Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Mosquera-Murillo

United States District Court, D. Columbia.

December 14, 2015

UNITED STATES OF AMERICA,
v.
ALFREDO MOSQUERA-MURILLO, JOAQUIN CHANG-RENDON, and ANTONIO MORENO-MEMBACHE, Defendants

          For ALFREDO MOSQUERA-MURILLO, also known as ALFREDO LOPEZ-GUTIERREZ, Defendant: Ron Earnest, LEAD ATTORNEY, LAW OFFICES OF RON EARNEST, Riverdale, MD.

         For USA, Plaintiff: Adrienne Rose, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Criminal Division-Narcotics and Dangerous Drugs Section, Washington, DC; Amanda Nunn Liskamm, LEAD ATTORNEY, Charles A. Miracle, Paul Warren Laymon, Jr., U.S. DEPARTMENT OF JUSTICE, Narcotics and Dangerous Drug Section, Washington, DC; Jennifer Elizabeth Ambuehl, U.S. Department of Justice, Criminal Division, Asset Forfeiture and Money Laundering Section, Washington, DC.

         MEMORANDUM OPINION

         BERYL A. HOWELL, United States District Judge.

         Defendants Alfredo Mosquera-Murillo, Joaquin Chang-Rendon, and Antonio Moreno-Membache (collectively, the " defendants" ) are charged in a one-count indictment of conspiring to distribute, and possess with intent to distribute, at least five kilograms of cocaine and 100 kilograms of marijuana, 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(a) and 70506(b), an offense that carries a mandatory minimum sentence of ten years of incarceration and a maximum penalty of life imprisonment. See Indictment, ECF No. 1; see 46 U.S.C. § 70506(a); 21 U.S.C. § 960(b)(1)(B).[1] The defendants, all Colombian nationals, were extradited to the United States in 2014 and are currently detained pending trial, Minute Entries, dated June 19, 2014 and Oct. 29, 2014, which is scheduled to begin on January 19, 2016, see Minute Entry, dated Oct. 9, 2015.[2]

         With each of the defendants now detained in the United States for over a year, the parties have a substantial interest in proceeding expeditiously to trial. Indeed, federal law explicitly recognizes the important interests of both the defendants and the public in the prompt resolution of the government's charges at trial. 18 U.S.C. § 3161(h)(7)(A) (allowing for exclusion of time within which a criminal trial must commence only where the " ends of justice" served by a continuance outweigh both the " the best interest of the public and the defendant in a speedy trial" ). Pending before the Court are ten pretrial motions, a number of which required supplemental briefing, addressing both the substance of the government's allegations and the means by which the government will attempt to prove its case. In connection with two of these motions, the Court heard testimony from three government witnesses at a day-long evidentiary hearing, but the defendants request no fewer than five additional pretrial hearings to test their various procedural and substantive challenges to this prosecution. See infra Part IV.C.2. & notes 14, 19, 35, 40. These requests for multiple, time-consuming rehearsals of the trial would, if granted, provide the defendants with a helpful preview of the government's case but, as discussed in more detail below, are neither required nor practical. Thus, in an effort to provide the parties with clear direction as they prepare for trial, the discussion that follows is grounded in the concrete realities of the present prosecution and the government's specific allegations against the defendants.

         As noted, pending before the Court are a total of ten motions: (1) Chang-Rendon's Motion for Bill of Particulars, ECF No. 69; (2) Moreno-Membache's and Chang-Rendon's separate motions to dismiss the indictment, ECF Nos. 78 and 119, respectively; (3) the United States' Motion In Limine to Introduce Other Crimes Evidence, ECF No. 71; (4) the United States' Motion In Limine to Admit or Allow out-of-court statements by alleged co-conspirators, ECF No. 72; (5) the United States' Motion In Limine to Preclude Cross-Examination or Argument by Defense Counsel as to a variety of topics, ECF No. 73; (6) Chang-Rendon's Amended Motion to Suppress Statements he gave to law enforcement on or about September 9, 2013, ECF No. 74; (7) Chang-Rendon's Amended Motion to Suppress Identifications made by three cooperating witnesses through the use of photo arrays, ECF No. 75; (8) Moreno-Membache's Motion to Disclose Identities of Confidential Informants Regardless of Whether They Will be Called at Trial, ECF No. 79; and (9) Chang-Rendon's Motion to Exclude Expert Testimony, ECF No. 115.[3]

         Following a summary of the relevant factual and procedural background, these motions are discussed in the following sequence: Part II addresses Chang-Rendon's Motion for Bill of Particulars; Part III takes up the defendants' motions to dismiss the indictment in its entirety; and, lastly, Part IV addresses the parties' seven outstanding motions seeking the admission or exclusion of certain categories of evidence at trial.

         I. BACKGROUND

         On June 19, 2012, the U.S. Coast Guard (" USCG" ) intercepted a go-fast vessel called the " Mistby " on the high seas, approximately 70 nautical miles Southeast of Punta Mariato, Panama. Gov't Mot. Pretrial Detention ¶ 4, ECF No. 5. During the ensuing pursuit, the Mistby crew jettisoned overboard bales that were subsequently recovered and determined to contain approximately 125 kilograms of marijuana and approximately 229 kilograms of cocaine. Id. ; Gov't Opp'n Def. Moreno-Membache's Mot. Dismiss Indictment (" Gov't Opp'n Moreno-Membache MTD" ) at 2-3, ECF No. 93.

         Upon intercepting the vessel, U.S. law enforcement personnel conducted a right-of-visit board to determine the vessel's nationality. Id. After the vessel's master claimed Colombian nationality for both the Mistby and its crewmembers, the United States sought confirmation of the vessel's registry from Colombian authorities, as well as authorization to board and search the vessel pursuant to a formal Agreement Between the Government of the United States of America and the Government of the Republic of Colombia to Suppress Illicit Traffic by Sea. Id. at 2 & n.3 (citing the Narcotic Drugs Shiprider Agreement Between the United States of Am. & Colombia, State Dept., No. 97-57, 1997 WL 193931 (Feb. 20, 1997)). The Government of Colombia confirmed the nationality of the crew and the vessel, and, upon learning that the jettisoned bales contained narcotics, on June 26, 2012, granted the United States government's request to confirm that the exercise of United States jurisdiction over the Mistby was in accordance with this agreement. Id. at 2-3. In so doing, the Colombian government confirmed and concurred with the government's interpretation of the agreement, which served as its consent to allow the government to enforce American law over the vessel. Id. at 3 & n.4. Based on this consent, the United States government determined that the Mistby was subject to the jurisdiction of the United States pursuant to the MDLEA. Id. at 4, Ex. A (Certification for the Maritime Drug Law Enforcement Act Case Involving Go-Fast Vessel Mistby (Colombia)) at 3, ECF No. 93-1.

         Following the seizure of the Mistby, investigation by both Colombian law enforcement and the Drug Enforcement Agency (" DEA" ) indicated that the shipment was dispatched by a drug trafficking organization (" DTO" ) in Colombia. Mot. Pre-Trial Detention ¶ 5. While the charged defendants were not captured aboard the Mistby, but only arrested more than a year after its interdiction, they are now charged with assisting the DTO in its efforts to ship narcotics across the high seas on this vessel. See Executed Arrest Warrants, ECF Nos. 9, 30, 31. Specifically, the government alleges that Chang-Rendon, who was employed as a contractor by the Colombian Navy, obtained information regarding the location of Colombian and United States naval and law enforcement patrols and provided this information to the DTO. Gov't MIL Intro. Other Crimes Evidence at Trial (" Gov't 404(b) MIL" ) at 3, ECF No. 71. The government alleges that Mosquera-Murillo assisted in the preparation of the launch of the Mistby by working to recruit crew members for the maritime load; arranging planning meetings prior to the dispatch of the vessel; and serving as the primary link (" broker" ) between the organizers and co-defendant Chang-Rendon. Id. at 3-4. The government also alleges that Mosquera-Murillo owned the marijuana transported aboard the Mistby. Id. at 4. Finally, the government alleges that Moreno-Membache oversaw the launch of the Mistby, including traveling with the crew members to the launch point on the Colombian coast; guarding the seized load prior to the vessel's launch; and supervising a group of co-conspirators, who helped load the vessel. Id. Following their arrests, the defendants were extradited to the United States on June 16, 2014 (Chang-Rendon) and October 23, 2014 (Mosquera-Murillo and Moreno-Membache) on the single charge of conspiring from approximately January 2012 to February 2013, in Colombia and elsewhere, to distribute, and possess with intent to distribute, at least five kilograms of cocaine and at least 100 kilograms of marijuana, on board a vessel subject to the jurisdiction of the United States, in violation of the MDLEA, 46 U.S.C. § § 70503 and 70506(b), 21 U.S.C. § § 960(b)(1)(B) and (b)(2)(G), and 18 U.S.C. § 2. Indictment at 1-2; see Gov't Mots. Pre-Trial Detention, ECF Nos. 5, 14, 15.

         Following Chang-Rendon's extradition and arraignment, the government has produced discovery on a rolling basis since June 19, 2014. See Gov't Status Report on Discovery at 1, ECF No. 12. The government's initial productions comprised hundreds of pages of investigation reports and related materials obtained from both United States and Colombian law enforcement authorities, including a USCG drug seizure report, eighteen United States law enforcement reports of cooperator interviews and associated photo arrays, and more than 350 pages of investigation reports and court documents stemming from the Colombian investigation. Id. at 2-3. In light of the volume of documentary and other evidence, as well as the intercepted communications in Spanish at issue in the case, the Court designated this case as complex at the government's request in November 2014, thereby granting an extended period of discovery. See Minute Entry, dated Nov. 7, 2014 (indicating that the Court orally granted the government's Motion for a Complex Case Designation, ECF No. 23, due to the " volume of Spanish language documents requiring translation, the extensive wiretap evidence . . ., which will also require translation, [and] foreign witnesses that will require international travel arrangements" ).

