               Case: 15-10810       Date Filed: 07/28/2017       Page: 1 of 32


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 15-10810
                               ________________________

                          D.C. Docket No. 1:13-cr-20911-BB-4


UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

                                            versus

ELDER NEHEMIAS LOPEZ HERNANDEZ,
SAULO ARAHON HERNANDEZ ALMARAZ,
JOSE LUIS AGUILAR LOPEZ,
SAMUEL SAVALA CISNEROS,

                                                                    Defendants-Appellants.

                               ________________________

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

                                       (July 28, 2017)

Before HULL, MARCUS, and ROGERS *, Circuit Judges.

ROGERS, Circuit Judge:


*
 Honorable John M. Rogers, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
             Case: 15-10810     Date Filed: 07/28/2017   Page: 2 of 32


      The United States prosecuted these four defendants—Lopez Hernandez,

Hernandez Almaraz, Aguilar Lopez, and Savala Cisneros—under the Maritime

Drug Law Enforcement Act (MDLEA), which criminalizes an individual’s

possessing with intent to distribute a controlled substance “[w]hile on board a

covered vessel,” which includes “a vessel subject to the jurisdiction of the United

States,” which in turn includes “a vessel without nationality.” 46 U.S.C. §§

70502(c)(1)(A), 70503(a)(1), (e)(1) (2012). The U.S. Coast Guard arrested the

four defendants on board the Cristiano Ronaldo, which the defendants claimed was

registered in Guatemala—and claimed so truthfully, as it later turned out. Shortly

before the search of the ship, however, when asked by the Coast Guard, the

Guatemalan government could neither confirm nor deny the ship’s registry. The

parties proceeded to trial. The Government presented evidence that the defendants

threw overboard about 290 kilograms of cocaine shortly before arrest. The jury

convicted all four defendants of every indicted crime.

      On appeal, the defendants argue primarily that the Cristiano Ronaldo was

not “a vessel without nationality” because the vessel was properly registered in

Guatemala, as the U.S. Coast Guard should have been able to determine with the

information that it had. But the Cristiano Ronaldo fit within the MDLEA’s broad

definition of a “vessel without nationality” because a designee of the U.S.

Secretary of State has certified, and thereby “proved conclusively,” that Guatemala


                                          2
              Case: 15-10810    Date Filed: 07/28/2017    Page: 3 of 32


had not “affirmatively and unequivocally” asserted that the Cristiano Ronaldo was

of Guatemalan nationality. Under the clear terms of the MDLEA, that certification

put the crime within the territorial coverage of the statutory prohibition. The

executive branch thereby effectively assumed responsibility for any diplomatic

consequences of the criminal prosecution. The defendants’ other arguments—

insufficient evidence, prosecutorial misconduct, improper suppression or loss of

evidence, erroneous admission of hearsay, and misapplication of two sentencing

enhancements—are also without merit.

                                          I.

       On November 5, 2013, the U.S. Coast Guard identified a suspicious go-fast

vessel in international waters, about 120 nautical miles southwest of the El

Salvador/Guatemala border, in the Pacific Ocean. The vessel was not flying any

national flag. When a Coast Guard helicopter approached it, the vessel sped off,

despite radio-transmitted orders in English and in Spanish to halt, and despite

several warning shots into the water. The Coast Guard fired at the Cristiano

Ronaldo’s engines, immobilizing the vessel. Crewmen on the vessel then began

dumping black packages overboard.

      Officers of the Coast Guard boarded the Cristiano Ronaldo and ultimately

arrested the four crewmen—the four defendants in this case. When the Coast

Guard officers boarded the ship, Hernandez Almaraz said he was its captain. He


                                          3
             Case: 15-10810    Date Filed: 07/28/2017   Page: 4 of 32


also said he was a Guatemalan citizen, as did the other three crewmen. He claimed

that the Cristiano Ronaldo was registered in Guatemala. Soon thereafter, the Coast

Guard contacted the Guatemalan government to confirm or deny the claim of

registry. The Guatemalan government responded that it “could neither confirm nor

deny.” The Coast Guard proceeded to search the ship.

      What happened during the intervening period—the period after Hernandez

Almaraz claimed the ship’s registry in Guatemala but before the Coast Guard

contacted the Guatemalan government to check that claim—is unclear.

      The Coast Guard states, “No registration documentation was provided to or

located by United States law enforcement personnel.” That may have been true

when the Coast Guard asked the Guatemalan government about the ship’s registry,

but the Coast Guard later found registration documents on the ship, as the United

States ultimately provided the documents to the defendants during discovery.

      Some of the defendants claim, or at least suggest, that the Coast Guard had

the registration documents before it asked Guatemala about the Cristiano

Ronaldo’s registry. In support of the motion to dismiss the indictment, Aguilar

Lopez wrote, “As soon as Cristiano Ronaldo was boarded by the U.S. Coast

Guard, [Hernandez Almaraz] gave the Coast Guard a document, issued by the

Guatemalan Navy, certifying that Cristiano Ronaldo is registered as a Guatemalan

vessel.” On appeal, Savala Cisneros states that “once the Cristiano Ronaldo was


                                         4
              Case: 15-10810    Date Filed: 07/28/2017    Page: 5 of 32


boarded by the U.S. Coast Guard, [Hernandez Almaraz] gave the Coast Guard [the

registration] document.”

      Later, the Coast Guard retrieved some packages where the defendants had

thrown packages overboard. The retrieved packages contained about 290

kilograms of cocaine, valued contemporaneously on the streets at about $8.7

million.

