United States v. Edgar Abdiel Hernandez Bailon

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13936
Non-Argument Calendar
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D.C. Docket No. 0:17-cr-60108-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO WLADIMIR JARAMILLO BAQUE,
PIVITON PASTOR POSLIGUA GILER,
Defendants,
EGAR ABDIEL HERNANDEZ-BAILON,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(November 9, 2018)
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Before WILSON, MARTIN, and HULL, Circuit Judges.
PER CURIAM:
Egar Hernandez-Bailon appeals his convictions for conspiracy to possess
with intent to distribute five kilograms or more of cocaine while aboard a vessel
subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70506(b)
and 21 U.S.C. § 960(b)(1)(B), and possession with intent to distribute five
kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. § 70503(a) and 21 U.S.C.
§ 960(b)(1)(B). On appeal, Hernandez-Bailon argues that the district court erred in
denying his motion to suppress evidence seized aboard the vessel on which he was
found because the United States Coast Guard lacked reasonable suspicion to
support the interdiction and boarding of the vessel. The government urges us to
dismiss Hernandez-Bailon’s appeal as untimely because he did not file the notice
of appeal within 14 days after the judgment was entered, as required by Rule 4 of
the Federal Rules of Appellate Procedure. FED. R. APP. P. 4(b)(1)(A). We hold
that the appeal was timely, and therefore deny the government’s motion to dismiss,
and affirm the district court’s denial of Hernandez-Bailon’s motion to suppress.
On December 27, 2016, a Coast Guard marine patrol aircraft detected a 30-
foot “go-fast vessel” in international waters in the Eastern Pacific Ocean
approximately 300 miles south of the Mexico/Guatemala. The patrolman observed
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that the vessel did not bear any signs of nationality and was traveling northbound
unusually fast on a known drug-smuggling route. Furthermore, he noted that the
type of vessel was most commonly used for fishing, but had two outboard engines,
a large quantity of fuel on board, and a large tarp concealing objects in the middle
of the vessel. After the patrolman reported the vessel, the Coast Guard dispatched
a helicopter, an over-the-horizon intercept vessel, and a cutter1 to investigate.
When the helicopter arrived at the scene, the vessel stopped without being
ordered to do so. The helicopter crew observed “that the vessel had a tarp over the
center, at least one bale wrapped in multicolored burlap-like material that had
become uncovered by the tarp, fuel containers, three individuals, and twin 75
horsepower motors that were tiller steered with a PVC pipe modification.”
Furthermore, the helicopter crew verified that the vessel bore “no visible signs of
nationality.”
Upon arrival, the interceptor crew confirmed the helicopter crew’s
observations and, after reporting these observations, received authorization to
conduct a “right of visit” boarding.2 The boarding team discovered additional
bales under the tarp that had “high flyers”—beacons commonly used by narcotics
traffickers to find contraband after being jettisoned—attached to them. The
1
A cutter is a light and fast coastal patrol boat.
2
A “right of visit” boarding is “a doctrine of international maritime common law that bestows a
nation’s warship with the authority to hail and board an unidentified vessel to ascertain its
nationality.” United States v. Romero-Galue, 757 F.2d 1147, 1149 n.3 (11th Cir. 1985).
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defendants identified themselves as Ecuadorian but would not confirm the
nationality of the vessel itself. Based on this information, the Coast Guard
authorized the boarding team to conduct a full law enforcement boarding. As a
result, the boarding team discovered that the bales contained 900 kilograms of
cocaine. The three people aboard the vessel, including Hernandez-Bailon, were
arrested.
Hernandez-Bailon and his codefendants were charged with (1) conspiracy to
possess with intent to distribute a controlled substance on board a vessel subject to
the jurisdiction of the United States, in violation of 46 U.S.C. § 70506(b) and 21
U.S.C. § 960(b)(1)(B), and (2) possession with intent to distribute five kilograms
or more of cocaine while aboard a vessel subject to the jurisdiction of the United
States, in violation of 46 U.S.C. § 70503(a) and 21 U.S.C. § 960(b)(1)(B).
Hernandez-Bailon waived his right to a jury trial. At his bench trial, the district
court denied Hernandez-Bailon’s motion to suppress the cocaine, reasoning that
the Coast Guard had reasonable suspicion to stop the vessel. On August 29, 2017,
the district court entered judgment against Hernandez-Bailon and sentenced him to
120 months’ imprisonment. Hernandez-Bailon filed his notice of appeal twenty
days later, on September 18, 2017.