         The bulk of discovery is comprised of Spanish-language recordings of more than 59,000 intercepted telephone communications, which occurred over 48 cellular telephones subject to judicially-authorized wiretaps pursuant to Colombian orders. See Gov't Opp'n Defs.' Mot. Modify Court's Discovery Order at 1-3, ECF No. 46. This evidence includes pertinent calls intercepted over two phone lines used by Chang-Rendon, four phone lines used by Mosquera-Murillo, and four phone lines used by Moreno-Membache. Gov't Supp. Opp'n Defs.' Mot. Bill of Particulars at 3, ECF No. 142. In addition to these audio recordings, the government has produced to the defendants, in compliance with this Court's orders, see, e.g., Order, dated July 22, 2015, ECF No. 66, discs containing all of the intercepted communications, organized by telephone line, date and time; more than 1,600 pages of Colombian wiretap applications, along with an index of and summary information regarding all pertinent communications in which each defendant either participated or was mentioned; and English-language translations and transcripts of 111 intercepted communications that the government intends to introduce at trial, see July 24, 2015 Periodic Discovery Status Report (" DSR" ) at 2-3, ECF No. 68; Aug. 7, 2015 DSR at 1-2, ECF No. 84; Sept. 4, 2015 DSR at 2, ECF No. 117.

         On September 11, 2015, the Court held an evidentiary hearing, at which the Court received testimony from three witnesses and heard oral argument on various pretrial motions submitted by the parties. See Minute Entry, dated Sept. 11, 2015. At the conclusion of this hearing, the Court reserved judgment as to all but four of the parties' individual requests and provided the parties with an opportunity to file supplemental briefing on a number of unresolved motions. See Minute Order, dated Sept. 11, 2015.[4] With this briefing now complete, the parties' outstanding motions are now ripe for consideration.

         II. THE DEFENDANTS' MOTION FOR A BILL OF PARTICULARS

         Arguing that the indictment " lacks factual information sufficient to permit [the defendants] to prepare a defense to the charges," the defendants request a bill of particulars providing additional information about the allegations against them, including their alleged respective roles in the charged conspiracy. Defs.' Mot. Bill of Particulars (" Defs.' BOP Mot." ) at 3, ECF No. 69. As support, the defendants emphasize that the two-page indictment itself does little more than " parrot[] the statutory language" and sets out no factual allegations to support the government's charges. Id. Moreover, the defendants criticize the government's discovery production as of the filing of the motion for providing only " minimal guidance about [the] allegations" the government intends to prove at trial. Defs.' Reply Supp. Mot. Bill of Particulars at 5, ECF No. 101. Consequently, the defendants request a bill of particulars addressing seven categories of information related to the defendants' alleged illegal conduct. Id. at 3-4.[5]

         In its initial response, the government relied on United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006), to contend that the indictment alone provides sufficient information as to the charged offenses to allow the defendants to prepare an adequate defense. Gov't Omnibus Opp'n Defs.' Mots. (" Gov't Omnibus Opp'n" ) at 6-7, ECF No. 82. Alternatively, the government suggested that the specific information requested by the defendants had been provided to the defendants through subsequent government filings and discovery, including prior motions, id. at 7-8 (citing ECF Nos. 5, 14, 15, 23, 71); reverse proffers with each defendant during which the government played intercepted phone calls involving that defendant, id. at 7; and " extensive discovery" including the production of " all of the judicially intercepted phone calls, an index of the pertinent calls including each call's speakers and summary[] transcripts of calls that the Government intends to introduce at trial, lab reports, videos and photographs from associated seizures, Colombian judicially-authorized wiretap orders and reports, among other discovery," id. In light of the large volume of material already provided to the defendants, the government asserted that a bill a particulars is unnecessary and " would only serve to compel the Government to preview its case and particularize its theory of the Defendant[s'] guilt." Id. at 8.

         Following the September 11 hearing, at the Court's invitation, see Minute Order, dated Sept. 11, 2015, the government filed supplemental briefing providing more detailed information as to the evidence produced to the defendants responsive to each of the seven categories identified in the defendants' motion, see Gov't Supp. Opp'n Defs.' BOP Mot. In light of this supplemental briefing, as well as the ample information provided to the defendants throughout more than eighteen months of discovery and, most recently, in compliance with this Court's discovery orders, and for the reasons outlined below, the defendants' request for a bill of particulars is denied.

         A. Legal Standard

          Federal Rule of Criminal Procedure 7(c) requires an indictment to " be a plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c). Pursuant to Rule 7(f), if the Court so directs, these factual allegations may be supplemented by a bill of particulars. Fed. R. Crim. P. 7(f). This Rule permits a defendant to move for a bill of particulars " before or within 14 days after arraignment or at a later time if the court permits." Id. In considering the merits of such a motion, the D.C. Circuit has made clear that " '[a] bill of particulars can be used to ensure that the charges brought against a defendant are stated with enough precision to allow the defendant to understand the charges, to prepare a defense, and perhaps also to be protected against retrial on the same charges.'" Mejia, 448 F.3d at 445 (quoting United States v. Butler, 822 F.2d 1191, 1193, 262 U.S.App.D.C. 129 (D.C. Cir. 1987)).

         If, however, " the indictment is sufficiently specific, or if the requested information is available in some other form, then a bill of particulars is not required." Butler, 822 F.2d at 1193 (finding no abuse of discretion in denying request for bill of particulars for " the approximate times and the places at which [the defendant] entered and exited the alleged conspiracy," which information was not set out in indictment but provided in response to the motion); see also Mejia, 448 F.3d at 445 (finding no abuse of discretion in denying bill of particulars, where indictment charged a narcotics conspiracy that tracked the statute and provided a time period for the conspiracy, identified the statute that the object of the conspiracy violated, along with the proper mens rea and the location where the conspirators acted, despite the absence of particularized overt acts).

          Defendants are not entitled to a bill of particulars as a matter of right, and the Court need only grant a defendant's request upon determining that a bill of particulars is necessary. Fed. R. Crim. P. 7(f); 1 Charles Alan Wright & Andrew Leipold, Federal Practice and Procedure: Criminal § 130 (4th ed. 2008). " The determination of whether a bill of particulars is necessary rests within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion." Mejia, 448 F.3d at 445 (citations and internal quotation marks omitted).

         B. Analysis

         The defendants' request for a bill of particulars presents an unusual situation. Typically, a defendant seeks a bill of particulars where the government has provided minimal discovery or other information as to the charged offense and the evidence to be offered against the defendant at trial. See, e.g., United States v. Sanford Ltd., 841 F.Supp.2d 309, 312-13 (D.D.C. 2012) (describing the defendant's request for a bill of particulars, filed ten days after he was arraigned and prior to a superseding indictment, seeking additional information regarding the charges against him). Here, by contrast, Cheng-Rendon filed the present motion more than a year after he was arraigned, see Minute Entry, dated June 16, 2014, and after the government produced extensive discovery to the defendants, see supra Part I.[6] In light of the abundant information already provided through discovery and the government's various filings, the defendants rely on out-of-circuit authorities to turn the familiar reasoning underlying a request for a bill of particulars on its head. Instead of arguing that they have received too little information from the government, the defendants contend that " the need for particulars is especially acute" here due to the deluge of information already provided. Defs.' BOP Mot. at 2.

         Thus, despite--and indeed because of--the large volume of material provided by the government apart from the indictment, the defendants suggest that a bill of particulars should be ordered " because the Indictment lacks factual information sufficient to permit [the defendants] to prepare a defense to the charges," by giving " no indication as to the basic facts regarding [their] allegedly unlawful conduct, including [their] alleged roles[s] in the conspiracy, the alleged scope of the conspiracy, and any actions [they] took in connection [with] this conspiracy." Id. at 3 (" A bill of particulars is all the more important in a narcotics conspiracy case because the indictment itself provides so little detail." (quoting United States v. Ramirez, 54 F.Supp.2d 25, 30 (D.D.C. 1999))). Further, contending that the government's production of discovery and other information " has been woefully deficient in numerous respects," the defendants argue that " forcing [the defendants] to proceed to trial . . . on the basis of the Government's barebones indictment and incomplete discovery would be unfair and would subject [them] to an intolerable risk of ambush at trial." Defs.' Reply Supp. Mot. Bill of Particulars at 1-2.

         The defendants therefore ask the Court to order the government to produce a bill of particulars providing additional information as to seven issues, which fall into three categories of subjects. First, the defendants seek more detailed information regarding their alleged participation and respective roles in the DTO and the charged conspiracy, including: (1) the period of the their alleged involvement in the charged conspiracy (Request #1); (2) the " scope, extent, and duration" of their alleged roles in the broader DTO (Request #2); (3) their alleged involvement in the planning of the narcotics shipment seized from the Mistby (Request #3); (4) the manner in which Defendant Chang-Rendon utilized his position within the Colombian Navy to provide information regarding the location of law enforcement assets to the DTO (Request #4); and (5) any locations outside of Colombia in which the defendants allegedly conspired or took actions in connection with the alleged conspiracy (Request #7). Defs.' BOP Mot. at 3-4. Second, they request the names of all members of the alleged conspiracy, including any unindicted members, as well the dates of these co-conspirators' participation (Request #5). Id. at 4. Finally, they request additional information regarding the government's proposed basis for the United States' exercise of jurisdiction over the Mistby (Request #6). Id.

