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United States v. Carvajal

United States District Court, District of Columbia

February 20, 2013

UNITED STATES of America
v.
Francisco Jose Valderrama CARVAJAL and Luis Alberto Munoz Miranda, Defendants.

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Paul Warren Laymon, Jr., Carmen D. Colon, Meredith A. Mills, U.S. Department of Justice, Washington, DC, for United States of America.

Elita C. Amato, Law Office of Elita C. Amato, Esq., Arlington, VA, Ron Earnest, Takoma Park, MD, for Defendants.

OPINION

ROSEMARY M. COLLYER, District Judge.

I.

FACTS 225

A.

Procedural History 225

B.

The Drug Trafficking Organization and Planned November 2006 Loads 226

C.

Caribbean Maritime Geography 228

II.

LEGAL STANDARD 229

III.

ANALYSIS 230

A.

Maritime Drug Law Enforcement Act 231

1. 1980s Enactment and Legislative History 231

2. 1986 Version 232

3. Present Version 232

B.

Maritime Definitional Issues 233

C.

Factual Issues— Statelessness & High Seas Travel 234

1. Statelessness of Vessel 235

2. Travel through the High Seas 237

D.

Statutory Subject Matter Jurisdiction 239

1. Extraterritorial Application 239

2. Charming Betsy 240

3. Whether MDLEA Requires Conspiring " On Board" a Vessel 243

4. Whether MDLEA Requires a Nexus to the United States 245

5. Whether Colombia's Consent Was Required 246

6. Conclusion 248

E.

Constitutionality of MDLEA as Applied 249

1. Legal Standard— Constitutionality 249

2. The Treaty Power 250

3. Article I, Section 8, Clause 10: The Power. . .To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations 251

F.

Due Process 261

IV.

CONCLUSION 264

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This prosecution under the Maritime Drug Law Enforcement Act (MDLEA) is a product of the escalation of a battle. On one side are international drug traffickers, who constantly refine their methods for transporting illegal narcotics from country to country. On the other side is law enforcement, which must adapt its efforts to halt the illicit drug trade, a task made all the more difficult in an increasingly globalized world. In this case, the United States seeks to hold drug traffickers criminally responsible in circumstances not previously addressed by the courts.

This case may be at the outskirts of Congress's power to criminalize extraterritorial conduct. The two Defendants, Luis Alberto Munoz Miranda and Francisco Jose Valderrama Carvajal, were Colombian-based members of an international drug trafficking conspiracy. They admitted involvement in a conspiracy to use vessels with no registration and nationality, commonly referred to as " stateless vessels," to transport cocaine from Colombia to a rendezvous point in the seas near Honduras. Two stateless vessels are involved in this case. One never left the dock; the other was seized by the Colombian Navy after traveling a significant distance at sea. The latter vessel was captured after it ran aground on an island that belongs to Colombia, so it was seized by Colombian authorities in Colombian territorial waters. The United States, prosecuting through the Department of Justice, does not claim that it can show that the cocaine recovered from the captured vessel was destined for this country, and it concedes that Messrs. Munoz Miranda and Valderrama Carvajal never left the terra firma of Colombia at any relevant point prior to being extradited to the United States years after the stateless vessel and its crew were seized and prosecuted by Colombia.

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Defendants contest the constitutionality of applying MDLEA to foreign citizens, acting in a foreign country, who never set foot on a vessel transporting narcotics. Many cases have upheld MDLEA as a valid exercise of congressional power and have denied due process challenges, but with varying analyses. Few cases have involved prosecutions deriving from vessels seized in a foreign country's territorial waters, whether those vessels were registered in a foreign country or were stateless. Equally rare are MDLEA prosecutions of individuals whose personal involvement took place exclusively within a foreign country's territory. This case fits both of those categories, which the Court understands to be a factually unprecedented scenario.

The Court must determine whether this prosecution is constitutional. While it may be a close question, it is one the Court resolves in DOJ's favor.

I. FACTS

A. Procedural History

Along with three other co-defendants,[1] Messrs. Munoz Miranda and Valderrama Carvajal were charged by Indictment filed April 23, 2010 with conspiracy to distribute five kilograms or more of cocaine on board a vessel subject to the jurisdiction of the United States in violation of the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. §§ 70503, 70506(b) and 18 U.S.C. § 2. See Indictment [Dkt. 3]. DOJ filed a Superseding Indictment on August 25, 2010, containing the same charge. See Superseding Indictment [Dkt. 6]. Bench warrants were issued for all Defendants. Messrs. Munoz Miranda and Valderrama Carvajal were arrested in Colombia by the Colombian national police on May 12, 2011 and extradited to the United States. See Extradition Orders, Dkt. 60, Ex. E [Dkt. 60-5]. Mr. Munoz Miranda made his initial appearance before a magistrate judge on February 27, 2012, and Mr. Valderrama Carvajal made his first appearance on April 20, 2012.

