United States v. Javier Ballestas , 795 F.3d 138 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2015 Decided July 28, 2015
No. 13-3107
UNITED STATES OF AMERICA,
APPELLEE
v.
JAVIER EDUARDO JUAN BALLESTAS, ALSO KNOWN AS EL
MONO,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cr-00050-6)
Marie L. Park, appointed by the court, argued the cause
and filed the briefs for appellant.
Scott A.C. Meisler, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was
Meredith Mills, Trial Counsel. John A. Romano, Trial
Attorney, and Elizabeth Trosman, Assistant U.S. Attorney,
entered appearances.
Before: GARLAND, Chief Judge, and SRINIVASAN and
WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
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SRINIVASAN, Circuit Judge: Javier Eduardo Juan
Ballestas, a Colombian citizen, was indicted under the
Maritime Drug Law Enforcement Act (MDLEA) and
extradited to the United States for prosecution. Ballestas
pleaded guilty to a charge of conspiracy to distribute drugs
“on board . . . a vessel subject to the jurisdiction of the United
States,” in violation of the MDLEA. 46 U.S.C. §§ 70503(a),
70506(b). He reserved the right to bring an appeal on certain
issues, including whether the MDLEA’s conspiracy provision
reaches extraterritorially to encompass his charged conduct in
Colombia, and whether the application of the MDLEA against
him violates the Due Process Clause of the Fifth Amendment
because of the absence of an adequate nexus between his
conduct and the United States. Because we are unpersuaded
by Ballestas’s arguments on those and other issues, we affirm.
I.
A long-term investigation conducted by United States
and Colombian officials uncovered an international drug-
trafficking operation based in Colombia. The organization
used stateless vessels to transport large quantities of cocaine
from Colombia through international waters, ultimately
destined for the United States. Email and phone surveillance
revealed that Ballestas supported the organization’s drug
smuggling activities. He provided maps and law enforcement
reports purporting to reveal the location of United States,
Colombian, and other nations’ air and maritime forces in the
vicinity of the Caribbean Sea at specific times. Vessels
engaged in trafficking runs used those reports to evade
detection and capture.
Between May 2008 and September 2010, law
enforcement agents seized or attempted to seize eight of the
organization’s cocaine shipments. Intercepted
3
communications linked Ballestas to at least four of the seized
shipments, which together accounted for thousands of
kilograms of seized cocaine.
The government sought indictment of Ballestas and six
co-conspirators for violating the MDLEA, 46 U.S.C.
§§ 70501 et seq. The MDLEA provides that an “individual
may not knowingly or intentionally manufacture or distribute,
or possess with intent to manufacture or distribute, a
controlled substance on board . . . a vessel subject to the
jurisdiction of the United States,” id. § 70503(a), or attempt or
conspire to do the same, id. § 70506(b). The statute defines a
“vessel subject to the jurisdiction of the United States” to
include “vessel[s] without nationality.” Id. § 70502(c)(1)(A).
See generally United States v. Miranda, 780 F.3d 1185 (D.C.
Cir. 2015).
In February, 2011, a federal grand jury returned an
indictment charging Ballestas with conspiring to distribute
drugs “on board . . . a vessel subject to the jurisdiction of the
United States” in violation of the MDLEA. See 46 U.S.C.
§§ 70503(a), 70506(b). Ballestas was arrested in Colombia
and extradited to the United States to stand trial.
In September, 2012, Ballestas filed a motion to dismiss
the indictment. He contended that the MDLEA’s conspiracy
provision did not extend extraterritorially to reach individuals
(like Ballestas) who never came “on board” the relevant
vessels. Id. § 70503(a). Ballestas also argued that applying
the MDLEA against him violated the Due Process Clause
because of the absence of a nexus between his conduct and
the United States.
In response to Ballestas’s motion, the government
proffered facts supporting the conspiracy charge. Two boats
4
in particular, the government submitted, supported Ballestas’s
prosecution under the MDLEA for conspiring to distribute
drugs on board a vessel without nationality. First, a boat
intercepted in international waters near Panama on March 3,
2010, displayed no visible flag and held no valid registration.
Second, another boat, seized in Panamanian waters on March
11, 2010, similarly had no flag or registration. Officials
observed the vessel in international waters, pursued the vessel
into Panamanian waters, and then seized it. According to the
government’s proffer, Ballestas provided assistance with the
cocaine shipments aboard both of those vessels.