         As an initial matter, the defendants are correct that the indictment in this case provides minimal background regarding the factual basis for the charges against the defendants. Defs.' BOP Mot. at 3. Of particular note, while the indictment charges a violation of the MDLEA premised on the shipment of narcotics on the high seas, the indictment makes no mention of the Mistby or the basis for United States jurisdiction over the vessel. See generally Indictment. This relative sparsity alone, however, does not necessitate a bill of particulars. Indeed, the D.C. Circuit has rejected this exact argument. See Mejia, 448 F.3d at 445. In Mejia, the Circuit considered a district court's denial of a bill of particulars where the challenged indictment charged a narcotics conspiracy in a manner materially similar to the indictment at issue here. Id. (explaining that the indictment provided a time period for the charged conspiracy, identified the statute that the object of the conspiracy violated, stated the proper mens rea, and identified the location where the conspirators acted). There, as here, the challenged indictment did not identify any particular overt act undertaken by the defendants in furtherance of the charged conspiracy. Id. This brevity notwithstanding, the D.C. Circuit held that a bill of particulars is not required where the " requested information is available in some other form." Id. at 445-46 (citing Butler, 822 F.2d at 1193). In particular, because the government provided reports of cooperating witnesses' pretrial statements regarding alleged overt acts to the defendants well in advance of trial, the Circuit rejected the defendants' contention that they were unprepared to rebut these witnesses' testimony before the jury. Id. (" We can only conclude that if the defendants felt ambushed, it was not because the government was lying in wait, but because the defendants were not looking." ).

         Thus, the indictment's failure to detail the government's case against the defendants alone does not trigger a requirement for the government to produce a bill of particulars so long as the information requested by the defendants has been made available in another form, including in the government's responses to this and other defense motions. Butler, 822 F.2d at 1193-94. Here, the government's voluminous discovery to the defendants, as well as the additional information provided through the government's filings providing additional clarity as to government's specific allegations against each defendant, provides sufficient information to isolate each category of information sought in the requested bill of particulars. This information as to each of the three categories of specific requests by the defendants is summarized below.

         1. The Defendants' Alleged Participation in the DTO and the Charged Conspiracy (Requests #1-#4, #7)

         Taken together, five of the defendants' requests seek additional information regarding the government's allegations as to the scope, location and duration of the charged conspiracy, as well as the defendants' alleged involvement in that conspiracy and the DTO more broadly. The indictment itself does not detail this information, but multiple subsequent filings by the government do describe the allegations and evidence underlying the charge against each defendant with sufficient specificity to obviate any need for a bill of particulars.

         With regard to the scope, location, and purpose of the alleged conspiracy, the government has repeatedly represented that the charged conspiracy is limited to efforts to prepare and launch the Mistby prior to its interdiction in June 2012. The government's motion in support of the admission of other crimes evidence indicates that proof at trial will include " that during the course and in furtherance of the charged conspiracy, from around January 2012 through February 2013, the Defendants were members of an international drug trafficking organization . . ., the object of which was to transport large quantities of cocaine from Colombia to Panama on board a vessel subject to the jurisdiction of the United States." See Gov't 404(b) MIL at 2. While the indictment does not name the Mistby, the only vessel the government alleges is subject to United States jurisdiction is the Mistby. See Gov't Opp'n Moreno-Membache MTD, Ex. A. Moreover, the government's most recent filings further confirm that the defendants are presently charged only with conspiring to ship narcotics aboard the Mistby in June 2012. See, e.g., Gov't Supp. MIL Admit or Allow at 3-5, ECF No. 159 (under the heading " The Charged Conspiracy" describing the alleged planning and preparation of the launch of the Mistby, as well as " discussions during the course of and immediately following the United States Coast Guard's interdiction of [vessel]" ).[7]

         The government also has provided specific information as to the alleged role of each defendant in achieving this conspiratorial aim. Most notably, the government's allegations as to each defendant's participation and role in a coordinated effort to obtain cocaine from mountainous regions in Colombia and ship cocaine and other drugs aboard the Mistby are described in both its motion in support of its other crimes evidence describes, Gov't 404(b) MIL at 2-4, and in its supplemental opposition to the present motion, Gov't Supp. Opp'n Defs.' BOP Mot. at 5-6, 12-13. The government likewise has produced to the defendants ample evidence underlying the government's allegation regarding the approximate period of each defendant's alleged involvement in the charged conspiracy during the spring of 2012. See id. at 3. According to the government, this evidence includes calls and text messages intercepted over phone lines used by each defendant until the spring of 2012, as well as investigative reports describing planning meetings attended by the defendants in approximately March 2012. Id.

         In light of this supplemental information clarifying the offense charged in the indictment, the defendants have received sufficient notice of the charge against them. Indeed, in this Circuit, the " general rule . . . states that an indictment need only to provide a general time period of the conspiracy and a list of the countries where the conspiracy transpired." United States v. Lorenzana-Cordon, 130 F.Supp.3d 172, 2015 WL 5441035, at *4 (D.D.C. Sept. 15, 2015) (citing authorities). Under this general rule, the D.C. Circuit has expressly rejected efforts to obtain much of the information the defendants now request. For example, in United States v. Butler, the defendant sought " a bill to require the government to state the approximate times and the places at which [he] entered and exited the alleged conspiracy." 822 F.2d at 1193. As here, though the government's response described only the approximate dates of the defendant's involvement in the alleged scheme, the D.C. Circuit concluded that " [m]ore specific information about the times and places that Butler participated in the alleged conspiracy was not required by law." Id. (citing United States v. Pollack, 534 F.2d 964, 970, 175 U.S.App.D.C. 227 (D.C. Cir. 1976) cert. denied, 429 U.S. 924, 97 S.Ct. 324, 50 L.Ed.2d 292 (1976)); see also Lorenzana-Cordon, 130 F.Supp.3d 172, 2015 WL 5441035, at *4 (denying a bill of particulars where the defendants sought specific information regarding the defendants' entry and withdrawal from the charged conspiracy after the government alleged only an approximate date of the defendants' entry into the conspiracy and contended that the conspiracy continued until the date of the filing of the indictment); see also United States v. Bazezew, 783 F.Supp.2d 160, 168 (D.D.C. 2011) (holding that the defendants were " not entitled to know exactly how government law enforcement officials determined that each defendant was involved in the conspiracy; the exact date, time, and place when the conspiracy began; the conduct of all co-conspirators in furtherance of the conspiracy that was known to each individual defendant; the names, addresses, and telephone numbers of all persons having information or knowledge of each defendant's involvement in the conspiracy; the identity of all persons known by the government to have participated in each alleged overt act; or a description of the nature of all acts or statements that each defendant allegedly engaged in or uttered in support of or in furtherance of the conspiracy" ).

         While the government has provided sufficient clarity as to the nature and purpose of the charged conspiracy, as well as the defendants' respective roles therein, however, the defendants are correct that the indictment and the government's subsequent filings raise some confusion as to its duration. In the indictment and its subsequent filings, the government alleges that the charged conspiracy continued through February 2013. See Indictment at 1. Both in seeking a bill of particulars and in opposing the government's evidentiary motions, however, the defendants contend that the charged conspiracy necessarily concluded eight months earlier, upon the interdiction of the Mistby in June 2012. See Defs.' Resp. Gov't Supp. Opp'n Defs.' BOP Mot. at 3-4, ECF No. 151 (arguing that the interdiction of the Mistby " irremediably defeated the conspiracy's allege end" ); Defs.' Opp'n Gov't Supp. MIL Admit or Allow at 3, ECF No. 164. Thus, the defendants argue that any acts undertaken after the interdiction of the Mistby cannot be in furtherance of the charged conspiracy. See id.

         The government's asserted basis for alleging that the charged conspiracy concluded in February 2013, almost eight months after the Mistby 's interdiction, is decidedly unclear. Neither the indictment, nor the government's numerous filings to date, appear to include any specific allegation regarding over acts undertaken by the defendants or any uncharged co-conspirators following the immediate aftermath of the Mistby 's interdiction. See, e.g., Gov't Supp. MIL Admit or Allow at 3-5 (summarizing wiretap evidence of the charged conspiracy and describing no conspiratorial acts undertaken after the interdiction of the Mistby to further the alleged conspiracy). Likewise, the D.C. Circuit generally has held that " conspirators' acts of concealment after the central object of the conspiracy [has] been accomplished [or defeated do] not extend the life of the conspiracy." United States v. Turner, 548 F.3d 1094, 1097, 383 U.S.App.D.C. 407 (D.C. Cir. 2008) (citing authorities); see also Krulewitch v. United States, 336 U.S. 440, 443, 69 S.Ct. 716, 93 L.Ed. 790 (1949)).[8] Thus, " [t]o show that an act of concealment was in furtherance even though it occurred after the conspiracy ended, the government must prove the existence of an express original agreement to conceal the conspiracy." United States v. Hong Vo, 978 F.Supp.2d 49, 53 (D.D.C. 2013) (citing Grunewald v. United States, 353 U.S. 391, 405, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957)). As yet, the government has made no such showing. Nonetheless, because the government has provided ample information regarding the defendants' alleged participation and roles in the charged conspiracy, a bill of particulars providing further detail regarding the government's specific allegations on this score is unnecessary and the request for particulars is therefore denied.

         2. Identifying Alleged Co-Conspirators (Request #5)

         In addition to information regarding their own alleged participation in the charged conspiracy, the defendants seek additional information regarding the identities of their alleged co-conspirators. See Defs.' Reply Supp. Defs.' BOP Mot. at 2-3 & n.1 (citing authorities in support of a bill of particulars identifying " by name all members of the alleged conspiracy, including unindicted members, and the dates of their participation in the conspiracy" ).

