clearly violated these rules. The district
court erred in finding that dismissal is a legally unavailable remedy for
those violations, and thus by definition abused its discretion in denying
his motion to dismiss on that basis alone. See Koon, 518 U.S. at 100. This
Court should find the record sufficient to establish the violations and
dismiss the indictment, or it should remand for an evidentiary hearing.
A.
In finding that dismissal is not an available remedy for
a Rule 5 violation, the district court made an error of
law; the court thus abused its discretion by definition.
This Court has repeatedly reserved on whether dismissal is
available for a Rule 5 violation. See United States v. Purvis, 768 F.2d
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1237, 1238 (11th Cir. 1985) (“We need not decide whether dismissal of
the indictments would be an appropriate remedy”); see also CabezasMontano, 949 F.3d at 594 n.25 (same). Thus, there is no Circuit precedent
that legally precludes dismissal of the indictment as a remedy.
Indeed, there is reason to think dismissal is required in appropriate
cases. First, any remedy for a Rule 5 violation is judicially created, as the
text specifies no remedy. See Fed. R. Crim. P. 5. Courts have enforced the
rule and its antecedents by creating remedies fitting the violation. See
McNabb, 318 U.S. at 345 (suppressing a confession that law enforcement
had secured after just two days of questioning regarding the killing of a
police officer); Mallory, 354 U.S. at 456 (same after an hours-long delay).
McNabb and Mallory addressed situations where “unwarranted
detention led to tempting utilization of intensive interrogation.” Mallory,
354 U.S. at 453. The remedy they found was a direct response to that
harm. See McNabb, 318 U.S. at 345 (“a conviction resting on evidence
secured through such a flagrant disregard of the procedure which
Congress has commanded cannot be allowed to stand without making the
courts themselves accomplices in wilful disobedience of law.”).
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Importantly, in context, suppression was no less weighty a remedy
than dismissal. See Mallory, 354 U.S. at 456 (“[W]homever the police
arrest they must arrest on ‘probable cause.’ It is not the function of the
police to arrest, as it were, at large and to use an interrogating process
at police headquarters in order to determine whom they should charge”).
The McNabb Court also knew, “the admissions made by [defendants]
constituted the crux of the Government's case against them, and the
convictions cannot stand if such evidence be excluded.” 318 U.S. at 338.
But “a conviction in the federal courts, the foundation of which is
evidence obtained in disregard of liberties deemed fundamental by the
Constitution, cannot stand” Id. at 339. So much so, the Court did not
reach Fifth Amendment due process claims, finding instead, “[j]udicial
supervision of the administration of criminal justice in the federal courts
implies the duty of establishing and maintaining civilized standards of
procedure and evidence…[and s]uch standards are not satisfied merely
by observance of those minimal historic safeguards.” Id. at 340.
As this Court has recognized, McNabb and Mallory addressed the
reprehensible practices known as the “third degree.” See United States v.
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Hurtado, 89 F.4th 881, 899 (11th Cir. 2023); see also McNabb, 318 U.S.
at 344. But contrary to the dicta in Hurtado, these are not the only harms
against which Rule 5 protects. As Corley explained, prompt presentment
is not “just some administrative nicety, but in fact the rule has always
mattered in very practical ways and still does…it stretches back to the
common law, when it was one of the most important protections against
unlawful arrest.” 556 U.S. at 320 (emphasis added).
Ultimately, like the practices addressed in McNabb and Mallory,
practices involving flagrantly lengthy detention without presentment or
probable cause findings, “though universally rejected as indefensible,
still find their way into use.” 318 U.S. at 344; see, e.g., Seth Freed
Wessler, The Coast Guard’s ‘Floating Guantanamos,’ N.Y. TIMES
MAGAZINE, Nov. 11, 2020, at 6 (“Maritime- and human-rights-law
scholars caution that the delayed periods of detention employed by the
United States in its antidrug campaign run counter to international
human rights norms.”). The violations, and the harms they implicate,
compel dismissal to enforce Rule 5, and that remedy, in context, would
be no weightier than what McNabb and Mallory found appropriate.
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It is worth noting that at least one district court has found dismissal
appropriate to enforce Rule 5(a). United States v. Osunde, 638 F. Supp.
171, 174, 176 (N.D. Cal. 1986) (noting the 9th Circuit had “contemplated”
dismissal for “flagrant unnecessary delays in bringing an arrested person
before a magistrate;” rejecting the “logic” that “a person could be taken
into custody, held for an indeterminate period of time without charge,
then charged and indicted within thirty days” as a way of complying with
the rules; and granting dismissal based on Rule 5(a) and the Speedy Trial
Act); see also United States v. Contreras, 197 F.Supp.2d 1173 (N.D. Iowa
2002) (granting dismissal based on Rule 5(a) and Speedy Trial Act).
In denying Mr. Gonzalez’s motion based only on its finding that
dismissal is a legally unavailable remedy for Rule 5 violations, the
district court error. This Court should find that an abuse of discretion.
B.
The astonishing eighteen-day presentment delay in
this case warrants dismissal of the indictment, or, at a
minimum, remand for an evidentiary hearing.
