United States Court of Appeals For the First Circuit

No. 16-2089

UNITED STATES OF AMERICA,

Appellee,

v.

JEFFRI DÁVILA-REYES,

Defendant, Appellant.

No. 16-2143

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ D. REYES-VALDIVIA,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Howard, Chief Judge, Lipez and Thompson, Circuit Judges.

Thomas F. Klumper, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and John A. Mathews II, Assistant United States Attorney, were on brief, for appellee. Franco L. Pérez-Redondo, Research and Writing Specialist, with whom Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero, Assistant Federal Public Defender, and Liza L. Rosado- Rodríguez, Research and Writing Specialist, were on brief, for appellant Jose D. Reyes-Valdivia. Raymond L. Sánchez-Maceira on brief for appellant Jeffri Dávila-Reyes.

September 3, 2019 LIPEZ, Circuit Judge. These consolidated appeals arise

from the U.S. Coast Guard's interdiction of a small speed boat in

the western Caribbean Sea and the subsequent arrest and indictment

of the three men on board the boat for drug trafficking under the

Maritime Drug Law Enforcement Act ("MDLEA"),

-

70508. In a motion to dismiss the indictment, appellants José

Reyes-Valdivia and Jeffri Dávila-Reyes challenged the

constitutionality of the MDLEA. They argued that the statute,

which in certain circumstances allows U.S. law enforcement to

arrest foreign nationals for drug crimes committed in

international waters, exceeds Congress's authority under Article

I of the Constitution and violates the Due Process Clause. The

district court denied the motion to dismiss. Both appellants then

pleaded guilty pursuant to plea agreements in which each waived

his right to appeal if sentenced in accordance with his agreement's

sentencing recommendation provision.

On appeal, appellants renew their constitutional

objections to their prosecution. However, their primary argument

-- that their vessel was not properly deemed stateless -- founders

on our governing precedent concerning the protective principle of

international law. That principle, as applied by our court,

permits prosecution under the MDLEA even of foreigners on foreign

vessels. That precedent may only be reconsidered by the en banc

court. We as a panel may not do so. Hence, we affirm both

- 3 - appellants' convictions. Reyes-Valdivia also asserts sentencing

error, but we find no abuse of discretion in the sentence imposed.

I.

We draw the following facts from appellants' change of

plea colloquies and the uncontested portions of their Presentence

Investigation Reports ("PSRs"). See United States v. Vélez-

Luciano,

(1st Cir. 2016). While patrolling

waters approximately 30 nautical miles southeast of San Andrés

Island, Colombia,1 U.S. Coast Guard officers observed a small

vessel moving at a high rate of speed. When the occupants of the

vessel became aware of the Coast Guard boat nearby, they began

throwing packages and fuel barrels overboard. The Coast Guard

officers approached the boat and began to question its occupants,

the two appellants and a third co-defendant. The "master"2 of the

vessel "claimed Costa Rican nationality for the vessel," but did

not provide any documentation of Costa Rican registry. The Coast

Guard then contacted the government of Costa Rica, which neither

confirmed nor denied the registry of the vessel. The Coast Guard

1 San Andrés Island, although part of Colombia, is located off the coast of Nicaragua. 2 The term "master" is synonymous with "captain." It is a legal term of art meaning "he [or she] to whom are committed the government, care, and direction of the vessel and cargo." Kennerson v. Jane R., Inc.,

(S.D. Tex. 1967). The government did not specify which of the three men the Coast Guard identified as the "master" of the vessel.

- 4 - officers thus determined that, pursuant to § 70502(d)(1)(C) of the

MDLEA,3 the boat was "without nationality" and subject to U.S.

jurisdiction, and they proceeded to board and search it. The

officers did not find any contraband, but a chemical test found

traces of cocaine. Based on that evidence, the Coast Guard

detained the three men -- all citizens of Costa Rica -- and took

them to the U.S. Naval Base at Guantánamo Bay, Cuba, and then

eventually to Puerto Rico.

All three defendants were charged with two counts of

trafficking cocaine in violation of the MDLEA. Reyes-Valdivia and

Dávila-Reyes moved to dismiss the indictment for lack of

jurisdiction, arguing that the MDLEA, particularly

§ 70502(d)(1)(C), is unconstitutional. In their view,

§ 70502(d)(1)(C) exceeds Congress's authority under Article I of

the Constitution, and it violates the Due Process Clause of the

Fifth Amendment because it is unconstitutionally vague, subject to

arbitrary enforcement, and criminalizes conduct that has no nexus

with the United States. The district court denied the motion.

Reyes-Valdivia and Dávila-Reyes both subsequently agreed

to plead guilty to one count of possession with intent to

3This provision defines a "vessel without nationality" as one "aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality."

