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Date: 08-17-2021
Case Style:
United States of America v. JOHVANNY AYBAR-ULLOA
Case Number: 15-2377
Judge: William J. Kayatta, Jr.
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: Scott A.C. Meisler, Attorney, U.S. Department of Justice,
Criminal Division, Appellate Section, with whom W. Stephen
Muldrow, United States Attorney, Mariana E. Bauzá-Almonte,
Assistant United States Attorney, Chief, Appellate Division, Brian
A. Benczkowski, Assistant Attorney General, and John P. Cronan,
Principal Deputy Assistant Attorney General, were on brief.
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with a Maritime Drug Law Enforcement Act charge.
United States law enforcement
authorities apprehended Johvanny Aybar-Ulloa ("Aybar") on a
stateless vessel in international waters carrying packages of
cocaine in violation of the Maritime Drug Law Enforcement Act
("MDLEA"), 46 U.S.C. §§ 70501–70508. In appealing his subsequent
conviction, Aybar makes a two-step argument. First, he contends
that Congress's authority to criminalize and punish conduct on the
high seas under Article I, Section 8, Clause 10 of the United
States Constitution ("the Define and Punish Clause") must be
cabined by the limitations of international law on a nation's power
to criminally prosecute conduct on the high seas. Second, he
argues that the United States exceeded those limitations of
international law by prosecuting him in this case.
In a divided opinion, a panel of this court trained its
attention exclusively on the second part of Aybar's argument. See
United States v. Aybar-Ulloa, 913 F.3d 47, 53-56 (1st Cir. 2019).
Relying on prior circuit precedent, the panel majority rejected
that necessary part of Aybar's argument for two reasons: First,
we previously held in United States v. Victoria, 876 F.2d 1009
(1st Cir. 1989) (Breyer, J.), that international law does indeed
"give[] the United States . . . authority to treat stateless
vessels as if they were its own." Id. at 1010 (second alteration
in original) (quoting United States v. Smith, 680 F.2d 255, 258
(1st Cir. 1982)). Second, our prior opinion in United States v.
- 4 -
Cardales, 168 F.3d 548 (1st Cir. 1999), included certain statements
construing international law as allowing a nation to define
trafficking in controlled substances aboard vessels as a threat
sufficient to justify an assertion of jurisdiction under the
"protective principle." Id. at 553.
As both the panel majority and the panel dissent
observed, our prior opinion in Victoria "did not fully spell out"
its reasoning. Aybar-Ulloa, 913 F.3d at 54; see also id. at 61
(Torruella, J., dissenting in part). Cardales, in turn, can be
read as applying only to the circumstance where a foreign flag
nation consents to the application of United States law to persons
found on that nation's flagged vessel. Id. at 55-56 (citing
Cardales, 168 F.3d at 552-53). And the question of the United
States' jurisdiction over persons on vessels on the high seas
recurs in this circuit. For those reasons, we granted Aybar's
petition to rehear this appeal en banc.
Following that rehearing, we now affirm Aybar's
conviction. In doing so, we find that his prosecution in the
United States for drug trafficking on a stateless vessel stopped
and boarded by the United States in waters subject to the rights
of navigation on the high seas violates no recognized principle of
international law. To the contrary, international law accepts the
criminal prosecution by the United States of persons like Aybar,
who was seized by the United States while trafficking cocaine on
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a stateless vessel on the high seas, just as if they were
trafficking on a United States-flagged ship. We therefore need
not and do not reach the question of whether the application of
MDLEA to Aybar would be constitutional were international law
otherwise. We also need not and do not rely on the protective
principle, leaving its potential application for another day.
Finally, for the reasons agreed upon by the full panel, we vacate
Aybar's sentence and remand for resentencing under the Sentencing
Commission's clarified guidance reflected in Amendment 794. See
id. at 56-57.
I.
A.
As Aybar urges, we take the facts as "[p]er the affidavit
[filed by the government] in support of the complaint." On
August 9, 2013, the HMS Lancaster, a foreign warship, launched a
helicopter while on patrol in the Central Caribbean. Operators
aboard the helicopter spotted a thirty-foot go-fast vessel dead in
the water at 15-03N, 067-01W, an area approximately 160 nautical
miles south of Puerto Rico constituting international waters.1 The
1 The coordinates provided by the government nonetheless
appear to place the defendant's vessel within the Exclusive
Economic Zone ("EEZ") of the United States. Because the right of
freedom of navigation on the high seas applies in the EEZ, we
proceed with reference to the rules of interdiction applicable on
the high seas. United Nations Convention on the Law of the Sea
("UNCLOS") arts. 58(1-2), 87, Dec. 10, 1982, S. Treaty Doc.
No. 103-39, 1833 U.N.T.S. 397; see generally id. pt. VII, § 1. We
- 6 -
vessel bore no indicia of nationality and was carrying numerous
packages in plain view.
A Law Enforcement Detachment Team of the United States
Coast Guard was embarked on the HMS Lancaster at the time of the
incident. Members of this team launched a small boat to conduct
a right-of-visit approach. Coast Guard personnel identified
defendant Aybar and two others aboard the go-fast vessel. Aybar
and another member of the vessel claimed to be citizens of the
Dominican Republic, while the master of the vessel claimed
Venezuelan citizenship. In response to inquiry from the Coast
Guard personnel, the master of the vessel made no claim of
nationality for the vessel. The Coast Guard personnel suspected
contraband.
