           Case: 19-12853   Date Filed: 04/14/2020   Page: 1 of 10



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12853
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:19-cr-20069-KMM-3



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ITALO EBARISTO NAPA MOREIRA,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (April 14, 2020)

Before NEWSOM, LAGOA, and HULL, Circuit Judges.

PER CURIAM:
                Case: 19-12853       Date Filed: 04/14/2020       Page: 2 of 10



       Italo Ebaristo Napa Moreira appeals his conviction for conspiracy to possess

with intent to distribute a controlled substance while on board a vessel subject to

the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1),

70506(b). He raises three arguments on appeal. First, he asserts that the statute

governing his offense, the Maritime Drug Law Enforcement Act (“MDLEA”), is

unconstitutional under the Due Process Clause because it does not require the

government to prove that the defendant had “minimum contacts” with, and

committed an offense that has a “nexus” to, the United States. Second, he

contends that 46 U.S.C. § 70502(d)(1)(B), the provision in the MDLEA governing

a federal official’s request for a claim of nationality or registry, violates the Fifth

Amendment privilege against self-incrimination under Miranda v. Arizona, 384

U.S. 436 (1966). Third, he argues that § 70502(d)(1)(B) is unconstitutionally

vague in light of Johnson v. United States, 135 S. Ct. 2551 (2015).

       We will affirm.

                                                I

       A grand jury indicted Napa Moreira 1 and three co-defendants for conspiracy

to distribute a controlled substance while on board a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1),



1
 Although the district court proceedings referred to the defendant as “Moreira,” on appeal
defense counsel refers to him as “Napa.” For clarity, we use both names.

                                                2
              Case: 19-12853     Date Filed: 04/14/2020    Page: 3 of 10



70506(b) (Count 1), and possession with intent to distribute a controlled substance

while on board a vessel subject to the jurisdiction of the United States, in violation

of 46 U.S.C. § 70503(a)(1) and 18 U.S.C. § 2 (Count 2).

      Napa Moreira entered into a written plea agreement in which he agreed to

plead guilty to Count 1 in return for the government’s promise to dismiss Count 2

at sentencing. The stipulated factual proffer provided that the U.S. Coast Guard

intercepted a vessel matching the description of a “Low Profile Go-Fast”

approximately 386 nautical miles south of Puerto Quetzal, Guatemala, in

international waters. After boarding the vessel, the Coast Guard located and seized

46 bales of contraband that tested positive for cocaine and weighed approximately

1,852 kilograms. Napa Moreira was one of four crew members aboard the vessel.

The proffer provided that, because neither Napa Moreira nor the other crew

members claimed nationality for the vessel when questioned, and the vessel did not

have any indicia of nationality, it was subject to the jurisdiction of the United

States as a vessel without nationality.

      A magistrate judge held a change of plea hearing with the parties’ consent.

At the hearing, the government read the factual proffer and Napa Moreira pleaded

guilty. The magistrate judge entered a report and recommendation, recommending

that the district court accept Napa Moreira’s plea as to Count 1 and adjudge him

guilty.


                                           3
              Case: 19-12853     Date Filed: 04/14/2020   Page: 4 of 10



      The district court adopted the Report and Recommendation and, accepting

Napa Moreira’s plea, found him guilty. It sentenced Napa Moreira to 135 months’

imprisonment, followed by two years of supervised release, as to Count 1. At the

government’s request, the court dismissed Count 2.

      Napa Moreira appealed.

                                          II

      As an initial matter, plain-error review applies to each of Napa Moreira’s

three arguments because he failed to challenge the constitutionality of the MDLEA

before the district court. While we ordinarily review the constitutionality of the

statute of conviction de novo, a defendant’s claims raised for the first time on

appeal are reviewed for plain error. United States v. Wright, 607 F.3d 708, 715

(11th Cir. 2010) (applying plain-error review to Commerce Clause challenge). An

error is not plain if there is no precedent from this Court or the Supreme Court

directly resolving the issue. United States v. Vereen, 920 F.3d 1300, 1312 (11th

Cir. 2019). Further, “we are bound to follow [our] prior binding precedent unless

and until it is overruled by this [C]ourt en banc or by the Supreme Court.” United

States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (per curiam)

(quotation omitted).




