US v. Bravo, Nos. 05-1144, 05-1145, 05-1146, 05-1147. This is a pretty large drug trafficking conviction. The defendants were caught on a boat with over 1000 kilograms of marijuana. The coast guard had seen them off 180 miles from the Dominican Republica “dead in the water” in a said boat that reeked of marijuana. The Columbians government could neither confirm nor refute that they were a Columbian vessel. So, the government argues that since the vessel was effectively stateless, the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. app. § 1903(c) lets the US exercise jurisdiction over it, and the First finds that no jurisdictional nexus between the defendant’s conduct and the US is required. So, the Coast Guard boarded it, found pot, and took the sailors into custody, leading to the conviction. Further, since Columbia didn’t speak up for the ship, when given the option, the “Agreement to Suppress Illicit Traffic by Sea” (ratified by the US and Columbia) allows the US to proceed “in accordance with international law.”
Keep reading. Its got duress, safety valves, minor roles, international law, and expert witnesses.
But, the First agrees with the defendants that the “district court erroneously allowed the jury to hear testimony regarding jurisdiction.” But, this was harmless error.
Then, the First starts going into “no analysis” territory and declares that “the Fourth Amendment does not apply to activities of the United States against aliens in international waters.” Quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 267 (1990), the First quotes that "There is . . . no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters." But, the First seems to take this quote out of context, because the Supreme Court was trying to explain the original understanding of the fourth amendment, which, by most accounts, seems to indicate that the 4th did not restrict Congress’ ability to authorize seizures of French ships that were interfering with US trade. So, at best, the First is just doing a crappy job of analyzing whether the Fourth, as a rule of criminal procedure, rather than as restriction upon Congressional authorization of seizures applies. At worst, they are just bending to help the government.
The defendants argued that a pre-trial ruling on the issue of duress. “The district court stated that it would not rule on a duress instruction to the jury until after Appellants had testified, if they were willing to do so, and only if the court determined that Appellants met the standard for the submission of the charge to the jury.” (The defendants ultimately got a duress instruction.) Even though this essentially means that the defendants must testify to raise the duress defense, the First finds that this is a matter within the District Court’s discretion. So, this means that the District Courts can snooker people into testifying in duress cases. It gets a but worse, on sentencing, the District Court denies an adjustment under U.S.S.G. § 5K2.12 for duress, and the First figures the District Court’s decision is unreviewable on appeal.
The first holds that a “minor role” adjustment under U.S.S.G. § 3B1.2(b), cmt., n.5 wasn’t in error, even though the defendants were the crew, not the captain.
One defendant didn’t object to the PSR. The other defendants objected to the PSR, and participated in a government debriefing, in order to get the safety-value. But, the government thought that they were not being truthful, and a DEA agent testified that the scheme they spoke of was “too risky.” The Court endorses the use of a DEA agent to rebut their testimony by saying “The testimony of Special Agent Gonzáles, based on his years of experience in the field of drug interdiction, provides a sound grounding for the district court's denial of the safety valve.” This is great. A cop, as an expert on criminal behavior is able to tell a court that the statements of defendants didn’t seem criminal enough to be credible.
A Booker claim is denied.
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