                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-21-2003

USA v. Ledesma-Cuesta
Precedential or Non-Precedential: Precedential

Docket No. 02-1827




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"USA v. Ledesma-Cuesta" (2003). 2003 Decisions. Paper 157.
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                          PRECEDENTIAL

                                  Filed October 17, 2003

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                    No. 02-1827


           UNITED STATES OF AMERICA
                         v.
           DIODAYAN LEDESMA-CUESTA,
                            Appellant

  On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
 District Court Judge: The Honorable Stewart Dalzell
                (D.C. No. 01-cr-00374-1)

    Submitted Under Third Circuit L.A.R. 34.1(a)
                  June 2, 2003
Before: BARRY, FUENTES, and ROSENN, Circuit Judges

          (Opinion Filed: October 17, 2003)
                  Robert K. Reed
                  Office of United States Attorney
                  615 Chestnut Street
                  Suite 1250
                  Philadelphia, PA 19106
                  Counsel for Appellee
                  Hope C. Lefeber
                  1420 Walnut Street
                  Suite 1000
                  Philadelphia, PA 19102
                  Counsel for Appellant
                              2



                 OPINION OF THE COURT

FUENTES, Circuit Judge:
   During passage from Colombia to Philadelphia, about
400 miles north of the Bahamas in the mid-Atlantic, the
crew of a merchant ship, the Trojan Star, discovered
defendant,     Diodayan      Ledesma-Cuesta      (hereinafter
“Ledesma”) and approximately four kilos of cocaine aboard
their vessel. When the ship arrived in Philadelphia, the
crew handed the defendant and the drugs over to United
States Customs officials. Ledesma was prosecuted and
convicted in the U.S. District Court for, among other things,
possession and attempted possession with intent to
distribute cocaine on a vessel subject to the jurisdiction of
the United States in violation of the Maritime Drug Law
Enforcement Act (MDLEA). On appeal, he claims that the
United States lacked jurisdiction over the vessel at the time
the cocaine was seized and, therefore, the District Court
lacked jurisdiction over his crime under the MDLEA. We
disagree. Although the defendant’s drug possession
occurred in international waters, he planned to possess the
drugs and distribute them as the vessel continued into U.S.
waters. We thus conclude that the District Court properly
exercised jurisdiction. The conviction and sentence will be
affirmed.

                      I.   Background
  A.   Factual
  On May 29, 2001, the Trojan Star, a merchant ship
carrying bananas, set out from Turbo, Colombia en route to
Philadelphia, Pennsylvania. Although the ship was
registered in the Bahamas and had “Nassau,” the
Bahamian capital, inscribed on the stern, the ship had not
sailed to the Bahamas during the previous four years.
Rather, prior to June 2001, the Trojan Star had been
transporting fruit on a bi-weekly basis for approximately
                                   3


four years between Philadelphia and Colombia, S.A., with
intervening calls at Port Canaveral, Florida, and Costa Rica.1
   In late May 2001, when the Trojan Star arrived at Turbo,
Colombia, the ship anchored more than a mile out to sea.
None of the crew disembarked at Turbo. Colombian barges
loaded with cargo sailed out to the Trojan Star, where
Colombian      stevedores   hoisted     crates   containing
approximately 25 million bananas onto the ship. The
bananas were stored on one of four decks located below the
main deck of the ship. After leaving Turbo, the Trojan Star
sailed to Santa Marta, where additional fruit was loaded
onto the ship. On May 30, 2001, the same day the ship
arrived in Santa Marta, the Trojan Star set out for
Philadelphia, traveling in an essentially northerly straight
line.
  On or about June 2, 2001, while the ship was in
international waters approximately 400 miles and 20 hours
by sea northwest of the Bahamas in the mid-Atlantic, Third
Officer Jeffree Monton (“Monton”), a crew member of the
ship, approached Mast House # 2, which provided access
to certain decks where bananas were stored. When Monton
opened the door to Mast House # 2, he discovered a
stowaway, later identified as defendant Ledesma, standing
on a narrow ten-inch wide ledge about ten feet off of the
ground. The small area where Ledesma was apprehended
was part of the ventilation area of the ship. Monton
immediately closed the door and ordered nearby crew
members to guard the door, so that he could go inform
Captain John Dobson (“Dobson”) and Chief Engineer David
Peck (“Peck”) of the stowaway’s presence on board the ship.
   After being notified of Ledesma’s presence, Peck went to
Mast House # 2 and persuaded Ledesma to come down
from the ledge. Ledesma was then escorted by crew
members to a secured cabin in which he was detained for
the remainder of the journey. In the meantime, Peck
searched Mast House # 2, and in a gutter almost fourteen
feet above the floor, he found a belt containing eight