                                          4
              Case: 19-12853     Date Filed: 04/14/2020    Page: 5 of 10



                                          III

      Napa Moreira first challenges the constitutionality of the MDLEA under the

Due Process Clause. “The Due Process Clause prohibits the exercise of

extraterritorial jurisdiction over a defendant when it would be arbitrary or

fundamentally unfair.” United States v. Baston, 818 F.3d 651, 669 (11th Cir.

2016) (quotation omitted). A defendant challenging the facial validity of a statute

must show that “no set of circumstances exists under which the [statute] would be

valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).

      Exercising its authority under the Piracies and Felonies Clause, U.S. Const.

art. I, § 8, cl. 10, Congress enacted the MDLEA to define and punish felonies

committed on the high seas. United States v. Campbell, 743 F.3d 802, 805 (11th

Cir. 2014). The MDLEA prohibits, among other offenses, conspiracy to possess

with intent to distribute a controlled substance while on board “a vessel subject to

the jurisdiction of the United States.” 46 U.S.C. §§ 70503(a)(1), (e)(1), 70506(b).

Its provisions apply even when the defendant’s offense was “committed outside the

territorial jurisdiction of the United States.” Id. § 70503(b).

      The MDLEA describes a number of circumstances in which a vessel is

subject to the jurisdiction of the United States, including when it is “a vessel

without nationality.” Id. § 70502(c)(1)(A). A vessel without nationality includes

“a vessel aboard which the master or individual in charge fails, on request of an


                                           5
              Case: 19-12853     Date Filed: 04/14/2020    Page: 6 of 10



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.” Id.

§ 70502(d)(1)(B).

      Napa Moreira asserts that the MDLEA is unconstitutional because it does

not require the government to prove that the defendant had “minimum contacts”

with, and committed an offense that has a “nexus” to, the United States. Because

we have previously rejected this argument, Napa Moreira’s challenge fails under

plain-error review.

      In Campbell, we held that “the conduct proscribed by the [MDLEA] need

not have a nexus to the United States because universal and protective principles

support its extraterritorial reach.” 743 F.3d at 810. We explained that the Piracies

and Felonies Clause empowers Congress to prosecute crimes committed on the

high seas and, given that trafficking narcotics is “condemned universally by

law-abiding nations,” it is not “fundamentally unfair” to punish those who traffic

drugs on the high seas. Id. (quotation omitted). We further stated that the

prosecution of a foreign national for “drug trafficking aboard [a] stateless vessel[ ]

on the high seas” is not prohibited by the Due Process Clause, as the MDLEA

“provides clear notice that all nations prohibit” such conduct. Id. at 812.

      Here, Napa Moreira fails to demonstrate that the absence of a “minimum

contacts” or “nexus” requirement in the MDLEA violates the Due Process Clause,


                                           6
              Case: 19-12853     Date Filed: 04/14/2020    Page: 7 of 10



facially or as applied to his case, under plain-error review. He points to no

precedent from this Court or the Supreme Court applying the “minimum contacts”

standard to the MDLEA and concedes that his “nexus” claim is foreclosed by our

precedent. Moreover, he fails to demonstrate that the MDLEA is unconstitutional

as applied to him, given that his presence aboard a stateless vessel is sufficient to

confer extraterritorial jurisdiction, and we do not require the government to show

that his offense had a nexus to the United States.