Concluding that the vessel was without nationality, the
Coast Guard personnel then boarded and searched the vessel.
Following the search, the Coast Guard proceeded to take all three
men and the packages found on board back to the HMS Lancaster,
where the packages' contents tested positive for cocaine. The
three men were then transferred to a United States Coast Guard
vessel and taken to Ponce, Puerto Rico, where they were held in
custody.
do not address any potential limitations on freedom of navigation
in the EEZ that may be imposed in this area. See id. art. 58(3).
- 7 -
B.
Shortly thereafter, a federal grand jury issued an
indictment against Aybar, charging him under MDLEA with conspiring
to possess with intent to distribute cocaine on board a vessel
subject to the jurisdiction of the United States, 46 U.S.C.
§ 70506(b) (count one), and aiding and abetting possession with
intent to distribute cocaine on board a vessel subject to the
jurisdiction of the United States, 46 U.S.C. §§ 70502(c)(1)(A),
70503(a)(1), 70504(b)(1), 70506(a), 18 U.S.C. § 2 (count two).
The indictment also included an allegation of forfeiture, 46 U.S.C.
§ 70507.
MDLEA provides that "[w]hile on board a covered vessel,
an individual may not knowingly or intentionally . . . manufacture
or distribute, or possess with intent to manufacture or distribute,
a controlled substance." 46 U.S.C. § 70503(a)(1). As relevant
here, a "covered vessel" includes "a vessel subject to the
jurisdiction of the United States," id. § 70503(e)(1), which is
defined to include "a vessel without nationality," id.
§ 70502(c)(1)(A). "[A] vessel without nationality," in turn,
includes "a vessel aboard which the master or individual in charge
fails, on request of an officer of the United States authorized to
enforce applicable provisions of United States law, to make a claim
of nationality or registry for that vessel." 46 U.S.C.
§ 70502(d)(1)(B).
- 8 -
Aybar moved to dismiss the indictment for lack of
jurisdiction, arguing that Congress's power under Article I "[t]o
define and punish Piracies and Felonies committed on the high Seas,
and Offenses against the Law of Nations," U.S. Const. art. I, § 8,
cl. 10, did not reach his conduct. After the district court denied
his motion, Aybar proceeded to plead guilty. Aybar's plea accepted
the facts substantiating the charges against him under MDLEA.
Those facts, in turn, make clear that the vessel on which he was
found was "a vessel without nationality" as defined in
section 70502(d)(1)(B) because, while on board the vessel, the
master made no claim of nationality when requested to do so by a
United States officer authorized to enforce the United States drug
laws. Despite his guilty plea and concessions, Aybar adequately
preserved his challenge to Congress's constitutional power to
criminalize his conduct pursuant to its Article I powers. See
Class v. United States, 138 S. Ct. 798, 804-05 (2018). On
January 9, 2019, a divided panel rejected that challenge,
affirming his conviction. For unrelated reasons, the panel also
vacated the district court's sentence and remanded for further
proceedings.
II.
Our analysis proceeds in five parts summarized as
follows: First, the "go-fast" ship upon which Aybar travelled was
rendered "stateless" when its master on board failed upon request
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to make a valid claim of nationality for it, flouting, among other
things, the important requirement of international law that every
vessel on the high seas sail under the flag of a nation state.
Second, as a stateless vessel, the ship was susceptible to the
exercise of jurisdiction by any nation intercepting the vessel on
the high seas, just as if the vessel were one of that nation's
own. Third, the exercise of jurisdiction over Aybar's ship just
as if it were a United States vessel included jurisdiction over
drug trafficking on the vessel just as if it were drug trafficking
on a United States vessel, which is considered to be the territory
of the United States. Fourth, the application of that territorial
jurisdiction to prosecute Aybar in a United States court for
illegally trafficking cocaine is compatible with, and welcomed by,
any relevant specific rules and undertakings governing the
assertion of domestic power on the high seas. Fifth, we offer
several important caveats.
A.
Under international law governing the seas, every vessel
must sail under the flag of one, and only one, state. United
Nations Convention on the Law of the Sea ("UNCLOS") art. 92,
Dec. 10, 1982, S. Treaty Doc. No. 103-39, 1833 U.N.T.S. 397.2 In
2 The United States has signed but not ratified UNCLOS. We
nevertheless cite to it as evidence of the customs and usages of
international law. See The Paquete Habana, 175 U.S. 677, 700
(1900); cf. United States v. Alaska, 503 U.S. 569, 588 n.10 (1992)
- 10 -
turn, every state maintains an obligation to "fix the conditions
for the grant of its nationality to ships, for the registration of
ships in its territory, and for the right to fly its flag," id.
art. 91(1), and to "issue to ships to which it has granted the
right to fly its flag documents to that effect," id. art. 91(2).
While the type of registration papers may differ from state to
state depending on domestic laws, every state must keep a register
of "the names of all private vessels sailing under its flag," and
ensure "that every vessel may be identified from a distance."
1 L.F.L. Oppenheim, International Law §§ 290 (Jennings et al.
eds., 9th ed. 2008). "Without a flag or papers, a vessel may also
traditionally make an oral claim of nationality when a proper
demand is made." United States v. Matos-Luchi, 627 F.3d 1, 5 (1st
Cir. 2010).
