United States v. Zakharov ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-50214
Plaintiff-Appellee,
v.  D.C. No.
CR-01-01652-6-JM
ANATOLI ZAKHAROV,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued November 3, 2004
Submitted November 7, 2006
Pasadena, California
Filed November 15, 2006
Before: A. Wallace Tashima, Raymond C. Fisher, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
18597
UNITED STATES v. ZAKHAROV 18601
COUNSEL
Michael L. Crowley, San Diego, California, for the defendant-
appellant.
David Jonathan Weiner, United States Department of Justice,
Washington, D.C., William V. Gallo, Assistant United States
Attorney, San Diego, California, for the plaintiff-appellee.
OPINION
TALLMAN, Circuit Judge:
We confront the constitutional limits of our extraterritorial
jurisdiction in yet another major drug-smuggling operation on
the waters of the eastern Pacific Ocean. Anatoli Zakharov
appeals his jury conviction for (1) conspiracy to possess over
9200 kilograms of cocaine with intent to distribute on board
a vessel, and (2) possession of the cocaine with intent to dis-
tribute on board the vessel. He challenges the amended Mari-
time Drug Law Enforcement Act (“MDLEA”), codified at 46
U.S.C. app. §§ 1901-1904, as unconstitutional on the grounds
that Congress removed jurisdiction from the enumerated ele-
ments of the maritime drug-smuggling offense that must be
decided by a jury beyond a reasonable doubt. He also chal-
lenges the district court’s failure to suppress evidence of his
confession and the sufficiency of evidence supporting his con-
victions.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and
affirm Zakharov’s convictions. First, the MDLEA is constitu-
tional as applied to Zakharov. Facts underlying statutory juris-
diction were not contested, and determination of
constitutional nexus jurisdiction is properly within the prov-
ince of the court, not the jury. Second, we find the evidence
sufficient to establish the required nexus between the United
18602 UNITED STATES v. ZAKHAROV
States and the defendant’s drug-smuggling activities. Third,
the district court properly determined that Zakharov’s confes-
sion should not be suppressed because the Fourth Amendment
does not apply to non-resident aliens outside of the United
States. Fourth, the eleven-day delay in bringing Zakharov
before a magistrate judge was not unreasonable under Federal
Rule of Criminal Procedure 5(a) in light of the time necessary
to transport him by sea to the United States. Finally, evidence
of Zakharov’s confession was properly admitted, and suffi-
cient evidence existed to allow any rational trier of fact to find
him guilty beyond a reasonable doubt. We uphold the convic-
tions.
But, because we cannot reliably determine from the record
“whether the sentence imposed would have been materially
different had the district court known that the [federal] sen-
tencing guidelines were advisory,” United States v. Ameline,
409 F.3d 1073, 1074 (9th Cir. 2005) (en banc), we grant a
limited remand as to the sentence imposed.
I
Zakharov was a crew member aboard the Svesda Maru, a
fishing vessel registered in the country of Belize. On April 28,
2001, the vessel was 500 miles off the coast of southern Mex-
ico in international waters when it was spotted by the crew of
the USS Rodney M. Davis, a United States Navy frigate per-
forming drug interdiction and maritime patrol duties in coop-
eration with the United States Coast Guard. A seven-member
Coast Guard Law Enforcement Detachment (“boarding
team”) deployed from the Davis in a small boat and attempted
to make contact with the Svesda Maru. The boarding team
observed that the Svesda Maru was flying the Belizean flag.
When the Svesda Maru did not respond after she was hailed
by the Navy frigate, the Coast Guard team boarded the Svesda
Maru and conducted a four-day search of the vessel including
a “space accountability search.” The Davis’s boarding team
was relieved by a second Coast Guard crew on the fifth day
UNITED STATES v. ZAKHAROV 18603
of the search. The second crew discovered more than 9200
kilograms of cocaine cleverly secreted in an area behind a fuel
tank of the vessel.1
Following discovery of the cocaine, the Coast Guard seized
the Svesda Maru pursuant to our bilateral treaty with Belize
and with the express permission of the Belizean government.