1. The testimony at trial established that many merchant vessels are
registered in the Bahamas or in Monrovia, Liberia, but that registry has
no relationship to the vessels’ travel routes.
                             4


pouches that held more than four kilograms of cocaine, a
pocketknife, a lighter, a flashlight with Colombian-
manufactured batteries, other various tools, a can of
condensed milk, two bottles of water, one block of
processed food and four tins of food, and two bags of fruit
(these items were all admitted into evidence). According to
Chief Engineer Peck and Captain Dobson, the food and
equipment were not of the type that would be used by crew
members on the Trojan Star, evidence from which the jury
could infer that Ledesma brought the items aboard.
   Additional searching led crew members to discover the
manner in which Ledesma gained access to Mast House
# 2: the wire grid across the return air space had been cut,
the hatch from one deck to another was slightly open, and
an empty water bottle was found on one of the decks on top
of the cargo. After the ship arrived in Philadelphia, Captain
Dobson observed a series of pallets that had been knocked
out to create a passageway to Mast House # 2.
   Approximately 25 minutes after Ledesma was removed
from Mast House # 2, Captain Dobson interviewed
Ledesma who explained that he boarded the ship in Turbo,
Colombia during a heavy rain storm. He explained that he
was able to enter the ship because he was on one of the
barges delivering fruit to the vessel and climbed up a barge
mooring rope. He admitted to having worked as a stevedore
in the past, although he claimed that he did not receive
help from any stevedores in boarding the Trojan Star. He
did admit, however, that in 1983, he had stowed aboard a
ship from Colombia to Florida but had been deported from
the United States in 1997. Captain Dobson asked Ledesma
to remove the contents of his pockets, and Ledesma
responded by offering the captain $300 in cash if he would
let Ledesma get off in Philadelphia.
  Late on June 3, 2001, the Trojan Star entered the
customs waters of the United States and approximately six
hours later, on June 4, the ship docked in Philadelphia. At
that time, Captain Dobson turned Ledesma over to United
States Customs Service Special Agent James Zagorski,
together with all of the evidence, including the cocaine,
clothing, food, and tools.
                              5


  B.   Procedural
   On June 28, 2001, a grand jury returned a single-count
indictment     charging    Ledesma     with   reentry    after
deportation. On August 2, 2001, the grand jury returned a
superseding indictment which added the charges of
possession with intent to distribute cocaine and
importation of cocaine. On October 11, 2001, the grand
jury returned a second superseding indictment charging
Ledesma as follows: Count One, possession and attempted
possession of more than 500 grams of cocaine, in violation
of 21 U.S.C. § 841(a)(1); Count Two, importation and
attempted importation of more than 500 grams of cocaine
in violation of 21 U.S.C. §§ 952(a), 960(a), and 963; Count
Three, possession and attempted possession with intent to
distribute more than 500 grams of cocaine on a vessel
subject to the jurisdiction of the United States, in violation
of 46 App.U.S.C. §§ 1903(a), (c)(1)(D), and (j); and Count
Four, reentry and attempted reentry to the United States
after deportation, in violation of 8 U.S.C. §§ 1326(a) and
(b)(2).
  On December 19, 2001, a jury convicted Ledesma on all
counts of the second superseding indictment. On March 22,
2002, the District Court sentenced Ledesma to 360 months
incarceration followed by an eight-year period of supervised
release and imposed a $2,500 fine and a $300 special
assessment. Ledesma filed post-trial motions for judgment
of acquittal and a new trial pursuant to Rule 29. The
District Court denied the motions, but vacated the
conviction on Count One, finding that it was a lesser
included offense of Count Two. On March 25, 2002,
Ledesma filed a timely notice of appeal.

