           Case: 17-14694   Date Filed: 11/29/2018   Page: 1 of 16


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14694
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cr-20801-WPD-4



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

LUIS ROLANDO BUENO JIMENEZ,
a.k.a. El Mono,

                                                         Defendant-Appellant.

                       ________________________

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

                            (November 29, 2018)

Before WILLIAM PRYOR, JORDAN and FAY, Circuit Judges.

PER CURIAM:
              Case: 17-14694     Date Filed: 11/29/2018   Page: 2 of 16


      Luis Jimenez, who conditionally pleaded guilty to conspiring to violate the

Maritime Drug Law Enforcement Act by possessing with intent to distribute five

kilograms or more of cocaine on board a vessel subject to the jurisdiction of the

United States, 46 U.S.C. §§ 70503(a), 70506(b), appeals the denial of his motions

to dismiss his indictment. The district court denied Jimenez’s motion to dismiss

based on the denial of a speedy trial under the Sixth Amendment after applying the

balancing test outlined in Barker v. Wingo, 407 U.S. 514 (1972). The district court

also denied as foreclosed by precedent Jimenez’s omnibus motion to dismiss that

challenged the validity of the Act. We affirm.

                                I. BACKGROUND

      Agents of the Drug Enforcement Agency working with a cooperating source

and law enforcement officers in Colombia, South America, learned that Jimenez

constructed self-propelled semisubmersible submarines for the Renteria Granados

organization to transport large quantities of cocaine to Central America. The

international task force thrice interrupted the activities of Renteria Granados. In

March 2012, an aircraft operated by the United States Marines Corps discovered a

submarine used by the organization in Honduran waters and succeeded in rescuing

the four man crew after they scuttled the ship, one of whom confessed that the ship

was transporting cocaine from Colombia. In July 2012, members of Renteria

Granados burned a submarine they had stored in a remote jungle area as they were


                                          2
              Case: 17-14694    Date Filed: 11/29/2018    Page: 3 of 16


being converged on by Colombian law enforcement. Within two weeks, federal

agents recorded a telephone call in which Jimenez bemoaned having “more bad

luck than who knows what.” In December 2012, federal agents recorded Jimenez

lamenting the loss of a third submarine in Panamanian waters that its crew scuttled

when trapped by agents of the United States, Costa Rica, and Panama.

      On October 17, 2013, a federal grand jury indicted Jimenez and four cohorts

in Renteria Granados for conspiring to engage in maritime drug trafficking

between February 1 and December 31, 2013. The government moved immediately

to seal the indictment to protect witnesses, to prevent flight by the defendants, and

to safeguard the ongoing investigation. The district court granted the motion.

      The ongoing investigation proved fruitful. With the aid of several informants

and 71 wiretaps, the task force discovered that Jimenez was assisting other drug

trafficking organizations to build semisubmersible submarines to transport cocaine

internationally. On August 13, 2014, the task force seized a submarine that

Renteria Granados constructed to transport multiple tons of cocaine from Guyana

to Europe. In December 2014, federal agents learned that Renteria Granados paid

Jimenez to build a submarine to replace the one seized in August.

      The government declined to pursue a superseding indictment, and on March

10, 2015, it moved to unseal the indictment to apply for provisional arrest warrants

to obtain the extradition of Jimenez and his codefendants from Colombia. In July


                                          3
              Case: 17-14694     Date Filed: 11/29/2018   Page: 4 of 16


2015, the U.S. State Department received provisional arrest warrants and

forwarded them to the Colombian government. During August 2015, federal agents

met with Colombian law enforcement and naval intelligence about locating and

arresting the defendants. By December 2015, the task force had located all the

defendants, but the Colombian authorities postponed the arrests until after the

Christmas and New Years holidays.

      On January 24, 2016, agents arrested Jimenez. On February 27, 2017,

Jimenez arrived in Florida and appeared for arraignment. Jimenez entered a plea of

not guilty to the conspiracy charge.

      On March 27, 2017, Jimenez moved to dismiss his indictment based on the

denial of his right to a speedy trial. Jimenez argued that the delay preceding his

arrest and initial appearance was presumptively prejudicial, that the government

failed to act with due diligence, that he had promptly asserted his right to a speedy

trial, and that he did not need to prove actual prejudice. The government opposed

dismissal and attached to its opposition a nine-page chronology of its investigation

and its collaboration with Colombian authorities.

