United States v. Luis Fernando Bertulucci Castillo ( 2014 )


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  •              Case: 12-16520     Date Filed: 06/10/2014   Page: 1 of 19
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 12-16520
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:11-cr-20321-PAS-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    LUIS FERNANDO BERTULUCCI CASTILLO,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (June 10, 2014)
    Before PRYOR, MARTIN, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Luis Fernando Bertulluci Castillo (“Castillo”) appeals his conviction for one
    count of conspiracy to possess with intent to distribute five kilograms or more of
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    cocaine while on board an aircraft registered in the United States and one count of
    making a false statement of aircraft ownership to facilitate a controlled substance
    offense.
    The government arrested Castillo in the Dominican Republic based on his
    participation in a conspiracy to use an aircraft registered in the United States to
    transport cocaine into the United States. Castillo agreed to cooperate with the
    government and provide information relevant to ongoing drug trafficking
    investigations. The government asked that the case be sealed based on these
    ongoing investigations. Castillo pleaded guilty pursuant to a plea agreement in
    which the government stated that it would consider whether Castillo’s cooperation
    merited a motion for reduction of sentence under U.S.S.G. § 5K1.1 based on its
    evaluation of Castillo’s assistance. The government also agreed to recommend
    that Castillo receive a three-level reduction for acceptance of responsibility so long
    as, among other things, he did not commit any misconduct after entering into the
    agreement. After several continuations of his sentencing hearing, the government
    terminated Castillo’s cooperation because he had allegedly told other detainees
    details of his cooperation with the government and offered to sell his proposed
    testimony against a Mexican drug trafficker. The government also requested that
    the case be unsealed, and Castillo did not object. Prior to sentencing, the
    government objected to the three-level reduction for acceptance of responsibility
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    and declined to file a § 5K1.1 motion. In both a written pro se motion and orally at
    sentencing through counsel, Castillo moved to withdraw his guilty plea based on
    ineffective assistance of counsel. The district court denied both the written and
    oral motions.
    On appeal, Castillo argues that the sentence appeal waiver in his plea
    agreement is unenforceable because the government breached the plea agreement
    and that the district court abused its discretion in denying his motion to withdraw
    his guilty plea. He also argues that his conviction should be reversed based on
    discovery violations. Finally, he argues that the indictment should be dismissed
    because it fails to state an offense and because the district court lacked jurisdiction
    due to the fact that the government arrested, detained, and abducted him in the
    Dominican Republic.
    I.
    Whether the government breached the plea agreement is a question of law
    that we review de novo. United States v. De Le Garza, 
    516 F.3d 1266
    , 1269 (11th
    Cir. 2008). However, if the defendant did not object on this basis before the
    district court, we review only for plain error. Puckett v. United States, 
    556 U.S. 129
    , 134-35, 143, 
    129 S.Ct. 1423
    , 1428-29, 1433, 
    173 L.Ed.2d 266
     (2009). Under
    the plain error standard, error is reversible if: “(1) an error occurred, (2) the error
    was plain, (3) the error affected substantial rights in that it was prejudicial and not
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    harmless, and (4) the error seriously affected the fairness, integrity, or public
    reputation of a judicial proceeding.” United States v. Olano, 507 U.S 725, 734,
    
    113 S.Ct. 1770
    , 1777, 
    123 L.Ed.2d 508
     (1993).
    “The government is bound by any material promises it makes to a defendant
    as part of a plea agreement that induces the defendant to plead guilty.” United
    States v. Taylor, 
    77 F.3d 368
    , 370 (11th Cir. 1996). Whether a plea agreement is
    violated is determined according to the defendant’s reasonable understanding when
    he entered the plea. United States v. Horsfall, 
    552 F.3d 1275
    , 1281 (11th Cir.
    2008).
    Under U.S.S.G. § 5K1.1, the district court may depart from the guidelines
    “[u]pon motion of the government stating that the defendant has provided
    substantial assistance in the investigation or prosecution of another person who has
    committed an offense.” U.S.S.G. § 5K1.1. We do not evaluate the assistance
    rendered by a defendant “unless and until the government makes a [§] 5K1.1
    motion for downward departure based on substantial assistance.” United States v.
