United States v. Adelso Torres Garcia

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-16247 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 16, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00109-CR-T-27-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADELSO TORRES GARCIA,
Defendant-Appellant.
________________________
No. 05-10666
Non-Argument Calendar
________________________
D. C. Docket No. 04-00109-CR-T-27-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR MANUEL GARCIA Y GARCIA,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(May 16, 2006)
Before BIRCH, BLACK, and BARKETT, Circuit Judges.
PER CURIAM:
Adelso Torres Garcia (“Torres”) and Oscar Manuel Garcia y Garcia
(“Garcia”) appeal their convictions for possession with intent to distribute cocaine
while aboard a vessel subject to the jurisdiction of the United States. The Piracies
and Felonies on the High Seas Clause of the Constitution (“the High Seas Clause”)
granted Congress the power to define and punish offenses committed on the high
seas, and we have not required a nexus between the United States and offense
conduct under the Maritime Drug Law Enforcement Act (“MDLEA”) or its
predecessor statute. We AFFIRM their convictions.
I. BACKGROUND
Torres and Garcia were indicted for, inter alia, possession with intent to
distribute cocaine while aboard a vessel subject to the jurisdiction of the United
States, in violation of 46 App. U.S.C. § 1903(a), (g), and 21 U.S.C.
§ 960(b)(1)(B)(ii). R1-1 at 1-3. Garcia and Torres, who are both natives and
2
citizens of Guatemala, were aboard the “El Almirante,” a Guatemalan registered
boat, which the U.S. Coast Guard intercepted and boarded in international waters.
The Coast Guard discovered more than 2,500 kilograms of cocaine aboard the El
Almirante.
Garcia and codefendant Erick Armando Aguilar Ramirez filed a “Motion to
Dismiss the Indictment for Lack of Subject Matter Jurisdiction”; Torres adopted
the motion. R1-101, 112, 119. In the motion, Garcia argued that Congress
exceeded its powers by enacting the MDLEA, under which it purported to
criminalize drug smuggling by foreign nationals aboard foreign vessels. Following
a hearing, the district court denied the motion. R1-140. Specifically, the district
court found that Congress’s enactment of the MDLEA was a constitutional
exercise of power pursuant to the Clause, and, while the Clause did not give
Congress the power to criminalize all conduct on the high seas, it also did not limit
Congress’s extraterritorial power as to those felonies only with a nexus to the
United States. Id. at 2-8. The district court also found, however, that drug
trafficking constituted an offense against the law of nations, and thus empowered
Congress to criminalize it pursuant to the Clause. Id. 9-11.
Garcia and Torres subsequently entered conditional guilty pleas, reserving
their rights (1) to appeal the denial of their motion to dismiss the indictment, and
3
(2) if successful on appeal, to withdraw their pleas. Torres was sentenced to serve
a term of imprisonment of 135 months, and Garcia was sentenced to serve 168
months.
On appeal, they argue that Congress exceeded its constitutional authority
by punishing offenses committed in international waters by foreigners aboard a
foreign vessel and that Congress’s authority was limited to criminalizing certain
offenses.
II. DISCUSSION
Torres contends that (1) the only source of constitutional authority for the
Maritime Drug Law Enforcement Act is the High Seas Clause, which granted
Congress the authority to define and punish piracy, felonies, and offenses against
the law of nations committed on the high seas; (2) the meanings of “felonies” and
“piracy” within the High Seas Clause are not synonymous; and (3) the authority to
define and punish felonies is more limited in its extraterritorial scope than the
authority to punish piracy. Appellant Torres’ Brief at 4-6. Specifically, he asserts
that, because piracy is the only “universal jurisdiction” offense, only piracy may be
punished regardless of the nexus between the United States and the offender or the
vessel. Id. at 6-8. Next, he argues that the purpose of the High Seas Clause was
not to give Congress “general legislative authority over international waters,” but
4
to vest authority over United States vessels and nationals in the federal, rather than
state, government. Id. at 8-9. Finally, Torres asserts that drug smuggling is not a
universal jurisdiction offense because (1) it is not an international law crime, (2) it
is not so shocking that it makes all jurisdictional limits moot, (3) only war crimes,
genocide, and piracy are universal jurisdiction offenses, and (4) Congress, when
enacting the MDLEA, did not expressly declare that it was legislating under its
power to define international law offenses.
