United States v. Van Der End, No. 17-2926 (2d Cir. 2019)
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The Second Circuit affirmed defendant's conviction for engaging in drug trafficking activity, and conspiring to do so, in violation of the Maritime Drug Law Enforcement Act. The court held that defendant waived his Confrontation Clause and jury trial right challenges to his conviction by pleading guilty.
The court also held that the Due Process Clause did not require a nexus between the United States and the MDLEA violations that transpire on a vessel without nationality. The court explained that such prosecutions are not arbitrary, since any nation may exercise jurisdiction over stateless vessels, and they are not unfair, since persons who traffic drugs may be charged with knowledge that such activity is illegal and may be prosecuted somewhere. The court considered defendant's remaining arguments and found them meritless.
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17-2926 United States v. Van Der End 17 2926 United States v. Van Der End UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________ 1 2 3 4 August Term, 2018 5 6 7 (Argued: August 13, 2018 Decided: November 14, 2019) 8 Docket No. 17 2926 9 10 ____________________ 11 12 13 UNITED STATES OF AMERICA, 14 Appellee, 15 16 v. 17 18 19 20 STEFAN VAN DER END, AKA STEFAN VAN DAM EASEL, 21 Defendant Appellant.1 22 23 ____________________ 24 25 26 Before: NEWMAN and POOLER, Circuit Judges, and COTE, District Judge.2 27 1 The Clerk of the Court is directed to amend the caption as above. Denise Cote, United States District Court for the Southern District of New York, sitting by designation. 2 1 2 York (Richard J. Sullivan, J.), convicting defendant Stefan Van Der End, after a 3 plea of guilty, of engaging in drug trafficking activity, and conspiring to do so, in 4 violation of the Maritime Drug Law Enforcement Act (the “MDLEA”), 46 U.S.C. 5 §§ 70501 et seq. Because Van Der End has waived his Confrontation Clause and 6 jury trial right challenges to his conviction by pleading guilty, and because the 7 Due Process Clause does not require a nexus between the United States and 8 MDLEA violations that transpire on a vessel without nationality, we affirm the 9 conviction. 10 BENJAMIN SILVERMAN, Patel & Shellow LLP, New York, N.Y., for Defendant Appellant. 12 13 Jill R. Shellow, New York, N.Y., for Defendant Appellant (on the brief). 15 16 17 AMANDA L. HOULE, Assistant United States Attorney (Jason M. Swergold, Karl Metzner, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee. 18 19 20 21 22 23 Affirmed. ____________________ 11 14 Appeal from United States District Court for the Southern District of New 2 1 POOLER, Circuit Judge: 2 3 United States District Court for the Southern District of New York (Richard J. 4 Sullivan, J.), convicting him, after a plea of guilty, of engaging in drug trafficking 5 activity, and conspiring to do so, in violation of the Maritime Drug Law 6 Enforcement Act (the “MDLEA”), 46 U.S.C. §§ 70501 et seq. Because Van Der 7 End has waived his Confrontation Clause and jury trial right challenges to his 8 conviction by pleading guilty, and because the Due Process Clause does not 9 require a nexus between the United States and MDLEA violations that transpire 10 Defendant Appellant Stefan Van Der End appeals from a judgment of the on a vessel without nationality, we affirm the conviction. BACKGROUND 11 12 13 I. Factual Background Stefan Van Der End, a citizen of the Netherlands, was one of three foreign 14 nationals on board the Sunshine, carrying more than 1,000 kilograms of cocaine 15 from Grenada to Canada when it was stopped by the United States Coast Guard 16 on May 23, 2016. Richard Dow, the master of the Sunshine, told the Coast Guard 17 that the boat was registered in St. Vincent and the Grenadines (“SVG”) and 18 provided the vessel’s registration information. The next morning, Coast Guard 3 1 officers boarded the boat—subject to the authority granted them by a treaty with 2 SVG—and found more than 600 kilograms of cocaine below deck. The vessel 3 began to sink after one of the crewmembers attempted to scuttle it, so the 4 government was unable to recover all of the cocaine; however, the government 5 subsequently learned that there were another 640 kilograms hidden on the 6 Sunshine. Coast Guard officers detained Van Der End and the other members of 7 the crew. Coast Guard officers then inquired with SVG authorities about the 8 9 Sunshine’s registration. SVG authorities disclosed that the Sunshine’s registration 10 had expired on February 25, 2016, and that SVG did not consider the Sunshine to 11 be subject to the SVG’s jurisdiction. Van Der End and the other crewmembers 12 who were on board the Sunshine were then brought to New York and 13 subsequently arrested on June 3, 2016. 