                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2002

USA v. Perez-Oviedo
Precedential or Non-Precedential:

Docket 1-2512




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Recommended Citation
"USA v. Perez-Oviedo" (2002). 2002 Decisions. Paper 137.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/137


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Filed February 20, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2512

UNITED STATES OF AMERICA

v.

JOSE LUIS PEREZ-OVIEDO,

       Appellant

On Appeal from the District Court
of the Virgin Islands - St. Thomas
(D.C. Criminal No. 99-cr-00494)
District Judge: Hon. Thomas K. Moore

Argued December 4, 2001

BEFORE: BECKER, Chief Judge, NYGAARD and
COWEN, Circuit Judges

(Filed: February 20, 2002)

       Douglas J. Beevers, Esq. (Argued)
       Office of Federal Public Defender
       P.O. Box 1327
       51B Kongens Gade
       Charlotte Amalie, St. Thomas
       USVI, 00804

        Counsel for Appellant
       Nelson L. Jones, Esq. (Argued)
       Office of the United States Attorney
       United States Courthouse
       5500 Veterans Building, Suite 260
       Charlotte Amalie, St. Thomas
       USVI, 00802-6924

        Counsel for Appellee

OPINION OF THE COURT

COWEN, Circuit Judge:

I.

Jose Luis Perez-Oviedo ("Perez-Oviedo") agreed to be the
captain of the Adriatik, a Panamanian registered vessel. In
October of 1999, the Adriatik left the port of Cartagena,
Colombia and arrived in Barranquilla, Colombia, where it
was loaded with 800 tons of sugar. The ship left
Barranquilla and at the mouth of the Magdalena River over
2 tons of cocaine were loaded from a fishing boat. The
vessel then proceeded toward its intended final destination
of Canada.

On November 11, 1999, the HMS Northumberland, on
board which there was a United States Coast Guard law
enforcement detachment, intercepted the Adriatik north of
Trinidad and Tobago. Upon observing signs suggesting
narcotics smuggling, a Statement of No Objection was
requested from the Panamanian government for permission
to search the Adriatik and, if need be, escort it to a United
States port for an intrusive and destructive search. The
Panamanian government granted the request.

The Adriatik arrived in the Virgin Islands on November
13, 1999. Prior to the search, Perez-Oviedo informed a
Special Agent of the Coast Guard that the cocaine was
located in the Number 3 starboard tank. A preliminary
search revealed 400 kilograms of cocaine; a second search
uncovered another 1700 kilograms.

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An Information was filed, charging Perez-Oviedo with two
violations of the Maritime Drug Law Enforcement Act
("MDLEA"): one count of knowingly and intentionally
conspiring to distribute cocaine on board a vessel subject to
the jurisdiction of the United States (in violation of 46 App.
U.S.C. SS 1903(a) and 1903(j)) and one count of aiding and
abetting to knowingly and intentionally possessing with the
intent to distribute cocaine on board a vessel subject to the
jurisdiction of the United States (in violation of 46 App.
U.S.C. S 1903(a)). Perez-Oviedo pled guilty to the first
count, preserving the issue of jurisdiction. See Fed. R.
Crim. P. 11(a)(2). Prior to sentencing, a motion was filed to
dismiss for lack of jurisdiction. The District Court denied
the motion, and sentenced Perez-Oviedo to 120 months
imprisonment.

II.

We have jurisdiction pursuant to 28 U.S.C. S 1291. The
District Court had subject matter jurisdiction pursuant to
48 U.S.C. S 1612. See United States v. Martinez-Hidalgo,
993 F.2d 1052, 1054 n. 2 (3d Cir. 1993), cert. denied, 510
U.S. 1048, 114 S.Ct. 699 (1994); see also 18 U.S.C. S 3241.
As to all issues on appeal we are dealing with the
application of legal precepts to acknowledged facts, and
therefore our standard of review is plenary. See Martinez-
Hidalgo, 993 F.2d at 1054 n. 2.

Perez-Oviedo raises four issues on appeal: 1) whether
there was a sufficient factual basis for the charge to which
he pled guilty; 2) whether a nexus to the United States is
an element of the charge; 3) whether the Due Process limits
on jurisdiction were exceeded; and 4) whether the
conviction and sentencing before an Article IV Court were
unlawful where the allegations involved only Article I high
seas offenses without any nexus to the Article IV territories.

III.

We address Perez-Oviedo's first two issues together, as
our analysis of both is identical. Under the first issue,
Perez-Oviedo argues that he lacked the requisite mens rea
for conspiracy because he did not intend for the Adriatik or

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the smuggled cocaine to have any connection to, or to fall
within the jurisdiction of, the United States. He contends
on the second issue that a nexus with the United States
was required under international law. Both of these issues
are disposed of by way of the statutory language contained
in S 1903 and our prior holding in Martinez-Hidalgo. Id.

Sections 1903(a) and (j) of the MDLEA state:

       (a) Vessels of United States or vessels subject to
       jurisdiction of United States

        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) Attempt or conspiracy

        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.