In Purvis, this Court set forth four factors for assessing when a
presentment delay is unnecessary, such that it violates Rule 5(a): (1) the
distance between the location of the defendant's arrest in international
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waters and the U.S. port he was brought to; (2) the time between arrival
at the U.S. port and presentment; (3) any evidence of mistreatment or
improper interrogation during the delay; and (4) any reason for the delay,
like exigent circumstances or emergencies. 768 F.2d 1237, 1238-39 (11th
Cir. 1985); see also Cabezas-Montano, 949 F.3d at 591.
Although the district court erroneously denied Mr. Gonzalez an
evidentiary hearing as to his Rule 5 claims, the facts in the record are
sufficient for this Court to find, pursuant to the Purvis factors, that the
eighteen-day delay here was unnecessary, and that dismissal is required.
1.
The eighteen-day delay here was unnecessary.
First, regarding distance, Mr. Gonzalez was apprehended in the
Caribbean Sea within the Dominican Republic’s EEZ, close to both
Puerto Rico and Florida. There is no argument that eighteen days were
required for travel. Cf. United States v. Castillo, 899 F.3d 1208, 1217-18
(11th Cir. 2018) (Martin, J., concurring) (citing shorter delays for arrests
in the Caribbean, and finding nineteen days reasonable for appearance
in Florida where the arrest took place “off of [t]he Pacific coast of
Guatemala,” “approximately 1,000 miles from the Port of Miami.”)
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Second, Mr. Gonzalez agrees he was presented to a magistrate
within hours of arrival in Puerto Rico, but this bolsters his argument. Mr.
Gonzalez maintains that he was kept away from Puerto Rico (or Florida)
for an unnecessarily long period, and the coordination between the Coast
Guard and D.E.A. to ensure Florida agents were present and prepared
for a pre-presentment interrogation supports a finding that this delay
was unnecessary and improper. Cf. Alfonso, 21-CR-20306-ALTONAGA,
DE 47, at 10 (finding that an eleven-day presentment delay for an arrest
in the Caribbean Sea was unnecessary, as it was caused by the Coast
Guard’s improper decision to repeatedly remove defendants from U.S.bound vessels because D.E.A. “case agents were not yet in San Juan.”).
Third, regarding mistreatment and improper interrogation, Mr.
Gonzalez was held without any process at all throughout the eighteenday period after his arrest. And after that lengthy detention “without the
aid of friends or the benefit of counsel,” before he was taken to a judge,
D.E.A. agents interrogated him, which led to a confession. See McNabb,
318 U.S. at 345. These practices reflect utter disregard for all of Rule 5’s
purposes. It is also worth noting that the full extent of any mistreatment
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is unknown. For example, it is unknown whether and for how long he was
shackled, whether he was held in a cabin or in the open on the deck, how
often he was allowed to bathe himself, how often he was allowed exercise,
the quantity and frequency of food he received, and where or how he
slept. See, e.g., id. at 333-34 (describing holding conditions).
Fourth, the Government has had ample opportunity to advise of any
“exigent circumstances or emergencies” relating to the delays here; it is
clear none exist. What is known is that Coast Guard officers were aware
prosecution would take place in Florida, and they coordinated with the
D.E.A. such that Mr. Gonzalez was brought to Puerto Rico once the
Florida-based agent was there. And as the D.E.A. agent testified, his
complaint, although written earlier, was not filed until the day he met
Mr. Gonzalez in Puerto Rico. DE 100:32. Plainly, either the Coast Guard
or the D.E.A. waited on the other; and neither was guided by Rule 5. Cf.
Alfonso, 21-CR-20306-ALTONAGA, DE 47, at 10.
2.
Dismissal is the appropriate remedy.
For the reasons described in subsection A above, this case compels
dismissal, because the Coast Guard’s procedure for starting this criminal
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prosecution unquestionably contravened Rule 5’s letter and purposes. As
the McNabb Court put it:
The purpose of this impressively pervasive [presentment]
requirement of criminal procedure is plain. A democratic
society, in which respect for the dignity of all men is central,
naturally guards against the misuse of the law enforcement
process. Zeal in tracking down crime is not in itself an
assurance of soberness of judgment. Disinterestedness in law
enforcement does not alone prevent disregard of cherished
liberties…[A rule] requiring that the police must with
reasonable promptness show legal cause for detaining
arrested persons, constitutes an important safeguard—not
only in assuring protection for the innocent but also in
securing conviction of the guilty by methods that commend
themselves to a progressive and self-confident society.
McNabb, 318 U.S. at 343-44.
The Government’s practices here have in fact been part of a pattern
of utter disregard for the rights of the accused in Title 46 cases. See, e.g.
