United States Court of Appeals, District of Columbia Circuit
January 12, 2018
Appeals from the United States District Court for the
District of Columbia (No. 1:13-cr-00134-3) (No.
1:13-cr-00134-5) (No. 1:13-cr-00134-4)
Fong Sheketoff, pro bono, argued the cause for appellant.
With her on the briefs were Louis K. Fisher and Sparkle L.
Sooknanan, pro bono, A.J. Kramer, Federal Public Defender,
and Richard K. Glibert and Carmen D. Hernandez, appointed by
M. Pellettieri, Attorney, U.S. Department of Justice, argued
the cause for appellee. With him on the brief were
N. McFadden, Deputy Assistant Attorney General, and Adrienne
L. Rose, Attorney. John Alex Romano, Attorney, and Elizabeth
Trosman, Assistant U.S. Attorney, entered appearances.
Before: Srinivasan and Millett, Circuit Judges, and Sentelle,
Senior Circuit Judge.
SRINIVASAN, CIRCUIT JUDGE
2012, the United States Coast Guard intercepted a Colombian
vessel called the Mistby, which was transporting cocaine and
marijuana to Panama. The three defendants in these
consolidated cases pleaded guilty to conspiring to
distribute, and possess with intent to distribute, the drugs
on board the Mistby, in violation of the Maritime Drug Law
Enforcement Act (MDLEA), 46 U.S.C. § 70501 et seq., and
the Controlled Substances Import and Export Act, 21 U.S.C.
§ 951 et seq. Each defendant was sentenced to 10 years
defendants now appeal on two grounds. First, they argue that
the district court lacked subject-matter jurisdiction over
their prosecutions because they were not on board the Mistby
when it was intercepted. In the defendants' view,
Colombia's assent to U.S. jurisdiction over individuals
associated with the Mistby was limited to persons found on
board the vessel. Second, the defendants contend that their
offense of conviction is covered by the so-called
safety-valve provision, 18 U.S.C. § 3553(f). That
provision, in certain circumstances, exempts covered offenses
from mandatory-minimum sentences such as the 10-year
sentences imposed against the defendants.
conclude that the district court had subject-matter
jurisdiction over the defendants' prosecutions, but that
the defendants' offense is covered by the safety-valve
provision. We therefore vacate the defendants' sentences
and remand for resentencing.
Coast Guard first spotted the Mistby on the high seas about
70 nautical miles off the coast of Panama. When the Coast
Guard approached, the Mistby fled, and its crew began to dump
cargo overboard. The cargo turned out to be 22 bales of
drugs, containing more than 220 kilograms of cocaine and more
than 120 kilograms of marijuana.
Coast Guard eventually overtook the Mistby and boarded it to
determine its nationality, at which point the Mistby's
captain claimed the vessel was registered in Colombia. The
United States and Colombia have agreed by treaty to
"cooperate in combating illicit traffic by sea."
Agreement to Suppress Illicit Traffic by Sea, Colom.-U.S.,
art. 2, Feb. 20, 1997, T.I.A.S. No. 12, 835. Pursuant to that
treaty, the Coast Guard asked the Colombian Navy (i) to
verify that the Mistby was registered in Colombia, and (ii)
to grant the Coast Guard permission to search the vessel.
See id. art. 7. The Colombian Navy granted both
requests. The Coast Guard then searched the Mistby and
arrested the people on board, but the defendants were not
next day, the Coast Guard asked the Colombian Navy to confirm
that, under Article 16 of the treaty, the United States had
jurisdiction over the Mistby. The Colombian Navy did so on
June 26, stating that, under the "agreement signed by
the governments of the United States and Colombia, [the
United States could] exercise their jurisdiction."
Ardila M. Hector, Colombian Naval Operations Ctr., Response
to Request for Interpretation of Article 16(1) of the
Maritime Agreement Col.-U.S. (June 26, 2012) (formatting
Coast Guard memorialized the Colombian Navy's response in
a certification, which reads, in relevant part:
On June 26, 2012, 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.
J. Fazio, U.S. Coast Guard, Certification for the Maritime
Drug Law Enforcement Act Case Involving Go-Fast Vessel Mistby
(Colombia) ¶ 4.e (Aug. 10, 2012) (hereinafter Coast
Guard Certification). "Accordingly," the
certification concludes, "the Government of the United
States determined the go-fast vessel MISTBY was subject to
the jurisdiction of the United States pursuant to 46 U.S.C.
§ 70502(c)(1)(C)." Id. ¶ 4.f.
later, the three defendants-Alfredo Mosquera-Murillo, Antonio
Moreno-Membache, and Joaquin Chang-Rendon-were charged with
conspiring to distribute, and possess with intent to
distribute, the drugs transported on board the Mistby, in
violation of 46 U.S.C. §§ 70503 and 70506(b), and
21 U.S.C. § 960(b)(1)(B) and (b)(2)(G). The
government's theory as to each defendant's
involvement was as follows: that Chang-Rendon (a civilian
employee of the Colombian Navy) knew the patrol routes of
Colombian and American law-enforcement vessels and passed
that information along to Mosquera-Murillo; that
Mosquera-Murillo in turn conveyed the information to the
people transporting the drugs; and that Moreno-Membache
helped move the drugs to the Colombian coast and then load
them onto the Mistby. At the time the defendants were
charged, all three of them were still in Colombia. The United
States thus requested extradition, which Colombia granted.
and Mosquera-Murillo moved to dismiss the indictment on the
ground that the district court lacked subject-matter
jurisdiction over their prosecutions. The government claimed
that the district court had jurisdiction under 46 U.S.C.
§ 70502(c)(1)(C), which applies if the vessel on which
an MDLEA offense was committed is "a vessel registered
in a foreign nation [and] that nation has consented or waived
objection to the enforcement of United States law by the
United States." The defendants responded that, as shown
by the Coast Guard's certification, Colombia waived
objection to the United States exercising jurisdiction over
the "MISTBY, all associated contraband, and persons on
board"-but not persons like the defendants who never set
foot on the vessel. Coast Guard Certification ¶ 4.e.
district court rejected that argument. The court held that
"a foreign government's waiver of jurisdiction over
a particular vessel . . . establish[es a district]
court's subject-matter jurisdiction over a subsequent
prosecution of any land-based co-conspirators."
United States v. Mosquera-Murillo, 153 F.Supp.3d
130, 158 (D.D.C. 2015). And in any event, the court
explained, the notion that Colombia had not consented to the
defendants' prosecutions was difficult to square