In Martinez-Hidalgo, we held that the District Court had
jurisdiction to adjudicate the criminal charges despite the
fact that the vessel in question had no nationality
(Colombia had disclaimed its registry of the vessel) and the
final destination for the drugs was likely to be Puerto Rico
or St. Croix. Id. at 1055. The critical factual distinction to
be made in Perez-Oviedo's case is that the Adriatik did have
nationality, it was registered in Panama. Since Panama
consented to the search of the Adriatik, we hold that the
government satisfied its jurisdictional requirements under
the MDLEA.1
_________________________________________________________________

1. Section 1903(c)(1)(C) provides that:

       (1) For purposes of this section, a "vessel subject to the
jurisdiction
       of the United States" includes--

                                4
While the issue previously has not been squarely before
us, we explained in Martinez-Hidalgo that our holding in
that case did not depend upon the vessel being stateless.
We stated that "our holding obviously applies to any
prosecution under the Maritime Drug Law Enforcement
Act." Martinez-Hidalgo, 993 F.2d at 1056 n.6. We
acknowledged in our discussion that our holding in
Martinez-Hidalgo was not joining the holding of the Court of
Appeals for the Ninth Circuit in United States v. Davis, 905
F.2d 245, 248-49 (9th Cir. 1990), cert. denied , 498 U.S.
1047, 111 S.Ct. 753 (1991), which read into the MDLEA a
nexus requirement with respect to foreign-registered
vessels.

In holding that there was no nexus requirement in the
MDLEA, we refused to distinguish Martinez-Hidalgo from
Davis on the basis of whether the ship involved was
stateless or actually registered in another country.
Martinez-Hidalgo, 993 F.2d at 1056; see also Klimavicius-
Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998) (government
must prove that criminal conduct will have an effect in the
United States). Our conclusion rested upon the fact that
"46 U.S.C. app. S 1903(d) expresses the necessary
congressional intent to override international law to the
extent that international law might require a nexus to the
United States for the prosecution of the offenses defined in
the [MDLEA]." 993 F.2d at 1056.

Other Courts of Appeal have likewise taken issue with
the holding in Davis. They have held that no nexus is
needed between a defendant's criminal conduct and the
United States in order for there to be jurisdiction, even
_________________________________________________________________

        (C) a vessel registered in a foreign nation where the flag nation
       has consented or waived objection to the enforcement of United
       States law by the United States.

       Consent or waiver of objection by a foreign nation to the
       enforcement of United States law by the United States under
       subparagraph (C) . . . of this paragraph may be obtained by radio,
       telephone, or similar oral or electronic means, and is conclusively
       proved by certification of the Secretary of State or the
Secretary's
       designee.

                               5
when the vessel at issue is registered in a foreign country
(as opposed to being stateless). See, e.g., United States v.
Bustos-Useche, 273 F.3d 622, 627-28 (5th Cir. 2001)
(because Panama consented to the enforcement of the
MDLEA over the vessel, the jurisdictional requirements of
the statute were met, despite the timing of the consent after
the vessel was commandeered by the Coast Guard); United
States v. Greer, 223 F.3d 41, 54-56 (2nd Cir. 2000)
(MDLEA's jurisdictional requirement satisfied so long as
consent of nation to which vessel is registered is received
prior to trial); United States v. Cardales, 168 F.3d 548, 553
(1st Cir. 1999), cert. denied, 528 U.S. 838, 120 S.Ct. 101
(1999) (acknowledging the holding of the Court of Appeals
for the Ninth Circuit in Davis but nevertheless holding that
the United States had jurisdiction despite the fact that the
vessel was registered in Venezuela). Perez-Oviedo's first two
issues are without merit. The vessel's final destination of
Canada and lack of a nexus to the United States are wholly
irrelevant to our analysis of the jurisdiction of the United
States to prosecute him under the MDLEA given that the
Panamanian government consented to the search.

With regard to Perez-Oviedo's third issue, we previously
held in Martinez-Hidalgo that no due process violation
occurs in an extraterritorial prosecution under the MDLEA
when there is no nexus between the defendant's conduct
and the United States. Martinez-Hidalgo, 993 F.2d at 1056-
57. Since drug trafficking is condemned universally by law-
abiding nations, we reasoned that there was no reason for
us to conclude that it is " `fundamentally unfair' for
Congress to provide for the punishment of a person
apprehended with narcotics on the high seas." Id. at 1056;
see also 46 App. U.S.C. S 1902 (where Congress specifically
found in the MDLEA that "trafficking in controlled
substances aboard vessels is a serious international
problem and is universally condemned"). Perez-Oviedo's
state of facts presents an even stronger case for concluding
that no due process violation occurred. The Panamanian
government expressly consented to the application of the
MDLEA (unlike the stateless vessel in Martinez-Hidalgo).
Such consent from the flag nation eliminates a concern
that the application of the MDLEA may be arbitrary or
fundamentally unfair. See, e.g., Cardales, 168 F.3d at 553.

                               6
Perez-Oviedo's reference to cases such as International Shoe
Machine Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154
(1945), and Asahi Metal Industry Co., Ltd. v. Superior Court
of California, 480 U.S. 102, 107 S.Ct. 1026 (1987), is
unavailing, for those cases, which deal with non-resident
corporations subject to liability for placing goods in the
stream of commerce of another state, are inapposite.

Perez-Oviedo's fourth issue can be disposed of in short
order. In United States v. Canel, 708 F.2d 894, 897 (3d Cir.
1983), we declined to hold that only an Article III judge
could preside over the trial where the charge was a
violation of the criminal law of the United States. We also
held that no due process violation occurs when the trial of
a criminal charge takes place before a judge enjoying the
limited tenure afforded to judges of the District Court of the
Virgin Islands. Id. Perez-Oviedo's position that his
conviction and sentencing before an Article IV Court was
unlawful because the allegations involved only Article I high
seas offenses without any nexus to the Article IV territories
also fails.

IV.

For the foregoing reason, the District Court's judgment of
June 8, 2001 will be affirmed in all respects.

A True Copy:
Teste:

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

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