Cabezas-Montano, 949 F.3d at 617 (Rosenbaum, J., concurring)
(involving a seven-week delay, which Judge Rosenbaum thought may
trigger the Constitution’s Suspension Clause). Suppression would not
remedy those violations because they are not characterized by “third
degree” tactics used to extract confessions on which the case is based, but
by flagrantly lengthy detentions reflective of a “zeal” to gather what is
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essentially cumulative evidence (the confessions), of an assurance that
there are no enforceable procedural rules to prevent their practices, and
of a learned apathy toward the plight of those who are detained. Unless
this Court fashions a remedy—one that recognizes the practical nature
of presentment rules and vindicates the value of preventing lengthy
detention without probable cause—there will be no deterrence. See id.
(directing, four years ago, to no avail, that “at a minimum, the United
States should give some serious consideration to its procedures for
presenting
an
MDLEA
detainee
arrested
in
international
waters….[D]etaining a person on the high seas for seven weeks before
formally charging him with a crime is just wrong.”).
III. Mr. Gonzalez’s offense did not occur on the “high seas,” as
that term is defined by international law; his prosecution
thus fell outside of Congress’ limited authority, and his
conviction must be vacated.
The MDLEA prohibits possessing with intent to distribute
controlled substances aboard a “covered vessel.” 46 U.S.C. § 70503(a)(1).
The statute expressly applies “even though the act is committed outside
the territorial jurisdiction of the United States,” 46 U.S.C. § 70503(b),
and requires no connection between the offense and the United States.
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Congress’ authority to enact this far-reaching statute rests solely
on its power under Article I, Section 8, Clause 10 of the U.S. Constitution,
specifically the sub-clause called the “Felonies Clause.” See U.S. CONST.
art. I, § 8, cl. 10 (“Clause 10”);1 see United States v. Bellaizac-Hurtado,
700 F.3d 1245, 1249; see United States v. Davila-Mendoza, 972 F.3d 1264,
1267 (11th Cir. 2020). Thus, congress’s authority is constrained by the
scope of that provision, which, in turn, grants by its explicit terms only
the authority to regulate conduct on the high Seas. Art. I, § 8, cl. 10. But
the conduct in this case did not occur on the “high seas;” it occurred in
the Exclusive Economic Zone (“EEZ”) of another country. The MDLEA is
thus unconstitutional as applied, and the indictment must be dismissed.
A.
The term “high seas,” within the meaning of the
Felonies Clause, is defined by international law.
Article I, Section 8, Clause 10 states:
The Congress shall have Power . . . To define and punish
Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations.
1 Mr. Gonzalez uses either “Clause 10” or the “Define and Punish Clause”
to refer to Article I, Section 8, Clause 10 as a whole. When referring
specifically to Congress’ power to “define and punish . . . Felonies
committed on the high Seas,” he uses the term “Felonies Clause.”
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Clause 10 contains three separate grants of power: (i) “the power to
define and punish piracies,” (ii) “the power to define and punish felonies
committed on the high seas,” and (iii) “the power to define and punish
offenses against the law of nations.” Bellaizac-Hurtado, 700 F.3d at 1248
(citing United States v. Smith, 18 U.S. (5 Wheat) 153, 158-159 (1820)). It
is well-established that Congress’ powers under the Piracies Clause and
the Offences Clause are limited by international law. See id. at 12491251. It thus stands to reason that the Felonies Clause—which lies in
between the two—is similarly constrained.
In United States v. Furlong, 18 U.S. (5 Wheat.) 184 (1820), the
Supreme Court identified the limits of Congress’ Felonies Clause power
by reference to international law. Although a statutory construction case,
the Court presumed that Congress intended to legislate within the full
extent of its authority, and thus determined the scope of Congress'
powers in order to rule on the reach of the statute. Id. at 196.
The Court went on to conclude that, unlike piracies, which could be
punished by any nation, Congress did not have the power to punish a
murder “committed by a foreigner upon a foreigner on a foreign ship.” Id.
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at 197. The sole basis for inferring this restriction on Congress’ Article I
powers was the application of international law. See id. See also United
States v. Marino-Garcia, 679 F.2d 1373, 1380 (11th Cir. 1982)
(recognizing that “international law generally prohibits any country from
asserting jurisdiction over foreign vessels on the high seas”).
Importantly, the Court explained that Congress could not simply “define
murder as ‘piracy,’” and thereby “punish it under the Piracies Clauses.”
Bellaizac-Hurtado, 700 F.3d at 1249 (discussing Furlong, 18 U.S. at 198).
Furlong thus establishes that both the Piracies Clause and the Felonies
Clause find their limits in international law.
In Bellaizac-Hurtado, this Court relied on Furlong to hold that the
power to “define” in Clause 10, “is limited by the three specific subjects
of the Clause,” and that the Law of Nations Clause is limited by
international law. See Bellaizac-Hurtado, 700 F.3d at 1250. The Court’s
holding turned in significant part on the meaning of the word “define,”
which applies to all three powers in the Define and Punish Clause. See
id. at 1250. “During the Founding period, the word ‘define’ meant ‘to give
the definition; to explain a thing by its qualities and to circumscribe; to
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mark limits.” Id. at 1249-50 (internal citations omitted). With respect to
the Law of Nations Clause, “these definitions revealed that the word
‘define’ would not have been understood to grant Congress the power to
create or declare offenses against the law of nations, but instead to codify
and explain offenses that had already been understood as offenses
against the law of nations.” Id. The Court’s historical understanding of
the term “define” was confirmed by the structure of the Constitution as
one creating a Government of enumerated powers. Id. at 1250-51. The
Court wrote: “If Congress could define any conduct as a ‘piracy’ or a
‘felony’ or an ‘offense against the law of nations’, its power would be
limitless and contrary to our constitutional structure.” Id. at 1250.