    Forney, 
    9 F.3d 1492
    , 1501 (11th Cir. 1993). In this respect, “the courts are
    precluded from intruding into prosecutorial discretion.” 
    Id.
     An unkept promise
    “to make” a § 5K1.1 motion, as opposed to consider making one, may breach the
    plea agreement and allow withdrawal of the plea, but absent an agreement to file
    such a motion, the government’s decision “to make or withhold a § 5K1.1 motion
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    is a form of prosecutorial discretion that is not reviewable for arbitrariness or bad
    faith.” Id. at 1502 n.5 (emphasis in original) (quotations omitted). Where the plea
    agreement reserves to the government the sole discretion to make or withhold a
    § 5K1.1 motion, as opposed to a plea agreement that contains a specific contractual
    agreement to file a § 5K1.1 motion, we limit our review “to those cases in which a
    constitutionally impermissible motive has been alleged.” Id.
    A defendant may receive a two-level reduction under the sentencing
    guidelines if he “clearly demonstrates acceptance of responsibility for his offense.”
    U.S.S.G. § 3E1.1(a). A defendant may qualify for an additional one-level
    reduction for acceptance of responsibility if he assisted authorities by timely
    providing information to the government about his own misconduct or by timely
    notifying authorities of his intent to plead guilty and thereby permitting to
    government to avoid preparing for trial and the district court to allocate resources
    efficiently. See id. § 3E1.1(b). “Because the Government is in the best position to
    determine whether the defendant has assisted authorities in a manner that avoids
    preparation for trial, an adjustment under subsection (b) may only be granted upon
    a formal motion by the Government at the time of sentencing.” Id. § 3E1.1,
    comment. (n.6). Whether or not to grant the additional one-level reduction is a
    matter of determining only whether the defendant timely provided information and
    notified authorities of his intention to enter a plea of guilty. United States v.
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    McPhee, 
    108 F.3d 287
    , 289-90 (11th Cir. 1997). A defendant’s obstructionist
    conduct following a guilty plea is irrelevant to determining whether the defendant
    is entitled to the one-level reduction for acceptance of responsibility. 
    Id. at 290
    .
    Here, Castillo’s appeal waiver is enforceable because the government did
    not breach the plea agreement. He argues that the government breached the plea
    agreement by: (1) declining to file a § 5K1.1 motion; (2) unsealing the case and
    thereby exposing him and his family to harm; and (3) objecting to him receiving a
    reduction for acceptance of responsibility under § 3E1.1(a), (b). Castillo, at the
    hearing and proceeding pro se with standby counsel, personally stated to the
    district court that the government had not complied with its promise to file a
    § 5K1.1 motion, and that the government was using inadequate information to
    avoid fulfilling its promises in the plea agreement. This statement adequately
    preserved the breach of plea agreement claim as to the § 5K1.1 motion. However,
    because Castillo did not challenge that the government breached the plea
    agreement on the basis of § 3E1.1 or unsealing his case before the district court, we
    review these claims only for plain error. See Puckett, 
    556 U.S. at 134-35, 143
    , 
    129 S.Ct. at 1428-29, 1433
    .
    First, the government did not breach the plea agreement by declining to file
    a § 5K1.1 motion. Castillo’s plea agreement explicitly reserved to the government
    the sole discretion to evaluate his assistance and determine whether or not to file a
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    § 5K1.1 motion. During his plea hearing, the district court specifically asked
    Castillo if he was aware that, even if he cooperated to the best of his abilities, the
    government might not feel that his cooperation rose to the level of substantial
    assistance and that there would be nothing the district court could do to force the
    government to file such a motion, and Castillo responded, “Yes, [y]our Honor, I
    am aware.” From the record it is clear that Castillo reasonably understood, as any
    reasonable defendant would have understood, that the government retained the sole
    discretion to evaluate his assistance and determine whether it warranted a § 5K1.1
    motion. See Horsfall, 
    552 F.3d at 1281
    . Therefore, absent an unconstitutional
    motive, we will not review the government’s discretionary decision not to file the
    motion. See Forney, 
    9 F.3d at
    1502 n.5. Castillo has not alleged, before the
    district court or on appeal, that the government had an unconstitutional motive in
    declining to file a § 5K1.1 motion, and the government did not breach the plea
    agreement by declining to file such a motion.