                                          IV

      Napa Moreira next argues that § 70502(d)(1)(B) of the MDLEA violates the

Fifth Amendment’s constitutional guarantees as applied in Miranda v. Arizona,

384 U.S. 436 (1966). Asserting that those aboard a vessel intercepted by the

United States are “in custody” for purposes of Miranda, Napa Moreira argues that

the absence of any standards in the MDLEA that require federal officials to

provide a Miranda warning violates the Fifth Amendment. He contends that the

lack of standards governing an official’s request for a claim of nationality or

registry, including a requirement that the official apprise a crew member of the

legal consequences of his failure to respond, is also unconstitutional, given that the

crew member’s response may subject him to prosecution in the United States.

      To the extent that Napa Moreira asserts that the MDLEA is unconstitutional

as applied to the facts of his case, his claim is waived by his guilty plea. See Class


                                           7
              Case: 19-12853     Date Filed: 04/14/2020    Page: 8 of 10



v. United States, 138 S. Ct. 798, 804–05 (2018). In addition, the assertion that

§ 70502(d)(1)(B) is facially unconstitutional in light of Miranda fails under plain-

error review. See Wright, 607 F.3d at 715. Napa Moreira does not point to any

precedent from this Court or the Supreme Court holding that a federal official’s

request for a claim of nationality or registry constitutes a custodial interrogation.

See Vereen, 920 F.3d at 1312.

      In fact, although we have not considered a constitutional challenge to any

provision of the MDLEA, including § 70502(d)(1)(B), on the basis that it violates

the Fifth Amendment privilege against self-incrimination as applied in Miranda,

our prior precedent still forecloses his facial challenge. “This [C]ircuit has long

recognized that the Coast Guard’s routine stop, boarding and inspection of an

American vessel on the high seas does not normally rise to the level of custodial

detention thus requiring Miranda warnings.” United States v. Rioseco, 845 F.2d

299, 302–03 (11th Cir. 1988) (per curiam). The Court in Rioseco, for example,

concluded that the defendant was not in custody for purposes of Miranda when

Coast Guard officers, having probable cause, initially boarded the vessel and

ordered the crew members to remain in a particular area of the boat. Id. at 303. It

determined that an ordinary man would not believe that he was in custody, given

that the officers did not tell the defendant “that he was in custody or under arrest”

and their conduct “was simply routine procedure in a usual boarding action.” Id.


                                           8
               Case: 19-12853     Date Filed: 04/14/2020    Page: 9 of 10



                                           V

      Finally, Napa Moreira argues that § 70502(d)(1)(B) of the MDLEA does not

put ordinary people, such as those interdicted on the high seas, on notice that they

may be subject to the jurisdiction of, and prosecution within, the United States, and

is therefore unconstitutionally vague under Johnson v. United States, 135 S. Ct.

2551 (2015).

      Napa Moreira abandoned any argument that § 70502(d)(1)(C) is

unconstitutionally vague because he failed to properly raise it in his initial brief.

United States v. Britt, 437 F.3d 1103, 1104–05 (11th Cir. 2006) (per curiam).

Napa Moreira’s reference § 70502(d)(1)(C) in a footnote within a separate

argument section in his initial brief is not sufficient to “plainly and prominently”

raise a challenge to the constitutionality of that provision. See Brown v. United

States, 720 F.3d 1316, 1332 (11th Cir. 2013) (quotation omitted).

      In addition, Napa Moreira cannot show plain error, as he points to no

binding precedent from this Court or the Supreme Court that supports his assertion.

See Wright, 607 F.3d at 715; Vereen, 920 F.3d at 1312. Furthermore, this Court

has repeatedly rejected constitutional vagueness challenges to the jurisdictional

provisions in the MDLEA’s predecessors, as well as due process claims regarding

the exercise of extraterritorial jurisdiction under the MDLEA. See, e.g., Campbell,




                                           9
             Case: 19-12853    Date Filed: 04/14/2020   Page: 10 of 10



743 F.3d at 810–12; United States v. Marino-Garcia, 679 F.2d 1373, 1383–84

(11th Cir. 1982). His argument therefore fails.

      AFFIRMED.




                                        10
