United States District Court, D. Columbia.
ALFREDO MOSQUERA-MURILLO, also known as ALFREDO
LOPEZ-GUTIERREZ, Defendant: Ron Earnest, LEAD ATTORNEY, LAW
OFFICES OF RON EARNEST, Riverdale, MD.
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.
A. HOWELL, United States District Judge.
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). 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,
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
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.
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
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.
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.
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.
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
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.
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. With this briefing now complete, the
parties' outstanding motions are now ripe for
THE DEFENDANTS' MOTION FOR A BILL OF PARTICULARS
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.
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.
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.
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)).
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).
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. 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.
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.
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.
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." ).
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.
The Defendants' Alleged Participation in the DTO and the
Charged Conspiracy (Requests #1-#4, #7)
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.
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]" ).
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.
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" ).
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.
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)). 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
Identifying Alleged Co-Conspirators (Request #5)
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
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
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.
United States Jurisdiction Over the Mistby (Request
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.
* * *
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.
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.
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.
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))).
the defendants' motion for a bill of particulars is
THE DEFENDANTS' MOTIONS TO DISMISS THE
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" ). 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.
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)
[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
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. 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.
The Statutory Framework
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).
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.
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.
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.
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.
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.
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.
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.
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.
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. 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.
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.
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.
The Define and Punish Clause
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.
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.
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.
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
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.
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.
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
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.
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.
The Ex Post Facto Clause
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)).
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
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).
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.
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.
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).
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.
The Due Process Clause
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
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
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.
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
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.
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
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. For this
reason, and in keeping with the D.C. Circuit's holding in