Both Defendants filed numerous motions prior to their scheduled October 15, 2012, trial date, raising various arguments against MDLEA's constitutionality and as to whether MDLEA encompasses the allegations made in this case.[2] Both DOJ and the Defendants filed numerous briefs, and the Court held a motions hearing on October 11, 2012 to address the arguments advanced by Messrs. Munoz Miranda and Valderrama Carvajal.

By agreement of all parties, DOJ proceeded by evidentiary proffer and the Court heard oral arguments only. After extensive and articulate debate from Defendants' counsel and DOJ, the Court denied the motions to dismiss. Although it noted that the motions presented close questions on which courts had written little, the Court held that MDLEA could be constitutionally applied to the facts in this case. Because Messrs. Munoz Miranda and Valderrama Carvajal immediately stated that they wished to enter into plea agreements with DOJ, there was never a full written opinion, although the Court had summarized its reasoning from the bench.

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The following day, October 12, 2012, both Defendants entered guilty pleas to a Superseding Information, Dkt. 71, charging them each with one count of conspiracy to distribute five hundred grams or more of cocaine on board a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. §§ 70503(a)(1), 70506(b), and 21 U.S.C. § 960(b)(2)(B). Both Defendants' pleas were reliant on Fed.R.Civ.P. 11(c)(1)(C) and stipulated to sentences of five years' imprisonment. See Plea Agr. (Munoz Miranda) [Dkt. 72] ¶ 8; Plea Agr. (Valderrama Carvajal) [Dkt. 76] ¶ 8. Sentencing hearings were scheduled for November 29, 2012.

Before sentencing, however, Messrs. Munoz Miranda and Valderrama Carvajal filed motions for reconsideration of the Court's denial of their motions to dismiss. See [Dkts. 86, 87]. The motions for reconsideration depend in large part on an Eleventh Circuit decision issued on November 6, 2012, holding that MDLEA is unconstitutional as applied in that case because Congress lacks the power to criminalize the charged conduct. See United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir.2012). This Court continued sentencing until the motions for reconsideration could be resolved. Noting that the United States had raised a novel jurisdictional argument in its petition for rehearing en banc in the Eleventh Circuit— that MDLEA is constitutional as an exercise of Congress's power to implement treaties— the Court ordered further briefing on that issue. See Minute Order dated Jan. 17, 2013.

B. The Drug Trafficking Organization and Planned November 2006 Loads

Along with other individuals in Colombia and Mexico, Messrs. Munoz Miranda and Valderrama Carvajal were co-conspirators in a drug trafficking organization (DTO) that, " from in or about 2006 and continuing until August 25, 2010, transported narcotics from Colombia on stateless go-fast vessels through international waters to other countries." Joint Statement of Stipulated Facts as to Defendant Munoz Miranda (" Munoz Miranda SoF" ) [Dkt. 73] ¶ 3; Joint Statement of Stipulated Facts as to Defendant Valderrama Carvajal (" Valderrama Carvajal SoF" ) [Dkt. 77] ¶ 3.[3] The DTO provided cocaine to a drug trafficking organization in Mexico headed by a man named Jorge Castro. Dkt. 60, Ex. D [Dkt. 60-4], Affidavit of Agent Christopher Jakim, at 3-4.[4]

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Defendant Valderrama Carvajal was " the organizer in the Jorge Castro [DTO] and the bridge between the transportation network in Colombia and the cocaine purchaser in Mexico." Id. Defendant Munoz Miranda " assisted with logistics, as well as with obtaining and delivering maritime supplies and reports to ensure that the cocaine arrived at its planned destination without law enforcement detection." Id.

During November 2006, " pursuant to a lawfully authorized interception order, Colombia law enforcement officers were listening to telephone calls of some of the conspirators in this case. Based on the intercepted calls, the officers concluded that the Defendants were planning to move a large load of cocaine from the north coast of Colombia." Dkt. 60 at 2; see also Dkt. 60, Ex. C [Dkt. 60-3] (Wiretap Transcriptions).