(d)(1)(C).

- 5 - distribute five or more kilograms of cocaine in violation of the

MDLEA. See

(a)(1).4 The plea agreements for both

men calculated a total offense level of 27, based on a base offense

level of 30 and a three-level deduction for acceptance of

responsibility. See U.S.S.G. §§ 2D1.1(a); 3E1.1(a)-(b). The

parties' recommended sentences depended on the court's eventual

finding of the Criminal History Category ("CHC"), with the

statutory minimum of 120 months' imprisonment to be recommended

unless the court found CHC VI (the highest level) applicable. In

a supplement to Reyes-Valdivia's plea agreement, the parties

agreed to recommend a 57-month term if he qualified for the "safety

valve" exception to the mandatory minimum. See

(f)(1)-(5); U.S.S.G. § 5C1.2.5 Both men agreed to waive

appellate review if sentenced in accordance with the sentencing

recommendation provisions.

The PSRs calculated the total base offense levels

consistently with the plea agreements and assigned Reyes-Valdivia

4 The third defendant also pleaded guilty to this count and was sentenced to a 57-month term of imprisonment. He did not file an appeal. 5 Section 3553(f) allows a court to disregard the mandatory minimum sentence for certain drug offenses when the defendant has met specified requirements, including having a limited criminal history and truthfully providing the government with all information about the offense.

- 6 - a CHC of I and Dávila-Reyes a CHC of III, triggering the 120-month

recommendation or, for Reyes-Valdivia, a 57-month term if he were

found eligible for the safety valve. However, Reyes-Valdivia's

PSR also concluded that he should be given a two-level enhancement

for being the "captain" of the vessel. See U.S.S.G.

§ 2D1.1(b)(3)(C). After Reyes-Valdivia informally objected to the

enhancement, the Probation Officer filed an addendum to the PSR

stating that Reyes-Valdivia had told federal agents upon his

arrival in Puerto Rico that he was the vessel's captain. Reyes-

Valdivia then filed a written objection to the PSR in which he

argued, inter alia, that the captain enhancement was inapplicable

because he did not possess the "specialized skills" it required.

Consistent with the plea agreements, the parties jointly

recommended a sentence of 120 months for Dávila-Reyes and a

sentence of 57 months for Reyes-Valdivia. The court sentenced

Dávila-Reyes to 120 months, but sentenced Reyes-Valdivia to 70

months based on its finding that both the safety valve and the

captain enhancement applied. Reyes-Valdivia's motion for

reconsideration was denied. Both Reyes-Valdivia and Dávila-Reyes

then appealed.

II.

The government contends that Reyes-Valdivia and Dávila-

Reyes each waived his right to appeal in two distinct ways: by the

express appellate waiver provisions in their plea agreements and

- 7 - by entry of unconditional guilty pleas to drug trafficking in

violation of the MDLEA. With respect to Reyes-Valdivia, the

government is wrong in arguing that he is barred by his plea

agreement. As described above, the district court declined to

follow the parties' recommended term of 57 months and instead

sentenced him to a 70-month term of imprisonment. Because Reyes-

Valdivia's sentence exceeded the recommendation, the waiver

provision plainly does not apply.6

Dávila-Reyes, however, received a 120-month sentence

that aligns with the recommendation in his plea agreement. He

argues that, despite the enforceable waiver, we should exercise

our inherent authority to consider his claims to avoid "a

miscarriage of justice." United States v. Teeter,

(1st Cir. 2001). He contends that his appeal raises

"important questions of law and [of] first impression" -- including

the constitutionality of § 70502(d)(1)(C) of the MDLEA -- and that

preventing him from presenting that challenge would be unjust.

We agree that the constitutional issues Dávila-Reyes

raises are significant and that the other factors allowing us to

6 The government contends that Reyes-Valdivia is nonetheless bound by the waiver provision because he failed to explain in his opening brief why it is inapplicable. However, it is apparent on the face of the plea agreement that Reyes-Valdivia was not sentenced in accordance with the sentencing recommendation provision, and he was not obligated to make that obvious point in his opening brief. See United States v. Colón-Rosario,

(1st Cir. 2019).

- 8 - exercise our discretion to disregard the appellate waiver also are

present to the necessary degree. See, e.g., United States v.

Ortiz-Vega,

(1st Cir. 2017). Particularly

important is the lack of prejudice to the government, given Reyes-

Valdivia's presentation of the same issues as Dávila-Reyes. See

. Indeed, if appellants request and obtain en banc

reconsideration of the precedent that currently forecloses their

constitutional claims, see infra, the potential for relief should

not depend on the happenstance that the district court added an

enhancement to Reyes-Valdivia's sentence. Thus, we exercise our

discretion to decline to enforce Dávila-Reyes's appellate waiver.