14 II. 15 Procedural History In an indictment filed on June 30, 2016, a grand jury indicted Van Der End 16 and the other crewmembers with one count of manufacture and distribution, and 17 possession with intent to manufacture and distribute, five kilograms and more of 18 mixtures and substances containing a detectable amount of cocaine while aboard 4 1 a vessel subject to the jurisdiction of the United States in violation of the MDLEA, 2 46 U.S.C. §§ 70503(a)(1), 70504(b)(1), 70506(a); 18 U.S.C. §§ 3238 & 2; 21 U.S.C. 3 § 960(b)(1)(B), and one count of conspiracy to engage in the above described 4 drug trafficking activity in violation of the MDLEA, 46 U.S.C. §§ 70503, 70506(b), 5 70504(b)(1); 18 U.S.C. § 3238; 21 U.S.C. § 960(b)(1)(B).3 On April 24, 2017, Van Der End filed a motion to dismiss the indictment 6 7 for lack of subject matter jurisdiction. He also challenged the constitutionality of 8 the MDLEA as applied to him on due process grounds and raised a Sixth 9 Amendment challenge to his prosecution based on the government’s alleged 10 forum shopping. The same day, the government filed a motion in limine in 11 which it argued that the defendants should be precluded from arguing to a jury 12 that the Sunshine was not subject to the jurisdiction of the United States. At a May 4, 2017, hearing, the district court orally ruled in favor of the 13 14 government on all issues. The district court also ruled that it would permit the 15 government to enter into evidence documents from the SVG government 16 regarding ownership of the Sunshine. After the district court’s rulings, Van Der The text of some of the MDLEA’s provisions have since changed in ways that are immaterial for purposes of this appeal. 5 3 1 End stated that he intended to enter a guilty plea. The district court scheduled a 2 plea hearing for that same afternoon, during which Van Der End pled guilty to 3 both counts of the indictment without a plea agreement or otherwise reserving 4 any rights to challenge his conviction on appeal. The district court later 5 published an opinion and order formally announcing its ruling on subject matter 6 jurisdiction, statelessness, and the other challenges to the indictment Van Der 7 End and one of his codefendants had raised. United States v. Suarez, 16 cr 453 8 (RJS), 2017 WL 2417016, at *1 (S.D.N.Y. June 1, 2017). 9 On September 8, 2017, the district court sentenced Van Der End to 25 years 10 of imprisonment and five years of supervised release, and entered judgment the 11 same day. This appeal followed. 12 13 DISCUSSION On appeal, Van Der End primarily argues that the district court erred by 14 denying his motion to dismiss the indictment because (1) the government 15 presented insufficient evidence that the Sunshine was a vessel subject to the 16 jurisdiction of the United States, (2) the Fifth and Sixth Amendments required 17 the district court to submit that question to a jury rather than decide it for itself, 18 and (3) his conduct lacked the nexus to the United States that due process 6 1 requires. In reviewing the denial of a motion to dismiss an indictment, we review 2 the district court’s findings of fact for clear error and its conclusions of law de 3 novo. United States v. Bout, 731 F.3d 233, 237 38 (2d Cir. 2013). 4 I. Evidence of Statelessness 5 A. The MDLEA’s Requirements 6 As presently drafted, the MDLEA makes it a federal crime to engage in 7 certain specified drug trafficking activity “[w]hile on board a covered vessel.” 46 8 U.S.C. § 70503(a). A “covered vessel” includes, as relevant here, “a vessel subject 9 to the jurisdiction of the United States.” Id. § 70503(e)(1). A vessel may be subject 10 to the jurisdiction of the United States if, inter alia, it is “a vessel without 11 nationality.” Id. § 70502(c)(1)(A). For present purposes, a vessel is without 12 nationality if “the master or individual in charge makes a claim of registry that is 13 denied by the nation whose registry is claimed.” Id. § 70502(d)(1)(A). A claim of 14 registry may be made in one of three ways: “(1) possession on board the vessel 15 and production of documents evidencing the vessel’s nationality . . . ; (2) flying 16 its nation’s ensign or flag; or (3) a verbal claim of nationality or registry by the 17 master or individual in charge of the vessel.” Id. § 70502(e). “The response of a 7 1 foreign nation to a claim of registry . . . is proved conclusively by certification of 2 the Secretary of State or the Secretary’s designee.” Id. § 70502(d)(2). 