      Some of the evidence from the scene was lost. The Cristiano Ronaldo was

accidentally sunk when Coast Guard officers, during a standard “At Sea Space

Accountability” procedure, drilled holes in the Cristiano Ronaldo to check if there

were hidden compartments; they used putty to cover the holes, but water

nevertheless began pouring into the ship. The wet clothes that the defendants were

wearing that day were discarded because of concerns of mold. Similarly, and out

of the same concern, the burlap sacks that had covered the cocaine packages were

discarded.

      Before trial, the district court rejected the defendants’ motion to dismiss for

lack of jurisdiction, and granted the Government’s motion to determine that the

vessel was subject to the jurisdiction of the United States. The court relied on the

certification from Commander Salvatore J. Fazio of the U.S. Coast Guard, as

designee of Secretary of State John Kerry, which declared that Hernandez Almaraz

claimed the Cristiano Ronaldo’s Guatemalan registry, and that the Guatemalan


                                          5
              Case: 15-10810     Date Filed: 07/28/2017   Page: 6 of 32


government could neither confirm nor deny that claim. The district court

specifically declined to inquire into “the factual underpinnings of the certificate”

because the court reasoned that they were “neither relevant or appropriate” under

the MDLEA. In the same order, the district court denied the motion to reconsider

its previous order granting the Government’s motion to quash the subpoena to

Commander Fazio.

      The parties proceeded to a four-day jury trial. The Government’s trial

evidence included the testimony of Officer Arambula of the U.S. Coast Guard

about the actions and statements of his colleague Officer Ligsay. The closing

arguments were somewhat heated, with the Government calling the defense

attorneys “spin doctors,” for example.

      The jury convicted all four defendants of all indicted crimes.

      The district court sentenced Lopez Hernandez, Savala Cisneros, and Aguilar

Lopez to 188 months’ imprisonment. The district court sentenced Hernandez

Almaraz to 200 months’ imprisonment, applying to him two sentencing

enhancements related to his role as the captain of the Cristiano Ronaldo.

                                          II.

      The district court properly determined that the Cristiano Ronaldo was a

vessel within the jurisdiction of the United States because it was a “vessel without




                                          6
              Case: 15-10810      Date Filed: 07/28/2017   Page: 7 of 32


nationality” within the meaning of the plain text of the MDLEA. Such a vessel is

statutorily defined to include:

      [A] vessel 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.


46 U.S.C. § 70502(d)(1)(C). Defendants essentially challenge whether the terms

of this provision have been met, but the Government has proved conclusively that

they have. The Government produced the written certification of Commander

Salvatore J. Fazio of the U.S. Coast Guard, in which Commander Fazio declared

that: (i) the self-identified master of the Cristiano Ronaldo claimed that the ship

was registered in Guatemala; (ii) the U.S. government asked the Guatemalan

government to confirm or deny the vessel’s registry; and (iii) the Guatemalan

government responded that it “could neither confirm nor deny that the go-fast

vessel was registered in Guatemala.” As Commander Fazio further stated,

“Accordingly, the Government of the United States determined the vessel was

without nationality in accordance with 46 U.S.C. § 70502(d)(1)(C), rendering the

vessel subject to the jurisdiction of the United States [under the MDLEA].”

Commander Fazio’s certification was accompanied by a certificate by Secretary of

State John Kerry designating Commander Fazio to act on the part of the

Department of State. The MDLEA specifies that “[t]he response of a foreign


                                           7
              Case: 15-10810      Date Filed: 07/28/2017    Page: 8 of 32


nation to a claim of registry . . . is proved conclusively by certification of the

Secretary of State or the Secretary’s designee.” Id. § 70502(d)(2). Because

Commander Fazio is an appropriate designee of the U.S. Secretary of State, under

the plain text of the MDLEA, his certification conclusively proves that the

Guatemalan government responded that it “could neither confirm nor deny” the

Cristiano Ronaldo’s registry. That response, in turn, unambiguously means that

Guatemala did not at the time “affirmatively and unequivocally assert” the ship’s

registry. Id. § 70502(d)(1)(C). The absence of such an assertion rendered the

Cristiano Ronaldo a “vessel without nationality,” id. § 70502(d)(1), and thus a

“vessel subject to the jurisdiction of the United States,” id. § 70502(c)(1)(A), and

therefore a “covered vessel,” id. § 70503(e)(1), to which the MDLEA’s criminal

prohibition against possessing a controlled substance with distributary intent

extends, id. § 70503(a)(1). The district court therefore properly exercised

jurisdiction over the defendants under the MDLEA.

      To avoid that outcome, the defendants primarily argue that the Cristiano

Ronaldo was actually registered in Guatemala, that the Coast Guard possessed

identifying information about the ship that would easily have confirmed its

registry, and that the Coast Guard failed in bad faith to convey that information

when it asked the Guatemalan government whether the ship was registered. The

defendants’ arguments based on actual registry and alleged bad faith fail, both as a


                                            8
              Case: 15-10810      Date Filed: 07/28/2017    Page: 9 of 32


statutory argument about proof of the Cristiano Ronaldo’s lack of nationality under

the MDLEA, and as an international-law argument about the U.S. government’s

failure to abide by its treaty promise to the Guatemalan government to convey all

available identifying information when asking about a ship’s registry.

      Interpreted as a statutory jurisdictional argument, the defendants’ argument

cannot overcome the conclusive-proof provision of the MDLEA. The statute

plainly states that the certification conclusively proves the foreign country’s

response. Here, because the certification conclusively proves that the Guatemalan

government “could neither confirm nor deny” the Cristiano Ronaldo’s registry, the

certification also establishes the fact that Guatemala did not “affirmatively and

unequivocally assert” registry. The MDLEA does not state what information the

United States must convey to the foreign government during its communication,

and it does not state that actual registry overrides the certification’s proof of

statutory statelessness. MDLEA statelessness does not turn on actual statelessness,

but rather on the response of the foreign government. Arguing actual registry

against the certification therefore misses the mark.