Nor do appellants' guilty pleas foreclose their right to

challenge the constitutionality of the MDLEA. The Supreme Court

recently held in Class v. United States that "a guilty plea by

itself" does not bar "a federal criminal defendant from challenging

the constitutionality of the statute of conviction on direct

appeal."

(2018). In their briefing and oral

argument, appellants present claims that are permissible under

Class. Although they conceded through their guilty pleas that the

MDLEA, by its terms, allows the government to prosecute them under

U.S. law, they argue that Congress lacked authority to enact the

applicable provisions. In other words, appellants accepted that

their convictions were "proper" under the statute, but nonetheless

unconstitutional. Such claims may proceed notwithstanding an

- 9 - unconditional guilty plea. See United States v. Aybar-Ulloa,

(1st Cir. 2019), petition for reh'g en banc filed,

No. 15-2377 (Jan. 23, 2019); cf. United States v. Miranda,

(D.C. Cir. 2015) (noting that Congress would want

the "'[j]urisdiction of the United States with respect to a

vessel,' [46] U.S.C. § 70504(a), to be insulated from waiver or

forfeiture by a defendant" because "[t]he requirement aims to

protect the interests of foreign nations, not merely the interests

of the defendant").

III.

Appellants' primary constitutional challenge targets a

section of the MDLEA that allows U.S. authorities to deem a vessel

"without nationality" -- i.e., "stateless" -- when certain

conditions are met. See

(d)(1). It is undisputed

in this case that the "vessel without nationality" provision of

the MDLEA was enacted pursuant to Congress's authority to "define

and punish . . . Felonies committed on the high Seas" ("the

Felonies Clause"). U.S. Const. art. I, § 8, cl. 10; see United

States v. Cruickshank,

(11th Cir. 2016)

(stating that the MDLEA "was enacted under Congress's authority

provided by the Felonies Clause"); United States v. Matos-Luchi,

(1st Cir. 2010) (stating that, in criminalizing drug

trafficking in the MDLEA, Congress was "[i]nvoking its

constitutional power" under the Felonies Clause). Appellants

- 10 - argue that Congress's authority under the Felonies Clause is

limited by the principles of international law, and they maintain

that, under that law, their vessel cannot be deemed stateless.

Specifically, they contend that the definition of a stateless

vessel relied upon by the government to support jurisdiction over

their boat improperly disregards a master's verbal claim of

nationality or registry based on mere inaction by the named

country, i.e., its failure to confirm or deny "that the vessel is

of its nationality."

(d)(1)(C). Thus, they say,

their arrests and prosecution were unconstitutional.

Under our caselaw, however, appellants' prosecution does

not depend on their vessel having been properly deemed stateless.

Even if their challenge to the MDLEA's statelessness definition

were successful, appellants would still confront our precedent

holding that the MDLEA is consistent with the "protective

principle" of international law, which permits a nation "to assert

jurisdiction over a person whose conduct outside the nation's

territory threatens the nation's security." United States v.

Cardales,

(1st Cir. 1999) (quoting United States

v. Robinson,

(1st Cir. 1988) (Breyer, J.)).

In Cardales, we stated that the protective principle may

be triggered in cases brought under the MDLEA "because Congress

has determined that all drug trafficking aboard vessels threatens

our nation's security."

(emphasis added). In so concluding,

- 11 - we relied on a provision of the MDLEA stating, in pertinent part:

"Congress finds and declares 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."

. Our court, albeit in mostly split panels, has

subsequently accepted as governing precedent the view expressed in

Cardales that the protective principle can be applied to drug

trafficking in violation of the MDLEA. See, e.g., Aybar-Ulloa,

(majority opinion); United States v. Vilches-

Navarrete,

(1st Cir. 2008) (separate opinion of

Lynch and Howard, JJ.); United States v. Bravo,

(1st Cir. 2007); but see, e.g., Aybar-Ulloa,

(Torruella, J., joining in part and dissenting in part).7

Significantly for the case before us, Cardales invoked

the protective principle with respect to foreigners on a foreign

vessel, initially spotted about 150 miles south of Puerto Rico.

See

. The captain of the boat, which was boarded

by Coast Guard officers over the captain's objection, claimed it

7Although our court discussed the protective principle at some length in Robinson, we ultimately sidestepped questions surrounding the principle's scope because the vessel's flag nation had consented to U.S. jurisdiction. See

. We recognized in Robinson, however, that "any assertion of jurisdiction under the protective principle must be 'reasonable.'"

at 3 (citing Restatement (Revised) § 403; Brown, "Protective Jurisdiction," 34 Am. J. Int'l L. 112, 114 (1940)).

- 12 - was a Venezuelan vessel. Id. at 551-52. The Venezuelan government

later confirmed that the vessel was registered there, and it

authorized U.S. intervention. Id. at 552.