The Svesda Maru’s crew, all Russians and Ukrainians, were
taken into custody aboard the Coast Guard Cutter Active.
They were kept together on the deck of the cutter for the ten
days it took to reach San Diego, California. None of the
Svesda Maru crewmen was interrogated while on board the
Coast Guard ship.
The cutter arrived in San Diego on May 13, 2001. Prior to
Zakharov’s initial appearance before a magistrate judge, an
agent of the United States Drug Enforcement Administration
(“DEA”) interviewed him through a Russian interpreter. The
agent advised Zakharov of his constitutional rights, and Zak-
harov signed a Russian-language Miranda waiver. The inter-
view lasted approximately one and one-half to two hours. The
agent testified that Zakharov initially denied knowledge of the
cocaine but was eventually persuaded to talk. Zakharov then
admitted that he was to be paid $20,000 for the trip and that
he and the crew knew that the vessel contained cocaine, but
he claimed that only the captain knew all of the details of the
voyage. He also claimed that this was his first experience
smuggling cocaine.
Later that day, a federal magistrate judge found probable
cause to support the complaint against Zakharov. Zakharov’s
1
This turned out to be one of the largest cocaine seizures in United
States maritime history. See Press Release, Office of National Drug Con-
trol Policy, White House Drug Policy Office and Coast Guard Announce
All-Time Record Annual Maritime Cocaine Seizures (Oct. 5, 2001), avail-
able at http://www.whitehousedrugpolicy.gov/NEWS/press01/
100501.html.
18604 UNITED STATES v. ZAKHAROV
initial appearance in court was on the following day. The
magistrate ordered his detention without bail. Zakharov was
indicted on May 24, 2001, and he pled not guilty to one count
of conspiracy to possess cocaine with intent to distribute
aboard a vessel and one count of possession of cocaine with
intent to distribute aboard a vessel, in violation of the
MDLEA, 46 U.S.C. app. § 1903(a), (c)(1)(C), (f) & (j), and
18 U.S.C. § 2. In November 2002, a jury in the Southern Dis-
trict of California convicted Zakharov on both counts. He was
sentenced to 240 months in custody to be followed by five
years of supervised release.
II
Zakharov first argues that the district court lacked jurisdic-
tion to adjudicate his claims under the MDLEA. He claims
that (1) the district court erred in failing to submit facts neces-
sary to establish jurisdiction to the jury, and (2) the govern-
ment failed to present sufficient evidence to establish a nexus
between the United States and the seized cocaine.
[1] The MDLEA prohibits drug smuggling activity by “any
person on board a vessel of the United States, or on board a
vessel subject to the jurisdiction of the United States, or who
is a citizen of the United States or a resident alien of the
United States on board any vessel.” 46 U.S.C. app. § 1903(a).
The statute provides:
Jurisdiction of the United States with respect to ves-
sels subject to this chapter is not an element of any
offense. All jurisdictional issues arising under this
chapter are preliminary questions of law to be deter-
mined solely by the trial judge.
Id. § 1903(f). In United States v. Klimavicius-Viloria, 144
F.3d 1249, 1257 (9th Cir. 1998), we distinguished between
“statutory jurisdiction” and the nexus requirement of “consti-
tutional jurisdiction.” A court determines statutory jurisdic-
UNITED STATES v. ZAKHAROV 18605
tion by asking whether the vessel at issue is “a vessel subject
to the jurisdiction of the United States,” which MDLEA
defines according to the ship’s nationality (if any), its loca-
tion, and any relevant agreements between the United States
and foreign nations regarding the enforcement of United
States criminal laws on vessels or in territorial waters subject
to the nation’s jurisdiction. See 46 app. U.S.C. § 1903(c). In
contrast, a court determines constitutional jurisdiction based
on the nexus between the United States and the attempted
criminal transaction. See Klimavicius-Viloria, 144 F.3d at
1257. Both jurisdictional inquiries must be satisfied “where
the MDLEA is being applied extraterritorially.” United States
v. Perlaza, 439 F.3d 1149, 1160 (9th Cir. 2006).