3 4 chapter is not an element of an offense.” Id. § 70504(a). Rather, “[j]urisdictional 5 issues” that arise under MDLEA “are preliminary questions of law to be 6 determined solely by the trial judge.” Id. As we have recently explained, the 7 function of MDLEA’s jurisdictional language “is not to confer subject matter 8 jurisdiction on the federal courts, but rather to specify the reach of the statute 9 beyond the customary borders of the United States.” United States v. Prado, 933 “Jurisdiction of the United States with respect to a vessel subject to this 10 F.3d 121, 132 (2d Cir. 2019). 11 12 defendant was apprehended was a vessel subject to the jurisdiction of the United 13 States, the defendant may still be permitted to raise that issue on appeal even 14 after pleading guilty. That is because “a defective guilty plea will not necessarily 15 be deemed to waive all objections to a conviction.” Id. at 151. And when the 16 government’s proof that a vessel was subject to the jurisdiction of the United 17 States is lacking, a district court might run afoul of Federal Rule of Criminal 18 Procedure 11(b)(1)(G), which “requires that the court must inform the defendant However, where there is no factual basis to find that the vessel on which a 8 1 of, and determine that the defendant understands, . . . the nature of each charge 2 to which the defendant is pleading,” and 11(b)(3), which “requires the court to 3 determine that there is a factual basis for the plea,” rendering the defendant’s 4 guilty plea invalid. Id. at 152 (alteration in original) (internal quotation marks 5 omitted). B. 6 The Sunshine Was a Vessel Without Nationality 7 Van Der End argues that the government did not present sufficient 8 evidence from which the district court could properly conclude that the Sunshine 9 was a vessel without nationality. He argues that the district court’s reliance on 10 the State Department certification violated the Confrontation Clause because it 11 amounted to a testimonial statement by a witness whom Van Der End did not 12 have an opportunity to confront. This argument is without merit. Van Der End’s 13 guilty plea waived his right to raise that Sixth Amendment challenge to the 14 evidence on which the government’s prosecution relied. Boykin v. Alabama, 395 15 U.S. 238, 243 (1969) (observing that “the right to confront one’s accusers” is 16 among the “federal constitutional rights [that] are involved in a waiver that takes 17 place when a plea of guilty is entered”); United States v. Dhinsa, 243 F.3d 635, 651 18 (2d Cir. 2001) (“[A] defendant who enters a plea of guilty waives his rights under 9 1 the Confrontation Clause.”); see also Class v. United States, 138 S. Ct. 798, 803 2 (2018) (differentiating claims that call into question “the very power of the State 3 to prosecute the defendant” from constitutional claims “related to events (say, 4 grand jury proceedings) that had occurred prior to the entry of the guilty plea” 5 (internal quotation marks omitted)). 6 7 the Sunshine’s statelessness sufficed. In Prado, we found problematic the “Coast 8 Guard boarding party’s inattention” to the MDLEA’s procedures for establishing 9 a vessel’s statelessness. 933 F.3d at 130. Most significantly, the government there Moreover, we are satisfied that the evidence the government presented of 10 relied on the fact that the master of the vessel did not make a verbal claim of 11 nationality or registry; however, the government adduced no evidence that “an 12 officer of the United States authorized to enforce applicable provisions of United 13 States law,” 46 U.S.C. § 70502(d)(2), had made such a request. Id. at 130 & n.5. 14 And, because the Coast Guard had destroyed the vessel, “it became virtually 15 impossible for the government to demonstrate to the court in the statutorily 16 mandated preliminary hearing that the vessel was subject to the jurisdiction of 17 the United States and therefore that the MDLEA applied.” Id. at 132. Further, at 18 the defendants’ plea allocution, the district court made “no reference either to the 10 1 requirement that the vessel have been subject to the jurisdiction of the United 2 States or to the crucial issue of its statelessness,” nor did the defendants 3 “demonstrate awareness . . . of the crucial significance of statelessness.” Id. at 4 152 53. Thus, neither through the Government’s evidence nor the defendants 5 themselves, was there any “factual basis for the plea.” Id. at 153. 