Although Venezuela's consent played a large role in the

panel's rejection of the defendants' due process challenge to their

prosecution, which was based on the lack of a nexus between their

criminal conduct and the United States, see id. at 552-53, consent

appeared to play no role in the panel's brief discussion of the

protective principle as an alternative rationale for upholding

U.S. jurisdiction over the defendants, see id. at 553. In a single

paragraph, the panel described the principle and noted that

Congress's specific finding of a security threat to the United

States in § 70501 was "[c]onsistent with this principle." Id. As

we observed in Aybar-Ulloa, "[t]here is no indication in this

aspect of Cardales's reasoning that its broad assertion regarding

the United States' entitlement to assert protective jurisdiction,

under international law, was limited only to cases in which the

flag nation has consented to the United States' assertion of

jurisdiction over a vessel and those on board it."

. Rather, the Cardales panel seemingly treated the congressional

declaration of a security threat as adequate on its own to support

- 13 - protective jurisdiction over the vessel under international law.

See id.8

Accordingly, even if appellants' vessel possessed Costa

Rican nationality, as they claim, appellants would nonetheless be

subject to U.S. jurisdiction under our circuit's view of the

protective principle. See Vilches-Navarrete,

5

(Honduran flagged vessel); Cardales,

(Venezuelan

registry). Notwithstanding Cardales and the cases reiterating its

approach, appellants urge us to reject the protective principle as

a proper basis for U.S. jurisdiction over their vessel. That

entreaty, however, can only be made to the en banc court. Based

on our precedent, we must affirm appellants' convictions.

IV.

Reyes-Valdivia claims the district court committed

procedural sentencing error when it applied a two-level

enhancement based on his being the "captain" of the vessel. See

U.S.S.G. § 2D1.1(b)(3)(C) (requiring a two-level enhancement if

the defendant acted, inter alia, as a "pilot, copilot, captain,

[or] navigator . . . aboard any craft or vessel carrying a

8 In a footnote, the Cardales panel observed that "[t]o the extent that international law requires a nexus to the United States, that nexus requirement is not overridden by the MDLEA, but instead is satisfied by the foreign flag nation's authorization to apply U.S. law to the defendants and by the congressional finding that drug trafficking aboard vessels threatens the security of the United States."

n.2 (emphasis added).

- 14 - controlled substance"). He acknowledges that he stated at the

time of his arrest that he was the captain, but he asserts that

the evidence in fact shows that he shared the duties of steering

the vessel with others. Reyes-Valdivia highlights the

government's view, expressed at the sentencing hearing, that the

enhancement should not apply "[g]iven the nature of the ship, and

the fact that a captain of one of these boats could be one person

one minute and, literally, another person the other minute."

We review a district court's interpretation and

application of a sentencing enhancement de novo. See United States

v. Trinidad,

(1st Cir. 2016). The court's

underlying factual findings may be undone only if clearly

erroneous,

and its judgment calls must be upheld absent an

abuse of discretion, United States v. Coleman,

(1st Cir. 2017).

The transcript of the sentencing hearing makes plain

that the district court understood the facts that prompted the

government to conclude that the captain enhancement was

unwarranted. The court acknowledged that Reyes-Valdivia may not

have been the master of the vessel, and that he may have said he

was the captain only to protect Dávila-Reyes (his cousin) from

exposure to more severe punishment resulting from Dávila-Reyes's

prior criminal activity. Nonetheless, Reyes-Valdivia not only

reported being the captain, but, as his counsel noted at the

- 15 - hearing, he admitted that "he did, in fact, steer along with the

other co-[d]efendants in this case." On this record, we cannot

conclude that the district court clearly erred in applying the

enhancement. See United States v. Cruz-Mendez,

(9th Cir. 2016) (joining other circuits, including the

First Circuit, in construing the pilot/captain enhancement broadly

to cover a defendant who shared piloting responsibilities); cf.

Trinidad,

(rejecting defendant's "contention that

he did not act as a navigator because he was a subordinate to the

other man on the vessel"); United States v. Guerrero,

(1st Cir. 1997) (rejecting defendant's argument that the

enhancement "only applies to offense participants in a position of

authority or command").

V.

We do not reach appellants' challenge to the

constitutionality of the MDLEA definition of a "vessel without

nationality." Under governing First Circuit precedent, the

protective principle of international law permitted the United

States to arrest and prosecute appellants even if, as they claim,

their vessel possessed Costa Rican nationality. Their argument

seeking to change that precedent must be presented to the court en

banc.

Accordingly, for the reasons given, we affirm the

judgments of conviction and Reyes-Valdivia's sentence.

- 16 - So ordered.