      This conclusion is supported by our decision in United States v. Campbell,

743 F.3d 802 (11th Cir. 2014). In that case, as in this case, the Commander of the

U.S. Coast Guard (at the time, Commander Deptula) certified in writing that the

ship’s captain claimed foreign registry, that the Coast Guard asked the foreign


                                           9
              Case: 15-10810     Date Filed: 07/28/2017     Page: 10 of 32


government whether the claim was true, and that the foreign government

responded that it “could neither confirm nor deny” the claimed registry. Id. at 804.

The defendant, as in this case, nonetheless challenged the certification’s conclusive

proof of jurisdiction, arguing “that the certification . . . lacked details about the

communications between the Coast Guard and Haiti and that the United States did

not offer any testimony to corroborate the certification.” Id. at 809. We rejected

that argument, explaining that the certification’s statement “that Haiti responded

that it could neither confirm nor deny the registry . . . provided conclusive proof

that the vessel was within the jurisdiction of the United States.” Id. Just as the

certification’s conclusive proof foreclosed any need for details or corroborations in

that case, it also forecloses any inquiry into its veracity in this case.

      While in Campbell the defendant “stipulated to . . . the representations by

the Coast Guard in the certification,” Campbell, 743 F.3d at 809, and in this case

the defendants specifically challenge the statement in the certification that “no

registration document was provided to or located by United States law enforcement

personnel,” the difference triggers no distinction. The very concept of a conclusive

proof entails not only that no detail or corroboration is needed, but also that any

contrary evidence is futile. If a document states a proposition, a party introduces

evidence that contradicts or undermines the proposition, and a court thereby

inquires whether the proposition is true, then the court treats the document at most


                                            10
             Case: 15-10810     Date Filed: 07/28/2017   Page: 11 of 32


as establishing a rebuttable presumption of the proposition’s truth, but not as

conclusively proving its truth. Congress instructs specifically that courts should

treat the MDLEA certification as conclusive of the foreign nation’s response.

      It is true that in two cases relied upon by the defendants, we proceeded past

a similar certification to examine whether the U.S. agents acted in good faith when

communicating with the foreign government. See United States v. Tinoco, 304

F.3d 1088 (11th Cir. 2002); United States v. Devila, 216 F.3d 1009 (11th Cir.

2000). However, both of those cases are distinguishable because they applied prior

versions of the MDLEA, versions without a conclusive-proof provision that

applied to the determination in question. In Devila, the defendants were indicted in

June 1996, 216 F. 3d at 1012, months before the amendment to the MDLEA on

October 19, 1996, that added a conclusive-proof provision, Coast Guard

Authorization Act of 1996, Pub. L. No. 104-324, § 1138, 110 Stat. 3901, 3988–89

(1996). We explicitly rejected a Government assertion that a Secretary of State

certification was conclusive proof, applying what was then the law, that such a

certification provided only rebuttable prima facie evidence. Devila, 216 F.3d at

1015 n.4. The applicable version of the MDLEA in Devila stated only that “[t]he

denial of such claim of registry by the claimed flag nation may be proved by

certification of the Secretary of State or the Secretary’s designee.” 46 U.S.C.A.

App. § 1903(c)(2) (1996) (emphasis added). In Tinoco, the United States as in the


                                         11
             Case: 15-10810     Date Filed: 07/28/2017   Page: 12 of 32


instant case had certified that Colombia “could neither confirm nor deny the verbal

claim of Colombian registry,” 304 F.3d at 1113, but this was at a time when the

conclusive-proof provision applied only to the foreign state’s “denial” of registry.

46 U.S.C.A. App. § 70502(d)(2) (2006) (“The denial of such a claim is proved

conclusively by certification of the Secretary of State or the Secretary’s

designee.”). The provision was amended in 2006, Coast Guard and Maritime

Transportation Act of 2006, Pub. L. No. 109-241, § 303, 120 Stat. 516, 527 (2006),

and codified in 2008, National Defense Authorization Act for Fiscal Year 2008,

Pub. L. No. 110-181, § 3525(a)(6), 122 Stat. 3, 601 (2008), into its current form,

which states that the certification conclusively proves “the response” of the foreign

nation, no matter whether “the response” is a denial, a non-denial/non-

confirmation, or a confirmation. See generally United States v. Brant-Epigmelio,

2010 WL 557283, at *5 n.6 (M.D. Fla. 2010) (outlining the two amendments that

added the MDLEA’s conclusive-proof language).

      United States v. Wilchcombe, 838 F.3d 1179 (11th Cir. 2016), relied upon by

defendants, is also not to the contrary, although it, too, proceeded to analyze good

faith, and even though the current version on the MDLEA was in effect. That case

arose from slightly different facts. There, the defendant claimed the ship’s registry

in the Bahamas and the Bahamian government confirmed the ship’s registry. Id. at

1184. The issue with respect to jurisdiction was therefore whether the Bahamian


                                          12
               Case: 15-10810        Date Filed: 07/28/2017       Page: 13 of 32


government thereafter consented to the United States’ searching the ship. A

separate provision of the MDLEA states that that “[c]onsent or waiver of objection

by a foreign nation,” too, “is proved conclusively by certification of the Secretary

of State or the Secretary’s designee.” 46 U.S.C. § 70502(c)(2). The certification

in that case stated that the Bahamian government so consented. 838 F.3d at 1187.