      Jimenez also filed an omnibus motion to dismiss. Jimenez argued that

Congress exceeded its authority in enacting the Maritime Drug Law Enforcement

Act; the Act violated his right to due process under the Fifth Amendment; and the

Act violated his rights to have a jury find each element of the crime charged and to


                                          4
              Case: 17-14694     Date Filed: 11/29/2018    Page: 5 of 16


confront the preparer of a testimonial certificate under the Sixth Amendment.

Jimenez also argued that the exclusion of the Act from safety valve relief, 18

U.S.C. § 3553(f), violated his right to equal protection under the Fifth Amendment.

The district court denied Jimenez’s omnibus motion.

      After an evidentiary hearing, the district court denied Jimenez’s motion to

dismiss for lack of a speedy trial. The district court determined that the first and

third Barker factors “weigh[ed] heavily against the government” because the delay

was sufficient to trigger a speedy trial inquiry and because Jimenez timely had

invoked his right to a speedy trial. The district court determined that the second

Barker factor involving the reason for the delay weighed “in favor of the

government” or “only slightly against it” even though Jimenez bore no

“responsibility for the delay.” The district court found that delays were

“appropriate to continue the investigation of the drug trafficking organization”

with the Colombian government, to coordinate the arrests of “all defendants

simultaneously,” and to “locate[] defendants in Colombia and extradit[e] them.”

Because the government “unsealed the indictment as soon as the legitimate need

for delay had been completed,” the district court determined that the

“postponement of the prosecution [was not] to gain some impermissible advantage

at trial.” The district court ruled that Jimenez’s speedy trial claim failed because




                                           5
              Case: 17-14694     Date Filed: 11/29/2018   Page: 6 of 16


the first three Barker factors “did not weigh heavily against the government” and

he failed to prove actual prejudice.

       Jimenez pleaded guilty to conspiring to engage in maritime drug trafficking,

46 U.S.C. §§ 70503(a), 70506(b), and reserved the right to appeal the denial of his

motions to dismiss. He admitted that he assisted Renteria Granados in constructing

submarines used to transport large quantities of cocaine from Colombia to Central

America; that the submarines could store up to three tons of cocaine; and that law

enforcement recorded multiple telephone conversations that implicated him in the

maritime drug trafficking. The district court sentenced Jimenez to 120 months of

imprisonment. See id. § 70506(a); 21 U.S.C. § 960(b)(1)(B).

                         II. STANDARDS OF REVIEW

       The denials of Jimenez’s motions to dismiss involve mixed questions of fact

and law. See United States v. Villarreal, 613 F.3d 1344, 1349 (11th Cir. 2010)

(speedy trial); United States v. Cruickshank, 837 F.3d 1182, 1187 (11th Cir. 2016)

(Maritime Drug Law Enforcement Act). We review factual findings for clear error

and will reverse only if “we are left with the definite and firm conviction that a

mistake has been committed.” Villarreal, 613 F.3d at 1349 (internal quotation

marks and citation omitted). We review de novo the application of the law to the

facts. Id.




                                          6
              Case: 17-14694     Date Filed: 11/29/2018    Page: 7 of 16


                                 III. DISCUSSION

      Jimenez contends that the district court should have dismissed his

indictment. Jimenez argues that the government intentionally delayed his

prosecution and, because the second Barker factor weighed heavily against the

government, he was excused from having to prove actual prejudice to prevail on

his speedy trial claim. Jimenez also argues that the Maritime Drug Law

Enforcement Act is unconstitutional and that he is entitled to a reduction of his

sentence under the safety valve. These arguments fail.

 A. The District Court Did Not Err in Weighing the Barker Factors and Denying
                          Jimenez’s Motion to Dismiss.

      The Sixth Amendment provides, “In all criminal prosecutions, the accused

shall enjoy the right to a speedy . . . trial.” U.S. Const. amend. VI. To determine

whether a delay between indictment and trial violates a defendant’s right to a

speedy trial, “the conduct of the Government must be weighed against the conduct

of the defendant.” United States v. Carter, 603 F.2d 1204, 1207 (5th Cir. 1979). In

Barker, the Supreme Court instructed courts to evaluate whether a delay deprived

the defendant of a speedy trial based on four factors: the length of the delay

between indictment and trial, the reason for that delay, when the defendant asserted

his right to a speedy trial, and whether he was prejudiced by the delay. Barker, 407

U.S. at 530–33. If the length of the post-indictment delay is sufficiently long to

trigger consideration of the other factors, and if the reason for the delay and
                                           7
              Case: 17-14694     Date Filed: 11/29/2018    Page: 8 of 16


assertion of the right to a speedy trial also “weigh heavily” against the

Government, the defendant is not required to prove actual prejudice to succeed on

his speedy trial claim. United States v. Oliva, 904 F.3d 910, 916 (11th Cir. 2018).