-Concurring Opinion Follows-

- 17 - LIPEZ, Circuit Judge, concurring. I write separately to

explain why I believe our circuit's caselaw on the protective

principle of international law is flawed and to urge my colleagues

to reconsider that precedent en banc. The protective principle,

as we have described it, permits prosecutions under the Maritime

Drug Law Enforcement Act ("MDLEA") of foreigners on foreign vessels

without any affirmative showing that the targeted drug trafficking

impacts the United States or its citizens. That expansive reach

of the principle far exceeds the traditional depiction of its scope

as a proposition of international law. Indeed, such a broad view

of U.S. jurisdiction over vessels is at odds with our obligation

to respect every nation's authority over its own persons and

vessels.

Harmonizing our view of the protective principle with

international law would bring to the forefront appellants'

challenge to the MDLEA's "vessel without nationality" provision.

In other words, if we concluded that the protective principle does

not justify application of the MDLEA to drug trafficking carried

out by foreigners on foreign vessels, absent a demonstrated nexus

between the drug activity and U.S. security interests, we would

need to address whether appellants' vessel was one "without

nationality." That is so because the government has made no

showing of such a nexus. Although I will not delve into the

statutory issue here, I think it important to note that appellants

- 18 - present a forceful argument that Congress exceeded its authority

under Article I of the Constitution by expanding the definition of

a stateless vessel beyond the bounds of international law. See

(d)(1).

Discussion

A close review of the cases in which we have considered

the protective principle reveals that our court's approach to the

doctrine rests on shaky footing. I describe that precedent below,

explaining why its vulnerabilities warrant en banc reconsideration

of our application of the principle, under the MDLEA, to drug

trafficking aboard vessels in international waters.

A. The Protective Principle and the MDLEA

The "protective principle" is a long-recognized concept

of international law that permits a nation to punish

extraterritorial conduct that poses a risk to its security or other

important state interests. See, e.g., United States v. Robinson,

(1st Cir. 1988). The current version of the

applicable Restatement provision describes "Jurisdiction Based on

the Protective Principle" as follows:

International law recognizes a state's jurisdiction to prescribe law with respect to certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other fundamental state interests, such as espionage, certain acts of terrorism, murder of government officials, counterfeiting of the state's seal or

- 19 - currency, falsification of official documents, perjury before consular officials, and conspiracy to violate immigration or customs laws.

Restatement (Fourth) of Foreign Relations Law of the United States

§ 412 (2019).

The language of the MDLEA's declaration on drug

trafficking, asserting that trafficking of controlled substances

aboard vessels "presents a specific threat to the security and

societal well-being of the United States,"

,9

tracks the Restatement provision, and it thus suggests a deliberate

desire by Congress to bring drug trafficking within the protective

principle. Significantly, the security risk as declared by

Congress is not expressly limited to drug activity with a

demonstrated impact on, or nexus to, the United States. Rather,

the broadly worded statement would on its face include within its

scope drug trafficking aboard a vessel halfway around the world,

without any showing that those drugs were headed toward the United

States or would otherwise affect the United States or its citizens.

See United States v. Cardales,

(1st Cir. 1999)

9 Section 70501 states, in pertinent part: "Congress finds and declares 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."

- 20 - (noting Congress's finding that "all drug trafficking aboard

vessels threatens our nation's security" (emphasis added)).10

The other circuits have not taken a uniform stance on

whether a direct nexus to the United States must be shown to

trigger the protective principle with respect to drug trafficking.

Compare, e.g., United States v. Perlaza,

(9th

Cir. 2006) (rejecting "the notion that [the] 'protective

principle' can be applied to 'prohibiting foreigners on foreign

ships 500 miles offshore from possessing drugs that . . . might be

bound for Canada, South America, or Zanzibar'" (quoting Robinson,

) with United States v. Gonzalez,

(11th Cir. 1985) (stating that "[t]he protective principle does

not require that there be proof of an actual or intended effect

inside the United States" and concluding that "conduct may be

forbidden if it has a potentially adverse effect and is generally

recognized as a crime by nations that have reasonably developed

legal systems").

The debate over the nexus requirement for drug

trafficking in violation of the MDLEA could be framed as a debate

over the types of crimes properly within the scope of the

10 Although we have acknowledged that the assertion of jurisdiction under the protective principle must be reasonable, see Robinson,

, we did not discuss reasonableness in the post-Robinson cases adopting the protective principle and we have not defined the limits of "reasonable" protective principle jurisdiction.

- 21 - protective principle. A Reporters' Note to the Restatement

provision on protective jurisdiction observes that "no constituent

element of the offense and no actual or intended effect in the

territory of the regulating state need be shown." Restatement

(Fourth) of Foreign Relations Law § 412 n.1 (emphasis added).