Several months after responding to the motion to dismiss,
the government informed Ballestas that the crew members
apprehended during the March 3rd seizure had been charged
and convicted under the MDLEA in the Middle District of
Florida. The government provided Ballestas with the docket
number and name of that case.
In February 2013, the district court denied Ballestas’s
motion to dismiss the indictment. The court concluded that
the conspiracy provision of the MDLEA applied
extraterritorially to Ballestas’s actions in Colombia. Physical
presence “on board” a vessel, the district court held, is not an
essential element of a conspiracy offense under the MDLEA.
The court further held that the vessels apprehended on March
3rd and 11th qualified as stateless vessels “subject to the
jurisdiction of the United States.” 46 U.S.C. § 70502(c)(1).
In addition, the court rejected Ballestas’s due process
challenge, finding that there is no requirement to show a
nexus to the United States when the alleged crimes involve
stateless vessels.
Ballestas sought reconsideration of the district court’s
denial of his motion to dismiss. He argued that certain
5
intervening decisions undermined the court’s
extraterritoriality and due process holdings. The district court
denied the motion for reconsideration, and, shortly thereafter,
Ballestas pleaded guilty to a superseding information. In
connection with Ballestas’s sentence, the superseding
information omitted certain drug quantity specifications that
had appeared in the indictment in order to avoid triggering a
ten-year mandatory minimum term of imprisonment.
Ballestas’s plea agreement reserved his right to appeal
“the specific and limited issue” of the denial of his motion to
dismiss and motion for reconsideration. App. 192. The
agreement also preserved his right to appeal his sentence on
the grounds that it “exceeds the maximum permitted by
statute or results from an upward departure from the guideline
range established by the Court at sentencing.” Id. at 193. In
connection with his plea agreement, Ballestas and the
government entered a joint statement of stipulated facts.
Those facts established Ballestas’s awareness of and
involvement with the vessel interdicted on March 3rd and also
established that the vessel was “without nationality” and
therefore subject to the jurisdiction of the United States. Id. at
181-82. The district court accepted Ballestas’s plea after
conducting a colloquy in accordance with Federal Rule of
Criminal Procedure 11.
In November 2013, the district court calculated
Ballestas’s sentencing guidelines range to be seventy to
eighty-seven months based on the quantity of drugs stipulated
to have been recovered from the March 3rd vessel. The court
sentenced Ballestas to a below-guidelines sentence of sixty-
four months of imprisonment followed by three years of
supervised release. Ballestas now appeals, challenging the
denial of his motion to dismiss, the denial of his motion for
reconsideration, and his sentence.
6
II.
A.
Ballestas first contends that the MDLEA’s conspiracy
provision does not apply extraterritorially to reach his conduct
in Colombia. We disagree.
The MDLEA’s conspiracy provision, 46 U.S.C.
§ 70506(b), provides that a “person attempting or conspiring
to violate section 70503 of this title is subject to the same
penalties as provided for violating section 70503.” The
underlying substantive offense set forth in § 70503 prohibits
“knowingly or intentionally manufactur[ing] or distribut[ing],
or possess[ing] with intent to distribute, a controlled
substance on board,” inter alia, “a vessel subject to the
jurisdiction of the United States,” id. § 70503(a), which
includes “a vessel without nationality,” id. § 70502(c)(1)(A).
In arguing that the MDLEA’s conspiracy provision fails
to reach extraterritorially, Ballestas relies on two canons of
statutory interpretation. First, he invokes the presumption
against extraterritoriality, which dictates that, “[w]hen a
statute gives no clear indication of an extraterritorial
application, it has none.” Morrison v. Nat’l Austl. Bank Ltd.,
561 U.S. 247, 255 (2010). Second, he relies on the so-called
Charming Betsy canon, which takes its name from a decision
in which the Supreme Court explained that “an act of
Congress ought never to be construed to violate the law of
nations if any other possible construction remains.” Murray
v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118
(1804).