The defendants there nevertheless argued that “the Coast Guard misled the

Bahamian Government about the documentation of the registration status of [the

boat in question] that was available to the Coast Guard when it was seeking the

[statement of no objection],” and on that ground urged the court to look past the

certification’s conclusive proof of consent. Id. Without deciding whether doing so

was required, we proceeded to do so and concluded that the argument did not

defeat jurisdiction, listing “multiple reasons” why. Id. at 1188.1 We did not hold

that the law required looking past the certification’s conclusive proof of consent

upon evidence undermining the certification’s veracity. Instead we ruled for the

Government on one alternative basis (no evidence of bad faith or intentional

misrepresentation) rather than on another (the conclusive proof provision). This

hardly constitutes a holding that rejects the latter.



1
 While there is a statement in the Wilchcombe opinion that a district court “may take into
account” evidence of bad faith or intentional misrepresentation, id. (citing Tinoco, 304 F.3d at
1114), the statement was based on Tinoco, a case which did not apply a conclusive-proof
provision, as explained in the preceding paragraph.

                                                13
              Case: 15-10810      Date Filed: 07/28/2017    Page: 14 of 32


       Any remaining challenge to the way that the Coast Guard communicated

with the Guatemalan government effectively asserts a violation of international

law, which under the MDLEA is not a defense. Savala Cisneros relies on an

agreement between the U.S. and Guatemalan governments which states that a

request for verification of a ship’s registry “shall contain the basis for the suspicion

[of the ship’s illicit activity], the geographic position of the vessel, and, if available

the name of the suspect vessel, the registration number, home port, the port of

origin and destination, and any other identifying information.” Agreement

Concerning Cooperation to Suppress Illicit Traffic in Narcotic Drugs and

Psychotropic Substances by Sea and Air, U.S.-Guat., art. VII, § 2, June 19, 2003. 2

However, the MDLEA states that “[a] person charged with violating [the MDLEA]

. . . does not have standing to raise a claim of failure to comply with international

law as a basis for a defense,” explains that that “claim of failure to comply with

international law in the enforcement of [the MDLEA] may be made only by a

foreign nation,” and specifies that “[a] failure to comply with international law

does not divest a court of jurisdiction and is not a defense.” 46 U.S.C. § 70505.

With that text, Congress has instructed: any battle over the United States’

compliance with international law in obtaining MDLEA jurisdiction should be


2
 Available at <http://heinonline.org/HOL/Page?handle=hein.ustreaties/kav06486&start_page=
&collection=ustreaties>.

                                            14
               Case: 15-10810       Date Filed: 07/28/2017       Page: 15 of 32


resolved nation-to-nation in the international arena, not between criminal

defendants and the United States in the U.S. criminal justice system. Assuming as

true the defendants’ suggestions that they provided the ship’s registration

document to the Coast Guard as soon as its officers boarded the ship, 3 assuming

further that the Coast Guard failed in bad faith to convey information in that

document to the Guatemalan government, and assuming finally that that assumed

failure violated the United States’ obligation to Guatemala, still the defendants’

international law argument does not touch the conclusion that the United States

properly exercised statutory jurisdiction over this suit. If the United States hid

information from Guatemala, then the Guatemalan government may complain in

some form to the U.S. government; but Congress has instructed that these

defendants may not litigate those complaints in an MDLEA prosecution.



3
  In his motion below to dismiss the indictment, Lopez Hernandez appeared to admit that the
Coast Guard found the registration documents after it determined the ship to be stateless. But on
that same motion, Aguilar Lopez wrote, “As soon as Cristiano Ronaldo was boarded by the U.S.
Coast Guard, [Hernandez Almaraz] gave the Coast Guard a document, issued by the Guatemalan
Navy, certifying that Cristiano Ronaldo is registered as a Guatemalan vessel.” On appeal,
Savala Cisneros states that “once the Cristiano Ronaldo was boarded by the U.S. Coast Guard,
[Hernandez Almaraz] gave the Coast Guard [the registration] document,” without specifying
exactly how long after the boarding the tender occurred. Savala Cisneros also points out that the
Coast Guard later produced the registration document to the defense during discovery and argues
that that production of the document shows that the Coast Guard had obtained the registration
document before it contacted the Guatemalan government for confirmation of registry. But this
does not follow. The Coast Guard could have obtained the registration document after the
communication with the Guatemalan government, during the following search of the vessel, and
therefore before discovery.

                                               15
               Case: 15-10810        Date Filed: 07/28/2017       Page: 16 of 32


       In his reply brief, Savala Cisneros insists that he “is not contesting the

response of the foreign nation, but is instead contesting the facts alleged by the

United States in the certification and jurisdiction.”4 Savala Cisneros may simply

be insisting that we look beyond what the Guatemalan government is conclusively

proven to have said, to the conduct of the U.S. Coast Guard that brought about that

response. But the conclusive proof provision does not specify the requisite form of

prior notice to the government of the claimed flag nation. To the extent that such

prior notice may be required by international law, reliance on such a requirement is

not warranted under the MDLEA. Congress explicitly stated: “A failure to comply

with international law does not divest a court of jurisdiction and is not a defense.”

46 U.S.C. § 70505 (emphasis added).

       Savala Cisneros may also be arguing that even if the certification

conclusively proves the Guatemalan government’s response, i.e., that the

certification could “neither confirm nor deny” the registry, it does not necessarily

follow that the certification also conclusively proves the jurisdictional fact that

Guatemala did not “affirmatively and unequivocally assert” registry under 46

U.S.C. § 70502(d)(1)(C). But a non-confirmation/non-denial of registry is

necessarily the failure to “affirmatively and unequivocally assert” registry; the


4
 Elsewhere in the reply brief, Savala Cisneros claims that he is disputing jurisdiction in
particular on the basis of “the false statements the United States government made to
Guatemala,” or as put elsewhere, “the United [States’] claims outlined in the certification.”