However, the crimes the Restatement specifies in describing the

protective principle -- such as counterfeiting, espionage, and

perjury before consular officials -- by their nature directly

affect state interests wherever they occur. That is, the crimes

traditionally associated with the protective principle are those

that inherently include a "nexus" with the prosecuting country as

an element. That category of crimes is small, and drug trafficking

would not naturally fit within it. See id. cmts. a, b (describing

the limited scope of the protective principle); Eugene

Kontorovich, Beyond the Article I Horizon: Congress's Enumerated

Powers and Universal Jurisdiction Over Drug Crimes,

, 1229 (2009) (noting that the protective principle has

been invoked to "allow[] a state to punish extraterritorially 'a

limited class of offenses . . . directed against the security of

the state or other offenses threatening the integrity of

governmental functions'" (quoting Restatement (Third) of Foreign

Relations Law § 402 cmt. f (1987)); id. at 1230 ("Commentators

stress that the category of protective jurisdiction offenses is

- 22 - quite small, and none suggest drug smuggling as one of [the

offenses within it].").

Recognizing that drug trafficking does not fall within

the category of crimes permissibly triggering the protective

principle would not prevent the United States from criminalizing

some controlled-substance activity aboard vessels outside its

territorial jurisdiction. A different principle recognized under

international law is arguably a better fit for drug-trafficking

crimes, although that doctrine requires that a nexus be shown

between the conduct and the prosecuting country. A Restatement

provision titled "Jurisdiction Based on Effects" states:

"International law recognizes a state's jurisdiction to prescribe

law with respect to conduct that has a substantial effect within

its territory." Restatement (Fourth) of Foreign Relations Law

§ 409 (2018). This jurisdictional principle allows nations to

reach crimes other than those with a built-in nexus component --

i.e., crimes like counterfeiting and espionage, which fall within

the protective principle as traditionally understood -- and would

embrace drug trafficking that in fact "presents a specific threat

to the security and societal well-being of the United States."

.

- 23 - B. The Protective Principle: First Circuit Precedent

1. United States v. Robinson

Only once has a panel majority of our court grappled

with the international law implications of the protective

principle. In that case, Robinson, the Coast Guard stopped a

Panamanian ship about 500 nautical miles east of North Carolina,

and boarding officers found a substantial quantity of marijuana in

a fake fuel tank.

. Writing for the panel, then-

Judge Breyer noted that the appellants questioned the United

States's justification for prosecuting drug crimes committed by

foreigners on foreign vessels who "might be bound for Canada, South

America, or Zanzibar."

. He described as "forceful"

appellants' argument that multiple courts had wrongly used

international law principles to conclude that a predecessor

statute to the MDLEA permitted such drug prosecutions in the

absence of direct impact on the United States.

In raising doubts about such a broad application of the

protective principle, Judge Breyer pointed to a then-current

provision of the Restatement of Foreign Relations Law that

described the principle as "giv[ing] [a] state [the] power to

prescribe law protecting itself from actions taken abroad that

harm it."

(quoting Restatement (Revised) of Foreign Relations

Law § 402(3)). The emphasis in that description is Judge Breyer's.

He also quoted a comment to the same Restatement that similarly

- 24 - depicts the "protective principle [as] 'based on the effect . . .

[of an offshore] act upon or in a state's territory.'" Id.

(quoting § 402(3), cmt. f) (second alteration in Robinson). Again,

the emphasis is Judge Breyer's.

Robinson recognized the inherent tension that exists

when a nation seeking to prosecute crime on the high seas must

reconcile that objective with the bedrock principle of

international law that "all nations have an equal and untrammeled

right to navigate on the high seas." United States v. Marino-

Garcia,

(11th Cir. 1982) (citing Convention on

the High Seas, art. 2, Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No.

5200); see also

(noting that "international law generally

prohibits any country from asserting jurisdiction over foreign

vessels on the high seas," and that "vessels are normally

considered within the exclusive jurisdiction of the country whose

flag they fly"). Cognizant of the need to respect the sovereign

interests of other nations, Congress has stated its intention "to

stay within the boundaries of international law" when

criminalizing maritime drug trafficking. United States v. Matos-

Luchi,

(1st Cir. 2010) (Lipez, J., dissenting); see

also S. Rep. 96-855 (1980), at 2 (reporting that the MDLEA's

predecessor legislation, the Marijuana on the High Seas Act, would

"give the Justice Department the maximum prosecutorial authority

permitted under international law"); 125 Cong. Rec. 20,083 (1979)

- 25 - (statement of Rep. Paul McCloskey) (explaining, in reference to

the same law, that it authorizes prosecution "to the broadest

extent possible under international law"). We also have

acknowledged that deference to other nations' interests is a

component of the MDLEA, observing that "Congress inserted the

requirement that a vessel be subject to the jurisdiction of the

United States . . . as a matter of diplomatic comity." United

States v. Vilches-Navarrete,

(1st Cir. 2008)

(separate opinion of Lynch & Howard, JJ.) (citing United States v.