This "flag-state" system -- by which all vessels are
required to fly the flag of a state, and states are in turn
required to approve the conditions for granting rights to fly their
flag -- serves several purposes. First, by subjecting vessels to
the exclusive jurisdiction of the flag state, the flag-state system
guarantees freedom of navigation in international waters, as
states generally may not interfere with the passage on the high
(noting that the United States has stated that the "baseline
provisions [of UNCLOS] reflect customary international law"
(citation omitted)).
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seas of ships lawfully flying the flag of another state. See
Richard A. Barnes, "Flag States," in The Oxford Handbook on the
Law of the Sea 313 (Rothwell et al. eds. 2015); cf. UNCLOS
arts. 87, 90. Second, the flag-state system provides clear
guidance as to which state bears the primary obligation to regulate
conduct occurring on vessels on the seas. See R.R. Churchill &
A.V. Lowe, The Law of the Sea 205 (1988); cf. UNCLOS art. 94.
Third, the flag-state system indicates which state may bear
responsibility for the conduct of a ship on the seas. See
Churchill & Lowe, supra, at 205. Thus, the flag-state system is
"[o]ne of the most important means by which public order is
maintained at sea." Id.
Aybar concedes that the ship upon which he was found
plainly did not comply with this system. It flew no flag, its
master claimed no nationality, and no other indicia of registration
or nationality were present when authorized United States
officials stopped and boarded the ship. Presumably for these
reasons, Aybar does not dispute that his vessel may be treated as
"stateless" under international law. See, e.g., Matos-Luchi, 627
F.3d at 6 (stating that a vessel "may be deemed 'stateless' . . .
if it fails to display or carry insignia of nationality and seeks
to avoid national identification").
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B.
International law plainly provides that a nation's
warship (or law enforcement ship) may stop and board a stateless
vessel on the high seas. See UNCLOS art. 110(1)(d); Restatement
(Third) of the Foreign Relations Law of the United States
§ 522(2)(b) (1987) [hereinafter "Restatement (Third)"] ("[A]
warship or clearly-marked law enforcement ship of any state may
board [a nongovernmental ship] . . . if there is reason to suspect
that the ship . . . is without nationality . . . ."); see also
Brownlie's Principles of Public International Law 285, 292
(Crawford ed., 9th ed. 2019) [hereinafter "Brownlie's
Principles"]; Malcolm Shaw, International Law 457 (8th ed. 2017)
("A ship that is stateless, and does not fly a flag, may be boarded
and seized on the high seas."); Myres S. McDougal & William T.
Burke, The Maintenance of Public Order at Sea and the Nationality
of Ships, 54 Am. J. Int'l L. 25, 76-77 (1960) ("So great a premium
is placed upon the certain identification of vessels for purposes
of maintaining minimal order upon the high seas . . . that
extraordinary deprivational measures are permitted with respect to
stateless ships."). In short, "[b]ecause stateless vessels do not
fall within the veil of another sovereign's territorial
protection," the vessel is afforded no right of free navigation.
United States v. Rendon, 354 F.3d 1320, 1325 (11th Cir. 2003)
(quoting United States v. Caicedo, 47 F.3d 370, 373 (9th Cir.
- 13 -
1995)); see also United States v. Rubies, 612 F.2d 397, 402-03
(9th Cir. 1979) ("A foreign flag[ged] vessel is thereby protected
by her country of registration. . . . An unregistered, or
'stateless,' vessel, however, does not have these rights or
protections.").
To say that international law grants to any state the
authority to interdict and exercise physical control over a
stateless vessel is to say that international law renders stateless
vessels "susceptible to the jurisdiction of any State," Barnes,
supra, at 314, including the United States. See Smith, 680 F.2d
at 258 (recognizing that "[i]nternational law . . . allows any
state to extend its authority over a stateless ship") (citing
United Nations Convention on the High Seas, 13 U.S.T. 2313,
T.I.A.S. No. 5200 (1958)); see also United States v. Juda, 46 F.3d
961, 967 (9th Cir. 1995); United States v. Martinez-Hidalgo, 993
F.2d 1052, 1055 (3d Cir. 1993); Victoria, 876 F.2d at 1010
(recognizing that international law "gives the United States . . .
authority to treat stateless vessels as if they were its own");
United States v. Alvarez-Mena, 765 F.2d 1259, 1265 (5th Cir. 1985)
("[I]nternational law does not preclude any nation from exercising
jurisdiction over stateless vessels on the high seas."); United
States v. Pinto-Mejia, 720 F.2d 248, 260-61 (2d Cir. 1983); United
States v. Marino-Garcia, 679 F.2d 1373, 1383 (11th Cir. 1982)
("[I]nternational law permits any nation to subject stateless
- 14 -
vessels on the high seas to its jurisdiction."); United States v.
Howard-Arias, 679 F.2d 363, 371 (4th Cir. 1982); Malcolm D. Evans,
"The Law of the Sea," in International Law 651, 656-60 (Malcolm D.
Evans ed., 3d ed. 2010) ("[I]f a ship is stateless, or flies more
than one flag so that its true State of registry is not clear,
then any state can exercise jurisdiction over it.") (cited with
approval in Restatement (Fourth) of the Foreign Relations Law of
the United States § 408 n.3 (2018) [hereinafter "Restatement
(Fourth)"]).