Each of those “principle[s],” however, “represents a
canon of construction, or a presumption about a statute’s
7
meaning, rather than a limit upon Congress’s power to
legislate.” Morrison, 561 U.S. at 255. Thus, notwithstanding
the presumption against extraterritoriality, a statute will be
construed to apply extraterritorially if Congress gives a “clear
indication” of that intention. Id. With regard to the
Charming Betsy canon, similarly, if “a statute makes plain
Congress’s intent,” a court “must enforce the intent of
Congress irrespective of whether the statute conforms to
customary international law.” United States v. Yousef, 327
F.3d 56, 93 (2d Cir. 2003). After all, “Congress is not bound
by international law,” so “it may legislate with respect to
conduct outside the United States, in excess of the limits
posed by international law.” Id. at 86.
Here, the extraterritorial reach of the MDLEA’s
substantive prohibitions is clear. Section 70503(b), entitled
“extension beyond territorial jurisdiction,” provides that
§ 70503(a), which sets forth the substantive prohibitions,
“applies even though the act is committed outside the
territorial jurisdiction of the United States.” 46 U.S.C.
§ 70503(b). That straightforward expression of
extraterritorial application settles the extraterritorial reach of
§ 70503(a).
Ballestas, however, attempts to draw a line between the
extraterritorial reach of the MDLEA’s substantive offense in
§ 70503(a) and the reach of the MDLEA’s conspiracy offense
in § 70506(b). He relies on the understanding that, “[w]hen a
statute provides for some extraterritorial application, the
presumption against extraterritoriality operates to limit that
provision to its terms.” Kiobel v. Royal Dutch Petroleum Co.,
133 S. Ct. 1659, 1667 (2013) (quoting Morrison, 561 U.S. at
265). In Ballestas’s view, the MDLEA’s extraterritorial
application therefore should be confined to the substantive
prohibitions set forth in § 70503(a), and should not extend to
8
conspiracy (or attempt) to commit those substantive crimes
under § 70506. We are unpersuaded.
Under the presumption against extraterritoriality, the
extraterritorial reach of a particular provision will not
necessarily be imputed to an entire statute. But in the
particular context of “an ancillary offense like aiding and
abetting or conspiracy,” we have held that, “[g]enerally, the
extraterritorial reach of [the] ancillary offense . . . is
coterminous with that of the underlying criminal statute.”
United States v. Ali, 718 F.3d 929, 939 (D.C. Cir. 2013). As a
result, “when the underlying criminal statute’s extraterritorial
reach is unquestionable, the presumption [against
extraterritoriality] is rebutted with equal force” for ancillary
offenses in the same statute. Id.; see United States v. Hill, 279
F.3d 731, 739 (9th Cir. 2002). Here, because the substantive
offense established in § 70503(a) applies extraterritorially, we
conclude that conspiracy to commit that substantive offense
under § 70506 also has extraterritorial reach. And with the
extraterritorial reach of the conspiracy provision clearly
established, we have no occasion to apply the Charming Betsy
canon.
Our decision in United States v. Ali is highly instructive.
Ali faced two sets of conspiracy charges. First, he was
charged under the blanket conspiracy statute, 18 U.S.C. § 371,
with conspiracy to commit piracy. The generic conspiracy
provision, we observed, lacks affirmative indication of an
intention to reach extraterritorially. Because the provision is
“ambiguous as to [its] application abroad,” we applied the
Charming Betsy canon to determine whether extraterritorial
application would be consistent with the law of nations. Ali,
718 F.3d at 935; see Kiobel, 133 S. Ct. at 1664-65. Ali was
also charged with conspiracy to commit hostage taking under
the Hostage Taking Act, 18 U.S.C. § 1203. Like the
9
MDLEA, the Hostage Taking Act specifically provides for its
extraterritorial application, and it also criminalizes conspiracy
in the same statute. Id. § 1203(a). Because the Hostage
Taking Act made clear its extraterritorial reach, and because
that understanding applied to the Act’s conspiracy
prohibition, we declined to apply the Charming Betsy canon.
Ali, 718 F.3d at 943.
We follow the same course here with respect to the
MDLEA. To be sure, the Hostage Taking Act’s prohibition
against conspiracy appears in the same statutory subsection as
the underlying substantive offense, 18 U.S.C. § 1203(a),
whereas the MDLEA codifies its conspiracy prohibition in a
separate statutory section, 46 U.S.C. § 70506(b). But we
view that to be a distinction without a difference.