Against this backdrop, it must be concluded that the limitation of
the “high Seas”—which applies to both the Piracies power and the
Felonies power—must be interpreted according to international law. If it
were otherwise, there would be no ascertainable limit on what Congress
could declare as a felony at sea. Instead, Congress would be able to
expand the geographic sphere of its own authority—in contravention of
this Court’s admonition that “we must interpret the Clause as consistent
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with the structure of our government of enumerated powers.” See
Bellaizac-Hurtado, 700 F.3d at 1251. And this interpretation is
consistent with how the Framers would have understood the term.
“[W]hen the framers gathered to write the Constitution they included
among their chief priorities endowing the national government with
sufficient power to ensure the country’s compliance with the law of
nations.” Jesner v. Arab Bank, PLC, 584 U.S. 241, 289 (2018) (Gorsuch,
J., concurring) (explaining that under the Articles of Confederation, the
States’ regular failures to redress injuries caused by their citizens to
foreigners posed an “existential threat to the new nation”).
As a panel of the First Circuit noted in United States v. DávilaReyes, 23 F.4th 153, 179 (1st Cir. 2022), withdrawn, reh’g en banc
granted, 38 F.4th 288 (1st Cir. July 5, 2022), “Offences against the Law
of Nations,” “Piracies,” and “Felonies” are “all concepts taken directly
from international law.” These terms were “familiar shorthand” for
“international law concepts,” and their inclusion in the Constitution
provides “strong evidence that the Framers intended the Define and
Punish clause to align with the international law understanding of those
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concepts.” Id. Although the panel decision in Dávila-Reyes has been
withdrawn pending en banc review in the First Circuit, its historical
analysis is consistent with this Court’s opinion in Bellaizac-Hurtado.
Conversely, if viewed outside of this historical context, Clause 10
would seem to “contain[] a striking double redundancy.” Eugene
Kontorovich, The ‘Define and Punish’ Clause and the Limits of Universal
Jurisdiction, 103 NW. U. L. REV. 149, 160 (2009). “‘Piracies’ refers to a
particular crime. ‘Felonies,’ in contrast, describes a broad category, as
does ‘Offenses against the Law of Nations.’ Piracy is a subspecies of
felony, and one that necessarily occurs on the high seas. Moreover, piracy
was an offense against the law of nations.” Id. at 163 (footnotes omitted).
The apparent redundancy disappears, however, when one recognizes that
under international law, these three categories of offenses have distinct
meanings and different jurisdictional scopes. See id.
During the founding era, piracy was understood to have a fixed
meaning in international law, and was the only universal jurisdiction
offense. See id. at 164-65. The Supreme Court made clear, early on, that
Congress could not simply call any offense piracy, and thereby subject
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the same to universal jurisdiction. See Bellaizac-Hurtado, 700 F.3d at
1249 (discussing Furlong, 18 U.S. at 189). 2
It was similarly a “well-accepted principle of international law that
countries could enact statutes criminalizing conduct on the high seas
other than piracy, but only as to a given country’s own nationals or on
vessels over which the country could exercise jurisdiction pursuant to
international law.” Dávila-Reyes, 23 F.3d at 179 (citations omitted); see
also United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630–34 (1818)
(holding that Congress could not extend U.S. jurisdiction to foreigners on
foreign vessels for the common law form of robbery); Furlong, 18 U.S. at
197–98 (holding the same for murder on a foreign vessel, and again
contrasting piracy, which can be punished by Congress “even when
committed by a foreigner upon a foreigner in a foreign ship”); see
generally also Bellaizac-Hurtado, 700 F.3d at 1259 (Barkett, J., specially
concurring) (explaining, “customary international law contains both a
substantive and a jurisdictional component”).
Nor could Congress simply declare drug trafficking a violation of
international law and therefore expand its own powers under the Law of
Nations Clause. See id. at 1249-50.
58
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Thus, what appears at first blush to present a redundancy in Clause
10, instead reflects the Framers’ intent to grant Congress the authority
to define and punish piracies, felonies, and offenses against the law of
nations as distinct grants of power, each taking on the distinct
jurisdictional limitations accorded to them by international law.
Like “Piracies,” and “Offences against the Law of Nations,” the
“high seas” is a term that has a known and ascertainable meaning under
international law. The inclusion of the term high seas in Clause 10 must
therefore also be understood to take on the meaning attributed to it by
international law. And that meaning excludes the area in which Mr.
Gonzalez’s vessel was located at the time of his arrest.
B.
Under international law, the Exclusive Economic Zone
is not part of the High Seas.