The DTO's intended November 2006 shipment involved at least two separate loads. For both shipments, the DTO planned to use a go-fast boat, a term used by Coast Guard officials to refer to vessels that " can travel at high rates of speed, which makes them a favored vehicle for drug and alien smuggling operations." United States v. Tinoco, 304 F.3d 1088, 1092 (11th Cir.2002). The vessels were to transport cocaine from the north coast of Colombia that was " to be ultimately delivered to a co-defendant in Mexico." Munoz Miranda SOF ¶ 3; Valderrama Carvajal SOF ¶ 5. The go-fast boat for the first shipment, which " was not registered in Colombia and did not fly a Colombian flag," " was standing by with a crew and was ready to transport the cocaine." Munoz Miranda SOF ¶ 3; see also Valderrama Carvajal SOF ¶ 5. " However, the day before the cocaine was to be loaded on the go-fast boat, the cocaine was stolen from the custody of others who had been entrusted with the cocaine...." Munoz Miranda SOF ¶ 3. The DTO's efforts to recover the stolen load were fruitless. Id.

A different shipment of approximately 2000 kilograms of cocaine was successfully loaded aboard a go-fast vessel that left Colombia's north coast on November 16, 2006. Valderrama Carvajal SOF ¶ 5.[5] Neither

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Mr. Munoz Miranda nor Mr. Valderrama Carvajal was aboard; instead, the boat was crewed by five Colombians who were hired by various intermediaries. See Crew Statements, Dkt. 60, Ex. B [Dkt. 60-2]. The vessel was a " launch with a dark blue hull," " shaped like a large racing boat," " about 40 feet in length," and equipped with three Yamaha 200-horsepower motors. Dkt. 60 at 2; Statement of Colombian Naval Lieutenant Gustavo Adolfo Espinosa Redondo, Dkt. 60, Ex. A [Dkt. 60-1], at 3. The go-fast boat flew no flag, was not registered in Colombia or any other country, and carried no registration information. Valderrama Carvajal SOF ¶ 3.

The go-fast boat " headed towards the San Andres Islands, and was to rendezvous with another vessel near the coast of Honduras, where the cocaine would be transferred to the other vessel." Dkt. 60 at 2; see also Valderrama Carvajal SOF ¶ 3 (" The captain of the go-fast boat admitted ... that the cocaine was to be offloaded onto another vessel near the coast of Honduras." ). The precise path taken by the go-fast vessel is unknown, as discussed below.

On November 18, 2006, " the Colombia Navy and Air Force intercepted the go-fast vessel near Roncador Island, a tiny, essentially uninhabited rock island" that belongs to Colombia and is also sometimes called Roncador Cay; following a brief chase, the go-fast vessel ran aground on Roncador. Dkt. 60 at 3; see also Valderrama Carvajal SOF ¶ 3. The Colombian Navy arrested the five crewmembers. Valderrama Carvajal SOF ¶ 3. One of the crew members identified himself as the captain. Id. None of the crew members claimed Colombian registry for the vessel. Id. When the Colombian Navy personnel inquired as to " where the papers were that proved the ownership of the launch and the motors," the crew responded that " it had no papers and that they did not know who the owner was and that they knew no one, that they were simply hired to go find a fishing boat in that area named SI SE PUEDE that was supposedly adrift." Statement of Lt. Espinosa Redondo at 3. The Colombian Navy recovered cocaine from the go-fast vessel and the ocean. Dkt. 60 at 3. The search also uncovered approximately twenty 55-gallon gasoline drums; no other documents and " [n]o other item such as GPS, cellular phones, or two-way radios were found, because the captain told [the Colombian Navy] that the person who had been carrying the knapsack containing the equipment had dropped it in the water." Statement of Lt. Espinosa Redondo at 3.

C. Caribbean Maritime Geography

Understanding the geography at issue in this case is useful to the following discussion. There is an historical dispute between Nicaragua and Colombia as to ownership of the seas and islands in the area, referred to as the San Andres Islands. The parties do not dispute where the territories and seas are located, and they agree on a beginning point and an endpoint for the go-fast vessel: (1) it left from some port on the northern coast of Colombia, and (2) it ended up aground on Roncador. The International Court of Justice prepared a sketch of the area in question, referred to as " Map A." Roncador appears in the upper center of the map.

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Territorial & Maritime Dispute e Dispute (Nicaragua v. Colombia), 2012 I.C.J. No. 124 (" ICJ Decision" ), at 64. The shaded area shows Roncador and other scattered islands, not land.

" Roncador is an atoll located on a bank 15 km long and 7 km wide. It is about 190 nautical miles to the east of the mainland of Nicaragua, 320 nautical miles from the mainland of Colombia, 75 nautical miles east of the island of Providencia and 45 nautical miles from Serrana. Roncador Cay, located half a mile from the northern border of the bank, is some 550 metres long and 300 metres wide." ICJ Decision ¶ 24(c). This Court takes judicial notice of the geography depicted in Map A and as explained in the ICJ's ruling. See Fed.R.Evid. 201.