Tinoco,

(11th Cir. 2002)); cf. Jesner v. Arab

Bank, PLC,

(2018) (Gorsuch, J., concurring)

("[W]hen the framers gathered to write the Constitution they

included among their chief priorities endowing the national

government with sufficient power to ensure the country's

compliance with the law of nations.").11

The discussion in Robinson was subsequently described by

the Ninth Circuit as having "called into question" the

11 To be sure, Congress in enacting the MDLEA apparently sought to expand U.S. jurisdiction over drug trafficking beyond what was contemplated by its predecessor statute, the Marijuana on the High Seas Act. See S. Rep. No. 99-530, at 15 (1986) (observing that "defendants in cases involving foreign or stateless vessel boardings and seizures have been relying heavily on international jurisdictional questions as legal technicalities to escape conviction"). Nonetheless, as described above, Congress has recognized that the United States must adhere to its responsibilities to the international community when prosecuting crimes on the high seas.

- 26 - "reasonableness of a broad reading of the 'protective principle.'"

Perlaza,

(citing Robinson, among other cases).

The Robinson court ultimately sidestepped the questions

surrounding the scope of the principle, however, because it found

"another, different, but perfectly adequate basis in international

law for the assertion of American jurisdiction."

.

The country of the vessel's nationality, Panama, had "agreed to

permit the United States to apply its law on her ship," and the

panel held that this acquiescence sufficed to support U.S.

prosecution of persons on the vessel under U.S. drug laws.

. United States v. Cardales

Despite the questions about the scope of the protective

principle raised in Robinson, and without addressing those issues,

we held in Cardales that "application of the MDLEA to the

defendants is consistent with the protective principle of

international law."

. As our panel opinion

reports, the court in Cardales based that pronouncement on the

congressional finding that drug trafficking aboard vessels

"presents a specific threat to the security . . . of the United

States,"

at 553 (quoting

), and we have

accepted Cardales's view of the protective principle as our

governing precedent, see, e.g., United States v. Aybar-Ulloa,

(1st Cir. 2019) (citing Cardales), petition for reh'g

- 27 - en banc filed, No. 15-2377 (Jan. 23, 2019); Vilches-Navarrete,

(same) (separate opinion of Lynch & Howard, JJ.).

Whether Cardales deserves such acceptance, however, is

debatable. In Cardales, we upheld the defendants' convictions by

relying on the foreign government's consent to the application of

U.S. law to both the vessel and the vessel's crew. See Cardales,

(describing the consent of Venezuela, the

country of registration). Unlike in Robinson, our discussion

focused primarily on consent, and we only briefly addressed the

protective principle. See

. We ultimately rejected the

defendants' due process challenge to their prosecution under the

MDLEA because "due process is satisfied when the foreign nation in

which the vessel is registered authorizes the application of United

States law to the persons on board the vessel."

We further

explained:

When the foreign flag nation consents to the application of United States law, jurisdiction attaches under the statutory requirements of the MDLEA without violation of due process or the principles of international law because the flag nation's consent eliminates any concern that the application of United States law may be arbitrary or fundamentally unfair.

Our one-paragraph consideration of the protective principle

was offered as an additional basis for jurisdiction over the

vessel's occupants.

- 28 - The Cardales panel did not consider whether due process

required a "domestic nexus requirement" in an MDLEA prosecution,

but we concluded that the government need not "prove a nexus

between a defendant's criminal conduct and the United States in a

prosecution under the MDLEA when the flag nation has consented to

the application of United States law to the defendants."

. In a footnote, the panel observed that, even if

international law required a nexus, the requirement was satisfied

by Venezuela's consent and by Congress's "finding that drug

trafficking aboard vessels threatens the security of the United

States."

at 553 n.2 (referring to

).

Our extended discussion of the protective principle in

Robinson suggests a concern that a broad view of its scope may

transgress longstanding "limits [on] law enforcement on [the] high

seas." Robinson,

. Against that backdrop, the

cursory treatment of the principle in Cardales and the expansive

approach adopted there -- applying the principle to cover even

foreigners on foreign vessels -- should give us pause.