Our conclusion that the MDLEA’s conspiracy provision
applies extraterritorially is consistent with Congress’s purpose
in enacting it. As the Senate Report for the MDLEA explains,
Congress sought to address concerns about difficulties
encountered in prosecuting persons involved with shipments
of drugs to the United States on vessels, both with respect to
the crew on board and others associated with the enterprise.
Before the MDLEA’s enactment, when the Coast Guard
seized illegal drug shipments, the government could not
“prosecute the crew or others involved in the smuggling
operation” in the absence of often elusive evidence that the
drugs were destined for the United States. S. Rep. No. 96-
855, at 2 (1980), reprinted in U.S.C.C.A.N. 2785, 2786 (July
16, 1980) (emphasis added). In light of the obstacles to
successful prosecution in the United States, the Coast Guard’s
drug interdiction efforts had “little deterrent effect on the
crews or the trafficking organizations.” Id. (emphasis added).
10
Recognizing that “trafficking in controlled substances
aboard vessels is a serious international problem, is
universally condemned, and presents a specific threat to the
security and societal well-being of the United States,” 46
U.S.C. § 70501, Congress enacted the MDLEA to enhance
the government’s ability to prosecute members of drug
trafficking organizations. Giving the MDLEA’s conspiracy
provision the construction suggested by Ballestas would
effectively inoculate many members of such organizations—
including organizations targeting the United States—against
prosecution. Drug kingpins and other conspirators who
facilitate and assist in carrying out trafficking schemes would
fall beyond the reach of the statute, compromising the
overriding intent of Congress in enacting it. Those
considerations reinforce our conclusion that the MDLEA’s
conspiracy provision reaches Ballestas’s extraterritorial
conduct in this case.
B.
Ballestas next argues that, even if the MDLEA’s
conspiracy provision applies extraterritorially, his particular
conduct is still beyond the statute’s reach. The MDLEA’s
substantive provision criminalizes the manufacture,
distribution, or possession of a controlled substance “on
board” a covered vessel. 46 U.S.C. § 70503(a). That
language, Ballestas claims, imposes an express limitation on
the scope of the MDLEA’s extraterritorial application. The
qualifying phrase “on board,” according to Ballestas, means
that the MDLEA should apply extraterritorially only when a
person’s charged conduct took place on board a covered
vessel.
At the outset, we note that, under the interpretation
Ballestas urges us to adopt, the conspiracy and attempt
11
prohibition contained in § 70506(b) would seemingly do little
practical work. Under his interpretation, § 70506(b) would
reach individuals conspiring or attempting to violate § 70503
only if their conduct took place while physically “on board
vessels” covered by the statute. But it is unclear whether
someone could conspire or attempt to violate § 70503(a)
while “on board a vessel” without simultaneously violating
the substantive prohibition itself. If a person on a covered
vessel knows that drugs destined for distribution are on the
vessel and has played a role in the trafficking enterprise (as
would be the case in a conspiracy or attempt prosecution),
that person might well also have committed the underlying
substantive offense by “possess[ing]” (at least constructively),
with intent to distribute, “a controlled substance on board” the
vessel. 46 U.S.C. § 70503(a).
In any event, we need not definitively decide in this case
whether, or to what extent, the phrase “on board a vessel”
might limit the extraterritorial application of the MDLEA.
Regardless, Ballestas’s conduct would still fall within the
statute’s exterritorial reach. It is a well-established principle
of conspiracy law that “the overt act of one partner in a crime
is attributable to all.” Pinkerton v. United States, 328 U.S.
640, 647 (1946). And “[a]s long as a substantive offense was
done in furtherance of the conspiracy, and was reasonably
foreseeable as a ‘necessary or natural consequence of the
unlawful agreement,’ then a conspirator will be held
vicariously liable for the offense committed by his or her co-
conspirators.” United States v. Washington, 106 F.3d 983,
1012 (D.C. Cir. 1997). Those settled principles apply to
Ballestas.
The stipulated facts establish, first, that criminal conduct
took place “on board” vessels covered by the MDLEA, and
second, that the criminal conduct is attributable to Ballestas as
12
a co-conspirator. Ballestas stipulated to his involvement in a
drug trafficking organization that regularly transported drugs
on board vessels traveling over the high seas. App. 179-80.
In particular, Ballestas stipulated to his awareness that the
organization transported approximately 1500 kilograms of
cocaine on board a vessel apprehended by the United States
Coast Guard on or about March 3, 2010. Id. at 181. The
overt acts of other conspirators on board the March 3rd vessel
are therefore attributable to Ballestas, satisfying any “on
board a vessel” requirement that might arguably circumscribe
the MDLEA’s extraterritorial application.