    Second, the government did not plainly breach the plea agreement by
    unsealing Castillo’s case because the plea agreement did not contain any provision
    in which the government promised to seal the record or to let it remain sealed. The
    plea agreement contained no discussion whatsoever of sealing Castillo’s case.
    Furthermore, Castillo did not object when the government, at his second
    sentencing, informed the district court that it no longer needed the case sealed. His
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    allegations on appeal regarding the government’s motivations for unsealing the
    case, even if true, do not amount to a breach of the plea agreement because there is
    no indication in either the plea agreement or the rest of the record on appeal that
    the government made any promises or representations that Castillo’s case would be
    sealed. See Taylor, 
    77 F.3d at 370
    . In the absence of any evidence indicating such
    a promise from the government, Castillo cannot establish any error, much less
    plain error, on this basis.
    Third, the government did not plainly breach the plea agreement by
    declining to recommend Castillo receive a three-level reduction for acceptance of
    responsibility. The plea agreement provided that the government would
    recommend a three-level reduction for acceptance of responsibility, unless, among
    other things, Castillo “commit[ted] any misconduct after entering into this plea
    agreement, including but not limited to committing a state or federal offense,
    violating any term of release, or making false statements or misrepresentations to
    any governmental entity or official.” The plain language of the plea agreement
    informed Castillo, and any reasonable defendant, that the government could alter
    its recommendation based on post-plea misconduct. See Horsfall, 
    552 F.3d at 1281
    . Although Castillo may have been legally entitled to receive a three-level
    reduction for acceptance of responsibility had the government moved for such a
    reduction, see McPhee, 
    108 F.3d at 289-90
    , the government did not violate the plea
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    agreement by failing to move for a reduction where the plea agreement specifically
    stated that the government could alter its recommendation if Castillo committed
    post-plea misconduct. Even if the government’s determination that Castillo’s
    misconduct disqualified him from receiving a reduction for acceptance of
    responsibility was error, Castillo fails to establish that it was plain error for the
    government to rely on the express language of the plea agreement and decline to
    make such a recommendation.
    II.
    We will ordinarily disturb the district court’s decision to deny a defendant’s
    motion to withdraw a guilty plea only when it constitutes an abuse of discretion.
    United States v. McCarty, 99 f.3d 383, 385 (11th Cir. 1996). However, where the
    defendant does not present the argument that the guilty plea was invalid to the
    district court, we review only for plain error. United States v. Moriarty, 
    429 F.3d 1012
    , 1018-19 (11th Cir. 2005). We decline to consider arguments raised for the
    first time on appeal in a reply brief. United States v. Martinez, 
    83 F.3d 371
    , 377
    n.6 (11th Cir. 1996).
    Because a plea of guilty waives several constitutional rights, the Due
    Process Clause of the Fourteenth Amendment requires the plea to be both
    voluntary and knowing. Gaddy v. Linahan, 
    780 F.2d 935
    , 943 (11th Cir. 1986).
    Before the district court accepts a guilty plea, there must be an affirmative showing
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    that the plea was intelligent and voluntary, and the waiver of constitutional rights
    will not be presumed from a silent record. Boykin v. Alabama, 
    395 U.S. 238
    , 242-
    43, 
    89 S.Ct. 1709
    , 1711-12, 
    23 L.Ed.2d 274
     (1969). Under Federal Rule of
    Criminal Procedure 11, the district court must address the defendant personally in
    open court and inform the defendant of, and determine that the defendant
    understands, the nature of the plea being offered and the potential consequences of
    that plea. United States v. Lewis, 
    115 F.3d 1531
    , 1535 (11th Cir. 1997). Rule 11
    requires the district court conduct a searching inquiry into the voluntariness of the
    defendant’s guilty plea. United States v. Siegel, 
    102 F.3d 477
    , 481 (11th Cir.
    1996). To determine whether the waiver is knowing and voluntary, a court
    accepting a guilty plea must comply with the three “core concerns” of Rule 11 by
    ensuring that: (1) the guilty plea is free from coercion; (2) the defendant
    understands the nature of the charges; and (3) the defendant understands the direct
    consequences of his plea. United States v. Jones, 
    143 F.3d 1417
    , 1418-19 (11th
    Cir. 1998).
