                United States Court of Appeals
                                 For the First Circuit
                                    _____________________

No. 15-2377

                                        UNITED STATES,

                                             Appellee,

                                                  v.

                                 JOHVANNY AYBAR-ULLOA,

                                      Defendant - Appellant.
                                      __________________

                                               Before

                                      Howard, Chief Judge,
                                  Torruella, Lynch, Thompson,
                                Kayatta and Barron, Circuit Judges.
                                      __________________
                                       ORDER OF COURT
                                     Entered: January 17, 2020

        A majority of the active judges who are not disqualified have voted to hear this case en
banc. Accordingly, the petition for rehearing en banc is granted. In accordance with customary
practice, the panel opinion and the dissent released on January 9, 2019 are withdrawn, and the
judgment entered the same date is vacated. See 1st Cir. I.O.P. X(D).

        The en banc court will have copies of the parties' previously filed briefs. The parties are
also directed to file supplemental briefs addressing the following questions, in addition to any other
questions the parties may wish to address.

       1. Under Article I, section 8, clause 10 of the Constitution, "The Congress shall have
          Power . . . to define and punish Piracies and Felonies committed on the high Seas, and
          Offences against the Law of Nations." Does international law circumscribe Congress's
          power under this clause to define and to punish "Felonies committed on the high Seas"
          and exercise jurisdiction over persons who commit them? If so, under what
          circumstances would there be such a circumscription, what are the limitations on any
          such circumscription, and are those limits applicable in this case?
       2. Under the protective principle of international law "a nation is permitted to 'assert
          jurisdiction over a person whose conduct outside the nation's territory threatens the
          nation's security.'" United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999)
          (quoting United States v. Robinson, 843 F.2d 1, 3 (1st Cir. 1988)). Does the protective
          principle allow a nation to prosecute all drug trafficking on the high seas that takes
          place on stateless vessels? What is the effect on this question of Congress's finding
          that "trafficking in controlled substances aboard vessels . . . presents a specific threat
          to the security . . . of the United States," 46 U.S.C. § 70501, on the scope of Congress's
          power?

       3. For the purpose of determining whether Congress has the power under Article I to enact
          the MDLEA pursuant to the protective principle of international law, or any other
          constitutional provision, what is the significance, if any, of the fact that the MDLEA
          authorizes the United States to prosecute individuals engaged in drug trafficking abroad
          without regard to any geographic or other nexus to the United States?

       4. "International law . . . allows any state to extend its authority over a stateless
          ship." United States v. Smith, 680 F.2d 255, 258 (1st Cir. 1982). In United States v.
          Victoria, 876 F.2d 1009 (1st Cir. 1989), this court relied on that statement in Smith in
          stating that "the United States, as a matter of international law, may prosecute drug
          offenders on stateless ships found on the high seas." 876 F.2d at 1010 (citing Smith,
          680 F.2d at 258). Does international law recognize a distinction between a state's
          authority to exercise jurisdiction over a stateless vessel, as this court recognized in
          Smith, and a state's authority to exercise domestic criminal jurisdiction over a foreign
          national found on a stateless vessel, as this court recognized in Victoria? If so, is our
          statement in Victoria relying on Smith nonetheless within the constitutional allocation
          of powers to the Congress to make?

       5. To the extent that international law recognizes that a state has some authority to
          prosecute a foreign national found on a stateless vessel for a domestic criminal offense,
          what international law limits exist, if any, on such prosecutorial authority?

       6. What is the effect of the doctrines of stare decisis and law of the circuit as to this
          Circuit's decisions in Victoria, Cardales, and Robinson with respect to questions one,
          two, three, four, and five?

        The supplemental briefs should be filed simultaneously on, or before, February 18, 2020,
and shall comply with applicable rules concerning format, service, and other requirements. Any
reply supplemental briefs must be filed no later than 14 days after the principal supplemental briefs
are filed. Seventeen paper copies of all briefs filed should be provided to the Clerk's Office no
later than one business day after the electronic brief is filed. Amici are welcome to submit amicus
briefs addressing the aforementioned questions.

       The en banc hearing will be scheduled for Tuesday, May 5, 2020, at 9:30 a.m., En Banc
Courtroom, 7th Floor, John Joseph Moakley Courthouse, Boston, Massachusetts.
                           By the Court:

                           Maria R. Hamilton, Clerk


cc:
Carlos R. Cardona Torres
Mariana E. Bauza Almonte
Heather Clark
Johvanny Aybar-Ulloa