                                                16
              Case: 15-10810     Date Filed: 07/28/2017    Page: 17 of 32


wording of the Guatemalan response leaves no ambiguity that it was doing

something other than “affirmatively and unequivocally assert[ing]” registry. This

is particularly true given the certification’s explicit reference to the relevant

statutory language. To rule otherwise would be to impose an undue and

burdensome formality on the content of the Secretary’s certification. This

conclusion is supported by our decision in Wilchcombe, which held that the

certification in that case was not required to “precisely mirror” the statutory

language. Wilchcombe, 838 F.3d at 1186–87.

      Savala Cisneros presses two additional arguments related to jurisdiction.

Both fail. First, the district court did not commit reversible error in quashing

Aguilar Lopez’s subpoena to Commander Fazio. Even though the district court

granted the Government’s motion to quash the subpoena before the defendants had

the opportunity to respond to the motion, the error was harmless because the

defendants later had the opportunity to respond in their motion to reconsider. In

any event, the district court properly reasoned that Commander Fazio did not need

to testify because the MDLEA’s conclusive-proof provision foreclosed any inquiry

into the Commander’s communications with the Guatemalan government in

determining the Cristiano Ronaldo’s MDLEA statelessness. Second, Savala

Cisnero’s constitutional argument—that the MDLEA is an unconstitutional

assertion of Congressional power because it reaches stateless vessels on the high


                                           17
             Case: 15-10810     Date Filed: 07/28/2017   Page: 18 of 32


seas without a proven nexus to the United States—is foreclosed by our precedent.

In Campbell, we held that the MDLEA was a constitutional exercise of

Congressional authority under the Felonies Clause, and that the conduct proscribed

by the MDLEA need not have a nexus to the United States. Campbell, 743 F.3d at

809–10; see also Wilchcombe, 838 F.3d at 1186 (adhering to that conclusion).

                                          III.

      Finally, Aguilar Lopez makes what sounds like a plausible argument: How

can defendants commit a crime on a vessel at a time when it is not yet determined

to be a stateless vessel, only to have the vessel meet the statutory requirements for

a stateless vessel after the crime has been committed? By the time the Coast Guard

received word from the Guatemalan government that it could neither confirm nor

deny the Cristiano Ronaldo’s registry, the crewmen had already thrown the

packages overboard, and there were no longer any drugs on the ship. Aguilar

Lopez therefore argues that, even under the Government’s theory, when the

response from the Guatemalan government “converted the Guatemalan vessel into

a stateless one,” Aguilar Lopez no longer possessed narcotics with intent to

distribute, and that the Government has failed to prove that Aguilar Lopez was on

board a stateless vessel subject to U.S. jurisdiction when he previously did

allegedly possess narcotics with intent to distribute.




                                          18
             Case: 15-10810     Date Filed: 07/28/2017   Page: 19 of 32


      Aguilar Lopez’s insufficiency-of-the-evidence argument fails because

whether the statutory requirements for MDLEA jurisdiction have been met is not

an element of the crime that the Government must prove beyond a reasonable

doubt. “[T]he [MDLEA’s] jurisdictional requirement is not an essential ingredient

or an essential element of the MDLEA substantive offense, and, as a result, it does

not have to be submitted to the jury for proof beyond a reasonable doubt.” Tinoco,

304 F.3d at 1109–10. Instead, the MDLEA’s jurisdictional provisions allocate

power between the courts and the executive as to which of the two will be

responsible for complying with U.S. obligations under the international law of

criminal jurisdiction.

      Construed as a challenge to that allocation, Aguilar Lopez’s argument fails

because, by relying on the certification to exercise MDLEA jurisdiction over this

case, we are not holding that the Cristiano Ronaldo was stateless under

international law at the time of the criminal conduct. We are instead holding, as

we need only hold, that the statutory requirements for MDLEA prosecution in U.S.

courts have been met, while recognizing that any further jurisdictional complaint

over that U.S. prosecution is to be handled by the executive branch, nation-to-

nation, in the international arena. There is nothing anomalous about basing that

decision on actions taken after the criminal activity.




                                          19
             Case: 15-10810      Date Filed: 07/28/2017    Page: 20 of 32


      Some background helps explain why. Under international law, a nation may

lack power to punish criminally the actions of a foreign citizen outside its territory,

such that the nation whose national is tried may protest diplomatically. These

limits are referred to as limits on a nation’s jurisdiction to prescribe. F.T.C. v.

Compagnie De Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1315 (D.C. Cir.

1980). In addition, under international law a nation may lack power to go on the

territory of a foreign state without consent to seize a person, even a national of the

seizing state, such that the state whose territory is violated may protest

diplomatically. These limits fall under the rubric of a nation’s jurisdiction to

enforce. Id. at 1305–06. See generally Restatement (Second) of the Foreign

Relations Law of the United States § 6 cmt. a (1965).

      In the MDLEA, Congress has delineated between judicial and diplomatic

compliance with international law limits on criminal jurisdiction over the actions

of aliens on ships on the high seas, with respect to limits on both prescriptive and

enforcement jurisdiction. To the extent that we determine a particular case to be

on the diplomatic side of those lines, we are not necessarily saying that the United

States could exercise territorial jurisdiction under international law limits, but only

that Congress has determined that the question, if there is one, is to be dealt with

diplomatically and not by the courts. On the protest of a foreign nation, for

instance, the executive branch can decline to prosecute. So viewed, there is no


                                           20
             Case: 15-10810      Date Filed: 07/28/2017    Page: 21 of 32


anomaly in finding jurisdiction under the MDLEA based on a Secretary of State

certification of a vessel’s state’s post-crime non-assertion of registry.

                                          IV.