    After the district court accepts the guilty plea and before sentencing, the
    defendant may withdraw the plea if (1) the district court rejects the plea agreement,
    or (2) “the defendant can show a fair and just reason for requesting withdrawal.”
    Fed.R.Crim.P. 11(d)(2)(A)-(B). Once the government and the defendant resolve a
    matter through a knowing and voluntary plea of guilty, the defendant bears a heavy
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    burden to show that the plea should be withdrawn. United States v. Buckles, 
    843 F.2d 469
    , 471 (11th Cir. 1988).
    “In determining whether the defendant has met his burden to show a ‘fair
    and just reason,’ a district court may consider the totality of the circumstances
    surrounding the plea.” United States v. Brehm, 
    442 F.3d 1291
    , 1298 (11th Cir.
    2006) (quotations omitted). We consider “(1) whether close assistance of counsel
    was available; (2) whether the plea was knowing and voluntary; (3) whether
    judicial resources would be conserved; and (4) whether the government would be
    prejudiced if the defendant were allowed to withdraw his plea.” 
    Id.
     (quotations
    omitted). “The good faith, credibility and weight of a defendant’s assertions in
    support of a motion to withdraw a guilty plea are issues for the trial court to
    decide.” 
    Id.
     (quotations and brackets omitted). “The longer the delay between the
    entry of the plea and the motion to withdraw it, the more substantial the reasons
    must be as to why the defendant seeks withdrawal.” Buckles, 
    843 F.2d at 473
    .
    On appeal, Castillo argues that the district court abused its discretion in
    denying his motion to withdraw his guilty plea because the government violated
    his plea agreement. In the district court, however, both orally through counsel and
    in his written pro se motion, Castillo moved to withdraw his guilty plea on the
    basis of ineffective assistance of counsel, not the government’s breach of the plea
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    agreement. Accordingly, we review his claim raised on appeal only for plain error.
    See Moriarty, 429 F.3d at 1018-19.
    Castillo fails to show that the district court plainly erred in not withdrawing
    his guilty plea based on breach of the plea agreement. As discussed above, the
    government did not plainly breach the plea agreement. Given that the government
    did not plainly breach the plea agreement, Castillo cannot show that the district
    court plainly erred in denying his motion to withdraw his guilty plea based on
    breach of the plea agreement.
    Castillo fails to argue in his initial brief on appeal that his plea was not
    knowing, intelligent, and voluntary, asserting only that he had shown a just reason
    for withdrawal of the plea based on the government’s breach of the plea
    agreement. Accordingly, we need not consider the argument that his plea was not
    knowing, intelligent, and voluntary that he raises for the first time in his reply
    brief. See Martinez, 
    83 F.3d at
    377 n.6 (declining to consider arguments raised for
    the first time in a reply brief). Nevertheless, the record shows that Castillo’s guilty
    plea was knowing and voluntary. During the plea colloquy, Castillo told the
    district court that he had not been threatened or coerced into pleading guilty and
    that no one had promised him anything other than what was in the plea agreement
    in exchange for his plea. The district court explained the elements of the charges
    against Castillo, and Castillo stated that his attorney had explained the elements of
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    the charges to him. He told the district court that he had read and understood the
    factual proffer, which accurately described his conduct. The district court
    explained, and Castillo told the district court that he had discussed with his
    attorney and understood, the consequences of pleading guilty, including the waiver
    of the right to appeal except in limited circumstances and the inability to withdraw
    the plea at a later date. Castillo’s guilty plea complied with the three core concerns
    of Rule 11 and was therefore knowing and voluntary. See Jones, 
    143 F.3d at
    1418-
    19.
    III.