Zakharov argues that § 1903(f) violates the Fifth and Sixth
Amendments of the United States Constitution and the
requirement of Apprendi v. New Jersey, 530 U.S. 466, 483-
84, 499-500 (2000), that all facts necessary to constitute a
statutory offense must be proven to a jury beyond a reason-
able doubt. He asserts that Congress cannot “define away
facts necessary to constitute a criminal offense” by labeling
certain facts as non-elements of the crime. He argues that, by
adopting § 1903(f), Congress impermissibly removed factual
questions of statutory and constitutional nexus jurisdiction
from the hands of the jury. We review de novo questions
regarding the constitutionality of a statute. See United States
v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003).
[2] In Perlaza we made clear that, notwithstanding
§ 1903(f), contested facts underlying the existence of statu-
tory jurisdiction must be resolved by a jury.2 Perlaza, 439
2
Perlaza’s holding that a jury must resolve contested jurisdictional
issues was limited to the context of statutory jurisdiction. We indicated
that constitutional nexus jurisdiction is still an issue for the court’s deter-
mination. Perlaza, 439 F.3d at 1167 (“[S]hould a jury conclude on remand
that the [vessel was foreign], the district court will . . . have to determine
whether the Government established a sufficient nexus between the [ves-
sel] and the United States.” (emphasis added)).
18606 UNITED STATES v. ZAKHAROV
F.3d at 1165-67. We ruled in light of the Fifth and Sixth
Amendments that such facts though “not formally identified
as elements of the offense charged must be submitted to the
jury and proved beyond a reasonable doubt.” Id. at 1166 (cita-
tion and quotation omitted). Accordingly, insofar as Zakharov
claims that statutory jurisdiction is an element of the crime
that must be proven to the jury, that argument is now moot.
Moreover, there is no factual question pertaining to statutory
jurisdiction for the jury to decide. There is no dispute for pur-
poses of § 1903 that the district court possessed statutory
jurisdiction in the instant action: the Svesda Maru was a
Belizean-flagged vessel registered in Belize, and the Coast
Guard received consent to enforce United States law aboard
her both expressly from the Belizean government and pursu-
ant to our bilateral treaty with Belize.3 See id. at 1168; 46
U.S.C. app. § 1903(c)(1)(C) (extending statutory jurisdiction
to “a vessel registered in a foreign nation where the flag
nation has consented or waived objection to the enforcement
of United States law by the United States”).
[3] Unlike statutory jurisdiction, the constitutional nexus
requirement is not an express element of the crime but is “a
judicial gloss applied to ensure that a defendant is not improp-
erly haled before a court for trial.” Klimavicius-Viloria, 144
F.3d at 1257. To accord with due process, we require a suffi-
cient nexus between the United States and the defendant’s
activities before exerting jurisdiction over foreign vessels.4
See Perlaza, 439 F.3d at 1168; see also Moreno-Morillo, 334
F.3d at 827-28; Klimavicius-Viloria, 144 F.3d at 1256-59;
United States v. Medjuck, 48 F.3d 1107, 1111 (9th Cir. 1995);
3
The district court “preliminarily” found statutory jurisdiction to be
proper. Because it believed statutory jurisdiction to be an element of an
offense under United States v. Smith, 282 F.3d 758 (9th Cir. 2002), the
court then submitted the question of consent to the jury. The district court
need not have taken this second step since consent was uncontested.
4
We do not require nexus for stateless vessels. See Perlaza, 439 F.3d
at 1161; United States v. Moreno-Morillo, 334 F.3d 819, 829 (9th Cir.
2003).
UNITED STATES v. ZAKHAROV 18607
United States v. Khan, 35 F.3d 426, 429-30 (9th Cir. 1994);
United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990).
Nexus is a constitutional requirement analogous to “minimum
contacts” in personal jurisdiction analysis. Klimavicius-
Viloria, 144 F.3d at 1257. Nexus has been treated as a non-
element of an offense both before and after Apprendi, 530
U.S. 466. See Bynum, 327 F.3d at 992-93 (considering
Apprendi and stating that “if a statute does not expressly
require proof of a nexus between the criminal conduct and the
United States, proof of such a connection is not an element of
the offense” (citation omitted)); Klimavicius-Viloria, 144 F.3d
at 1257 (“Nexus is part of the jurisdictional inquiry, but it is
an inquiry for the court, not the jury.”).