In sum, there is no doubt that the United States could
exercise jurisdiction over the stateless vessel upon which Aybar
was found.
C.
Offering no persuasive reason why the United States
could not exercise jurisdiction over the stateless vessel upon
which he was found, Aybar narrows his focus to his prosecution.
While it may be clear that international law allows any state to
exercise jurisdiction over a flagless vessel, even to the point of
stopping, boarding and seizing it should they wish to do so, he
asserts that the prosecution of those on board the vessel under
the laws of the seizing country is a different matter altogether.
With respect to United States-flagged vessels, the law
does not distinguish between jurisdiction over the vessel itself
and jurisdiction over the people on the vessel and their conduct
- 15 -
on board. It is well settled that the United States has
jurisdiction over conduct occurring on United States-flagged
vessels because: (1) "[t]he deck of a private American
vessel . . . is considered . . . constructively as territory of
the United States," Ross v. McIntyre, 140 U.S. 453, 464 (1891);
and (2) a state's jurisdiction over conduct on its territory is
one of "the most commonly recognized bases of jurisdiction,"
Restatement (Fourth) § 407 cmt. c; see also id. § 408 cmt. a ("A
state may exercise prescriptive jurisdiction with respect to
persons, property, and conduct within its territory."); Smith, 680
F.2d at 257 (similar). Cf. Restatement (Third) § 502 cmt. d
(explaining that a flag state has jurisdiction over "the conduct
of a ship" as well as "any activity aboard the ship").
Two centuries of case law strongly suggest that the same
territorial principles apply to conduct aboard a stateless vessel.
Shortly after our nation's founding, the United States Supreme
Court issued a series of opinions addressing the scope of the
United States' jurisdiction over conduct committed on board
non-United States vessels. The Court rejected the assertion of
jurisdiction in domestic courts over murders committed by and
against foreigners on foreign vessels. See United States v.
Furlong, 18 U.S. (5 Wheat.) 184, 196–98 (1820); see also United
States v. Klintock, 18 U.S. (5 Wheat.) 144, 151 (1820). Murders
committed by and against foreigners on stateless vessels, though,
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could be prosecuted in the United States. See Klintock, 18 U.S.
at 151–52; United States v. Holmes, 18 U.S. (5 Wheat.) 412, 417–
18; see also Furlong, 18 U.S. at 194–95 (stating that murder is
"equally punishable" in the courts of the United States when
committed on an American ship or on a stateless pirate ship, as
opposed to on a foreign ship, which presented "a question of more
difficulty").
While those cases dealt with vessels that were deemed
stateless because of piratical conduct, the Court did not hold
that piracy was the only means by which a vessel could be deemed
stateless so as to justify United States prosecutorial
jurisdiction. On that point, Holmes conveyed the opposite,
signaling that conduct of persons on board a stateless vessel could
be prosecuted whether the vessel was piratical or not:
The said Circuit Court had jurisdiction of the
offen[s]e charged in the indictment, if the
vessel, on board of which it was committed,
had, at the time of the commission thereof, no
real national character but was possessed and
held by pirates, or by persons not lawfully
sailing under the flag, or entitled to the
protection of any government whatsoever.
18 U.S. at 419.
These founding-era cases also did not hold that a foreign
national may be prosecuted in the United States for his conduct on
the high seas only if he personally renounces his nationality by
engaging in piracy. True, the Court certainly approved the
- 17 -
prosecution of "those who acknowledge the authority of no State."
Klintock, 18 U.S. at 152. But the Court also repeatedly emphasized
the statelessness of the ship, rather than the nationality of the
persons on board, in upholding the United States' exercise of
jurisdiction over those persons. For example, in Klintock, the
Court held that "persons on board of a vessel not at the time
belonging to the subjects of any foreign power, but in possession
of a crew acting in defiance of all law, and acknowledging
obedience to no government whatever, . . . are proper objects for
the penal code of all nations." Id. To the extent that there is
any ambiguity as to whether the phrase "acknowledging obedience to
no government whatever" was intended to modify the "persons" or
the "vessel" at issue, the Court clarified in Holmes that the
status of the vessel was determinative:
In Klintock's case, it was laid down, that to
exclude the jurisdiction of the Courts of the
United States, in cases of murder or robbery
committed on the high seas, the vessel in
which the offender is, or to which he belongs,
must be, at the time, . . . the property of a
subject of a foreign State, and . . . subject,
at that time, to [its] control. But if the
offen[s]e be committed in a vessel, not at the
time belonging to subjects of a foreign State,
but in possession of persons acknowledging
obedience to no government or flag, and acting
in defiance of all law, it is [punishable in
the courts of the United States]. It follows,
therefore, that murder or robbery committed on
the high seas, may be an offen[s]e cognizable
by the Courts of the United States, although
it was committed on board of a vessel not
belonging to citizens of the United States, []
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if she had no national character, but was
possessed and held by pirates, or persons not
lawfully sailing under the flag of any foreign
nation.
18 U.S. at 416–17. Because the Court in Holmes held that the
existence of jurisdiction depended on whether or not the vessel at
issue was under the control of a foreign nation, "it made no
difference, as to the point of jurisdiction, whether the
[offenders] were citizens of the United States" or citizens of
foreign nations. Id. at 419–20. As we have described, this
approach comports with the overall system of flag-state
jurisdiction. See Furlong, 18 U.S. at 198 (explaining that the
distinction between foreign vessels and stateless vessels serves
to avoid "offensive interference with the governments of other
nations").