      The defendants’ other arguments are also without merit. Despite arguments

from Savala Cisneros and Aguilar Lopez to the contrary, sufficient evidence

supported the defendants’ convictions. Savala Cisneros argues, as he and his co-

defendants argued at trial, that they had only been fishing that day and that the

bales of cocaine that the Coast Guard recovered from the water had not been

thrown from the Cristiano Ronaldo. The trial evidence included testimony, for

example: (i) that the Cristiano Ronaldo was located more than 120 miles offshore,

away from any fishing fleet, with essentially no fishing gear, but with a large

amount of fuel; (ii) that the Cristiano Ronaldo sped off when the Coast Guard

helicopter approached, despite the Coast Guard’s radio-transmitted orders to halt,

and despite several warning shots from the helicopter into the water; (iii) that the

crew of the Cristiano Ronaldo threw overboard black packages from the boat when

the Coast Guard immobilized the vessel; and (iv) that in that marked location the

Coast Guard later recovered about ten bales containing about 290 kilograms of

cocaine. Viewing the evidence in the light most favorable to the Government and

accepting all reasonable inferences in favor of the verdict, e.g., United States v.

Calhoon, 97 F.3d 518, 523 (11th Cir. 1996), the presented evidence allowed a


                                           21
             Case: 15-10810     Date Filed: 07/28/2017   Page: 22 of 32


reasonable trier of fact to find that the evidence established beyond a reasonable

doubt that the four crewmen of the Cristiano Ronaldo were smuggling cocaine

instead of fishing. Their intent to distribute the cocaine, moreover, reasonably

could have been inferred from the large quantity. See, e.g., Tinoco, 304 F.3d at

1123 (11th Cir. 2002).

                                       V.

      Contrary to the arguments of Savala Cisneros and Aguilar Lopez, the

Government’s statements made in closing argument and rebuttal did not constitute

reversible prosecutorial misconduct, because they were not sufficiently prejudicial.

Some of the challenged remarks do not reflect the high standards to which the

Government should hold itself: instead of twice characterizing the defense

attorneys as “spin doctor[s],” the Government could have cut to refuting the

defense theory; instead of responding eye-for-eye to the defense counsel’s

statement that the Government’s case was “insulting” by calling the defense theory

“insulting,” the Government could have cut to arguing on the merits why it had

proven its case and why the defense had failed to plant a reasonable doubt in it;

instead of referring to its witnesses as the “fine men and women of the Coast

Guard [who] put their lives on the line every single day,” the Government could

have highlighted the facts adduced at trial from which the jury could have inferred




                                         22
               Case: 15-10810       Date Filed: 07/28/2017      Page: 23 of 32


their credibility. Other challenged remarks do not appear improper at all. 5 In any

event, to be reversible error, prosecutorial misconduct must raise a reasonable

probability that, but for the prejudicial remarks, the outcome at trial would have

been different. E.g., United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009).

The challenged remarks do not raise that probability both because they are not

sufficiently substantive and because of the strength of the Government’s evidence

supporting the defendants’ guilt.

                                            VI.

       Neither the Coast Guard’s accidental destruction of the Cristiano Ronaldo

on the day of arrest, nor the Government’s discarding the defendants’ clothes and

the burlap sacks in which the bales of cocaine were found, violated Savala

Cisneros’s rights, either under Brady v. Maryland, 373 U.S. 83 (1963), or under

Arizona v. Youngblood, 488 U.S. 51 (1988). These pieces of evidence were not




5
  For example, this remark—“the Government submits to you that Lieutenant Hawn and Petty
Officer Brown were extremely credible when they told you what are the priorities”—does not
improperly bolster the witnesses’ credibility, especially since it was followed directly by
arguments why the testimony was credible. The Government’s statement that Savala Cisneros’s
boarding the Cristiano Ronaldo sufficed to support conspiratorial agreement to distribute cocaine
was not improper when viewed in the context, which was that, in order for there to be
conspiratorial agreement, the members did not have to know every aspect of the plan regarding
the cocaine and that the magnitude of any particular defendant’s role was not relevant. The
Government’s closing remarks that characterized a witness’s testimony, regardless of whether
they were mischaracterizations, did not amount to reversible impropriety, especially in light of
the district court’s reminder to the jury to recall the witness’s testimony itself.

                                               23
             Case: 15-10810     Date Filed: 07/28/2017    Page: 24 of 32


sufficiently exculpatory, particularly in light of the strength of the inculpatory

evidence, for the following reasons.

      Savala Cisneros first asserts that the Cristiano Ronaldo contained fishing

equipment, that he was wearing fishing clothes, and that the equipment and his

clothes would have shown that he was, in fact, fishing the day he was apprehended

by law enforcement. But Savala Cisneros does not specifically allege what fishing

equipment was on board the Cristiano Ronaldo when it sank, and does not argue

how even with fishing equipment and even wearing fishing clothes one cannot also

smuggle cocaine. Savala Cisneros next asserts that the precise dimensions of the

Cristiano Ronaldo’s fish hold would have conclusively established that the large

amount of cocaine recovered would not have fit in it. However, the Government

introduced a photograph that depicted the four defendants standing in the fish hold,

which made the jury aware of its relative size. The loss of the burlap sacks that

had covered the bales did not prevent Savala Cisneros from arguing as follows:

that the photographs of the bales that had been thrown from the Cristiano Ronaldo

show yellow tape on the bales, but that the packages of cocaine recovered from the

water did not have any yellow markings and therefore did not come from the

Cristiano Ronaldo. In response, the Government introduced testimony from

multiple Coast Guard witnesses that the packages jettisoned from the Cristiano

Ronaldo, and subsequently recovered by the Coast Guard, were all black.