    A defendant’s knowing and voluntary, unconditional guilty plea waives all
    nonjurisdictional defects in the proceedings. United States v. Yunis, 
    723 F.2d 795
    ,
    796 (11th Cir. 1984). Jurisdictional defects are those implicating the courts’
    subject matter jurisdiction, which “defines the court’s authority to hear a given
    type of case.” United States v. Morton, 
    467 U.S. 822
    , 828, 
    104 S.Ct. 2769
    , 2773,
    
    81 L.Ed.2d 680
     (1984). We have held that a defect is jurisdictional where the
    claim may be resolved on “the face of the indictment or the record at the time of
    the plea without requiring further proceedings.” United States v. Tomeny, 
    144 F.3d 749
    , 751 (11th Cir. 1998). If a defendant waives the right to appeal by pleading
    guilty, “only an attack on [the guilty plea’s] voluntary and knowing nature can be
    sustained.” Wilson v. United States, 
    962 F.2d 996
    , 997 (11th Cir. 1992).
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    Castillo’s knowing and voluntary, unconditional guilty plea waived his right
    to challenge his conviction on the basis of discovery violations. As discussed
    above, Castillo’s guilty plea was knowing and voluntary. Because the alleged
    discovery violation is not the type of claim that can be resolved from the face of
    the indictment or the record at the time of the plea without further proceedings,
    Castillo’s guilty plea waived this nonjurisdictional argument. See Tomeny, 
    144 F.3d at 751
    .
    IV.
    Whether the indictment sufficiently alleges a statutorily proscribed offense is
    a question of law that we review de novo. United States v. Steele, 
    178 F.3d 1230
    ,
    1233 (11th Cir. 1999). “A criminal conviction will not be upheld if the indictment
    upon which it is based does not set forth the essential elements of the offense.”
    United States v. Fern, 
    155 F.3d 1318
    , 1324-25 (11th Cir. 1998). This rule “puts
    the defendant on notice of the nature and cause of the accusation as required by the
    Sixth Amendment of the Constitution . . . [and] it fulfills the Fifth Amendment’s
    indictment requirement, ensuring that a grand jury only return an indictment when
    it finds probable cause to support all the necessary elements of the crime.” 
    Id. at 1325
     (quotations omitted). A claim that the indictment fails to charge an offense is
    a jurisdictional defect that is not waived by a guilty plea. United States v. Saac,
    
    632 F.3d 1203
    , 1208 (11th Cir.), cert. denied 
    132 S.Ct. 139
     (2011). Such a claim
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    may be raised at any time while a case is pending. United States v. Sharpe, 
    438 F.3d 1257
    , 1258 (11th Cir. 2006).
    Under 
    21 U.S.C. § 959
    , it is unlawful for any person on board an aircraft
    registered in the United States to “possess a controlled substance or listed chemical
    with intent to distribute.” 
    21 U.S.C. § 959
    (b)(2). The penalty for a controlled
    substance violation involving 5 or more kilograms of a mixture and substance
    containing cocaine is 10 years to life imprisonment. 
    21 U.S.C. § 960
    (b)(1)(B).
    Any person who conspires to commit a drug offense is subject to the same
    penalties as those prescribed for the offense. 
    21 U.S.C. § 963
    . To sustain a
    conviction for conspiracy to distribute narcotics the government must prove that
    (1) “an agreement existed between two or more persons to distribute the drugs;”
    (2) the defendant “knew of the conspiratorial goal;” and (3) the defendant
    “knowingly joined or participated in the illegal venture.” United States v.
    Matthews, 
    168 F.3d 1234
    , 1245 (11th Cir. 1999).
    Under 
    49 U.S.C. § 46306
    , it is a crime to obtain a certificate of aircraft
    registration by knowingly and willfully falsifying or concealing a material fact. 
    49 U.S.C. § 46306
    (b)(4). The penalty for such an offense is enhanced if the
    registration violation is related to transporting a controlled substance by aircraft or
    aiding or facilitating a controlled substance violation. 
    Id.
     § 46306(c)(2).
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    To the extent that assignments of error calling for dismissal of an indictment
    implicate the district court’s resolution of questions of law, we review de novo.
    United States v. Noriega, 
    117 F.3d 1206
    , 1211 (11th Cir. 1997). An extradition
    treaty constitutes one way in which a country may gain custody of a national of
    another country for the purpose of prosecution, but it is not the only way. 
    Id. at 1213
    . In United States v. Alvarez-Machain, 
    504 U.S. 655
    , 
    112 S.Ct. 2188
    , 
    119 L.Ed.2d 441
     (1992), the Supreme Court considered “whether a criminal defendant,
    abducted to the United States from a nation with which it has an extradition treaty,
    thereby acquires a defense to the jurisdiction of this country’s courts.” 