Our concurring colleague well develops the case for
treating Holmes as binding authority dictating our holding in this
case. This is certainly a defensible view. If murder, a crime
over which there is no universal jurisdiction, can be prosecuted
by the United States when committed by a foreigner upon a foreigner
on a vessel that has no national character, why can the United
States not also prosecute drug trafficking committed by a foreigner
on such a vessel? Nevertheless, the sometimes challenging syntax
in Holmes, Furlong, and Klintock, plus the possibility that
international law itself now differs materially from international
- 19 -
law as understood 200 years ago, counsel against resting our
conclusion solely on those cases if we do not need to do so. And
we do not.
No other circuit has held that conduct aboard a stateless
vessel seized by the United States on the high seas may not be
prosecuted as conduct committed on United States territory.3 See
United States v. Moreno-Morillo, 334 F.3d 819, 828 (9th Cir. 2003)
(noting that "a showing of statelessness effectively moots the
nexus requirement because those aboard stateless vessels
effectively have waived their right to object to the exercise of
jurisdiction over them by United States courts"); see also
Marino-Garcia, 679 F.2d at 1383 (concluding that stateless status
"makes the vessel subject to action by all nations proscribing
certain activities aboard stateless vessels and subjects those on
board to prosecution for violating th[ose] proscriptions"); Juda,
46 F.3d at 967 (recognizing no distinction between the right to
seize stateless vessels and the right to prosecute persons on board
them); Alvarez-Mena, 765 F.2d at 1266-67 (same).
While there is no unanimity among scholars on this point,
see Douglas Guilfoyle, "The High Seas," in The Oxford Handbook on
the Law of the Sea 218 (Rothwell et al. eds. 2015), the
3 Because we sustain MDLEA as applied to Aybar, we need not
decide whether and to what effect MDLEA should be construed as
reaching even more broadly.
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longstanding unanimity among United States courts is especially
significant, as "the state practice of the United States
contributes to the development of customary international law when
followed out of a sense of international legal right or
obligation." Restatement (Fourth) § 402 cmt. b; see also id. n.2.
Treating conduct on stateless vessels in this manner
furthers a basic aim of international law to achieve order on the
high seas by disincentivizing the use of stateless vessels.
Marino-Garcia, 679 F.2d at 1382-83. This approach also yields
significant practical benefits, such as reducing complications
when, for example, officials of the seizing nation are needed as
witnesses in a subsequent prosecution of offenses committed on the
vessel. Moreover, those who set out in stateless vessels cannot
be said to possess the same reasonable expectation of sanctuary
from foreign jurisdiction under international law as those on a
flagged vessel would. See Caicedo, 47 F.3d at 372 (distinguishing
properly flagged vessels, which have a "legitimate expectation" of
being subject only to the laws of the flag state, from stateless
vessels, which "subject themselves to the jurisdiction of all
nations" such that a state's exercise of jurisdiction over them
cannot, categorically, be said to be "arbitrary or fundamentally
unfair"); see also Moreno-Morillo, 334 F.3d at 828; Marino-Garcia,
679 F.2d at 1382 (describing stateless vessels as "international
pariahs" having "no internationally recognized right to navigate
- 21 -
freely on the high seas" and finding no categorical limits to the
exercise of jurisdiction over stateless vessels under
international law). Simply put, if a person intent on drug
trafficking on the high seas wants to be prosecuted in his own
country should he be caught, he should sail under that country's
flag.
D.
Aybar contends that, notwithstanding the foregoing, his
prosecution was prohibited by other, more specific rules and
undertakings governing jurisdiction and the high seas. As we will
explain, we find that the relevant and more specific rules and
undertakings are entirely consistent with our conclusion that
Aybar was properly subject to prosecution in the United States for
his conduct on board the stateless vessel.
1.
Aybar first points to the 1988 United Nations Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances ("UN Drug Trafficking Convention"), U.N.T.S. 27627
(1988), which was adopted to give effect to UNCLOS's call on states
to "cooperate in the suppression of illicit traffic in narcotic
drugs" on the high seas, UNCLOS art. 108. Specifically, he points
out that the UN Drug Trafficking Convention does not explicitly
address the possibility of states exercising jurisdiction over
persons found engaging in drug trafficking on stateless vessels on
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the high seas. See UN Drug Trafficking Convention art. 17. But
it does not rule out such prosecutions either. To the contrary,
at least one United Nations body has suggested that states may
exercise jurisdiction under the convention over persons found
engaging in illegal activities on stateless vessels, in
combination with domestic sources of authority. See Commission on
Crime Prevention and Criminal Justice, Outcome of the Expert Group
Meeting on Transnational Organized Crime at Sea, held in Vienna,
Austria, on 5-6 April 2016, U.N. Doc. E/CN.15/2016/CRP.3, ¶ 18
(May 19, 2016) (recognizing debate over enforcement activity
against perpetrators found on stateless vessels but observing that
"if a State is party to the [UN Drug Trafficking Convention], it
should exercise jurisdiction over vessels without nationality").