         The government counters that sufficient information regarding the members of the charged conspiracy has been produced to allow the defendants to prepare an adequate defense. Gov't Supp. Opp'n Defs.' BOP Mot. at 9-11. In support, the government points to its extensive production of wiretap recordings and intercepted text messages, along with summaries of all pertinent calls and an accompanying index identifying by name (where known) the individuals who participated in each of these calls. Id. at 9-10. The government likewise contends that additional Colombian judicial and investigative documents produced to the defendants describe some of the same co-conspirators identified in these calls. Id. at 10. These documents include plea and sentencing documents related to individuals prosecuted by the Government of Colombia as a result of a wide-ranging investigation that included the interdicted shipment aboard the Mistby, as well as nine land-based seizures and other maritime seizures. Id. Finally, the government argues that no further information regarding the identities of alleged co-conspirators needs to be provided because the government has no burden at trial to prove all participants in the charged conspiracy. Id. (citing Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct. 438, 95 L.Ed. 344 (1951)).

         Even if authority in this Circuit exists for disclosure of known co-conspirators, whether or not these co-conspirators will testify at trial, at least for non-violent conspiracies, see, e.g., Bazezew, 783 F.Supp.2d at 168; United States v. Palfrey, 499 F.Supp.2d 34, 52 (D.D.C. 2007), this does not require any further disclosure in this case, where the government has disclosed the identities of alleged co-conspirators who participated in or were discussed on intercepted communications. Thus, to the extent that alleged co-conspirators remain unidentified, the defendants have failed to demonstrate that this alone will prevent them from preparing an adequate defense to the charged conspiracy, and the defendants' request for particulars identifying these individuals is denied.

         3. United States Jurisdiction Over the Mistby (Request #6)

         Finally, the government has provided sufficient information as to its asserted basis for the exercise by the United States of jurisdiction over the Mistby to allow the defendants to understand the charges against them. In particular, the government has asserted in multiple filings that the Mistby is subject to United States jurisdiction pursuant to the MDLEA, which defines " vessels subject to the jurisdiction of the United States" to include " a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States." See, e.g., Gov't Opp'n Moreno-Membache MTD at 3 (quoting 46 U.S.C. § 70502(c)(1)(C)). According to the government, such consent or waiver is " proved conclusively by certification of the Secretary of State or the Secretary's designee." Id. (quoting 46 U.S.C. § 70502(c)(2)(B)), and the government has produced a State Department certification demonstrating that the Government of Colombia waived objection to the enforcement of United States law by the United State over the Mistby, see id., Ex. A. The government likewise has provided investigative materials produced by the USGC documenting the " specific location of the Mistby go-fast vessel at the time of interdiction, the observations of law enforcement officers, and photographs and videos of the interdiction." Gov't Supp. Opp'n Defs.' BOP Mot. at 11. These productions, coupled with the information relayed in the government's opposition to the defendants' motions to dismiss which, in part, challenge United States jurisdiction over the Mistby, provide ample notice of the government's asserted basis for exercising jurisdiction over the vessel pursuant to the MDLEA.

         * * *

         Despite the volume of discovery materials and the government's supplemental proffer in response to the current motion, the defendants complain that the government " continues to withhold fundamental and critical components of its allegations." Defs.' Resp. Gov't Supp. Opp'n Defs.' BOP Mot. at 1. Specifically, the defendants continue to suggest that the government " refuses to state when it believes [the defendants] joined the conspiracy; " " has yet to reveal who it believes was part of the alleged conspiracy; " " has never provided evidence of how Mr. Chang-Rendon supposedly got the confidential information he conveyed [regarding the position of law enforcement assets]; " and " has neither explained nor provided any evidence of what [the defendants] (or the conspiracy at large) allegedly did after the Mistby was seized." Id. at 1-3. These continued complaints fall far short of warranting a bill of particulars for at least three reasons.

         First, to the degree that the defendants' request for a bill of particulars stemmed from deficiencies in the government's initial discovery productions, see, e.g., Defs.' Reply Supp. Mot. Bill of Particulars at 2 (describing the government's discovery as of August 14, 2014, as " woefully deficient," in light of the government's failure to translate key materials into English), the government has recently cured these prior deficiencies in compliance with the Court's most recent discovery orders, see, e.g., Sept. 4, 2015 DRS at 2 (reporting the completed translation and production of summaries of all pertinent intercepted communications). Moreover, though the defendants suggest that " substantial discovery remains outstanding," raising the specter that additional evidence may be provided " on the eve of trial," Defs.' Reply Supp. Mot. Bill of Particulars at 3-4, the defendants' request to postpone the trial date was granted, see Minute Entries, dated July 21, 2015 and Oct. 9, 2015, and the government's most recent interim status report indicates no outstanding discovery requests that have not been addressed. See Nov. 27, 2015 DSR, ECF No. 174. Indeed, as already noted, discovery has been ample, including production to each defendant of an index and summaries of all pertinent intercepted communications, including the names of any known participants, as well as filter disks of calls on which each defendant participated or was mentioned. Aug. 7, 2015 DSR at 1-2; Gov't Supp. Opp'n Defs.' BOP Mot. at 9-10.

         Second, given the substantial clarification already provided by the government through discovery and in response to this and other motions, any complaints regarding remaining uncertainty as to the factual basis for the charge against the defendants amounts to little more than a request to preview the government's case and evidence in advance of trial. " 'A bill of particulars is not a discovery tool or a devi[c]e for allowing the defense to preview the government's theories or evidence.'" Sanford Ltd., 841 F.Supp.2d at 316 (quoting United States v. Ramirez, 54 F.Supp.2d 25, 29 (D.D.C. 1999)); see also United States v. Mack, 53 F.Supp.3d 179, 190 (D.D.C. 2014) (" It is not the function of a bill of particulars . . . to provide detailed disclosure of the government's evidence in advance of trial." (quoting United States v. Edelin, 128 F.Supp.2d 23, 37 (D.D.C. 2001))). Instead, in considering a request for a bill of particulars, " the court must balance the defendant's need to know evidentiary-type facts in order to adequately prepare a defense with the government's need to avoid prematurely disclosing evidentiary matters to the extent that it will be unduly confined in presenting its evidence at trial." Sanford Ltd., 841 F.Supp.2d at 316 (internal quotations omitted) (quoting United States v. Baker, No. 8-00075, 2010 WL 936537, at *2 (M.D. Pa. Mar. 15, 2010)). The information provided by the government more than sufficiently enables the defendants to assess the government's view about each defendant's role and the scope of the evidence against him. This evidence, as supplemented by the government's numerous filings describing its specific allegations against each defendant, is also more than sufficient to allow the defendants adequately to understand the conspiracy charge they face and to prepare their defense. See Butler, 822 F.2d at 1193-94; see also United States v. Homaune, 898 F.Supp.2d 153, 165 (D.D.C. 2012) (noting that government " provided less complete answers than [the defendant] wanted" but denying particulars since " the information he requested is now largely 'available in some other form'" (quoting Butler, 822 F.2d at 1193))). Thus, for example, the defendants are not entitled to a bill of particulars about the government's theory of precisely how, or from whom, Cheng-Rendon obtained the sensitive law enforcement location information that he allegedly shared with the DTOs.

         Finally, to the extent that the defendants demand an explanation from the government for the end date of the charged conspiracy as extending for eight months beyond the interdiction of the Mistby, this is not a matter necessary to address in a bill of particulars. Specific information about the times, places and duration of a defendant's participation in a conspiracy are not required to be set out in an indictment, nor warrant a bill of particulars. See Butler, 822 F.2d at 1194; Sanford Ltd., 841 F.Supp.2d at 316-19 (recognizing that " [d]efendants in a conspiracy case may not obtain the 'whens,' 'wheres,' and 'with whoms' . . . in a bill of particulars" (quoting United States v. Diaz, 303 F.Supp.2d 84, 89 (D. Conn. 2004))).

         Accordingly, the defendants' motion for a bill of particulars is denied.

         III. THE DEFENDANTS' MOTIONS TO DISMISS THE INDICTMENT

         In addition to requesting a bill of particulars providing additional information regarding the charges against them, Moreno-Membache and Chang-Rendon each assert that the indictment must be dismissed in its entirety. Mots. Dismiss, ECF Nos. 78 (" Moreno-Membache MTD" ), 119 (" Chang-Rendon MTD" ).[9] Raising a myriad of constitutional and statutory challenges, the defendants broadly contend that their prosecution under the MDLEA for alleged conduct on the Colombian mainland cannot proceed. For the reasons outlined below, the defendants' motions are denied.

         A. Legal Standard

          Pursuant to Federal Rule of Criminal Procedure 12(b), a defendant " may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). Following an amendment in 2014, Rule 12(b) now delineates between certain motions that may be made at any time and those required to be made before trial if certain conditions are met. Fed. R. Crim. P. 12(b)(2), (3). On one hand, a " motion that the court lacks jurisdiction may be made at any time while the case is pending." Fed. R. Crim. P. 12(b)(2). On the other hand, where the basis for the objection is " reasonably available" before trial, a defendant must raise by pretrial motion any objection asserting a " defect in the indictment," including, inter alia, a " failure to state an offense." Fed. R. Crim. P. 12(b)(3)(B). Interpreting this latter phrase, " courts have determined that constitutional objections . . . challenging the validity of the charge are objections that the charge failed to state an offense." Al Bahlul v. United States, 767 F.3d 1, 79, 412 U.S.App.D.C. 372 (D.C. Cir. 2014) (en banc) (Kavanaugh, J., concurring in part and dissenting in part) (citing authorities).