The 1982 United Nations Convention on the Law of the Seas
(“UNCLOS”) provides: “The exclusive economic zone is an area beyond
and adjacent to the territorial sea…under which the rights and
jurisdiction of the coastal State and the rights and freedoms of other
States are governed by the relevant provisions of this Convention.” 1833
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U.N.T.S. 397, 21 ILM 1261 (1982), art. 55. 3 Coastal states have sovereign
rights regarding the conservation, management, and exploitation of
natural resources within their EEZs. UNCLOS art. 56. And all states
may enjoy the freedoms of navigation and overflight, as well as other
“internationally lawful uses of the sea” within all EEZs. UNCLOS art.
58. But UNCLOS makes clear that a country’s EEZ is not part of the High
Seas. See UNCLOS Part VII, Sec. 1, art. 86 (“The provisions of this Part
[entitled “HIGH SEAS”] apply to all parts of the sea that are not included
in the exclusive economic zone, in the territorial sea or in the internal
waters of a State, or in the archipelagic waters of an archipelagic State.”).
Taken together, “Articles 55 and 86 of the Convention establish that
the exclusive economic zone is unique, neither part of the territorial sea
nor part of the high seas.” George V. Galdorisi & Alan G. Kaufman,
Military Activities in the Exclusive Economic Zone: Preventing
Uncertainty and Defusing Conflict, 32 CAL. W. INT'L L.J. 253, 278 (2002).
In describing the high seas, UNCLOS art. 86 excludes the
exclusive economic zone from the high seas, stating, “The
The
full
text
of
UNCLOS
is
available
at:
https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos
_e.pdf (accessed June 2, 2024).
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provisions of this Part apply to all parts of the sea that are not
included in the exclusive economic zone…” UNCLOS art. 55
excludes the exclusive economic zone from the territorial sea
by stating, “The exclusive economic zone is an area beyond
and adjacent to the territorial sea, subject to the specific legal
regime…”
Id. at n.136. Thus, under UNCLOS, the EEZ “is explicitly no longer
treated as part of the high seas regime.” Eugene Kontorovich, Beyond the
Article I Horizon: Congress’s Enumerated Powers and Universal
Jurisdiction, 93 MINN. L. REV. 1191, 1233 & n.278 (2009).
Galdorisi and Kaufman trace the history of the creation of the EEZ
back to 1945, when President Truman issued two proclamations
declaring U.S. control over marine resources and fisheries beyond its
territorial sea. Galdorisi & Kaufman, supra, at 258. This action “opened
the floodgates” for multiple States to claim sovereignty over areas of the
high seas. What followed were numerous U.N. Conventions that spurred
significant debate on the Law of the Sea, and the result was a careful
balance, part of which involved UNCLOS “unambiguously establish[ing]
the exclusive economic zone as neither part of the territorial sea nor part
of the high seas.” See id. at 261-72. Indeed, consistent with the careful
and deliberate distinctions drawn between the high seas, the EEZ, and
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territorial waters, UNCLOS repeatedly refers to these waters as distinct
and mutually exclusive zones. See, e.g. UNCLOS art. 7, ¶ 6; art. 36; art.
37; art. 38 ¶ 1; art. 38 ¶ 2; art. 45 ¶ 1(b); art. 47; art. 53.
This has not altered provisions in Article 58, which reserve to all
States the right to certain “internationally lawful uses of the sea,” and
state, “other pertinent rules of international law apply to the exclusive
economic zone in so far as they are not incompatible with this Part.” See
UNCLOS art. 58(1), (2). Indeed, Article 58 states that all States retain
the right to lawful uses of “the sea” within the EEZ, but does not refer to
this area as the “high seas.” See Galdorisi and Kaufman, supra, at 27273. This language came from negotiations during the drafting process
and confirms that whatever rights States may exercise in the EEZ, those
waters are not the high seas. Id. It is thus clear that under “customary
international law,” the EEZ is not considered to be part of the “high seas.”
Here, Mr. Gonzalez was arrested 130 nautical miles South of the
Dominican Republic, in waters that are plainly part of the country’s EEZ.
DE 42:1. Mr. Gonzalez’s conduct thus did not occur on the high seas, and
Congress lacked the power to regulate it. His conviction must be vacated.
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CONCLUSION
Based upon the foregoing argument and citations of authority, this
Court should reverse the district court’s order denying his motion to
dismiss, vacate the judgment, and order dismissal of the indictment.
Respectfully submitted,
HECTOR DOPICO
INTERIM FEDERAL PUBLIC DEFENDER
/s/ Srilekha Jayanthi
Srilekha Jayanthi
Special A No. A5502728
Assistant Federal Public Defender
150 W. Flagler Street, Suite 1700
Miami, Florida 33130-1556
(305) 530-7000/ (305) 536-4559, Fax
E-Mail: srilekha_jayanthi@fd.org
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CERTIFICATE OF COMPLIANCE
I CERTIFY that this brief complies with the type-volume limitation
and typeface requirements of FED. R. APP. P. 32(a)(7)(B), because it
contains 12,812 words, excluding the parts of the brief exempted by Fed.
R. App. P. 32(f).
This brief also complies with the requirements of Fed. R. App. P.