                                          24
              Case: 15-10810     Date Filed: 07/28/2017    Page: 25 of 32


Furthermore, the witness familiar with the camera noted that the coloring could be

distorted if the camera was not set up perfectly. Savala Cisneros finally asserts that

the vessel would have shown that it did not have a radio, which could have

explained why the defendants did not stop the vessel when the Coast Guard radio-

transmitted orders to halt. But even putting aside the radio-transmitted orders, at

trial, a Coast Guard lieutenant testified that the helicopter he flew in pursuit of the

Cristiano Ronaldo had an insignia indicating that it was a Coast Guard helicopter.

He also testified that one of the helicopter’s crew members was waving to the

defendants in an attempt to make them stop, and that warning shots were fired near

the vessel to stop it.

       For both a Youngblood claim that the Government failed to preserve

potentially useful defense evidence and a Brady claim that the prosecution failed to

disclose exculpatory evidence, there is a materiality requirement. To warrant

reversal, the evidence that the prosecution suppresses under Brady must raise “a

reasonable probability,” i.e., “a probability sufficient to undermine confidence in

the outcome,” that “had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” United States v. Bagley, 473 U.S. 667,

682 (1985); id. at 685 (White, J., concurring); see Turner v. United States, 137 S.

Ct. 1885, 1893 (2017) (explaining that evidence is material under Brady “when

there is a reasonable probability that, had the evidence been disclosed, the result of


                                           25
               Case: 15-10810       Date Filed: 07/28/2017       Page: 26 of 32


the proceeding would have been different”). Similarly, to warrant reversal, the

unpreserved evidence under Youngblood must be the sort of evidence “that might

be expected to play a significant role in the suspect’s defense.” California v.

Trombetta, 467 U.S. 479, 488 (1984). None of the unavailable pieces of evidence

that Savala Cisneros points to would have been expected to play a significant role

in defense or raise the reasonable probability that the outcome could have been

different, not just because the alleged unavailable evidence is insufficiently

probative or sufficiently substituted, but also because the evidence of guilt is

overwhelming.6

       United States v. Revolorio-Ramo, 468 F.3d 771 (11th Cir. 2006), confirms

this result. In that case, we affirmed MDLEA convictions and rejected the

defendants’ argument that their due process rights were violated when the Coast

Guard destroyed their vessel after determining the vessel was not seaworthy and

could not be towed safely. Id. at 774–75. There, as here, photographs and a video


6
  Savala Cisneros’s claims here might also fail for alternative reasons, which we note but do not
reach. His Brady claim might fail also because the prosecution never had access to some of the
lost evidence. Brady applies only to the suppressed evidence that was available to the
prosecution. United States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002). His Youngblood
claim might fail also because he failed to prove the Government’s bad faith in destroying the
evidence. Unlike in a Brady claim, bad faith must be proven in a Youngblood claim.
Youngblood, 488 U.S. at 58. Here, any argument that the Government acted in bad faith is
speculative. Officer Arambula testified that the Cristiano Ronaldo was sunk accidentally despite
attempts to prevent it; another agent testified that the clothes and the burlap sacks were wet and
therefore discarded due to mold and sanitation concerns. Savala Cisneros offers no concrete
argument that those reasons were pretextual.

                                               26
             Case: 15-10810     Date Filed: 07/28/2017    Page: 27 of 32


had been taken of the boat, but they were poor in quality, and the parties disagreed

about the quantity and condition of the fishing equipment on board. Id. at 773.

We nevertheless determined that any exculpatory evidence aboard the vessel

would have, at most, bolstered the arguments already presented to the jury, and

would not have allowed the defense to present an otherwise unavailable argument.

Id. at 774. We emphasized that the defendants had the opportunity to question law

enforcement at trial to attempt to raise doubts for the jury. Id. at 774-75.

Likewise, in this case, Savala Cisneros’s claims about the lost evidence, at best,

would have merely bolstered the arguments that he made at trial—that he was

merely a fisherman, that the fish hold could not conceal such a large amount of

cocaine, that the packages thrown from the vessel were not the ones later

recovered, and that no radio was on board. Savala Cisneros was able to review

photographs of the lost evidence and extensively question the Coast Guard

personnel present the day the Cristiano Ronaldo was interdicted.

                                         VII.

      Despite Savala Cisneros’s arguments to the contrary, the district court did

not err in admitting Officer Arambula’s testimony about the statements and actions

of another Coast Guard crew member, Officer Ligsay.

      First, the district court did not err in admitting Officer Arambula’s testimony

that he saw Officer Ligsay inspect the fish hold of the Clara Luz, the vessel that the


                                          27
              Case: 15-10810   Date Filed: 07/28/2017   Page: 28 of 32


officers stopped before encountering the Cristiano Ronaldo, and that in his opinion

Officer Ligsay did not appear concerned during and after the inspection. While

Officer Arambula’s testimony permitted the Government to argue that the Clara

Luz did not contain anything suspicious and therefore could not have been the

source of the cocaine found in the water, Savala Cisneros has not shown that

Officer Ligsay’s nonverbal conduct constituted a statement. Nonverbal conduct

can constitute a statement where the person intended the conduct to communicate a

message, but nothing in the record suggests that Officer Ligsay intended through

his conduct to communicate any message to Officer Arambula. See Fed. R. Evid.

801(a). Officer Ligsay was just inspecting the Clara Luz’s fish hold; Officer

Arambula just saw that Officer Ligsay did so and that he did not react in a way that

displayed concern. That conduct and reaction are not hearsay because they are not

statements.