          " [T]he validity of an indictment 'is not a question of whether it could have been more definite and certain.'" United States v. Verrusio, 762 F.3d 1, 13, 412 U.S.App.D.C. 1 (D.C. Cir. 2014) cert. denied, 135 S.Ct. 2911, 192 L.Ed.2d 941 (2015) (quoting United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 98 L.Ed. 92 (1953)). " Rather, to be sufficient, an indictment need only inform the defendant of the precise offense of which he is accused so that he may prepare his defense and plead double jeopardy in any further prosecution for the same offense." Id. (citing authorities); see also 24 James Wm. Moore et al., Moore's Federal Practice § 612.02 (3d ed. 2015). As such, a pretrial motion to dismiss an indictment " allows a district court to review the sufficiency of the government's pleadings, but it is not a permissible vehicle for addressing the sufficiency of the government's evidence." Moore et al. § 612.02 (a " Rule 12 motion to dismiss is not the proper way to raise a factual defense." ). Thus, " [w]hen considering a motion to dismiss an indictment, a court assumes the truth of [the government's] factual allegations." United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015) (citing Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16, 72 S.Ct. 329, 96 L.Ed. 367 (1952)); see also United States v. Hitt, 249 F.3d 1010, 1016, 346 U.S.App.D.C. 16 (D.C. Cir. 2001) (same) (citing authorities); United States v. Bowdin, 770 F.Supp.2d 142, 146 (D.D.C. 2011) (" The question, then, is whether the allegations, if proven, would be sufficient to permit a jury to find that the crimes charged were committed." ); United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C. 2009) (" The district court must presume the allegations of the indictment to be true, . . . and may not dismiss an indictment on a determination of facts that should have been developed at trial" (internal citations, quotations, and alterations omitted)).

         B. Analysis

         The defendants have filed two separate motions that together assert the following six grounds for dismissing the indictment against them: (1) the Court lacks subject matter jurisdiction over prosecution of individuals who were not arrested on board the Mistby ; (2) enactment of the conspiracy provision of the MDLEA exceeded Congress's authority under Article I, Section 8, of the Constitution; (3) the present prosecution violates the Ex Post Facto Clause of Article I, Section 9, of the Constitution; (4) the government's " unfair and arbitrary" prosecution of the defendants under United States law violates the Due Process Clause; (5) the substantive and conspiracy provisions of the MDLEA are unconstitutionally vague; and (6) the indictment fails to charge the alleged basis for United States jurisdiction over the Mistby.[10] Following a summary of the relevant provisions of the MDLEA, as well as the D.C. Circuit's resolution of recent challenges to these provisions, the discussion that follows addresses each of these proposed objections to the present indictment seriatim.

         1. The Statutory Framework

         Endeavoring 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," Congress enacted the MDLEA to facilitate the prosecution of individuals involved in narcotics smuggling via the high seas " in absence of often elusive evidence that the drugs were destined for the United States." Ballestas, 795 F.3d at 145 (citing S. Rep. No. 96-855, at 2 (1980)). To that end, the MDLEA provides:

An individual may not knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board--
(1) a vessel of the United States or a vessel subject to the jurisdiction of the United States . . . .

46 U.S.C. § 70503(a). In addition to proscribing this substantive offense, the MDLEA's conspiracy prohibits " attempting or conspiring to violate" the statute. Id. § 70506(b).

         Indicative of Congress's desire to disrupt international narcotics trafficking, the MDLEA broadly defines a " vessel subject to the jurisdiction of the United States" to include, inter alia, " a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States." Id. § 70502(c)(1)(C). Further, the statute explicitly provides for its extraterritorial enforcement, stating that its substantive provisions apply " even though the act [giving rise to the offense] is committed outside the territorial jurisdiction of the United States." Id. § 70503(b). Given Congress's express effort to criminalize international narcotics trafficking, even absent evidence of an immediate effort to transport narcotics to the United States, foreign defendants seeking to avoid prosecution under the MDLEA have raised a number of constitutional and statutory challenges. In fact, the D.C. Circuit has addressed challenges to the MDLEA's extraterritoriality twice in the last ten months. See United States v. Miranda, 780 F.3d 1185, 414 U.S.App.D.C. 305 (D.C. Cir. 2015); Ballestas, 795 F.3d at 138. In each instance, however, the Circuit rejected such challenges and upheld the prosecution under the MDLEA of foreign nationals who engaged purely in land-based extraterritorial conduct as participants in alleged international narcotics conspiracies.

         First, in United States v. Miranda, two Colombian nationals were charged with participating in an international drug conspiracy using go-fast vessels to move narcotics from Colombia northward to various Central American countries. 780 F.3d at 1186-87. Like the defendants here, neither defendant in Miranda planned to, or did, leave Colombia in furtherance of the alleged conspiracy. Id. at 1187 (explaining that one defendant served as an " organizer of the smuggling operations" and the other defendant " provided logistical support" ). Advancing both statutory and constitutional challenges, the defendants moved to dismiss the indictment on at least four grounds, three of which are raised by the defendants here. Id. After the district court denied their motions, the defendants each entered guilty pleas through which they stipulated to their participation in the alleged scheme. Id. On appeal, the D.C. Circuit held that the defendants' unconditional guilty pleas barred their attempts to renew all but one of their challenges to the underlying indictment, namely the defendants' subject-matter jurisdiction challenge. Id. at 1189-91. With respect to this remaining issue, the Miranda Court considered whether the vessels the defendants used to transport narcotics qualified as vessels " subject to the jurisdiction of the United States." Id. at 1191. In so doing, the Court held that this question raised an issue of subject-matter jurisdiction that must be resolved before trial by the court; id. at 1193 (" [S]ubject-matter jurisdiction presents a question of law for resolution by the court, and courts have an 'obligation to determine whether subject-matter jurisdiction exists' as a preliminary matter." (quoting Arbaugh v. Y& H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006))), before ultimately concluding that " stateless" vessels qualify as vessels subject to United States jurisdiction for purposes of the MDLEA, id. at 1197.

         While the Miranda Court thus largely avoided the constitutional and statutory questions raised in the present motions, the D.C. Circuit reaffirmed the broad extraterritorial reach of the MDLEA in United States v. Ballestas. As in Miranda, the facts presented in Ballestas closely parallel the charged conspiracy at issue here. Again, a long-term investigation involving intercepted electronic communications uncovered an effort to traffic narcotics from Colombia northward on go-fast vessels and culminated with the interdiction of a narcotics-laden vessel on the high seas. Id. at 141-42. Like Chang-Rendon, the defendant, who allegedly provided information purporting to reveal the location of air and maritime law enforcement assets situated along the proposed routes used to traffic narcotics, was charged along with six co-conspirators with conspiring to violate the MDLEA. Id. at 142. As in Miranda, the defendant pleaded guilty, based upon stipulated facts. Id. at 143. Unlike the defendants in Miranda, however, the defendant in Ballestas reserved his right to pursue various challenges to his prosecution under the MDLEA on appeal, id. at 141, and advanced many of the same arguments before the D.C. Circuit that the defendants put forward in support of the instant motions. Id. Specifically, the defendant contended that the MDLEA's conspiracy provisions either did not reach his purely extraterritorial conduct or, alternatively, that any effort to proscribe such conduct was beyond Congress's authority to criminalize under Article I of the Constitution. Id. at 143-148. The defendant further asserted that the application of the MDLEA against him violated the Due Process Clause because the government failed to establish a sufficient nexus between his conduct in Colombia and the United States. Id. at 148-149.

         Rejecting each of these arguments, the D.C. Circuit held, first, that Congress intended the MDLEA to reach the purely extraterritorial conduct of individuals who conspire to traffic narcotics aboard a vessel subject to United States jurisdiction. Id. at 145. As the Court explained, cabining the MDLEA's extraterritorial reach to exclude liability for individuals who do not themselves embark upon the high seas would leave " [d]rug kingpins and other conspirators who facilitate and assist in carrying out trafficking schemes . . . beyond the reach of the statute, compromising the overriding intent of Congress in enacting it." Id. Second, the Ballestas Court held that Congress did not exceed its authority under the Define and Punish Clause in proscribing the defendant's role in the charged conspiracy. Id. at 147. Citing familiar principles of criminal conspiracy law, the Circuit observed that reasonably foreseeable overt acts undertaken by one co-conspirator in furtherance of a conspiracy are attributable to all co-conspirators. Id. (citing Pinkerton v. United States, 328 U.S. 640, 641, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)). Thus, because the acts of the defendant's co-conspirators on the high seas were attributable to him, Congress maintained authority to punish him for his role in agreeing to violate the MDLEA. Id. Finally, while declining to determine definitively whether the Due Process Clause constrains the extraterritorial application of federal criminal laws, the Ballestas Court relied on the defendant's stipulated facts to conclude that the application of the MDLEA to him was neither arbitrary nor fundamentally unfair. Id. at 148.

         Set against these recent precedents, the defendants' various arguments in support of their pending motions to dismiss face significant legal obstacles. As the discussion below explains, the defendants' efforts to overcome these obstacles are unsuccessful.

         2. Subject-Matter Jurisdiction

         The defendants first contend that this Court lacks jurisdiction over their prosecution. Specifically, as they interpret the materials relied upon by the government to assert jurisdiction over the Mistby, the defendants assert that the Colombian government did not consent or waive objection to application of American law to individuals who did not engage in conduct aboard the vessel. While the defendants advance this argument only after challenging the constitutional basis for their prosecution, courts have an " 'obligation to determine whether subject-matter jurisdiction exists' as a preliminary matter." Miranda, 780 F.3d at 1193 (emphasis added) (quoting Arbaugh, 546 U.S. at 514). Accordingly, the Court will address this issue before turning to the defendants' remaining arguments.