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I.
The government argues that the appeal should be dismissed because the
notice of appeal is untimely. We disagree.
Here, the district court entered judgment on August 29, 2017. The Federal
Rules of Appellate Procedure would ordinarily require Hernandez-Bailon to have
filed a notice of appeal by September 12—that is, 14 days after judgment was
entered. See FED. R. APP. P. 4(b)(1)(A). However, the clerk’s office was
inaccessible due to Hurricane Irma from September 12 through September 17, so
the time to appeal ran until Monday, September 18. See FED. R. APP. P. 4(b)(1)(A),
26(a)(3) (“[If] the clerk’s office is inaccessible . . . on the last day for filing . . .
then the time for filing is extended to the first accessible day that is not a Saturday,
Sunday, or legal Holiday . . . .”). Hernandez-Bailon timely filed the notice of
appeal on September 18. Accordingly, the motion to dismiss is denied, and the
appeal may proceed.
II.
In reviewing a district court’s denial of a motion to suppress, we review the
district court’s application of the law de novo and its factual findings for clear
error, and consider the evidence in the light most favorable to the government.
United States v. Watkins, 750 F.3d 1271, 1279, 1282 (11th Cir. 2014).
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The Fourth Amendment protects individuals from unreasonable searches and
seizures. U.S. CONST. amend. IV. We have consistently applied a Fourth
Amendment analysis to situations where the Coast Guard interdicts and boards a
foreign vessel in international waters to check for the vessel’s involvement in
smuggling. See United States v. Tinoco, 304 F.3d 1088, 1116 (11th Cir. 2002).
“Under the Fourth Amendment, the Coast Guard may stop and board a foreign
vessel in international waters if it has reasonable suspicion that the vessel is
engaged in activity that violates United States law.” Id. “To determine whether
reasonable suspicion exists, the court must look at the totality of the circumstances
of each case to see whether the detaining officer has a particularized and objective
basis for suspecting legal wrongdoing.” Id. An officer may assess the facts in
light of his or her “unique training, expertise, and experience in the field.” Id.
Reasonable suspicion exists if the cumulative information known to the officer
“suggests criminal activity, even if each fact, viewed in isolation, can be given an
innocent explanation.” Id.
The following factors, among others, may give rise to a reasonable suspicion
that a vessel was engaged in drug smuggling: (1) a lack of nationality or other
identifying marks; (2) travelling at an unusually high rate of speed; (3) presence in
a known drug-smuggling area; and (4) a design that fits the profile of
commonly-used drug-smuggling vessels. See id. at 1116–17; United States v.
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Reeh, 780 F.2d 1541, 1544–46 (11th Cir. 1986). Moreover, in cases involving
fishing vessels, we have concluded that the Coast Guard had reasonable suspicion
that the vessel was carrying contraband where the vessel was travelling outside of
normal fishing waters, United States v. Pearson, 791 F.2d 867, 870 (11th Cir.
1986), or had items on board that appeared unnecessary for an ordinary fishing
trip, United States v. Andreu, 715 F.2d 1497, 1500 (11th Cir. 1983).
The district court did not err in denying Hernandez-Bailon’s motion to
suppress evidence found on the vessel because the Coast Guard had reasonable
suspicion to stop and board the vessel based on the vessel’s design and its
structural modifications, which matched the profile of drug-smuggling vessels, its
high-rate of speed, its location several hundred miles offshore along a known
drug-smuggling route, the unknown cargo packaged in square shaped bales aboard
the vessel, and the lack of nationality or other identifying marks. See Tinoco, 304
F.3d at 1116–17; Reeh, 780 F.2d at 1544–46. Further, despite Hernandez-Bailon’s
contention that the vessel was an ordinary fishing vessel, it had several atypical
characteristics, including two outboard engines and a large quantity of fuel on
board, in addition to its location several hundred miles offshore. See Pearson, 791
F.2d at 870; Andreu, 715 F.2d at 1500. Hernandez-Bailon maintains that, taken
individually, each of these circumstances may have an innocent explanation;
however, we are required to consider the factors together and, together, these
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factors were sufficient to support the Coast Guard’s reasonable suspicion of
drug-smuggling activity. See Tinoco, 304 F.3d at 1116. Accordingly, the district
court properly denied Hernandez-Bailon’s motion to suppress.
AFFIRMED.
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