32(a)(5) and (a)(6) because it has been prepared in a proportionally
spaced typeface using Microsoft Word in 14 point, Century Schoolbook.
/s/ Srilekha Jayanthi
Srilekha Jayanthi
Attorney for Appellant Gonzalez
Dated: June 5, 2024
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CERTIFICATE OF SERVICE
I HEREBY certify that on this 5th day of June, 2024, I electronically
filed the foregoing document with the Clerk of the Court using CM/ECF
and sent four copies to the Clerk of the Court via third party commercial
carrier for delivery within three days. I also certify that the foregoing
document is being served this day via CM/ECF on Lisa Tobin Rubio,
Chief, Appellate Division, United States Attorney=s Office, 99 N.E. 4th
Street, Miami, Florida 33132 and mailed via U.S. Mail to Mr. Osvaldo
Gonzalez, Reg. No. 12884-510, FCI Fort Dix, Federal Correctional
Institution, P.O. Box 2000, Joint Base MDL, NJ 08640.
/s/ Srilekha Jayanthi
Srilekha Jayanthi
65
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
NO.
24-10257
United States of America,
Appellee,
- versus Angel Palanco,
Humberto Vasquez Diaz,
Osvaldo Gonzalez,
Appellants.
__________________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
__________________________________________________________________
BRIEF FOR THE UNITED STATES
Markenzy Lapointe
United States Attorney
Attorney for Appellee
99 N.E. 4th Street
Miami, Florida 33132-2111
(305) 961-9383
Daniel Matzkin
Chief, Appellate Division
Jason Wu
Deputy Chief, Appellate Division
Jonathan D. Colan
Senior Appellate Attorney
Of Counsel
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United States v. Palanco, et al., Case No. 24-10257
Certificate of Interested Persons
In compliance with Fed. R. App. P. 26.1 and 11th Circuit Rules 26.1 and 281, the undersigned certifies that the list below is a complete list of the persons and
entities previously included in the government’s CIP, as well as additional persons
and entities (designated in bold face) who have an interest in the outcome of this
case.
Altman, Hon. Roy K.
Cabrera, Roger
Casabielle, Manuel Lazaro
Charest-Turken, Gabrielle Raemy
Colan, Jonathan D.
DeJesus Cabrera, Roger
Diaz Vasquez, Humberto
Dopico, Hector A.
Gonzalez, Juan Antonio
Gonzalez, Osvaldo
Goodman, Hon. Jonathan
Jayanthi, Srilekha
Kirkpatrick, Lynn
c 1 of 2
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United States v. Palanco, et al., Case No. 24-10257
Certificate of Interested Persons (Continued)
Lapointe, Markenzy
Matzkin, Daniel
Mollison, Kathleen Ellen
Palanco, Angel Gabriel
Reid, Hon. Lissette M.
Salopek, Francine
Sylvester-Pierre, Danielle
Vigilance, Michele S.
Wu, Jason
/s/ Jonathan D. Colan
Jonathan D. Colan
Senior Appellate Attorney
c 2 of 2
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Statement Regarding Oral Argument
The United States of America respectfully suggests that the briefs and record
before this Court adequately present the facts and legal arguments and that oral
argument would not significantly aid the decisional process.
i
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Table of Contents
Page:
Certificate of Interested Persons ........................................................................ c-1
Statement Regarding Oral Argument ..................................................................... i
Table of Contents .................................................................................................. ii
Table of Citations ................................................................................................. iv
Statement of Jurisdiction ....................................................................................... x
Introduction ............................................................................................................ 1
Statement of the Issues............................................................................................ 2
Statement of the Case:
1.
Course of Proceedings and Disposition in the Court Below ............ 2
2.
Statement of the Facts ....................................................................... 5
a.
Defendants’ Interdiction at Sea, Transportation to the
United States and Presentment to a Magistrate Judge,
and Trial. .................................................................................. 5
b.
3.
Defendants’ Stipulated Offense Conduct .............................. 12
Standards of Review ....................................................................... 13
Summary of the Argument .................................................................................. 14
ii
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Table of Contents
(continued)
Page:
Argument and Citations of Authority:
I.
The Sixth Amendment’s Guarantee of a Speedy Trial Did Not Require
Dismissal of the Defendants’ Indictment When They Were Tried Well
Short of a Year After their Arrest and They Suffered No Prejudice in
Their Ability to Respond to the Known Facts ............................................ 16
II.
Rule 5 Did Not Require Dismissal of the Indictment Because of the 18Day Period Before the Defendants Were Presented to a Magistrate Judge
After Their Interdiction on the High Seas .................................................. 23
III.
Congress’s Felonies Clause Power to Criminalize Drug Trafficking
on the High Seas Extends Within Foreign Nations’ Exclusive Economic
Zones........................................................................................................... 31
Conclusion .......................................................................................................... 33
Certificate of Compliance ..................................................................................... 34
Certificate of Service ........................................................................................... 34
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Cases:
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Table of Citations
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Page:
Abel v. United States,
362 U.S. 217 (1960) ..............................................................................................24
Barker v. Wingo,
407 U.S. 514 (1972) ..................................................................... 10, 11, 14, 17, 18
County of Riverside v. McLaughlin,
500 U.S. 44 (1991) ................................................................................................29
Doggett v. United States,
505 U.S. 647 (1992) ..............................................................................................19
Mallory v. United States,
354 U.S. 449 (1957) ....................................................................................... 24, 25
Martin v. Singletary,
965 F.2d 944 (11th Cir. 1992)...............................................................................32
McNabb v. United States,
318 U.S. 332 (1943) ..............................................................................................24
Miranda v. Arizona,
384 U.S. 436 (1966) ................................................................................................6
Nguyen v. United States,
556 F.3d 1244 (11th Cir. 2009).............................................................................22
iv
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Table of Citations
Cases:
(Continued)
Page:
Parris v. Warden, Limestone Corr. Facility,
542 F. App’x 850 (11th Cir. 2013) .......................................................................21
Rhode Island v. Innis,
446 U.S. 291 (1980) ..............................................................................................26
*United States v. Alfonso,
104 F.4th 815 (11th Cir. 2024) .............................................................................32
United States v. Bibb,
194 F. App’x 619 (11th Cir. 2006) ................................................................ 13, 19
*United States v. Cabezas-Montano,
949 F.3d 567, 577 (11th Cir. 2020)........................................ 21, 24, 25, 27, 28, 30
*United States v. Clark,
83 F.3d 1350 (11th Cir. 1996)........................................................................ 19, 20
United States v. Contreras,
197 F. Supp. 2d 1173 (N.D. Iowa 2002) ...............................................................29
United States v. Dunn,
345 F.3d 1285 (11th Cir. 2003).............................................................................17
v
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Table of Citations
Cases:
(Continued)
Page:
United States v. Fonseca,
No. 22-13152, 2023 WL 7272320 (11th Cir. Nov. 3, 2023) ................................20
United States v. Gayden,
977 F.3d 1146 (11th Cir. 2020).............................................................................13
*United States v. Hurtado,
89 F.4th 881 (11th Cir. 2023) ...................................................... 24, 25, 26, 28, 29
United States v. Ingram,
446 F.3d 1332 (11th Cir. 2006).............................................................................17
United States v. Knight,
562 F.3d 1314 (11th Cir. 2009).............................................................................17
United States v. Kubiak,
704 F.2d 1545 (11th Cir. 1983).............................................................................16
United States v. Li,
206 F.3d 78 (1st Cir. 2000) ...................................................................................26
United States v. Medina,
793 F. App’x 850 (11th Cir. 2019) .......................................................................22
vi
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Table of Citations
Cases:
(Continued)
Page:
United States v. Osunde,
638 F. Supp. 171 (N.D. Cal. 1986) .......................................................................29
*United States v. Purvis,
768 F.2d 1237 (11th Cir. 1985).............................................. 23, 24, 25, 26, 27, 28
United States v. Rioseco,
845 F.2d 299 (11th Cir. 1988)...............................................................................26
United States v. Rodriguez-Diaz,
No. 22-12360, 2024 WL 3342475 (11th Cir. July 9, 2024) .................................32
United States v. Romero-Galue,
757 F.2d 1147 (11th Cir. 1985).............................................................................26
United States v. Santana,
640 F. Supp. 3d 1293 (S.D. Fla. 2022) .................................................................24
United States v. Stapleton,
39 F.4th 1320 (11th Cir. 2022) .............................................................................17
United States v. Tinoco,
304 F.3d 1088 (11th Cir. 2002).............................................................................13
vii
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Table of Citations
Cases:
(Continued)
Page:
United States v. Valois,
915 F.3d 717 (11th Cir. 2019)...............................................................................26
United States v. Vargas,
97 F.4th 1277 (11th Cir. 2024) ...................................................................... 19, 22
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990) ..............................................................................................24
United States v. Villarreal,
613 F.3d 1344 (11th Cir. 2010).............................................................................13
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Page:
Statutes & Other Authorities:
14 U.S.C. § 102 ........................................................................................................30
18 U.S.C. § 3231 ........................................................................................................x
28 U.S.C. § 1291 ........................................................................................................x
46 U.S.C. § 70503 ......................................................................................... 3, 13, 31
46 U.S.C. § 70506 ......................................................................................... 3, 13, 31
11th Cir. R. 28-5 ........................................................................................................4
Fed. R. App. P. 26.1 ........................................................................................ c-1 of 2
Fed. R. App. P. 32 ....................................................................................................34
Fed. R. App. P.4 .........................................................................................................x
Fed. R. Crim. P. 5...................................................................... 2, 3, 9, 15, 16, 23, 24
Fed. R. Crim. P. 48............................................................................................ 16, 17
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Statement of Jurisdiction
This is an appeal from a final judgment of the United States District Court for
the Southern District of Florida in a criminal case. The district court entered
judgment against co-defendants Angel Palanco, Humberto Vasquez Diaz, and
Osvaldo Gonzalez on January 18, 2024 (DE:76; DE:77; DE:88). The district court
had jurisdiction to enter the judgments pursuant to 18 U.S.C. § 3231. Palanco filed
a timely notice of appeal on January 18, 2024 (DE:82), Vasquez Diaz on January
24, 2024 (DE:83), and Gonzalez on January 31, 2024 (DE:86); see Fed. R. App.