         As an initial matter, the defendants' multiple arguments in support of the instant motion present at least some confusion as to their view of the proper resolution of the jurisdictional question they have raised. Compare Chang-Rendon MTD at 16-18 (asking the Court to conclude that the Mistby does not qualify as a " vessel subject to United States jurisdiction" ) with id. at 29-32 (asking the Court to hold that whether a vessel is " subject to the jurisdiction of the United States" is a question for the jury). This apparent confusion notwithstanding, the D.C. Circuit has spoken clearly and definitively on the subject.

         As previously noted, in Miranda, the D.C. Circuit held that the determination of whether a vessel qualifies as " subject to the jurisdiction of the United States" for purposes of a prosecution under the MDLEA is a question of subject-matter jurisdiction that must be resolved before trial by the court. 780 F.3d at 1193. In so holding, the D.C. Circuit emphasized the potential affront to the interests of foreign nations, as well as international comity generally, an alternative rule would raise, noting that " [i]f a defendant could waive or forfeit the requirement regardless of the interests of a foreign nation whose prerogatives may be directly at stake, application of the MDLEA could engender considerable tensions in foreign relations." Id. at 1194. Moreover, even before Miranda, this Court held that the question of United States jurisdiction over a vessel used to traffic narcotics is, under the MDLEA, a " jurisdictional issue [that] is a question of law 'to be determined solely by the trial judge . . . because 'it does not raise factual questions that traditionally would have been treated as elements of an offense under common law.'" United States v. Varon Castro, No. 12-cr-78, Tr. Evidentiary Hr'g, (Aug. 8, 2014) at 52 (quoting United States v. Tinoco, 304 F.3d 1088, 1108 (11th Cir. 2002) and citing United States v. Larrahondo, 885 F.Supp.2d 209 (D.D.C. 2012)), ECF No. 82. Thus, while this " allocation of the issue to the court rather than the jury gives rise to a possible Sixth Amendment claim (regardless of whether the issue goes to subject-matter jurisdiction)," Miranda, 780 F.3d at 1195-96 (citing United States v. Gonzalez, 311 F.3d 440, 444 (1st Cir. 2002)), the Court is bound under Miranda to resolve the issue of United States jurisdiction over the Mistby as a threshold matter.

         The defendants' suggestion that the Colombian government's waiver of jurisdiction over the Mistby extends only to the vessel and its crew does not withstand close scrutiny. At the outset, as this Court has previously held, the MDLEA provides that a certification by the U.S. Department of State constitutes conclusive proof of a foreign nation's consent or waiver of jurisdiction over a particular vessel. Varon Castro, No. 12-cr-78, Tr. Evidentiary Hr'g, (Aug. 8, 2014) at 71.[11] Here, the government has provided such a certification indicating that, upon the request of United States authorities, " Colombian authorities confirmed and concurred with the United States' interpretation of Article 16 of the Agreement, thereby waiving objection to the enforcement of United States law by the United States over the go-fast vessel MISTBY, all associated contraband, and persons on board." Gov't Opp'n Moreno-Membache MTD, Ex. A. at 3.

         The defendants point to the text of the certification to contend that the scope of the waiver does not provide for United States jurisdiction over individuals, like the defendants, who were not apprehended on board the Mistby. Chang-Rendon MTD at 17-18. Consequently, the defendants suggest that the Mistby " is not a vessel 'subject to the jurisdiction of the United States' for purposes of [their] prosecution." Id. at 18 (emphasis original). They muster no authority, however, for the proposition that conclusive evidence of a foreign government's waiver of jurisdiction over a particular vessel is insufficient to establish the court's subject-matter jurisdiction over a subsequent prosecution of any land-based co-conspirators. See generally id. at 16-18. Absent binding authority to the contrary, however, the Court declines the defendants' invitation to indulge in this novel interpretative exercise.

          By its plain terms, the MDLEA provides this Court with subject-matter jurisdiction over the prosecution of individuals who engage in, or conspire to engage in, narcotics trafficking aboard a vessel " subject to the jurisdiction of the United States." 46 U.S.C. § § 70503(a), 70506. Included among such vessels are vessels, like the Mistby, that are " registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States." Id. § 70502(c)(1)(C). The Mistby 's status as a " vessel subject to the jurisdiction of the United States" is proven conclusively by the State Department certification provided by the government. Moreover, to the degree that any uncertainty remains as to the Colombian government's consent to allow the defendants to be prosecuted under United States law, the defendants offer no explanation for how any purported desire to withhold consent with regard to land-based conspirators can be squared with the Colombian government's subsequent extradition of the defendants to the United States to stand trial under the MDLEA. In the end, then, the government has made a sufficient showing that the Mistby is subject to United States jurisdiction within the meaning outlined in the MLDEA and the Court therefore maintains subject-matter jurisdiction over the prosecution of individuals alleged to have trafficked, or conspired to traffic, narcotics aboard that vessel.

         3. The Define and Punish Clause

         Having confirmed subject matter jurisdiction over the present prosecution, the Court turns next to the defendants' various bases for challenging the constitutionality of the MDLEA generally, as well as any application of the statute to their alleged land-based conspiratorial conduct in particular. In considering these challenges, the Court is mindful that invalidating an Act of Congress is " 'the gravest and most delicate duty that courts are called on to perform,'" even when significant constitutional rights are at stake, Hodge v. Talkin, 799 F.3d 1145, 1157 (D.C. Cir. 2015) (quoting Blodgett v. Holden, 275 U.S. 142, 147-48, 48 S.Ct. 105, 72 L.Ed. 206, 1928-1 C.B. 324 (1927) (Holmes, J., concurring)), and that federal statutes are presumed to be constitutional, with " 'the burden . . . on the one attacking the legislative arrangement to negative every conceivable basis which might support it,'" Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973)).

          Congress's legislative power is both " defined and limited," such that " [e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution." United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Among these enumerated powers, the Define and Punish Clause of Article I, Section 8, of the Constitution authorizes Congress to " 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. This " 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." Ballestas, 795 F.3d at 146-47 (citing United States v. Smith, 18 U.S. (5 Wheat.) 153, 158-59, 5 L.Ed. 57 (1820)). In addition to this express authority, Congress is broadly empowered under the Necessary and Proper Clause to " make all Laws which shall be necessary and proper for carrying into Execution" Congress's other enumerated powers. U.S. Const. art. I, § 8, cl. 18.

         Here, the defendants contend that the conspiracy provision of the MDLEA exceeds both the explicit and implicit limitations on Congress's constitutional authority to " define and punish" felonies committed on the high seas. Chang-Rendon MTD at 3-11. In challenging the constitutionality of the MDLEA's conspiracy provision, the defendants cite the text of the Define and Punish Clause as permitting Congress to criminalize only those felonies that are " committed on the high seas." Chang-Rendon MTD at 4. Insofar as either the substantive or conspiracy provisions of the MDLEA purport to criminalize conduct that " need not occur on the high seas," the defendants argue that these provisions are unconstitutional. Id. at 4-8; Defs.' Reply Supp. Mot. Dismiss at 1-5, ECF No. 145. Alternatively, the defendants argue that the Define and Punish Clause implicitly limits Congress's authority to define and punish felonies committed on the high seas that " have some relation to the United States." Chang-Rendon MTD at 8-11; Defs.' Reply Supp. Mot. Dismiss at 6-7.[12]

         At the outset, given the obvious similarities between the instant prosecution and Ballestas, the defendants' present constitutional challenge must overcome a significant precedential hurdle. Indeed, the government correctly notes that the D.C. Circuit, when presented with essentially the same factual scenario in Ballestas, flatly rejected the defendant's challenge to the constitutionality of the MDLEA's conspiracy provision, Gov't Opp'n Chang-Rendon Mot. Dismiss at 12, ECF No. 137. Attempting to distinguish the case at hand, the defendants argue that the D.C. Circuit in Ballestas considered only an as-applied challenge to the MDLEA's conspiracy provision. Chang-Rendon MTD at 7 (suggesting that the defendant in Ballestas " apparently assumed the precise point disputed here: that the MDLEA's conspiracy provision is an appropriate exercise of congressional authority in general" ). According to the defendants, then, the Ballestas Court merely " assumed the premise" that the MDLEA was constitutional, and concluded, under familiar conspiracy law principles, that the statute therefore could be applied against the defendant. Id. at 7-8. The defendants reason that, because the defendant in Ballestas argued only that the conspiracy provision was unconstitutional as applied to him, the Ballestas court was neither presented with, nor required to decide, whether the statute is unconstitutional on its face. Id.

         The defendants' argument on this score presents some logical difficulty. The Supreme Court has emphasized that a plaintiff generally " can only succeed in a facial challenge by 'establishing that no set of circumstances exists under which the [challenged statute] would be valid,' i.e., that the law is unconstitutional in all of its applications." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (internal alterations omitted)). This general " no-set-of-circumstances" rule is subject to some criticism, but " all agree that a facial challenge must fail where a statute has a 'plainly legitimate sweep.'" See id. (citing Washington v. Glucksberg, 521 U.S. 702, 739-740, 117 S.Ct. 2258, 117 S.Ct. 2302, 138 L.Ed.2d 772, & n.7 (1997) (Stevens, J., concurring)). In Ballestas, the D.C. Circuit rejected the defendant's as-applied challenge, thereby identifying at least one class of cases--indeed the very class of case presented in the present prosecution--in which the conspiracy provision of the MDLEA may be constitutionally applied. Under either the " no-set-of-circumstances" test or the " plainly legitimate sweep" standard, this alone would seem to preclude any subsequent effort to attack the provision on its face.