Garcia asserts that Congress has the authority to criminalize only the
following offenses occurring on the high seas: (1) piracy, as universally defined;
(2) felonies committed by a person aboard a stateless vessel; and (3) felonies
committed by or against a United States citizen. He contends that a vessel flying a
foreign flag remains under the jurisdiction of that nation, which Congress has no
authority to legislate. He asserts that the High Seas Clause was intended only to
ensure that American citizens traveling on the high seas were subject to uniform
criminal laws. Garcia also notes that those cases upholding the MDLEA’s
predecessor statute all dealt with stateless vessels. He then compares the nexus
requirement imposed by due process principles with that imposed by the High Seas
Clause, noting that they are distinct concepts and that other courts’ discussions of
due process requirements do not necessarily inform the analysis here. Next, Garcia
5
argues that the “protective principle” of international law, which we have held
provides a basis for the extraterritorial application of the MDLEA, also requires a
nexus between the offense conduct and the United States. Appellant Garcia’s Brief
at 25-26. Finally, he asserts that drug smuggling is not an offense against the law
of nations as it is private conduct which cannot constitute such an offense.
“We review the constitutionality of a statute de novo.” United States v.
Ballinger, 395 F.3d 1218, 1225 (11th Cir. 2005) (en banc). The MDLEA makes it
“unlawful for any person on board a vessel . . . subject to the jurisdiction of the
United States . . . to knowingly or intentionally manufacture or distribute, or to
possess with intent to manufacture or distribute, a controlled substance.” 46 App.
U.S.C.A. § 1903(a). A vessel subject to the jurisdiction of the United States is
defined as, inter alia, “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.” Id. at § 1903(c)(1)(C).
The High Seas Clause grants Congress the power “[t]o define and punish
Piracies and Felonies committed on the high Seas, and Offences against the Law of
Nations.” U.S. Const. art. I, § 8, cl. 10. While we have not addressed the precise
question raised here and while there is little case law interpreting the scope of the
High Seas Clause, other circuits have upheld the constitutionality of the MDLEA.
6
Without specifically discussing the High Seas Clause’s limits, the Ninth Circuit
held that the MDLEA was a constitutional exercise of Congressional power
pursuant to the High Seas Clause. United States v. Moreno-Morillo, 334 F.3d 819,
824 (9th Cir. 2003) (citing United States v. Davis, 905 F.2d 245, 248 (9th Cir.
1990), and United States v. Aikins, 946 F.2d 608, 613 (9th Cir. 1990)). The Third
Circuit also held that the High Seas Clause provided Congress with the authority to
enact the MDLEA and criminalize drug trafficking on the high seas, regardless of
whether a nexus to the United States existed. United States v. Martinez-Hidalgo,
993 F.2d 1052, 1056 (3rd Cir. 1993).
We have previously rejected the argument that the MDLEA is
unconstitutional because the conduct at issue lacks a nexus to the United States.
United States v. Rendon, 354 F.3d 1320, 1325 (11th Cir. 2003), cert. denied, 541
U.S. 1035, 124 S. Ct. 2110 (2004); see also United States v. Marino-Garcia, 679
F.2d 1373, 1383 (11th Cir. 1982) (holding that the predecessor statute to § 1903,
21 U.S.C. § 955a, did not require a nexus between stateless vessels and the United
States). We have also observed that Congress has power to enact legislation
pursuant to the “protective principle” of international law. United States v.
Gonzalez, 776 F.2d 931, 939 (11th Cir. 1985). “Universal jurisdiction is a doctrine
of international law allowing states to define and punish certain crimes considered
7
to be of ‘universal concern.’” Herero People’s Reparations Corp. v. Deutsche
Bank, A.G., 370 F.3d 1192, 1196 (D.C. Cir.), cert. denied, 543 U.S. 987, 125 S. Ct.
508 (2004). In contrast, the protective principle “permits a nation to assert
jurisdiction over a person whose conduct outside the nation’s territory threatens the
nation’s security or could potentially interfere with the operation of its
governmental functions.” Gonzalez, 776 F.2d at 938. “The protective principle
does not require that there be proof of an actual or intended effect inside the United
States. The conduct may be forbidden if it has a potentially adverse effect and is
generally recognized as a crime by nations that have reasonably developed legal
systems.” Id. at 939. Congress enacted the MDLEA because drug trafficking
aboard vessels (1) “is a serious international problem and is universally
condemned” and (2) “presents a specific threat to the security and societal well-
being of the United States.” 46 App. U.S.C. § 1902. For these reasons, Congress
could properly enact the MDLEA under the Constitution.
III. CONCLUSION
Because the High Seas Clause granted Congress the power to define and
punish offenses committed on the high seas and because we have not required a
nexus between the United States and the offense conduct under the MDLEA or its
predecessor statute, we affirm the district court.
8
AFFIRMED.
9