III.
Ballestas next challenges Congress’s authority to
criminalize his actions under the Define and Punish Clause,
U.S. Const. art. I, § 8, cl. 10. That clause grants Congress the
authority “[t]o define and punish Piracies and Felonies
committed on the high Seas, and Offenses against the Law of
Nations.” The clause encompasses three distinct powers: (i)
to define and punish piracy; (ii) to define and punish felonies
committed on the high seas; and (iii) to define and punish
offenses against the Law of Nations. See United States v.
Smith, 18 U.S. (5 Wheat.) 153, 158-59 (1820). In defending
Congress’s constitutional authority to apply the MDLEA in
the circumstances of this case, the government relies solely on
Congress’s power under the Felonies Clause, i.e., its power to
define and punish felonies committed on the high seas. We
agree that the Felonies Clause grants Congress authority to
criminalize Ballestas’s conduct.
Ballestas’s argument relies in substantial part on the
Eleventh Circuit’s decision in United States v. Bellaizac-
Hurtado, 700 F.3d 1245 (11th Cir. 2012). In that case,
Panamanian officials apprehended the defendants on board a
13
stateless vessel in Panamanian waters. Panama consented to
the prosecution of the defendants in the United States, but the
Eleventh Circuit found that the application of the MDLEA to
the defendants’ conduct lay beyond Congress’s constitutional
authority. Critically, however, the government in Bellaizac-
Hurtado relied solely on the Law of Nations Clause to support
the constitutionality of the MDLEA’s application.
Responding to the government’s argument, the Eleventh
Circuit held that “drug trafficking is not a violation of
customary international law and, as a result, falls outside the
power of Congress under the [Law of Nations] Clause.” Id. at
1249. Bellaizac-Hurtado did not address whether any
alternative source of congressional authority—such as the
Felonies Clause—could serve to criminalize the defendants’
conduct. Id. at 1258. In fact, the court observed that “all of
the [other] appeals in which we have considered the
constitutionality of [drug trafficking] laws involved conduct
on the high seas,” and those convictions were upheld “as an
exercise of [Congress’s] power under the Felonies Clause.”
Id. at 1257. Because the government in this case defends
Congress’s authority under the Felonies Clause, not the Law
of Nations Clause, Bellaizac-Hurtado is of little assistance to
Ballestas.
In assessing whether the Felonies Clause grants Congress
the power to criminalize Ballestas’s behavior, we again rely
on the established principles of conspiracy law set forth
above. As discussed, “the overt act of one partner in a crime
is attributable to all,” Pinkerton, 328 U.S. at 647, as long as
the act “was done in furtherance of the conspiracy, and was
reasonably foreseeable as a ‘necessary or natural consequence
of the unlawful agreement,’” Washington, 106 F.3d at 1011
(quoting Pinkerton, 328 U.S. at 647-48). Here, the stipulated
facts establish that Ballestas’s co-conspirators committed
felonious acts on the high seas, and also that those acts are
14
directly attributable to him. Ballestas acknowledged that one
of the drug trafficking organization’s vessels was
apprehended on March 3, 2010, carrying approximately 1500
kilograms of cocaine. App. 181. He further acknowledged
that the vessel had “traveled through the high seas.” Id. As
an admitted co-conspirator of the crew members, the acts of
the crew—committed on the high seas—are attributable to
Ballestas. The Felonies Clause therefore provides Congress
with authority to “punish” Ballestas for his role in that
conspiracy.
IV.
We next consider Ballestas’s argument that the
application of the MDLEA in his case violated the Due
Process Clause because the government failed to demonstrate
a nexus between his actions abroad and the United States.
Our circuit has yet to decide “whether the Constitution limits
the extraterritorial exercise of federal criminal jurisdiction.”
Ali, 718 F.3d at 943-44. Several other courts of appeals,
though, have found that the Due Process Clause imposes
limits on the extraterritorial application of federal criminal
laws. See, e.g., United States v. Brehm, 691 F.3d 547, 552-54
(4th Cir. 2012); United States v. Ibarguen-Mosquera, 634
F.3d 1370, 1378-79 (11th Cir. 2011). Those courts generally
require a showing of “sufficient nexus between the defendant
and the United States, so that . . . application [of the law]
would not be arbitrary or fundamentally unfair.” United
States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990) (citation
omitted).