The dispute between Nicaragua and Colombia over the ownership of the islands depicted in Map A has its origin in the eighteenth century. The countries tried to settle the matter through a treaty in 1928, but Nicaragua renounced the treaty in the 1980s and claimed that the islands belonged to it. " UN ruling gives Colombia islets but Nicaragua more sea," BBC, Nov. 19, 2012, available at http:// www. bbc. co. uk/ news/ world- latin- america- 20391180 (last accessed Feb. 19, 2013) (" BBC Article" ). In 2007, a preliminary ICJ decision held that three of the biggest islands in the archipelago belonged to Colombia. Id. In the November 2012 ruling, the ICJ upheld Colombia's claim to all of the islands in question, including Roncador. See ICJ Decision ¶ 103. The parties have briefed this case on the assumption that Roncador belongs to Colombia, so the ICJ's ruling does not change matters. The ICJ also determined the rights of Nicaragua and Colombia with respect to the waters surrounding the islands. This issue is discussed in the context of other maritime definitional issues below.

II. LEGAL STANDARD

" [A]t any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an

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offense." Fed.R.Crim.P. 12(b)(3)(B). The jurisdiction of a United States court under MDLEA " is not an element of an offense," and jurisdictional issues in MDLEA prosecutions are " preliminary questions of law to be determined solely by the trial judge." 46 U.S.C. § 70504; see also United States v. Mitchell-Hunter, 663 F.3d 45, 51 (1st Cir.2011) (" [T]he purpose of the MDLEA's jurisdictional requirement is not to protect a defendant's rights, but instead to maintain comity between foreign nations...." ).[6] Courts have required the government to establish jurisdiction by a preponderance of the evidence, e.g., United States v. Matos-Luchi, 627 F.3d 1, 5 (1st Cir.2010), and the Court imposes that standard here.

Other judges of this Court have addressed whether motions to reconsider are properly entertained in criminal cases and, if so, what standards govern. See United States v. Bloch, 794 F.Supp.2d 15, 18-19 (D.D.C.2011) (" In sum, while judges of this court have, on occasion, entertained motions for reconsideration of interlocutory orders in criminal cases, no Federal Rule of Criminal Procedure, or Local Criminal Rule of the United States District Court for the District of Columbia, provides for such motions." ). This Court, like others, e.g., United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C.2009), assumes that such motions are available but need not resolve the issue for two reasons. First, and most importantly, Messrs. Munoz Miranda and Valderrama Carvajal challenge the Court's jurisdiction. Second, the motions provide the Court with an opportunity to amplify its oral ruling for appeal in a case of first impression. To that extent, the motions addressed herein are essentially the original motions to dismiss. Justice is best served if the Court considers the claims advanced by the Defendants, however styled. See id. (applying " as justice requires" standard to similar motion for reconsideration after denial of motion to dismiss).

III. ANALYSIS

Messrs. Munoz Miranda and Valderrama Carvajal raise multiple jurisdictional challenges to their prosecutions. Many of their arguments overlap issues that are analytically distinct. The small-but-growing body of MDLEA case law has evolved over time, has interpreted a statute that has been amended on numerous occasions, and has addressed a number of legal questions that can be difficult to separate. This Court attempts to distinguish and treat each legal issue separately.

The Court first reviews the statute, discussing the provisions and history necessary to understand the issues presented here and to read prior MDLEA decisions correctly. Next, the Court addresses a number of factual matters that must be determined before reaching the Defendants' legal arguments, including the status of the vessel seized by the Colombian Navy, what constitutes the " high seas," and whether this particular go-fast vessel traveled on the high seas. Third, the Court addresses statutory subject matter jurisdiction, considering whether MDLEA applies to the facts of this case. The constitutionality of MDLEA as applied is addressed fourth. Finally, the Court considers whether the prosecution of Messrs.

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Munoz Miranda and Valderrama Carvajal comports with due process.

A. Maritime Drug Law Enforcement Act

1. 1980s Enactment and Legislative History

In 1980, Congress enacted what would later become MDLEA as part of legislation " to facilitate increased enforcement by the Coast Guard of laws relating to the importation of controlled substances." §§ 1-4, Pub. L. 96-350, 94 Stat. 1159. The first version of the statute was codified at 21 U.S.C. 955a et seq., and the earliest cases interpreting the statutory language of MDLEA— those from the early 1980s— cite to this statute. MDLEA itself was enacted as §§ 3201-02 of the Anti-Drug Abuse Act of 1986 and codified at 46 U.S.C. App. § 1901 et seq. See Pub. L. 99-570, 100 Stat. 3207. In 2006, the MDLEA was moved to its present location at 46 U.S.C. § 70501 et seq. without any amendment relevant to this case. See Act of Oct. 6, 2006, § 10(2), Pub. L. 109-304, 120 Stat. 1485.