      Nor did the district err in admitting Officer Arambula’s testimony about

Officer Ligsay’s joke. Officer Arambula testified that on the Cristiano Ronaldo

there was “a box of chicken” with “some bones . . . and a few pieces of chicken,”

and that “Officer Ligsay asked [the four defendants] if they were using the chicken

as bait and then we just all laughed.” Officer Ligsay’s question appears not to

have been a statement offered to prove the truth of the matter asserted—indeed, it

is unclear just what the question asserts. Savala Cisneros nevertheless argues that


                                         28
             Case: 15-10810     Date Filed: 07/28/2017    Page: 29 of 32


Officer Ligsay’s question allowed the jury to infer that no bait was on the boat.

But even if it did, and even if Officer Ligsay intended his question to assert that

there was no bait on the Cristiano Ronaldo, admitting Officer Arambula’s

testimony about the question did not prejudice Savala Cisneros, as improper

admission of hearsay, to warrant reversal, must have had a “substantial influence

on the outcome” of the case. United States v. Fortenberry, 971 F.2d 717, 722

(11th Cir. 1992). There was more than sufficient evidence establishing Savala

Cisneros’s guilt outside of the existence or non-existence of bait on the Cristiano

Ronaldo.

      Finally, the Government concedes the hearsay nature of Officer Arambula’s

testimony about Officer Ligsay’s comment that the cocaine bales they pulled from

the water were weighted down with cement. Savala Cisneros claims the

Government used this hearsay testimony to support its theory of the case in

closing, by arguing that the defendants had thrown the cocaine from the boat,

hoping the concrete buckets would sink the cocaine and they would evade

responsibility. But Savala Cisneros has here again failed to show that he was

prejudiced by admission of the testimony. Regardless of whether the cocaine bales

were weighted down with cement, strong evidence supported that the bales were




                                          29
               Case: 15-10810        Date Filed: 07/28/2017        Page: 30 of 32


thrown overboard the Cristiano Ronaldo while the defendants were fleeing from

the Coast Guard. 7

                                               VIII.

       The district court properly applied the two sentencing enhancements that

Hernandez Almaraz challenges: a two-level enhancement for “act[ing] as a . . .

captain . . . aboard any craft or vessel carrying a controlled substance,” U.S.S.G. §

2D1.1(b)(3)(C), and another two-level enhancement for “recklessly creat[ing] a

substantial risk of death or serious bodily injury to another person in the course of

fleeing from a law enforcement officer,” U.S.S.G. § 3C1.2.

       The district court properly determined that Hernandez Almaraz “acted” as

the captain of the Cristiano Ronaldo under U.S.S.G. § 2D1.1(b)(3). Hernandez

Almaraz identified himself as the captain when the Coast Guard boarded the

vessel; he held a captain’s license in Guatemala; and Lopez Hernandez later

confirmed that Hernandez Almaraz was the ship’s captain. Hernandez Almaraz

7
  Savala Cisneros also cites the Confrontation Clause in his brief, but fails to develop the claim,
only stating that “Savala Cisneros was deprived [of] his Sixth Amendment right to confront the
witnesses against him, by the court’s erroneous admission of hearsay testimony.” The
Confrontation Clause was not raised below. Before the district court, defense counsel objected
to only one of the three statements Savala Cisneros now challenges, and even that objection
challenged the testimony only on hearsay grounds. Plain error review therefore applies. See
United States v. Arbolaez, 450 F.3d 1283, 1291 n.8 (11th Cir. 2006). Under plain error review,
Savala Cisneros bears the burden of establishing that the district court erred. See United States v.
Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014). Because Savala Cisneros has not developed
the Confrontation Clause claim, he has not established that the district court plainly erred in
admitting this testimony.

                                                30
             Case: 15-10810     Date Filed: 07/28/2017    Page: 31 of 32


relies on cases like United States v. Cartwright, 413 F.3d 1295 (11th Cir. 2005), to

argue that while that evidence may show that he was the ship’s captain, it does not

show that he “acted” as such. Cartwright did focus on whether the defendant

“acted” as a captain by operating the vessel, but the case did so in the context of

expanding the scope of § 2D1.1(b)(3) to apply to the defendant who was “a

lifelong fisherman” and who was “driving the boat when the Coast Guard boarded

it,” even though he “was not officially named the captain.” Cartwright, 413 F.3d

at 1299. That case shows therefore that a non-captain can “act” as a captain under

§ 2D1.1(b)(3); it does not show that a captain does not “act” as a captain when he

is not operating the boat. A captain generally acts as a captain as the ship’s

ultimate decisionmaker, even when the captain delegates aspects of the operation

of the vessel. The district court properly determined that Hernandez Almarez

“acted” as the Cristiano Ronaldo’s captain based on the evidence that he was the

captain.

      The district court also properly determined that Hernandez Almaraz

“recklessly created a substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer,” U.S.S.G. § 3C1.2,

by overseeing as its captain the Cristiano Ronaldo’s aggressive maneuvers in

response to the Coast Guard’s approach and orders to halt. The trial testimony

established that the boat maneuvered “aggressively” and refused to stop, requiring


                                          31
              Case: 15-10810     Date Filed: 07/28/2017    Page: 32 of 32


the Coast Guard helicopter to move close to the vessel in order to follow it and fire

warning shots. The district court did not clearly err in finding on that evidence that

the aggressive maneuvers “recklessly created a substantial risk of death or serious

bodily injury.” The district court did not clearly err, either, in attributing the

aggressive maneuvers to Hernandez Almaraz, since he was the ship’s captain and

the district court specifically found that Hernandez Almaraz actively caused the

risk by controlling the actions of the boat. This met the requirement, restated in

United States v. Dougherty, 754 F.3d 1353, 1360 (11th Cir. 2014), that the district

court make “a specific finding [] that the defendant actively caused or procured the

reckless behavior at issue.” Id. (citing United States v. Johnson, 694 F.3d 1192,

1196–97 (11th Cir. 2012)).

                                           IX.

      The judgments of the district court are affirmed.




                                           32