Just as in Ali, we need not definitively resolve whether
the Due Process Clause constrains the extraterritorial
application of federal criminal laws. Even assuming the
existence of a due process limitation, the extraterritorial
15
application of the MDLEA in this case would not run afoul of
it. As we observed in Ali, nexus with the United States
merely serves as a “proxy for due process” requirements. Ali,
718 F.3d at 944. “The ‘ultimate question’” under the Due
Process Clause is not nexus, but is “whether ‘application of
the statute to the defendant [would] be arbitrary or
fundamentally unfair.’” Id. (quoting United States v. Juda, 46
F.3d 961, 967 (9th Cir. 1995)). There is no arbitrariness or
fundamental unfairness in the circumstances of this case.
Again, Ballestas’s factual stipulations establish that he
was part of an international drug smuggling organization that
used stateless vessels to transport drugs across the high seas,
bound ultimately for the United States. The conduct to which
Ballestas pleaded guilty involved obtaining and selling reports
and maps “indicat[ing] where U.S., Colombian and other
countries’ . . . maritime assets were operating in the
Caribbean Sea on a particular day.” App. 180 (emphasis
added). He stipulated to his knowledge that his co-
conspirators used the maps to “plan the best route to be taken
by the cocaine-laden vessels so as to avoid detection by
maritime and law enforcement authorities,” including,
specifically, United States authorities. Id. Those admissions
establish that application of a United States drug trafficking
law (the MDLEA) to Ballestas was neither arbitrary nor
fundamentally unfair.
V.
Ballestas claims that the district court erred in accepting
the government’s allegations as true when the court denied his
motion to dismiss the indictment. In denying the motion, the
district court relied on the “the Government[’s] proffer[] that
the vessel seized on March 3rd, 2010, was a vessel without
nationality” (and thus a vessel subject to the jurisdiction of
16
the United States). App. 76. In Ballestas’s view, the court
could not deny his motion without requiring the introduction
of evidence on whether the vessel in fact was subject to the
jurisdiction of the United States and presenting that issue to
the jury for proof beyond a reasonable doubt.
Ballestas’s argument fundamentally misperceives the
nature of a motion to dismiss an indictment. Because a
court’s “use[] [of] its supervisory power to dismiss an
indictment . . . directly encroaches upon the fundamental role
of the grand jury,” dismissal is granted only in unusual
circumstances. Whitehouse v. U.S. Dist. Court, 53 F.3d 1349,
1360 (1st Cir. 1995) (citing Bank of Nova Scotia v. United
States, 487 U.S. 250, 263 (1988)). An “indictment’s main
purpose is ‘to inform the defendant of the nature of the
accusation against him.’” United States v. Hitt, 249 F.3d
1010, 1016 (D.C. Cir. 2001) (quoting Russell v. United States,
396 U.S. 749, 767 (1962)). It therefore need only contain “a
plain, concise, and definite written statement of the essential
facts constituting the offense charged.” Fed. R. Crim. P. 7(c).
When considering a motion to dismiss an indictment, a court
assumes the truth of those factual allegations. See Boyce
Motor Lines v. United States, 342 U.S. 337, 343 n.16 (1952).
Consequently, the district court did not err when it assumed
the truth of the government’s proffered facts in denying
Ballestas’s motion, including with regard to whether the
pertinent vessel was subject to the jurisdiction of the United
States.
VI.
Ballestas next argues that the government violated its
constitutional obligation to disclose exculpatory evidence
under Brady v. Maryland, 373 U.S. 83 (1963). According to
Ballestas, the government waited too long to notify him of a
17
related trial that took place in the Middle District of Florida in
2010. That trial involved the prosecution of the crew
members apprehended during the seizure of the vessel on
March 3, 2010. Instead of disclosing the existence of the
Florida prosecution at Ballestas’s first appearance before the
district court in February 2012, it appears that the government
waited until December to notify Ballestas of the Florida
proceeding. That delay, Ballestas contends, prevented him
from gaining access to several documents that he thinks
would have strengthened his case. The government argues
that we should not reach the merits of Ballestas’s Brady claim
because he waived any Brady argument when he entered a
guilty plea. See United States v. Ruiz, 536 U.S. 622, 628
(2002). We need not resolve the government’s waiver
argument, however, because we conclude that no
constitutional violation took place in any event.