3. The Need to Revisit Cardales

The questions concerning the proper scope of the

protective principle that were bypassed in Robinson remain largely

unaddressed by our court. Indeed, as the protective principle is

depicted by the Restatement, see supra, the principle arguably

does not apply to drug trafficking at all. As described above,

- 29 - drug-trafficking offenses do not resemble the sorts of crimes

typically associated with the principle -- and the premise of "a

specific threat to the security and societal well-being of the

United States,"

, is particularly inapt when there

is no evidence that the drugs at issue would reach the United

States or U.S. citizens. As Judge Torruella has observed, "drugs

not destined for United States markets do not fall into the

'limited class of offenses . . . directed at the security of the

State,' since that principle 'refers to the safety and integrity

of the state apparatus itself (its "government functions" or "state

interests"), not its overall physical and moral well-being.'"

United States v. Angulo-Hernández,

(1st Cir. 2009)

(Torruella, J., dissenting from the denial of en banc review)

(quoting Kontorovich, supra, at 1229-31). Nor does it seem

adequate, even if the protective principle can justify

jurisdiction over foreign individuals involved in drug trafficking

on foreign vessels, for Congress simply to invoke the principle

with an unsubstantiated "blanket assertion" of a threat. Aybar-

Ulloa,

(Torruella, J., joining in part and

dissenting in part) (discussing

).

Moreover, as Judge Torruella has emphasized, to accept

the pronouncement in the MDLEA that all drug trafficking poses a

security threat to the United States to justify reliance on the

protective principle -- without a "substantial showing of a nexus"

- 30 - -- "would render the protective principle coterminous with the

doctrine of universal jurisdiction."

. The universal

jurisdiction doctrine permits "a nation [to] prosecute certain

serious offenses even though they have no nexus to its territory

or its nationals, and no impact on its territory or its citizens."

United States v. Cardales-Luna,

(1st Cir. 2011)

(Torruella, J., dissenting). However, few offenses qualify as

universal jurisdiction crimes -- only those considered "so serious

and on such a scale that they can justly be regarded as an attack

on the international legal order." Kontorovich, supra, at 1224

n.228 (quoting Anne-Marie Slaughter, "Defining the Limits:

Universal Jurisdiction and National Courts," in Universal

Jurisdiction: National Courts and the Prosecution of Serious

Crimes under International Law 178-79 (Stephen Macedo ed., 2004)).

The Restatement of Foreign Relations Law identifies the

crimes subject to universal jurisdiction as including "genocide,

crimes against humanity, war crimes, certain acts of terrorism,

piracy, the slave trade, and torture." Restatement (Fourth) of

Foreign Relations Law § 413.12 According to the Restatement, this

12 In full, section 413, titled "Universal Jurisdiction," provides: International law recognizes a state's jurisdiction to prescribe law with respect to certain offenses of universal concern, such as genocide, crimes against humanity, war crimes, certain acts of terrorism, piracy, the slave trade, and torture, even if no specific

- 31 - list is limited -- covering only "the most serious offenses about

which a consensus has arisen for the existence of universal

jurisdiction" -- because universal jurisdiction "departs from the

more typical requirement of a specific connection between the state

exercising jurisdiction and the person or conduct being

regulated." Id. n.1; see also United States v. Bellaizac-Hurtado,

(11th Cir. 2012) (Barkett, J., specially

concurring) (noting that the theories of jurisdiction other than

"universality" "permit nations to exercise jurisdiction over

offenses that implicate domestic interests -- that is, offenses

that occur within a nation's territory and those that occur outside

the territory but have effects within it" (emphasis added)). Our

precedent on the MDLEA has identified "[n]o source of customary

international law [that] has designated drug trafficking as being

subject to universal jurisdiction."

.

To be sure, "a global consensus about the negative

effects of drug trafficking" has developed over time, Aybar-Ulloa,

(Torruella, J., joining in part and dissenting in

part), and a close examination of international law norms in 2019

may suggest a different sensibility about the protective principle

or universal jurisdiction than Judge Breyer intimated in Robinson

connection exists between the state and the persons or conduct being regulated.

- 32 - in 1988, see

. Yet, it also may remain true that,

"unlike genocide" -- or crimes against humanity, torture, etc. --

"the international community has addressed drug trafficking at the

domestic, instead of international, level." Bellaizac-Hurtado,

(Barkett, J., specially concurring).

Conclusion

Although appellants' challenge to their prosecution

under the MDLEA founders on the First Circuit's current approach

to the protective principle, there is a compelling argument that

our approach is neither deeply considered nor faithful to the

international law foundation on which it must rest. The need for

our country to respect the sovereignty of other nations is reason

enough to warrant careful reexamination of our precedent. The

individual interests of defendants such as Reyes-Valdivia and

Dávila-Reyes -- citizens of Costa Rica plausibly claiming Costa

Rican nationality for their vessel -- reinforce the importance of

revisiting caselaw that may erroneously allow their lengthy

imprisonment for violating U.S. law. Hence, if appellants submit

a petition for en banc rehearing, I urge my colleagues to grant it

without hesitation or delay.

- 33 -