    504 U.S. at 657
    , 
    112 S.Ct. at 2190
    . Where the extradition treaty did not expressly bar such
    abductions, no such defense existed, and the defendant could “be tried in federal
    district court for violations of the criminal law of the United States.” 
    Id.
     The
    extradition treaty between the United States and the Dominican Republic does not
    expressly bar either nation from gaining custody over a foreign national through
    means other than extradition. See generally Convention for the Mutual Extradition
    of Fugitives from Justice, U.S.-Dom. Rep., June 19, 1909, 
    36 Stat. 2468
    .
    To the extent that Castillo argues the government could not have proved
    various elements of the charges against him, such an argument is nonjurisdictional
    and was waived by his unconditional, knowing and voluntary guilty plea.
    However, his argument that the indictment failed to state an offense is a
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    jurisdictional challenge that is not waived by his guilty plea. Similarly, his claim
    regarding his arrest, detention, and removal that took place in the Dominican
    Republic can arguably be construed as an allegation that the district court lacked
    subject matter jurisdiction, and such a claim is also not waived by his guilty plea.
    The indictment did not fail to state an offense. We have not addressed the
    elements of a conspiracy charge under 
    21 U.S.C. § 963
     where the underlying
    substantive offense is possession of narcotics with intent to distribute by a person
    on board an aircraft under 
    21 U.S.C. § 959
    (b). However, extrapolating from the
    elements of a general conspiracy to distribute narcotics, the indictment must allege
    that: (1) an agreement existed between two or more persons for someone on board
    an aircraft to possess narcotics with the intent to distribute; (2) Castillo knew of the
    conspiratorial goal; and (3) Castillo knowingly joined or participated in the illegal
    venture. See Matthews, 
    168 F.3d at 1245
    ; 
    21 U.S.C. § 959
    (b)(2). Here, the
    indictment alleged that Castillo knowingly and intentionally conspired with others
    to possess with intent to distribute five kilograms or more of cocaine on board an
    aircraft registered in the United States. This statement set forth that an agreement
    existed between Castillo and others, Castillo knew of the goal of using an aircraft
    to facilitate the possession of narcotics with the intent to distribute, and he
    knowingly and intentionally joined the illegal venture. Accordingly, the
    indictment adequately put Castillo on notice of the nature and cause of the action
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    against him, and it included all of the necessary elements of the offense. See Fern,
    
    155 F.3d at 1325
    .
    The indictment also alleged that Castillo intentionally obtained or caused to
    be obtained an owner’s registration certificate by falsifying and concealing a
    material fact concerning the true owner of an aircraft, in relation to the
    transportation of a controlled substance by said aircraft and facilitating a controlled
    substance offense, namely, possession with intent to distribute five kilograms or
    more of cocaine. This statement set forth all of the elements of the offense under
    
    49 U.S.C. § 46306
    (b)(4), (c)(2), and adequately notified Castillo of the nature and
    cause of the action against him. See Fern, 
    155 F.3d at 1325
    .
    Finally, Castillo’s abduction from the Dominican Republic does not serve as
    a bar to the jurisdiction of the district court. Although the United States and the
    Dominican Republic have an extradition treaty, because the treaty does not
    expressly bar such abductions, the manner of Castillo’s abduction does not prevent
    him from being tried in the district court for crimes against the laws of the United
    States. See Alvarez-Machain, 
    504 U.S. at 657
    , 
    112 S.Ct. at 2190
    . Accordingly,
    neither of Castillo’s jurisdictional challenges requires dismissal of the indictment.
    Based on the above, we affirm. 1
    1
    Castillo’s motion to unseal a portion of his sentencing transcript is DENIED to the
    extent it has not already been granted. His motion to seal is GRANTED in part and DENIED
    in part. It is granted as to his reply brief because the reply brief discusses potentially sensitive
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    AFFIRMED.
    information, and his request to seal it is limited and targeted. However, his motion to seal the
    entire record on appeal is overly broad and fails to identify which portions of the record contain
    potentially sensitive information. Thus, he fails to overcome the presumption in favor of public
    access to judicial records.
    19