To implement the UN Drug Trafficking Convention, several
European states adopted the 1995 Council of Europe Convention on
Illicit Traffic by Sea. That convention provides further support
for the proposition that international law welcomes prosecutions
by the seizing nation of those found engaged in drug trafficking
on stateless vessels: It not only allows but requires parties to
prosecute persons found trafficking drugs on stateless vessels.
See Agreement on Illicit Traffic by Sea, Implementing Article 17
of the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances art. 3, C.E.T.S. 156
(1995) (mandating that "each Party shall take such measures as may
- 23 -
be necessary to establish its jurisdiction over the relevant
offen[s]es committed on board a vessel which is without
nationality, or which is assimilated to a vessel without
nationality under international law").4
Several other international law instruments similarly
leave open the possibility of states taking law enforcement action
against persons found on stateless vessels. Such instruments
typically use language indicating that states may take action "in
accordance with relevant domestic and international law" after
searching a stateless vessel on the high seas. See Brownlie's
Principles, supra, at 291 (explaining that this language
"perpetuates the ambiguity regarding the exercise of prescriptive
jurisdiction and enforcement over stateless vessels"). For
example, the 2000 Migrant Smuggling Protocol indicates with
respect to vessels without nationality that "[i]f evidence
confirming the suspicion [of smuggling] is found," the boarding
State "shall take appropriate measures in accordance with relevant
domestic and international law." See Protocol Against the
Smuggling of Migrants by Land, Sea and Air, Supplementing the
4 See also Agreement Concerning Co-Operation in Suppressing
Illicit Maritime Air Trafficking in Narcotic Drugs and
Psychotropic Substances in the Caribbean Area (not yet in force)
(signed by the United States on April 10, 2003) (providing the
same).
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United Nations Convention Against Transnational Organized Crime
art. 8(7), U.N.T.S. 2241 (2000) (emphasis added).
Likewise, the United Nations Straddling Fish Stocks
Agreement suggests that states may take enforcement action against
stateless fishing vessels for illegal fishing "in accordance with
international law," but does not specify what such action might
entail. See Agreement for the Implementation of the Provisions of
the United Nations Convention on the Law of the Seas of 10 December
1982 Relating to the Conservation and Management of Straddling
Stocks and Highly Migratory Fish Stocks art. 21(17), Conference on
Straddling Fish Stocks and Highly Migratory Fish Stocks,
6th Sess., U.N. Doc. A/CONF.164/37 (Sept. 8, 1995); see also
Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea
108 (2009) (observing that this language "accommodat[es] divergent
views as to prescriptive and enforcement jurisdiction over
stateless vessels at general international law"). Moreover,
various regional fisheries organizations have encouraged states to
take legal action where evidence is found of illegal fishing on
stateless vessels.5 See Guilfoyle, Shipping Interdiction and the
5 See, e.g., International Commission for the Conservation
of Atlantic Tunas (ICCAT), Recommendations by ICCAT on Vessel
Sightings, ¶ 3 (June 20, 2020) ("If the vessel is confirmed to be
without nationality, a competent authority . . . is encouraged to
inspect the vessel, consistent with international law and, if
evidence so warrants, the Contracting Party is encouraged to take
such action as may be appropriate, in accordance with international
law."); Northeast Atlantic Fisheries Commission, Scheme of Control
- 25 -
Law of the Sea, supra, at 129 (explaining that the Northeast
Atlantic Fisheries Commission Scheme "appears to directly
encourage the adoption of national laws permitting
extraterritorial enforcement action against stateless vessels,"
even if, like the UN Drug Trafficking Convention, it does not
itself provide for such enforcement measures); Rosemary Rayfuse,
Non-Flag State Enforcement in High Seas Fisheries 330-31 (2004).
Moreover, certain bilateral instruments to which the
United States is a party explicitly leave open the possibility of
states taking enforcement action against persons found on board
stateless vessels where the evidence so warrants. See, e.g.,
Agreement between the Government of the United States of America
and the Government of the Dominican Republic Concerning Maritime
Counter-Drug Operations, U.S.-Dom. Rep., Mar. 23, 1995, T.I.A.S.
No. 12620 (providing that counter-drug operations pursuant to the
agreement may be carried out against vessels "without
nationality," but also noting under the protocol to the agreement
that law enforcement personnel are to act in accordance with
and Enforcement, art. 38(2) (Feb. 7, 2020); see also Indian Ocean
Tuna Commission, Resolution 16/05 on Vessels Without Nationality
(Sept. 27, 2016); United Nations Food and Agriculture
Organization, Implementation of the International Plan of Action
to Prevent, Deter and Eliminate Illegal, Unreported, and
Unregulated Fishing 14-15 (2002) ("Taking action against
[stateless] vessels should be a high priority, because their very
statelessness frustrates the primary means to control fishing
activity on the high seas -- through flag State jurisdiction.").
- 26 -
international law when engaging in boardings and searches);
Agreement between the United States of America and Cyprus
Concerning Cooperation to Suppress the Proliferation of Weapons of
Mass Destruction, Their Delivery Systems, and Related Materials by
Sea, U.S.-Cyp., July 25, 2005, T.I.A.S. 06-112 (including
stateless vessels among the vessels against which operations may
be undertaken under the agreement); Agreement between the United
States of America and Belize Concerning Cooperation to Suppress
the Proliferation of Weapons of Mass Destruction, Their Delivery
Systems, and Related Materials by Sea, U.S.-Blz., Oct. 29, 2005,
T.I.A.S. 05-1019 (same); see also United States v. Bravo, 489 F.3d
1, 4 (1st Cir. 2007) (recounting that the claimed flag state could
not confirm registry of the vessel and authorized the United States
to proceed with law enforcement action under "international law").