6 7 defects. As explained above, Dow, the master of the Sunshine, claimed that the 8 vessel was registered in SVG and provided the Coast Guard with SVG 9 registration information. That sufficed to make a claim of registry. See 46 U.S.C. Here, however, the Coast Guard’s investigation suffered none of the same 10 §§ 70502(e)(1), (e)(3). The Coast Guard then contacted SVG officials who “refuted 11 the vessel’s claimed nationality.” App’x at 55. That established that the vessel 12 was without nationality. See 46 U.S.C. § 70502(d)(1)(A). Finally, the government 13 produced a certification from the United States Department of State that “proved 14 conclusively” the response of the SVG government. See id. § 70502(d)(2). 15 16 ability to challenge the sufficiency of the government’s evidence regarding 17 whether a vessel is subject to the jurisdiction of the United States by pleading 18 guilty. See Prado, 933 F.3d at 151 52. However, that does not mean that a MDLEA In short, a MDLEA defendant does not automatically waive his or her 11 1 defendant who enters an unconditional guilty plea may still challenge all aspects 2 of the government’s evidence. We are satisfied here that there was a factual basis 3 for Van Der End’s guilty plea, such that he has waived his right to challenge the 4 district court’s determination that the vessel was subject to the jurisdiction of the 5 United States. 6 II. Jury Trial Rights 7 Van Der End further argues that the district court was required to submit 8 to a jury the question of whether the Sunshine was subject to the jurisdiction of 9 the United States. This argument fails for much the same reason his 10 Confrontation Clause argument fails. By pleading guilty, Van Der End waived 11 his right to a jury trial. McMann v. Richardson, 397 U.S. 759, 766 (1970); see also 12 Class, 138 S. Ct. at 804 05. 13 14 presented for appellate review, Section “70504(a)’s provision that the jurisdiction 15 of the United States be determined solely by the trial judge” might be stricken as 16 violative of a criminal defendant’s right to a jury trial. Prado, 933 F.3d at 139 n.9; 17 see also id. at 157 (Pooler, J., concurring in the judgment). We thus cautioned that 18 district courts would be well advised “to submit the issue of jurisdiction over the To be clear, we recently recognized that, if the issue were properly 12 1 vessel to the jury notwithstanding the statutory word ‘solely’”—“after making 2 the preliminary determination required by § 70504(a) so that trial may proceed.” 3 Id. at 139 n.9. But here, the district court had no opportunity to submit the 4 question to a jury because Van Der End pled guilty after the district court made 5 the preliminary determination MDLEA requires. 6 III. 7 Due Process Finally, Van Der End argues that his prosecution violated the Due Process 8 Clause because there was no nexus between the offense conduct and the United 9 States. The government contends that no nexus is required because the Sunshine 10 was a stateless vessel and, even if a nexus were required, there was a sufficient 11 nexus here to satisfy due process. 12 As a threshold matter, we hold that Van Der End did not waive this 13 challenge to his prosecution by pleading guilty. We have previously held that a 14 criminal defendant who pleads guilty waives the argument “that the indictment 15 to which he [or she] pled guilty failed to adequately allege a nexus between his 16 [or her] alleged conduct and the United States, as required by the Due Process 17 Clause of the Fifth Amendment before a criminal statute may apply 18 extraterritorially.” United States v. Yousef, 750 F.3d 254, 256, 262 (2d Cir. 2014). 13 1 However, the Supreme Court has since clarified that a guilty plea does not “by 2 itself bar[] a federal criminal defendant from challenging the constitutionality of 3 the statute of conviction on direct appeal.” Class, 138 S. Ct. at 803. Although 4 criminal defendants cannot “contradict the terms of the indictment” to which 5 they pled guilty “or written plea agreement[s]” pursuant to which they pled 6 guilty, defendants may still raise constitutional challenges to the statute of 7 conviction that “can be resolved without any need to venture beyond the 8 record.” Id. at 804 (internal quotation marks omitted). In other words, criminal 9 defendants who have pled guilty may still “challenge the Government’s power 10 to criminalize [their] (admitted) conduct,” “thereby call[ing] into question the 11 Government’s power to constitutionally prosecute” them. Id. at 805. Here, Van 12 Der End raises precisely such a challenge. Whether the Due Process Clause 13 requires MDLEA crimes committed on board a stateless vessel to have a nexus to 14 the United States is a purely legal question on which the government’s 15 constitutional power to prosecute Van Der End turns. 