[4] In this context, MDLEA § 1903(f) merely codified this
court’s longstanding rule that the constitutional nexus inquiry
is a matter for the court’s determination. See id.; Moreno-
Morillo, 334 F.3d at 827-28 (citing Klimavicius-Viloria and
holding that, in the context of the MDLEA, nexus is an
inquiry for the court, not the jury). Accordingly, we reject
Zakharov’s contention that the constitutional nexus inquiry
must be submitted to a jury.
[5] The next question is whether the district court properly
determined that the evidence sufficed to establish a nexus
between the United States and Zakharov’s activities. See
Klimavicius-Viloria, 144 F.3d at 1257-59. Due process
requires a district court to find sufficient nexus even when the
flag nation has consented to the application of United States
law.5 See Perlaza, 439 F.3d at 1168. Nexus may be estab-
5
The First and Fifth Circuits have rejected the position that nexus is
required for foreign vessels when the flag nation has consented to the
application of United States law to the defendants. See United States v.
Bustos-Useche, 273 F.3d 622, 627-28 (5th Cir. 2001) (holding that juris-
dictional requirements were met because the flag nation consented to the
enforcement of the MDLEA over the foreign vessel); United States v. Car-
dales, 168 F.3d 548, 552-53 (1st Cir. 1999) (stating that due process is not
18608 UNITED STATES v. ZAKHAROV
lished by a showing that “an attempted transaction is aimed
at causing criminal acts within the United States” or that “the
plan for shipping the drugs was likely to have effects in the
United States.” United States v. Medjuck, 156 F.3d 916, 919
(9th Cir. 1998) (citing Klimavicius-Viloria, 144 F.3d at 1257).
In Klimavicius-Viloria, we considered that (1) the markings
on the seized cocaine matched markings in a database of other
cocaine seized in the United States; (2) the United States was
the most likely destination for a large load of cocaine; and (3)
the location of the vessel and the maps on board were consis-
tent with a course bound for the United States. 144 F.3d at
1258-59.
Here, extensive evidentiary hearings were held to deter-
mine whether sufficient nexus with the United States existed
to establish jurisdiction. The district court determined by a
preponderance of the evidence that the shipment of cocaine
was likely to have effects in the United States. The court
found that (1) four of the twelve markings on the cocaine bun-
dles were found previously in the United States; (2) based on
the type of vessel, its location, and the kinds of navigational
charts on the vessel, the cocaine was destined for the United
States; and (3) it was unlikely that Russia or Europe was the
intended destination for the cocaine. The district court based
violated because it is not arbitrary or fundamentally unfair to exert author-
ity with the flag nation’s consent).
The Third Circuit has rejected the proposition that nexus is required
without expressly distinguishing between stateless and foreign vessels. See
United States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993)
(holding that no nexus was required in a determination involving a state-
less vessel); see also United States v. Perez Oviedo, 281 F.3d 400, 403 (3d
Cir. 2002) (noting that Martinez-Hidalgo had expressly rejected our
approach and holding that it was not arbitrary or fundamentally unfair to
exert jurisdiction when the flag nation consents to application of the
MDLEA).
Unless and until the Supreme Court addresses this issue, we are bound
by Ninth Circuit precedent.
UNITED STATES v. ZAKHAROV 18609
the last two findings on its determination that the testimony
of Zakharov’s expert witness, a former DEA agent, was not
as credible or persuasive as that of the government’s expert,
a DEA strategic intelligence analyst with over eighteen years
of experience. See Spain v. Rushen, 883 F.2d 712, 717 (9th
Cir. 1989) (“ ‘[W]hen a trial judge’s finding is based on his
decision to credit the testimony of one of two or more wit-
nesses, each of whom has told a coherent and facially plausi-
ble story that is not contradicted by extrinsic evidence, that
finding, if not internally inconsistent, can virtually never be
clear error.’ ” (quoting Anderson v. Bessemer City, 470 U.S.
564, 575 (1984))).