2.
Aybar insists that UNCLOS nevertheless prohibits his
prosecution. He relies on Article 110, which provides a right to
visit ships suspected of being without nationality and to search
those ships if suspicion of statelessness remains after checking
the ship's documents. See also Aybar-Ulloa, 913 F.3d at 62-63
(Torruella, J., dissenting in part) (arguing that the unilateral
extension of domestic jurisdiction over a stateless vessel on the
high seas without a nexus violates UNCLOS). But in recognizing a
right to visit certain ships, including a ship "without
- 27 -
nationality," Article 110 does not prohibit the prosecution of
those on board. It simply remains silent as to whether and when
the visiting nation may prosecute persons found on the ship.
Aybar argues that we should draw a negative inference
from that silence because other articles of UNCLOS do contain
express grants of authority to penalize persons found on certain
vessels. For example, Article 105 authorizes the arrest and
punishment of persons found on pirate ships. Similarly,
Articles 99 and 109 expressly grant the power to penalize persons
for engaging in slavery and unauthorized broadcasting,
respectively. We reject the negative inference Aybar would have
us draw for two reasons.
First, and most simply, there are obvious differences
between the examples given and that of a stateless vessel,
undercutting any negative inference that could be drawn from the
presence of express grants in some articles but not others. For
starters, a ship engaged in piracy may retain its nationality.
UNCLOS art. 104. So there was a reason for Article 105 to
expressly confirm that any state can exercise universal
jurisdiction to seize and prosecute individuals on such a ship --
otherwise, it might have been possible to argue that only the
ship's flag state would be able to seize and prosecute those
individuals. Under this reading, Article 105 grants no new
authority. Similarly, because vessels that engage in unauthorized
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broadcasting can retain their nationality, an exception was needed
to overcome the presumption of exclusive flag-state jurisdiction
where it was desirable for impacted states to have the possibility
of arresting "person[s] or ship[s] engaged in" this activity. See
id. art. 109(4) (providing that states receiving transmissions or
suffering from interference may exercise their jurisdiction to
prosecute unauthorized broadcasting). Further, because slave
ships also generally retain their nationality, Article 99 had to
expressly impinge on flag-state jurisdiction in order to declare
that enslaved persons found on any ship are ipso facto free.
Without these provisions -- which codify limitations on the rights
of flag states where their ships engage in conduct of severe
concern to the international community -- other states may have
presumed that their hands were tied.
Not so in the case of the stateless vessel. The
presumption of flag-state jurisdiction, which arguably made the
express grants of authority in Articles 99, 105, and 109 necessary,
simply does not apply where the vessel at issue is stateless.
Rather, as we have explained, stateless vessels are treated as
subject to the exercise of authority by any nation. Accordingly,
the absence of an express grant of authority to seize and prosecute
persons on board a stateless vessel in Article 110 does not, on
its own, establish that Aybar's seizure and prosecution are
prohibited by UNCLOS.
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Second, Aybar's argument cannot be squared with the
approach taken in the international instruments and undertakings
we have described. If a categorical rule against the extension of
domestic jurisdiction over stateless vessels could be found in
UNCLOS Article 110, it is unlikely that subsequent instruments
mentioning stateless vessels could avoid it or that their drafters
would have been unaware of it. Instead, it appears that in the
decades since UNCLOS was concluded, the relevant international
organizations and actors have resolved to leave the issue to the
judgment of states. See Guilfoyle, "The High Seas," supra, at 218
(explaining that "[t]reaty law is silent" on the extension of
national jurisdiction over stateless vessels without a nexus and
"sometimes deliberately ambiguous" such that existing treaty
language "covers divergent national (and academic)
interpretations").
Our reading of international law does not render the
United States an outlier. Other nations have also adopted laws
and regulations permitting exercises of domestic jurisdiction over
stateless vessels and persons found on board them. See United
Nations Food and Agriculture Organization, Implementation of the
International Plan of Action to Prevent, Deter and Eliminate
Illegal, Unreported, and Unregulated Fishing 15 (2002) (discussing
laws adopted by Canada and Norway to extend jurisdiction over
stateless vessels); see also Fisheries Jurisdiction Case (Spain v.
- 30 -
Canada), Jurisdiction, Judgment, 1998 I.C.J. Rep. 432, ¶¶ 19, 61
64, 75 (Dec. 4) (describing Canada's seizure of a vessel under its
Coastal Fisheries Protection Act, adopted to cover high seas areas
governed by the Northwest Atlantic Fisheries Organization, and the
subsequent arrest and prosecution of its master for illegal fishing
under that law, as well as Spain's response that such law
enforcement actions were permissible only if the vessel were
stateless); Molvan v. Attorney-General for Palestine, A.C. 351
(1948); Guilfoyle, "The High Seas," supra, at 218 (noting that the
United States and United Kingdom have historically taken the view
that no nexus is required to extend national jurisdiction over a
stateless vessel).6 That there is not even more evidence of similar
state practices engenders no surprise, given the practical
difficulties of seizing ships on the high seas. "[W]hile
international law may allow states to arrest stateless vessels,
states may not yet have appropriated that right unto themselves."