According to the legislative history, the 1980 legislation was enacted to " facilitate enforcement by the Coast Guard of laws relating to the importation of illegal drugs and other purposes." S.Rep. No. 96-855, 1980 U.S.C.C.A.N. 2785, 2785 (July 16, 1980). The Coast Guard had faced difficulty because the Comprehensive Drug Abuse Prevention and Control Act of 1970 inadvertently " repeal[ed] the criminal provision under which drug smugglers apprehended on the high seas were prosecuted without creating a new provision to replace it." Id. The repeal created a " statutory void" because if the government wished to prosecute offenders seized on the high seas, it had to prosecute conspiracy or attempt to import narcotics. Id. at 2785-86. However, " in most cases, evidence to prove importation or conspiracy beyond a reasonable doubt [was] impossible to obtain." Id. Accordingly, although the Coast Guard could " seize and confiscate the ship and the illegal drugs," it could not " prosecute the crew or others involved in the smuggling operation," creating a situation in which there was " little deterrent effect on the crews or the trafficking organizations in the highly lucrative trade in illegal drugs" because the organizations considered occasional seizures " part of the cost of doing business." Id. at 2786. The Senate Report also states that the 1980 legislation was intended to " give the Justice Department the maximum prosecutorial authority permitted under international law" and " to address acts committee [sic] outside the territorial jurisdiction of the United States." Id.; see also id. (MDLEA " would apply to prohibited acts even if such acts occurred outside the territorial jurisdiction of the United States" ). The statute explicitly stated that it would apply extraterritorially because some courts declined to give statutes extraterritorial effect without an explicit statement from Congress. Id.

The 1980 version of the statute contained provisions nearly identical to those under which Messrs. Munoz Miranda and Valderrama Carvajal are charged. The statute provided: " [I]t is unlawful for any person ... on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance," 21 U.S.C. § 955a(a), and it extended its reach to " [a]ny person who attempts or conspires to commit any offense defined in this Act," id. § 955c. The statute made clear that it was " intended to reach acts of possession, manufacture, or distribution committed outside the

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territorial jurisdiction of the United States." Id. § 955a(h).

2. 1986 Version

The version of MDLEA enacted in 1986 is very similar to the version in effect today, apart from its different location in the United States Code. See 46 U.S.C.App. §§ 1902-03. The statute was moved to its present location at 46 U.S.C. § 70501 et seq. in 2006. Importantly, the predecessors of the sections with which Messrs. Munoz Miranda and Valderrama Carvajal are charged included substantially the same statutory text as the present versions, making reliance on cases from 1986 to 2006 feasible even though they cite to a different section of the United States Code. See 46 U.S.C.App. § 1903(a) (2002) (" It is 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." ); id. § 1903(c)(1)(A) (" [A] ‘ vessel subject to the jurisdiction of the United States' includes a vessel without nationality ..." ); id. § 1903(j) (" Any person who attempts or conspires to commit any offense defined in this chapter shall be subject to the same penalties as those prescribed for the offense ..." ). However, it bears noting that the " on the high seas" language present in the 1980 version was omitted from the 1986 version. Compare 21 U.S.C. § 955a(a) (1980) (" [I]t is unlawful for any person ... on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance ...." (emphasis added)), with 46 U.S.C.App. § 1903(a) (2002) (" It is 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." ).

3. Present Version

The present version of MDLEA retains as a preamble from the 1986 version a statement that " Congress finds and declares 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(1).

Messrs. Munoz Miranda and Valderrama Carvajal are charged with violating 46 U.S.C. §§ 70503(a)(1) & 70506(b). The substantive offense provision, § 70503(a)(1), provides: " 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 of the United States or a vessel subject to the jurisdiction of the United States...." Furthermore, § 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."

As to extraterritorial application, MDLEA states explicitly that § 70503(a) " applies even though the act is committed outside the territorial jurisdiction of the United States." Id. § 70503(b). Moreover, the statute provides that individual defendants charged with violating MDLEA have no standing to raise an international-law violation as a defense:

A person charged with violating section 70503 of this title ... does not have standing to raise a claim of failure to comply with international law as a basis for a defense. A claim of failure to comply with international law in the enforcement of this chapter may be made only by a foreign nation. A failure to

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comply with international law does not divest a court of jurisdiction and is not a defense to a ...

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