         Notwithstanding this traditional notion of facial challenges, however, the Supreme Court has held facially unconstitutional certain criminal statutes that may be applied constitutionally but lack a necessary jurisdictional element ensuring that they are so applied. Thus, as explained by the D.C. Circuit, the Supreme Court has sustained facial challenges to laws that " omit constitutionally-required jurisdictional elements, even though all such laws necessarily have a 'plainly legitimate sweep.'" Gordon v. Holder, 721 F.3d 638, 654-55, 406 U.S.App.D.C. 6 (D.C. Cir. 2013). Under such circumstances, " any legitimate application [of the otherwise unconstitutional statute] is pure happenstance." Id. As an example, the D.C. Circuit has cited the Supreme Court's rejection of the Gun-Free School Zones Act in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), where the Supreme Court struck down a statute prohibiting the knowing possession of a firearm within a school zone on the ground that the statute exceeded Congress's authority under the Commerce Clause, id. at 551. Despite the fact that some, or even most, prosecutions under the statute would involve possession of a gun that moved in interstate commerce, the Supreme Court held the statute unconstitutional because it " contain[ed] no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affect[ed] interstate commerce." Id. at 561.

         Relying on this latter line of cases, the defendants contend that the conspiracy provision of the MDLEA " lacks a jurisdictional element to ensure, on a case-by-case basis, that the [conspiracy] is committed on the high seas." Chang-Rendon MTD at 6 (emphasis in original). While this argument has some superficial appeal, the defendants' characterization of their current challenge as a facial attack on the MDLEA's conspiracy provision does not render the D.C. Circuit's recent decisions addressing this provision irrelevant. Indeed, the D.C. Circuit recently emphasized that " 'distinction between facial and as-applied challenges is not so well defined that it has some automatic effect.'" Hodge, 799 F.3d 1145, 1156 (D.C. Cir. 2015) (quoting Citizens United v. FEC, 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010)); see also City of Los Angeles, Cal. v. Patel, 135 S.Ct. 2443, 2457-58, 192 L.Ed.2d 435 (Scalia, J., dissenting) (explaining that the precedential " effect of a given case is a function not of the plaintiff's characterization of his challenge, but the narrowness or breadth of the ground that the Court relies upon in disposing of it" ). To be sure, the D.C. Circuit's treatment of the constitutionality of the MDLEA's conspiracy provision in Ballestas leaves some uncertainty as to the degree to which the Court directly considered its facial constitutionality. Nevertheless, the Court's reasoning strongly suggests that the D.C. Circuit would find this provision facially constitutional for at least two reasons.

         First, although the Ballestas Court did not expressly hold that the MDLEA's conspiracy provision is constitutional on its face, the reasoning for its holding was not explicitly confined to the facts of that case. See generally Ballestas, 795 F.3d at 146-47. Indeed, contrary to the defendants' contention that the defendant in Ballestas " apparently assumed . . . that the MDLEA's conspiracy provision is an appropriate exercise of congressional authority in general," Chang-Rendon MTD at 7, the defendant in Ballestas argued broadly before the D.C. Circuit that the Define and Punish Clause is " textually limited to conduct on the high seas," Appellant's Reply Brief, Ballestas v. United States, No. 13-3107, 2014 WL 4243800, at *12. Though the defendant generally focused his challenge on the application of the MDLEA to his land-based conduct, in framing the issue, he cited the dissenting opinion in United States v. Cardales-Luna, 632 F.3d 731 (1st Cir. 2011). Appellant's Reply Brief, 2014 WL 4243800, at *4. That dissent expressed disagreement with upholding the constitutionality of the MDLEA to permit prosecution of foreign nationals absent any demonstrable nexus with the United States, and, relying in part on Lopez, concluded that " [ a ] ny prosecution based on such legislation constitutes an invalid exercise of jurisdiction by the United States, and is void ab initio." Cardales-Luna, 632 F.3d at 739 (Torruella, J., dissenting) (citing authorities). Thus, irrespective of the Ballestas defendant's characterization of his constitutional challenge, the D.C. Circuit ultimately considered essentially the same argument pressed by defendants here. There, as here, the defendant contended that the Define and Punish Clause permits Congress to define only those felonies that are committed on the high seas and that the MLDEA is unconstitutional because it permits the prosecution of defendants who engaged only in land-based conduct. The D.C. Circuit flatly rejected this argument, and this Court is therefore bound to reach the same conclusion.

         Second, in declining to adopt a construction of the MDLEA that would limit its extraterritorial effect to those who actually engage in conduct on the high seas, the Ballestas Court noted that such a reading would largely neuter the statute's conspiracy and attempt provisions. Ballestas, 795 F.3d at 145-46 (" [U]nder the interpretation [the defendant] urges us to adopt, the conspiracy and attempt prohibition . . . would seemingly do little practical work." ). Thus, when presented with the precise constitutional concerns raised by the defendants here, the D.C. Circuit not only identified no fundamental flaw in the MDLEA's conspiracy provision, the Court expressed a reluctance to disrupt application of the provision to alleged co-conspirators who engaged only in land-based conduct. Consequently, to the degree that a facial constitutional challenge was not considered in Ballestas, this Court is not persuaded that the D.C. Circuit would revisit its holding if presented with the arguments now advanced by the defendants.

         Finally, even assuming that the MDLEA's conspiracy provision itself may not be enacted under the Define and Punish Clause, this provision falls within Congress's ancillary power under the Necessary and Proper Clause. As previously noted, " [r]ecognizing 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,' Congress enacted the MDLEA to enhance the government's ability to prosecute members of drug trafficking organization." Id. at 145 (quoting 46 U.S.C. § 70501). To do so, Congress sought to subject to criminal liability those who sail aboard vessels carrying narcotics, as well as the " [d]rug kingpins and other conspirators who facilitate and assist in carrying out trafficking schemes." Id. An integral and necessary element of this effort is the criminalization under United States law of conspiratorial efforts to launch shipments in violation of the MDLEA. See United States v. Carvajal, 924 F.Supp.2d 219, 220 (D.D.C. 2013) aff'd sub nom. United States v. Miranda, 780 F.3d 1185, 414 U.S.App.D.C. 305 (D.C. Cir. 2015); see also United States v. Price, 265 F.3d 1097, 1107 n.2 (10th Cir. 2001) ( " [I]f the underlying substantive provision is constitutional, a provision which criminalizes conspiracy to commit the underlying crime is also constitutional" (citing United States v. Wacker, 72 F.3d 1453, 1475 n.18 (10th Cir. 1996))). Accordingly, the defendants' challenge to the constitutionality of the MDLEA's conspiracy provision under Article I, Section 8, of the Constitution is rejected.

         4. The Ex Post Facto Clause

         The defendants next suggest that their prosecution under the MDLEA's conspiracy provision violates the Constitution's Ex Post Facto Clause, which prohibits Congress from enacting any " ex post facto Law." U.S. Const. art. I, § 9, cl. 3. " 'The phrase ex post facto law was a term of art with an established meaning at the time of the framing.'" Al Bahlul, 767 F.3d at 17 (quoting Peugh v. United States, 133 S.Ct. 2072, 2081, 186 L.Ed.2d 84 (2013)). Under this established meaning, the Ex Post Facto Clause prohibits:

1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Id. at 17-18 (quoting Calder v. Bull, 3 U.S. 386, 390, 1 L.Ed. 648, 3 Dall. 386 (1798)).

         The defendants contend that courts have routinely struck down as ex post facto laws statutes that " change the jurisdiction requirements of an offense after its commission." Chang-Rendon MTD at 19 (emphasis in original). Relying on these precedents, the defendants argue that the Mistby became a " vessel subject to the jurisdiction of the United States," if at all, only upon the government of Colombia waiving jurisdiction over the vessel, which occurred after it was interdicted on the high seas. Id. at 21. According to the defendants, any alleged overt acts in furtherance of the charged conspiracy therefore pre-dated the moment at which the defendants became subject to potential prosecution under the MDLEA. Id. Since they were not certainly subject to prosecution in the United States at the time they allegedly entered into the charged conspiracy, the defendants argue that their present prosecution violates the Ex Post Facto Clause.

         Again, while the defendants' argument has superficial appeal, the out-of-circuit authorities on which they rely are each readily distinguishable. For example, in Means v. North Cheyenne Tribal, the Ninth Circuit considered an ex post facto challenge to the 1990 Amendments to the Indian Civil Rights Act. 154 F.3d 941, 943 (9th Cir. 1998), overruled on other grounds by United States v. Enas, 255 F.3d 662 (9th Cir. 2001). Under these amendments, Congress granted to Indian tribal courts jurisdiction over all Native Americans in criminal matters, regardless of whether the defendant was a member of the tribe whose laws were allegedly violated. Id. at 945-46. The defendant, who was charged in 1997 for his alleged conduct in 1978 and 1988, id. at 942, challenged his prosecution under tribal law on the ground that retroactive application of the 1990 amendments was prohibited under the Ex Post Facto clause, id. at 943. The Ninth Circuit agreed. Emphasizing that retroactive application would subject the defendant to new liability under tribal law that would have been impossible when he last engaged in illegal conduct, the court held that " given the ex post facto problems that would arise were we to apply the 1990 amendments retroactively, . . . the 1990 amendments . . . should not apply retroactively to grant criminal jurisdiction to tribal courts over acts committed . . . prior to 1990." Id. at 948. Means therefore stands for the unremarkable proposition that legislation, which authorizes for the first time the possible prosecution of a defendant only after the conduct giving rise to that potential prosecution is completed, runs afoul of the Ex Post Facto Clause. See also United States v. Juvenile Male, 819 F.2d 468, 469 (4th Cir. 1987) (application of 1984 amendment to the Juvenile Delinquency Act to defendant's 1981 conduct violated Ex Post Facto Clause).

         The case at hand, however, presents an entirely different situation. Here, by contrast, Congress enacted the present version of the conspiracy provision of the MDLEA in 1986. Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 100 Stat 3207. The defendants' alleged participation in the charged conspiracy began over two decades later, in early 2012 and endured at least through the interdiction of the Mistby in June 2012. See supra Part I. In contrast to Means, then, the possibility that the defendants would face criminal liability under the MDLEA was well established long before the defendants allegedly entered into the conspiracy to violate the statute. Thus, while the likelihood of their prosecution under United States law was uncertain, the risk of prosecution in this jurisdiction was clear.[13]

         Properly framed, then, the defendants' ex post facto challenge is without support. Indeed, the D.C. Circuit has held that " [t]he right to be tried in a particular forum is not the sort of right the Ex Post Facto Clause protects." Al Bahlul, 767 F.3d at 19. Such a " procedural" change may violate the Ex Post Facto Clause only where the change " 'affects matters of substance' by 'depriving a defendant of substantial protections with which the existing law surrounds the person accused of crime or arbitrarily infringing upon substantial personal rights.'" Id. (quoting Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). As discussed in the next section, infra Part III.B.4., the defendants have failed to demonstrate that prosecution in an American forum works so substantial a deprivation.

         Instead, their broad arguments regarding the remaining uncertainty regarding their inability to predict with certainty the forum of their prosecution would appear to prove too much. Individuals who engage in illegal narcotics trafficking on an international scale subject themselves to potential criminal liability under the laws of any number of jurisdictions. In so doing, they assume the risk that any of these jurisdictions may choose to pursue charges against them. While the defendants did not know with certainty that the Colombian government would consent to United States jurisdiction over the Mistby, thereby allowing for their prosecution under American law, they have provided no support for the proposition that such uncertainty is sufficient to invalidate the indictment under the Ex Post Facto Clause. Cf. United States v. Robinson, 843 F.2d 1, 6 (1st Cir. 1988) (noting that the predicament of defendants facing prosecution under a predecessor statute " is more like that of a defendant potentially subject to prosecution by several jurisdictions or uncertain of just what sentence a judge will impose than that of persons unaware that what they do at the time is unlawful or subject to particular penalties" ). On the contrary, circuit courts confronted with the identical question have uniformly held that prosecution under the MDLEA does not violate the Ex Post Facto Clause. See United States v. Khan, 35 F.3d 426, 430 (9th Cir. 1994) (" 'The statute is not applied to the defendants ex post facto; although Panaman gave its consent after they had set to sea, they took the risk of such consent being given.'" (quoting United States v. Aikins, 946 F.2d 608, 613 (9th Cir. 1990), as amended on reh'g (Oct. 2, 1991) and citing United States v. Mena, 863 F.2d 1522, 1528 (11th Cir. 1989) (" [While] defendants were subject to arrest only after Honduras gave its consent to the enforcement of United States law[, t]he conduct prohibited by the statute . . . was clearly defined before the defendants embarked on their voyage. Defendants accepted the risk that Honduras would consent." (citing Gonzalez, 776 F.2d 931, 938-41 (11th Cir. 1985))); United States v. Alomia-Riascos, 825 F.2d 769, 772 (4th Cir. 1987) (" The fact that Barbados consented to enforcement of [a predecessor maritime drug trafficking statute] against Defendants after the [subject vessel] had been boarded and searched simply does not constitute a violation of the prohibition against ex post facto laws." ); Robinson, 843 F.2d at 7-8 (same, addressing the MDLEA's predecessor statute).

         For these reasons, the defendants' suggestion that the application of the MDLEA in the present prosecution violates the Ex Post Facto Clause is unpersuasive and their motions to dismiss the indictment on this ground are denied.

         5. The Due Process Clause

         Next, the defendants argue that their prosecution under the MDLEA is inconsistent with traditional notions of due process and fair notice embodied by the Fifth Amendment. Arguing that the government has failed to demonstrate a sufficient " nexus" between the defendants' conduct and the United States, the defendants suggest that that they could not have reasonably anticipated being haled before an American court in connection with their alleged conduct in Colombia, and consequently, their indictment violates the Due Process Clause.

          The D.C. Circuit has yet to decide whether, and to what degree, " the Constitution limits the extraterritorial exercise of federal criminal jurisdiction." Ballestas, 795 F.3d at 148 (internal quotations omitted) (quoting United States v. Ali, 718 F.3d 929, 943-44, 405 U.S.App.D.C. 279 (D.C. Cir. 2013)). Without deciding the issue directly, however, the Circuit has noted that several other circuits have recognized such a limitation, and " 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." Id. (alterations in original) (quoting United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990)). Largely eschewing this emphasis on a requisite " nexus," however, the D.C. Circuit has indicated that 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. (internal quotations and alterations omitted) (quoting Ali, 718 F.3d at 944).

         As before, the defendants' present contention that their prosecution violates the Due Process Clause would appear to ignore the D.C. Circuit's recent holding in Ballestas. Indeed, confronted with a due process challenge brought by a nearly identically situated defendant, the D.C. Circuit in Ballestas concluded that the defendant's acknowledged efforts to evade United States law enforcement in order to traffic narcotics ultimately destined for the United States placed the defendant on notice that he may be prosecuted for his actions under American law. Id. at 148. Thus, the Ballestas Court held that the application of the MDLEA to the defendant was neither arbitrary nor fundamentally unfair under the Due Process Clause. Id.

         The defendants argue that the instant case is distinguishable because, absent the factual stipulations that proved determinative in Ballestas, the government here has failed to demonstrate either that the defendants had legal notice that their conduct subjected them to prosecution in the United States or that a sufficient factual connection exists between their conduct in Colombia and the United States to alert them to such potential prosecution. Chang-Rendon MTD at 13. As to legal notice, the parties dispute the degree of notice afforded to defendants under relevant international agreements between the United States and Colombia. See id. at 13-15 (arguing that these agreements do not provide notice of potential prosecution in the United States for land-based conduct) with Gov't Opp'n Chang-Rendon MTD at 22-25 (disagreeing). Nonetheless, because the Court is persuaded that the defendants' conduct demonstrated sufficient awareness of their potential criminal liability under American law, a detailed review of these documents is unnecessary.

         Indeed, under Ballestas, the government has presented sufficient evidence to demonstrate at this stage of the proceedings that the defendants could reasonably anticipate the risk of prosecution in the United States as a result of their alleged participation in the charged conspiracy. In Ballestas, the D.C. Circuit found probative that the defendant's factual stipulations established: (1) " 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" ; (2) that the defendant obtained and sold " reports and maps indicat[ing] where U.S., Colombian and other countries' . . . maritime assets were operating in the Caribbean Sea; " and; (3) that he knew that his " coconspirators 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." 795 F.3d at 148 (all alterations and emphasis in original) (internal quotations omitted). In light of these admissions, the Court concluded that the " application of a United States drug trafficking law (the MDLEA) . . . was neither arbitrary nor fundamentally unfair." Id.

         The present prosecution presents all but one of the critical facts underlying D.C. Circuit's holding in Ballestas. In this case, the government alleges that the defendants each agreed to enter into a conspiracy to ship narcotics aboard the Mistby on the high seas from Colombia northward to Panama. In so doing, the defendants undertook efforts to avoid detection by United States law enforcement, including through the transmission of stolen coordinates of maritime law enforcement assets, and the preparation and use of maps incorporating this information to evade interdiction by United States authorities. Gov't Opp'n Chang-Rendon MTD at 20-21. Assuming that the government proves its allegations at trial, see Bowdin, 770 F.Supp.2d at 146; Sunia, 643 F.Supp.2d at 60, the only missing factor in the present case is an allegation that the narcotics aboard the Mistby was destined for the United States. This distinction, however, is insufficient to distinguish the instant case from Ballestas. As previously noted, the MDLEA was enacted specifically to criminalize international narcotics trafficking, even where the government does not allege an immediate effort to transport narcotics to the United States. See supra Part III.B.1. The statute thereby reflects the policy judgment that stopping international narcotics trafficking would ultimately inure to the benefit of the United States. See 46 U.S.C. § 70501 (finding and declaring 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" and that such trafficking " facilitates transnational crime, including drug trafficking, and terrorism, and presents a specific threat to the safety of maritime navigation and the security of the United States" ); see also United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999) (explaining that " application of the MDLEA . . . is consistent with the protective principle of international law because Congress has determined that all drug trafficking aboard vessels threatens our nation's security" ). Moreover, the defendants' active efforts to evade detection and interdiction by United States law enforcement significantly undercuts their present contention that they could not have reasonably anticipated that they may be subject to prosecution in the United States. This risk of interdiction by United States law enforcement was real, since the government is prepared to present evidence that the defendants engaged in prior shipments, two of which were seized by the USGC. See infra Part IV.B.2. Taken together, these facts clearly suggest that the defendants had adequate notice of their targeting and risk of interdiction by United States law enforcement, as well as the concomitant risk of potential criminal liability under United States law. Thus, their present prosecution under the MDLEA is neither arbitrary nor fundamentally unfair under the Due Process Clause.

         Without doubt, the defendants intend to contest some or all of these allegations. The proper forum in which to resolve these objections, however, is at trial before a jury, not through a pretrial motion to dismiss the indictment.[14] For this reason, and in keeping with the D.C. Circuit's holding in B ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.