Rayfuse, supra, at 330 (explaining that the absence of a widespread
practice of arresting and prosecuting stateless fishing vessels
may "reflect[] . . . the reality that few states have the physical
capability to arrest these vessels on the high seas" and that
6 See generally Coastal Fisheries Protection Act (R.S.C.,
1985, c. c-33) § 5.5 (Canada); Marine Resources Act no. 37 (6 June
2008) (Norway), available at https://www.fiskeridir.no/English/
Fisheries/Regulations/The-marine-resources-act; Policing and
Crime Act 2017, c.3 § 84(1)(b) (United Kingdom), available at
https://www.legislation.gov.uk/ukpga/2017/3/section/84.
- 31 -
"states may lack a basis in their domestic legal framework
permitting their authorities to take such action").
E.
We add, finally, several caveats.
First, our holding makes no attempt to assert universal
jurisdiction over drug trafficking offenses. The holding does not
apply at all to the large majority of vessels sailing on the high
seas. Rather, it applies only to vessels flouting order and custom
on the high seas by eschewing the responsibilities and protections
of the flag-state system.
Second, we do not suggest that international law does
not apply to the seizure of the vessel or that persons on board
such vessels fall outside of the protection of international law.
See Rayfuse, supra, at 57 (explaining that "a ship without
nationality[] is not necessarily a ship without law[,] . . . [b]ut
it is a ship without protection" (quoting D.P. O'Connell, 2 The
International Law of the Sea 755 (1984))). Fundamental principles
of customary international human rights law, and requirements of
due process under United States law, may well still apply in
circumstances not present in this appeal. See Brownlie's
Principles, supra, at 285 (noting that stateless ships "are not
outside the law altogether," as "their occupants are protected by
elementary considerations of humanity"); Maarten Den Heijer,
Europe and Extraterritorial Asylum 238 (2012) (recognizing that
- 32 -
the "taking of coercive measures" against stateless vessels "is
likely to come within the ambit of human rights law"); see also
United States v. Ballestas, 795 F.3d 138, 148 (D.C. Cir. 2015);
United States v. Yousef, 327 F.3d 56, 111-12 (2d Cir. 2003) (citing
United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990));
Cardales, 168 F.3d at 553.
While the fundamental "arbitrariness or unfairness" of
a prosecution may depend in some part on notions of "fair warning"
under either domestic or international law, see United States v.
Van Der End, 943 F.3d 98, 106 (2d Cir. 2019), such "fair warning"
has certainly been given in the case of drug trafficking. Although
not a crime that gives rise to universal jurisdiction, see
Restatement (Fourth) § 413 n.1 (explaining that "universal
jurisdiction is limited to the most serious offenses about which
a consensus has arisen for the existence of universal
jurisdiction"); United States v. Cardales-Luna, 632 F.3d 731,
740-41 (Torruella, J., dissenting), drug trafficking has long been
regarded as a serious crime by nearly all nations. See United
Nations Treaty Depositary, Status of the United Nations Convention
against Illicit Traffic in Narcotics (accessed August 9, 2020)
(indicating that 191 states are party to the UN Drug Trafficking
Convention); see also 46 U.S.C. § 70501(1) (recognizing that
"trafficking in controlled substances aboard vessels is a serious
international problem" that "is universally condemned").
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Third, we opt not to decide one way or the other whether
the United States may prosecute a foreign citizen engaged in drug
trafficking on a stateless vessel where the United States never
boarded and seized the vessel. Nor do we reach the question of
whether the MDLEA by its own terms reaches such a situation. In
this case the law has been applied to a person apprehended on board
the stateless vessel when stopped and boarded by United States
Coast Guard officers. Although the government seeks a broader
ruling in its supplemental briefing, it does not abandon its
argument that "MDLEA was not unconstitutional as applied to this
case because Aybar's stateless vessel was intercepted on the high
seas" by the United States. And resolving this "as applied"
argument is all that is necessary to dispose of this appeal.
Finally, nothing in our reasoning forecloses a
successful claim of diplomatic protection by a foreign state,
should a foreign state make such a petition on behalf of its
national. See Barnes, supra, at 315; Churchill & Lowe, supra, at
172. What we hold, instead, is that international law does not
generally prohibit the United States from prosecuting drug
traffickers found on a stateless vessel stopped and boarded by the
United States on the high seas as if they had been found on a
United States vessel subject to the territorial jurisdiction of
the United States. Therefore, even if Congress's power under the
- 34 -
Define and Punish Clause is cabined by international law, Aybar's
prosecution under MDLEA would not exceed any such limitation.
III.
That leaves only Aybar's challenge to his sentence. For
the reasons stated in the panel opinion, we vacate and remand for
resentencing under the Sentencing Commission's clarified guidance,
as reflected in Amendment 794. See Aybar-Ulloa, 913 F.3d at 56–
57 (citing United States v. Sarmiento-Palacios, 885 F. 3d 1, 6
(1st Cir. 2018)).
Outcome: For the foregoing reasons, we affirm the defendant's
conviction, vacate the defendant's sentence, and remand for
resentencing.
Plaintiff's Experts:
Defendant's Experts:
Comments: