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Appendix G: First Order (Partially Superseded) by the U.S. District Court for the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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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

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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

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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.

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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

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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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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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