Zakharov makes very specific evidentiary challenges to the
district court’s findings and questions its credibility determi-
nation. Zakharov suggests that, because the government’s
expert testified that Russia also has a drug trafficking market
and that Europe was a possible market, it was erroneous for
the district court to believe that the United States was the
likely destination for the drugs. But many of the statements on
which Zakharov relies could support either witness’s conclu-
sion.6 In essence, Zakharov’s claim constitutes no more than
an argument that it would have been reasonable for the district
court to believe his expert witness instead of the expert wit-
ness for the United States. Zakharov’s argument does not
create “a definite and firm conviction that a mistake has been
committed” by the district court in its credibility and factual
findings. Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002)
6
For example, Zakharov points out that the government’s expert testi-
fied that, “between 1998-2000, the number of seizures of cocaine had
increased over 100% in the Eastern Pacific (where the Svesda Maru was
seized) and that cocaine seizures in the Caribbean had decreased while sei-
zures at the United States/Mexico border had decreased.” This fact could
show that more shipments were going to places other than the United
States. However, it could just as reasonably suggest that smugglers were
attempting more sea-based imports into the United States and fewer land-
based attempts along the border.
18610 UNITED STATES v. ZAKHAROV
(quotation and citation omitted). Thus, the district court did
not err.
Next, we must determine whether these facts support a
finding that the drug shipment would likely have had effects
in the United States. The only significant distinction between
the facts establishing nexus in Klimavicius-Viloria and those
in the instant case is that here there are fewer cocaine bundle
markings that match bundles found previously in the United
States. We considered matching markings to be “[t]he most
persuasive evidence” in Klimavicius-Viloria. 144 F.3d at
1258. There, five of the markings had been found only in the
United States, while five others had been found predomi-
nately in the United States and in countries involved in the
shipment of cocaine. Id. Further, “three sets of the markings
have been found together in seizures in the United States.” Id.
The connection is not as substantial here. Only four of the
twelve markings had been found previously in the United
States. Three of the matches may have been particularly sig-
nificant, however, because they were found on cocaine pack-
ages in the United States roughly contemporaneously with the
seizure of the Svesda Maru.
[6] In any event, the location of the vessel, the large
amount of cocaine, the types of navigational charts on board,
and the existence of some matching logos are sufficient indi-
cators of nexus for the exercise of United States jurisdiction
to “not be arbitrary or fundamentally unfair.” See id. at 1256
(citing Davis, 905 F.2d at 248-49). We hold that the district
court properly found sufficient nexus between the United
States and the seized cocaine to support its jurisdiction.
III
Zakharov contends that evidence of his statements made
upon arrival in San Diego should be suppressed because there
was undue delay in determining probable cause in violation of
UNITED STATES v. ZAKHAROV 18611
the Fourth Amendment and in bringing Zakharov before a
magistrate judge in violation of Federal Rule of Criminal Pro-
cedure 5(a). We review de novo a district court’s denial of a
motion to suppress evidence, but the factual findings underly-
ing the ruling are reviewed for clear error. United States v.
Fernandez-Castillo, 324 F.3d 1114, 1117 (9th Cir. 2003). We
review for clear error the district court’s determination that
pre-arraignment delay is reasonable under Rule 5(a). See
United States v. Padilla-Mendoza, 157 F.3d 730, 732 (9th Cir.
1998).
[7] Zakharov claims that the United States’ failure to utilize
helicopters, radios, fax machines, and other technology to
obtain a probable cause determination before he was physi-
cally present in the United States constituted undue delay
under the Fourth Amendment. The district court summarily
held that Zakharov could not “prevail on the Fourth Amend-
ment claim because the Fourth Amendment does not apply to
aliens outside United States territory.” In support the court
cited United States v. Verdugo-Urquidez, 494 U.S. 259
(1990), in which the Supreme Court held that the Fourth
Amendment does not apply to searches and seizures by the
United States against a non-resident alien in a foreign country.
See id. at 274-75; see also id. at 271 (“[A]liens receive consti-
tutional protections when they have come within the territory
of the United States and developed substantial connections
with this country.” (citation omitted)). The Verdugo-Urquidez
court noted that a warrant requirement for overseas searches
“could significantly disrupt the ability of the political
branches to respond to foreign situations involving our
national interest.” Id. at 273-74.