        II.   Jurisdiction and Standard of Review
  The District Court had subject matter jurisdiction over
this case pursuant to 18 U.S.C. §§ 3231 and 3241. We
exercise jurisdiction under 28 U.S.C. § 1291 over a final
judgment of a district court. Because the resolution of this
appeal depends on the application of legal precepts, our
standard of review is plenary. E.g., United States v. Best,
304 F.3d 308, 311 (3d Cir. 2002).
                                    6


                          III.   Discussion
  A.     Jurisdiction Under the MDLEA
  On appeal, Ledesma contends that the District Court
erred in finding jurisdiction over Count Three, charging a
violation of the Maritime Drug Law Enforcement Act
(“MDLEA”), 46 App.U.S.C. § 1901, et seq.2 Specifically,
Ledesma argues that the Bahamian ship on which he was
apprehended was not a “vessel subject to the jurisdiction of
the United States” within the context of the statute.
  The MDLEA states in pertinent part:
       (a) It is unlawful for any person on board a vessel of
       the United States, or on board a vessel subject to the
       jurisdiction of the United States, or who is a citizen of
       the United States or a resident alien of the United
       States on board any vessel, to knowingly or
       intentionally manufacture or distribute, or to possess
       with intent to manufacture or distribute a controlled
       substance.
       . . .
       (j) Any person who attempts or conspires to commit
       any offense defined in this chapter shall be subject to
       the same penalties as those prescribed for the offense,
       the commission of which was the object of the attempt
       or conspiracy.
46 App.U.S.C. § 1903(a), (j). The definition of “vessel subject
to the jurisdiction of the United States” includes “a vessel
located within the customs waters of the United States.” 46
App.U.S.C. § 1903(c)(1)(D). The parties do not dispute that
Ledesma was apprehended by the Trojan Star crew in
international waters, but was not arrested until he was in
the Philadelphia harbor, well within U.S. customs waters.3

2. Ledesma also claims that there was insufficient evidence to support
the convictions on Counts Two, Three and Four. As we note in Part III.B,
this claim has no merit.
3. According to Captain Dobson, the “customs waters” of the United
States are three miles of water from any point of land out to sea, and the
“territorial waters” extend to a 12-mile limit.
                             7


   Ledesma observes that the Trojan Star was registered in
the Bahamas and the Government presented no evidence at
trial with regard to any consent or waiver by the flag nation
to the enforcement of United States law by the United
States. Ledesma also notes that he was apprehended and
dispossessed of the cocaine before he reached United States
customs waters. Therefore, Ledesma concludes, the Trojan
Star did not meet any of the requirements for being
“subject to the jurisdiction of the United States” under the
MDLEA. 46 App.U.S.C. § 1903(c).
   We disagree. Even though Ledesma’s cocaine was taken
from him and he was detained before he entered U.S.
customs waters, he was clearly attempting to enter the
United States with four kilos of cocaine for distribution in
the United States when the crew of the Trojan Star
discovered him on board their ship. As quoted above,
attempted possession with intent to manufacture or
distribute is equivalent to actual possession for purposes of
the MDLEA. 46 App.U.S.C. § 1903(j). Indeed, as we have
noted, Count Three of the indictment explicitly charged
Ledesma with attempted possession with intent to
distribute more than 500 grams of cocaine aboard a vessel
subject to the jurisdiction of the United States.
   Under federal law, attempt requires intent and “conduct
amounting to a ‘substantial step’ towards the commission
of the crime.” United States v. Yousef, 327 F.3d 56, 134 (2d
Cir. 2003). In this case, the question is whether Ledesma’s
conduct up to the point of his discovery by the crew
amounted to a substantial step toward possessing cocaine
with an intent to enter the United States to distribute the
cocaine. We conclude that it did. The evidence in this case
clearly established that Ledesma, possessing a large
amount of cocaine, knowingly boarded a vessel headed for
Philadelphia. Specifically, the jury could have inferred from
Ledesma’s past experience as a stevedore that he knew of
the Trojan Star’s well-established route to Philadelphia, and
it could certainly have relied upon his attempt to bribe the
Trojan Star captain to let him disembark in Philadelphia. In
light of his evidenced attempt to reach U.S. territorial
waters covertly to distribute cocaine, the fact that he was
discovered before he actually reached U.S. customs waters
                              8