16 17 previously held that the MDLEA’s predecessor statute did not, as a statutory 18 matter, require a nexus. United States v. Pinto Mejia, 720 F.2d 248, 261 (2d Cir. Nevertheless, Van Der End’s challenge fails on the merits. We have 14 1 1983), modified in part on denial of reh’g, 728 F.2d 142 (2d Cir. 1984); United States v. 2 Henriquez, 731 F.2d 131, 134 (2d Cir. 1984). We now hold that due process does 3 not require that there be a nexus between the United States and MDLEA 4 violations that transpire on a vessel without nationality.4 To begin with, the 5 MDLEA indisputably has extraterritorial application. 46 U.S.C. § 70503(b) 6 (“Subsection (a) [which proscribes specified drug trafficking activity] applies 7 even though the act is committed outside the territorial jurisdiction of the United 8 States.”). And “[w]here Congress expressly intends for a statute to apply 9 extraterritorially, . . . the burden is a heavy one for a defendant seeking to show 10 that extraterritorial application of the statute violates due process.” United States 11 v. Epskamp, 832 F.3d 154, 168 (2d Cir. 2016) (internal quotation marks omitted). 12 Van Der End cannot meet that burden. Although we have adopted a 13 “‘sufficient nexus’ test for determining whether the extraterritorial application of 14 federal criminal law comported with constitutional due process,” id., MDLEA 15 prosecutions involving stateless vessels do not present the same concerns that We need not, and do not, decide what the Due Process Clause may require before persons who are not on board a vessel without nationality may be prosecuted for violating the MDLEA. 15 4 1 are present in the extraterritorial application of typical criminal statutes. That is 2 because stateless “vessels are international pariahs” that “subject themselves to 3 the jurisdiction of all nations solely as a consequence of the vessel’s status as 4 stateless.” United States v. Caicedo, 47 F.3d 370, 372 (9th Cir. 1995) (internal 5 quotation marks omitted). “Because stateless vessels do not fall within the veil of 6 another sovereign’s territorial protection, all nations can treat them as their own 7 territory and subject them to their laws.” Id. at 373. Thus, when a vessel is subject 8 to the jurisdiction of another nation, a person trafficking drugs on board “would 9 have a legitimate expectation that because he has subjected himself to the laws of 10 one nation, other nations will not be entitled to exercise jurisdiction without 11 some nexus.” Id. at 372. The same is not true when “a defendant attempts to 12 avoid the law of all nations by travelling on a stateless vessel.” Id. at 372 73. 13 The purpose of requiring a sufficient nexus with the United States is to 14 prevent extraterritorial application of U.S. criminal laws from being “arbitrary or 15 fundamentally unfair.” See Epskamp, 832 F.3d at 168 (internal quotation marks 16 omitted); see also United States v. Ballestas, 795 F.3d 138, 148 (D.C. Cir. 2015) 17 (same). That “ultimate question” of arbitrariness or unfairness, Ballestas, 795 F.3d 18 at 148 (internal quotation marks omitted), in turn, hinges in part on the notion of 16 1 “fair warning.” Epskamp, 832 F.3d at 169. “The idea of fair warning is that no 2 [person] shall be held criminally responsible for conduct which he [or she] could 3 not reasonably understand to be proscribed.” United States v. Al Kassar, 660 F.3d 4 108, 119 (2d Cir. 2011) (internal quotation marks omitted). “Fair warning does 5 not require that the defendants understand that they could be subject to criminal 6 prosecution in the United States so long as they would reasonably understand that 7 their conduct was criminal and would subject them to prosecution somewhere.” 8 Id. 9 In other words, no nexus is required for the government to bring MDLEA 10 prosecutions against persons who are trafficking drugs on board stateless vessels 11 because such prosecutions are not arbitrary, since any nation may exercise 12 jurisdiction over stateless vessels, and they are not unfair, since persons who 13 traffic drugs may be charged with knowledge that such activity is illegal and 14 may be prosecuted somewhere. On that score, we have little trouble concluding 15 that those who participate in international drug trafficking activity are aware 16 that such conduct is illegal. See 46 U.S.C. § 70501 (congressional findings that 17 “trafficking in controlled substances aboard vessels is a serious international 17 1 problem [and] is universally condemned”). In this context, that is all due process 2 requires. CONCLUSION 3 4 We have considered the remainder of Van Der End’s arguments and find 5 them to be without merit. For the foregoing reasons, we AFFIRM the judgment 6 of the district court. 18
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