To succeed on the merits of his Brady claim, Ballestas
must show that (i) the government suppressed evidence; and
(ii) the evidence was favorable and material. See Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). Ballestas’s claim fails
at the first step. When a defendant challenges the
government’s alleged delay in disclosure of exculpatory
evidence, “the defendant must show a reasonable probability
that an earlier disclosure would have changed the trial’s
result.” United States v. Dean, 55 F.3d 640, 663 (D.C. Cir.
1995). If a “defendant receives exculpatory evidence ‘in time
to make effective use of it,’ a new trial is, in most cases, not
warranted.” Id. (quoting United States v. Paxson, 861 F.2d
730, 737 (D.C. Cir. 1988)).
Here, the government alerted Ballestas to the existence of
the Florida prosecution by December 2012. Additionally, the
government around that time disclosed to Ballestas law
enforcement materials containing information about the
18
March 2010 vessel seizures. Those materials included the
precise Coast Guard declaration Ballestas now claims is
Brady material. Although the disclosures came after Ballestas
had submitted briefing on his motion to dismiss, they
occurred three months before the district court ruled on the
motion and nine months before Ballestas entered his guilty
plea. Ballestas therefore had ample time to “make effective
use” of any information from the Florida trial in support of his
motion to dismiss and in deciding whether to enter a plea of
guilty. Consequently, Ballestas has not shown a “reasonable
probability” that earlier disclosure of the Coast Guard
declaration would have made any difference. Id.
Ballestas separately suggests that the government should
have pointed Ballestas to a habeas petition filed by one of the
Florida defendants—Victor M. Ballestero Linares. That
petition included an affidavit by Linares, which Ballestas
maintains would have been helpful to his case. But Linares’s
affidavit was listed under the criminal docket number
disclosed to Ballestas by the government in December 2012.
Because Ballestas had access to that affidavit “in time to
make effective use of it,” he cannot show that the government
suppressed the document. Paxson, 861 F.2d at 737.
VII.
Finally, Ballestas challenges the sentence imposed by the
district court. He claims that the MDLEA does not give the
district court authority to consider conduct beyond the activity
that took place on board the vessel seized on March 3, 2010—
the only vessel specifically identified in the factual
stipulations as having traveled through the high seas..
Appellant Br. 42-43. As an initial matter, the nature of
Ballestas’s argument is unclear. His guilty plea laid out the
guideline calculations supported by the stipulated facts and
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concluded that “the Defendant’s Total Offense Level would
be 27/Criminal History Category I or a Guidelines range of 70
to 87 months.” App. 188. That guidelines range was based
solely on the drug amount recovered from the vessel seized on
March 3rd. See id. at 186-88. While the district court
considered other conduct in ultimately selecting a sentence
within (or, actually, below) that range, courts enjoy
substantial discretion to consider a wide range of factors when
imposing a sentence following calculation of the guidelines
range. See 18 U.S.C. § 3553.
In any event, Ballestas’s guilty plea waived his right to
appeal his sentence except insofar as “the sentence exceeds
the maximum permitted by statute or results from an upward
departure from the guideline range established by the Court at
sentencing.” App. 192. Ballestas cannot succeed in
challenging his sentence on either of the two grounds he
preserved. His guilty plea laid out the guidelines calculations
supported by the stipulated facts, arriving at a guidelines
range of seventy to eighty-seven months of imprisonment
based on the amount of drugs recovered from the March 3rd
vessel. Id. at 188. The district court ultimately sentenced him
to a below-guidelines sentence of sixty-four months.
Ballestas therefore has no basis for appealing his sentence on
the ground that it “results from an upward departure from the
guideline range established by the [district court].” Id. at 192.
Additionally, because the MDLEA allows for a maximum
sentence of twenty years of imprisonment for the charged
conduct, see 46 U.S.C. § 70506(a); 21 U.S.C. § 960(b)(3),
Ballestas likewise has no basis for challenging his sixty-four
month sentence on the ground that it “exceeds the maximum
permitted by statute.” App. 192.
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* * * * *
For the foregoing reasons, we reject Ballestas’s
challenges and affirm the judgment of the district court.
So ordered.