[8] This holding forecloses Zakharov’s claim. Here, the
alleged unconstitutional delay took place outside of the
United States in international waters, and there is no sugges-
tion that Zakharov had any substantial connection to this
country. See United States v. Barona, 56 F.3d 1087, 1093-94
(9th Cir. 1995) (holding that Fourth Amendment protection
18612 UNITED STATES v. ZAKHAROV
does not apply to an alien until he “has assumed the complete
range of obligations that we impose on the citizenry” (quota-
tion and citation omitted)). Because Zakharov cannot show
that he is one of the “People of the United States,” id. at 1093
(quotation and citation omitted), he is not entitled to protec-
tion under the Fourth Amendment.
[9] We also hold that Zakharov’s claim pursuant to Federal
Rule of Criminal Procedure 5(a) is without merit. At the time
of Zakharov’s arrest, Rule 5(a) provided that “any person
making an arrest without a warrant shall take the arrested per-
son without unnecessary delay before the nearest available
federal magistrate judge.” Fed. R. Crim. P. 5(a) (2001). The
district court held the delay justified by the need to transport
Zakharov 1620 nautical miles to the United States. The dis-
trict court found that “[w]ith the Svesda Maru in tow, the
ships proceeded to the nearest United States port, San Diego,
and made no stops along the way.” A federal magistrate judge
found probable cause to support the complaint filed against
Zakharov the day that he arrived in San Diego. The district
court’s finding that Zakharov was presented to the magistrate
without unnecessary delay was not clearly erroneous, and we
affirm its ruling.
IV
Zakharov asserts that the government failed to present suf-
ficient evidence to sustain his convictions. We review de novo
the district court’s denial of a motion for acquittal under Fed-
eral Rule of Criminal Procedure 29. United States v. Johnson,
357 F.3d 980, 983 (9th Cir. 2004). We review evidence pre-
sented against the defendant in “the light most favorable to
the [g]overnment” to determine “whether any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. (citation and quotation omit-
ted).
[10] “To prove a conviction for conspiracy, the government
must establish that [the defendant] ‘had knowledge of the
UNITED STATES v. ZAKHAROV 18613
conspiracy and acted in furtherance of it.’ ” United States v.
Messer, 197 F.3d 330, 341 (9th Cir. 1999) (quoting United
States v. Wiseman, 25 F.3d 862, 865 (9th Cir. 1994) (citations,
quotation, and emphasis omitted)). Where evidence estab-
lishes the existence of a conspiracy, that evidence suffices to
support a conviction “if the government is able to establish
even a slight connection with the conspiracy beyond a reason-
able doubt.” Id.
Conviction for the underlying substantive crime of posses-
sion of cocaine with intent to distribute aboard a vessel may
be based on aider and abettor liability. Klimavicius-Viloria,
144 F.3d at 1263. We may infer specific intent to distribute
from a large quantity of cocaine. Id. The United States “must
show more than mere participation; the defendant must inten-
tionally assist in the venture’s illegal purpose.” Id. (quotation,
citation, and alteration omitted). Knowing participation may
be established by factors including:
a long voyage on a small vessel evincing a close
relationship between captain and crew; suspicious
behavior or diversionary maneuvers before appre-
hension; attempts to flee; inculpatory statements
made after apprehension; witnessed participation as
a crewman; obviousness of the contraband; or
absence of equipment necessary to the intended use
of the vessel.
Perlaza, 439 F.3d at 1175 (quoting Klimavicius-Viloria, 144
F.3d at 1263).
[11] Zakharov’s convictions are clearly supported by suffi-
cient evidence. Two DEA agents testified as to Zakharov’s
statement that he was aware of the cocaine, that the entire
crew had knowledge of the cocaine, and that they were to be
paid $20,000 each for the voyage. This testimony, supported
by the circumstantial evidence surrounding the seizure of
cocaine on the Svesda Maru and other similar seizures, is suf-
18614 UNITED STATES v. ZAKHAROV
ficient to establish that a major drug-smuggling conspiracy
existed and to show specific intent and knowing participation.