in possession of the cocaine is irrelevant. Under Ledesma’s
argument to the contrary, a drug courier could never be
prosecuted for an attempt to bring drugs into the United
States aboard a ship under 46 App.U.S.C. § 1903(j), if he
were fortunate enough to be discovered before entering U.S.
customs waters.
   Such a result would directly contradict Congress’ stated
purpose in drafting the MDLEA. The MDLEA was enacted
“to facilitate enforcement by the Coast Guard of laws
relating to the importation of illegal drugs” because “the
Comprehensive Drug Abuse and Control Act of 1970 . . .
inadvertently contained a section repealing the criminal
provision under which drug smugglers apprehended on the
high seas were prosecuted without creating a new provision
to replace it.” S. Rep. No. 96-855, at 1 (1980), reprinted in
1980 U.S.C.C.A.N. 2785, 2785. According to the Senate
Report, “most of the [Coast Guard’s] difficulties in drug
enforcement stem[med] from this statutory void which [did]
not proscribe possession of controlled substances on the
high seas, while such conduct [was] a crime in U.S.
territory.” Id.
   In essence, Congress enacted the MDLEA to strengthen
the United States’ drug laws in areas not adequately
addressed by the Comprehensive Drug Abuse Prevention
and Control Act of 1970, specifically by removing
geographical barriers which had impeded efforts to combat
the drug trade. In subsequent amendments to the MDLEA,
Congress attempted to bolster the law by: (1) broadening its
jurisdiction to deal with “defendants . . . [who had] been
relying heavily on international jurisdictional questions as
legal technicalities to escape conviction;” and (2) adding the
offenses of attempt and conspiracy to bring the law into
conformity with the treatment of those offenses in other
statutes. S. Rep. No. 99-530, at 15 (1986), reprinted in
1986 U.S.C.C.A.N. 5986, 6000; H.R. Rep. No. 101-681, pt.
1 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6606. These
attempts are explicitly reflected in 46 App.U.S.C. § 1903(h),
which states: “This section is intended to reach acts of
possession, manufacture, or distribution committed outside
the territorial jurisdiction of the United States.” In United
States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir.
                             9


1993), we noted that Congress had authority to enact 46
App.U.S.C. § 1901, et seq., pursuant to its constitutional
power to:
    “define and punish Piracies and Felonies committed on
    the high seas, and Offenses against the Law of
    Nations.” Inasmuch as the trafficking of narcotics is
    condemned universally by law-abiding nations, we see
    no reason to conclude that it is “fundamentally unfair”
    for Congress to provide for the punishment of persons
    apprehended with narcotics on the high seas.
Id. (quoting from U.S. Const. art. 1, § 8, cl. 10). The case
before us, then, is the exact type of case the MDLEA was
designed to address: one in which the defendant is caught
on the high seas, with drugs intended for illegal
distribution once he reaches U.S. territory.
  Our conclusion is bolstered by the Second Circuit’s
decision in Yousef. In that case, the defendants were
charged with attempting to violate 18 U.S.C. § 32(a), which
prohibits damaging aircraft in the “jurisdiction of the
United States.” Yousef, 327 F.3d at 86. The prosecution’s
evidence on the attempt charges consisted of proof of
several acts, including bombings, perpetrated by
defendants in the Philippines. The defendants pointed out
that none of their alleged actions took place in the United
States or on a U.S. aircraft. Id. at 134. The Second Circuit
found this fact irrelevant to their attempt convictions,
reasoning that because the acts amounted to substantial
steps toward an eventual attack on an aircraft within U.S.
jurisdiction, their locale was irrelevant. Id.
   Similarly, in this case, by the time Ledesma was
apprehended, he had already taken substantial steps
toward possessing with intent to illegally distribute the
cocaine in U.S. customs waters, making his actual location
at the time of apprehension immaterial. The crew of the
Trojan Star could not have acted more properly. Certainly,
it would be unreasonable to have expected the crew to
stand by and allow Ledesma to retain the drugs until the
ship entered U.S. waters. Ledesma knew when he boarded
the Trojan Star that it was bound for Philadelphia, and he
cannot avoid the impact of United States laws merely on
                              10


the fortuity that he was caught before the ship entered U.S.
waters rather than afterward. A decision to the contrary
would not only undermine law enforcement efforts to arrest
drug smugglers, but would discourage crews aboard ships
in international waters from apprehending drug traffickers
found aboard their vessels who are intent on distributing
drugs in the United States. Accordingly, we find no error in
the District Court’s denial of Ledesma’s motion for
judgment of acquittal on Count Three.
  B.   Sufficiency of the Evidence and Expert Testimony
  Ledesma raises two other issues on appeal. First, he
claims that there was insufficient evidence to support the
jury’s verdict on Counts Two, Three and Four. Next, he
contends that the District Court erred in allowing expert
testimony that possession of approximately four kilograms
of cocaine was consistent with distribution and not
personal use. After a careful review of the record and the
arguments presented, we discern no basis for disturbing
the District Court’s rulings on these issues.

                     IV.   Conclusion
  Accordingly, for the reasons stated above, we affirm the
judgment of the District Court.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