P.4(b). This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
x
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Introduction
This case involves a Maritime Drug Law Enforcement Act prosecution where
the Defendants were detained on a Coast Guard vessel for 18 days and then
scheduled for trial six-and-a-half months after they were arrested by Drug
Enforcement Administration agents. Neither of these periods is significant enough
to warrant dismissal of the Defendants’ indictment where there is no showing of any
prejudice from these delays. Because they concede that there was no impairment to
their defense, this Court need not resolve the proper remedy for a delay in
presentment or the minimum time-period warranting a full Constitutional Speedy
Trial violation analysis. Indeed, the district court conducted a full Barker v. Wingo
analysis, despite its misgivings about the length of the delay. The record is
incomplete as to the reasons for the 18-day journey before presenting the Defendants
to an on-shore magistrate judge, but the government acknowledges that the
Defendants suffered unwarranted delays once they arrived in the United States. Even
so, the record shows their total time in custody was not prolonged and no speedy
trial violation occurred. The Defendants’ remaining Constitutional challenge to
Congress’s authority over international waters claimed as a foreign nation’s
exclusive economic zone is foreclosed by precedent.
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Statement of the Issues
I.
Whether the Defendants’ Sixth Amendment Speedy Trial rights were violated
when they were scheduled for trial in well less than a year after their arrest and they
admittedly suffered no prejudice to their defense since all the facts were known and
stipulated.
II.
Whether Federal Rule of Criminal Procedure 5 required dismissal of the
Defendants’ indictment because they were presented to a United States magistrate
judge 18 days after their interdiction on the high seas but were not interrogated
during that time.
III.
Whether binding precedent forecloses the Defendants’ argument that
Congress’s Felonies Clause powers did not support their prosecution for trafficking
drugs in that area of the high seas claimed as the Dominican Republic’s exclusive
economic zone.
Statement of the Case
1.
Course of Proceedings and Disposition in the Court Below
This case concerns Angel Palanco’s, Humberto Vasquez Diaz’s, and Osvaldo
Gonzalez’s interdiction by the United States Coast Guard on July 8, 2022, on the
high seas, when they were found to be transporting approximately 972 kilograms of
cocaine (DE:1). A federal grand jury in the Southern District of Florida charged
Palanco, Vasquez Diaz, and Gonzalez, under the Maritime Drug Law Enforcement
2
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Act (MDLEA), with conspiracy (Count 1) and substantive (Count 2) possession with
intent to distribute five kilograms or more 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(b)
(DE:3).
The Defendants jointly moved to dismiss their indictment, arguing: (1) that
their vessel had been interdicted in the Dominican Republic’s exclusive economic
zone (EEZ) and was therefore outside Congress’s Felonies Committed on the High
Seas Clause power; (2) that their detention by the Coast Guard for 18 days before
their presentment to a United States Magistrate Judge in Puerto Rico violated Federal
Rule of Criminal Procedure 5; and (3) that the six-month delay between their
indictment and scheduled trial date violated their Sixth Amendment Speedy Trial
rights (DE:17).1 The Defendants requested that the court hold an evidentiary hearing
on these issues (DE:17:4). The parties exchanged pleadings on the motion (DE:23;
DE:24), and the district court denied their motion without holding a hearing to
receive evidence regarding the circumstances of the delays (DE:26).
The Defendants moved for reconsideration of their speedy trial argument
(DE:27), and after the parties exchanged additional pleadings (DE:30; DE:31), the
The Defendants’ joint motion to dismiss originally cited their indictment as the
relevant start-date to the period at issue for their speedy trial argument (DE:17:16).
They later argued that the relevant start-date was their interdiction at sea. As argued
infra, the government does not believe the difference affects the legal analysis.
1
3
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district court held an evidentiary hearing and heard further argument on the speedy
trial issue (DE:102). The Defendants did not seek reconsideration of their delay in
presentment argument. The district court ultimately denied reconsideration of its
order denying dismissal of the indictment (DE:37).2
The Defendants then waived their right to a jury trial (DE:43; DE:46; DE:49)
and proceeded to a bench trial supported by their factual stipulations (DE:42; DE:45;
DE:48). The district court adjudged them each “guilty as charged in the indictment”
(DE:103:22).3
Following sentencing proceedings, the district court entered judgment against
Gonzalez (DE:76), Palanco (DE:77), and Vasquez Diaz (DE:78), sentencing them
each to serve 77 months’ imprisonment and two years’ supervised release.
They each filed timely notices of appeal (DE:82; DE:83; DE:86) and are
incarcerated.
The district court’s order denying reconsideration of dismissal of the indictment
granted reconsideration, in part, only to the extent of clarifying the standard it
applied in denying the Defendants’ Sixth Amendment Speedy Trial claim (DE:37:1).
3
Pursu
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