Specifically, Zakharov was working on a fishing boat when
it was readily apparent that the fishing vessel was not doing
much fishing.7 See Perlaza, 439 F.3d at 1175-76 (“[C]ourts
have found knowing participation in a maritime narcotics-
trafficking scheme when a ship’s asserted legitimate purpose
appears to be a ruse.” (quoting Klimavicius-Viloria, 144 F.3d
at 1264) (alteration omitted)). “[A]ny rational trier of fact
could have found” the evidence sufficient to sustain Zak-
harov’s convictions. Id. at 1175 (citation omitted).
V
Zakharov argues that the district court erred in determining
his ineligibility for a minor role adjustment or for relief under
the safety valve provision pursuant to 18 U.S.C. § 3553(f).
We review both of these factual determinations for clear error.
United States v. Rodriquez-Cruz, 255 F.3d 1054, 1060 (9th
Cir. 2001) (minor role); United States v. Washman, 128 F.3d
1305, 1307 (9th Cir. 1997) (safety valve). The defendant
holds the burden of demonstrating by a preponderance of the
evidence that he qualifies for a minor role reduction or for
safety valve treatment. United States v. Ladum, 141 F.3d
1328, 1348 (9th Cir. 1998); United States v. Ajugwo, 82 F.3d
925, 929 (9th Cir. 1996).
The district court denied Zakharov’s request for a minor
role adjustment because the offense involved a large quantity
of drugs. We hold that the district court’s denial of the minor
role adjustment was not clearly erroneous. The court reason-
7
The boarding team noted that (1) the bait aboard the ship was frozen
solid and “appeared to have been there for quite a long time;” (2) there
were only about twelve fish on board of the size that would normally be
caught by professional fishermen; (3) the amount of fish on board was
inconsistent with the time that the vessel had been underway; and (4) the
large fish were frozen and in a decomposing state.
UNITED STATES v. ZAKHAROV 18615
ably concluded that persons assisting in the transportation of
such a large quantity of cocaine generally do not play a minor
role, particularly when the drugs are transported by sea. See
United States v. Murillo, 255 F.3d 1169, 1179 (9th Cir. 2001).
The district court similarly determined that Zakharov was
not entitled to relief under the safety valve provision. The
court explained that Zakharov did not sufficiently cooperate
with the government and therefore failed to carry his burden
that he told the government everything he knew about the
offense pursuant to 18 U.S.C. § 3553(f)(5). Again, the court’s
denial of Zakharov’s request for leniency was not clearly
erroneous. See United States v. Arrington, 73 F.3d 144, 148
(9th Cir. 1996).
[12] We also note that the district court’s findings that Zak-
harov did not cooperate with the government, and was there-
fore ineligible for a reduced sentence under 18 U.S.C.
§ 3553(f), did not violate Zakharov’s Sixth Amendment
rights. See United States v. Labrada-Bustamante, 428 F.3d
1252, 1262-63 (9th Cir. 2005) (holding that the “safety valve”
provision of 18 U.S.C. § 3553(f) is not unconstitutional under
Apprendi, 530 U.S. 466, or Blakely v. Washington, 542 U.S.
296 (2004)). However, because we cannot reliably determine
from the record whether the sentence would have been mate-
rially different had the district court known that the Sentenc-
ing Guidelines were advisory when the sentence was
imposed, a limited remand is appropriate. See Ameline, 409
F.3d at 1084-85.
VI
The MDLEA is constitutional as applied to Zakharov and
did not change our longstanding rule that the constitutional
nexus inquiry is a matter for the district court’s determination.
The district court did not err in finding a sufficient nexus
between the United States and Zakharov’s drug-smuggling
activities. Therefore, its exercise of jurisdiction over Zak-
18616 UNITED STATES v. ZAKHAROV
harov comported with all due process requirements. Further-
more, the district court properly denied Zakharov’s motion to
suppress evidence of his confession, and sufficient evidence
existed to support his convictions. We affirm Zakharov’s con-
victions and grant a limited remand to permit the district court
to reconsider the sentence pursuant to Ameline.
Conviction AFFIRMED; sentence REMANDED.