We review the determination of the district court with respect to each factor “with

considerable deference.” Doggett v. United States, 505 U.S. 647, 652 (1992).

      The weight to be accorded a delay varies with its cause. Barker, 407 U.S. at

531. A deliberate attempt to delay trial to hamper the defense weighs heavily

against the government. Id. Neutral reasons for delay, such as negligence, weigh

less heavily against the government. Villareal, 613 F.3d at 1351. But neutral

reasons do “not necessarily tip the scale in favor of the defendant, particularly

where [he] was at liberty and outside the jurisdiction where the indictment was

returned.” United States v. Bagga, 782 F.2d 1541, 1544 (11th Cir. 1986). A valid

reason that serves a legitimate government purpose justifies reasonable delay. See

Doggett, 505 U.S. at 656 (“pretrial delay is often both inevitable and wholly

justifiable,” for instance, when “[t]he government . . . need[s] time to collect

witnesses against the accused, oppose his pretrial motions, or, if he goes into

hiding, track him down.”). When weighing a factor “there is no hard and fast rule

to apply . . ., and each case must be decided on its own facts.” United States v.

Clark, 83 F.3d 1350, 1354 (11th Cir. 1996).




                                           8
              Case: 17-14694      Date Filed: 11/29/2018    Page: 9 of 16


      The government does not dispute that the first and third Barker factors

weigh heavily against it. The 40-month delay between Jimenez’s indictment and

his initial appearance was sufficiently lengthy to entitle him to a presumption of

prejudice. See id. at 1352. And Jimenez’s prompt assertion of his right to a speedy

trial tilted in his favor. See id. at 1353. Because of the weight that the district court

assigned to those two factors, Jimenez’s right to relief turns on the second Barker

factor—the reason for the delay.

      Jimenez accuses the government of “inaction” between his indictment and

initial appearance, but the district court did not clearly err in making a contrary

finding. The government “establish[ed] valid reasons for the delay” in its response

to Jimenez’s motion and an attached nine-page report that described an ongoing

international investigation that led to the search for and apprehension of Jimenez

and his codefendants. See Villarreal, 613 F.3d at 1351. The report described the

international investigation that began in December 2012 and continued after the

government unsealed Jimenez’s indictment. Pages 3 through 6 of the report

catalogue—from Jimenez’s indictment on October 17, 2013, through mid-

December 2014—the use of informants and wiretaps to collect information about

Jimenez’s work with Renteria Granados and other drug trafficking organizations

and their affiliations with paramilitary commanders, financiers, and cocaine




                                            9
             Case: 17-14694     Date Filed: 11/29/2018   Page: 10 of 16


suppliers; the seizure of a submarine constructed to transport multiple tons of

cocaine; and the discovery of a plot for Jimenez to construct another submarine.

      It is undisputed that the investigation ended when the government declined

to pursue a superseding indictment, yet that decision dovetailed with the motion of

the government to unseal the indictment. Page 6 of the report reflects that federal

agents met with confidential sources during December 2014 and obtained

permission on January 15, 2015, to tap a cellular telephone in Colombia for 180

days. That wiretap overlapped with the filing on March 10, 2015, of the motion to

unseal Jimenez’s indictment to apply for provisional arrest warrants.

      The record supports the finding that the government was actively involved in

Jimenez’s case until his initial appearance. As stated on page 7 of the report, on

July 9, 2015, the State Department received provisional arrest warrants and

forwarded them to the Colombian government on July 23, 2015. Pages 7 and 8 of

the report describes meetings between federal agents and Colombian authorities

during August 2015 to locate and arrest the defendants and to collect additional

intelligence. The government stated on page 15 of its response that the “[t]he last

defendant [was] located . . . around December 2015” and that Colombian

authorities “delayed the arrests until the end of January 2016.” Jimenez was

arrested on January 24, 2016, his arrest warrant states that he was extradited to the




                                          10
             Case: 17-14694     Date Filed: 11/29/2018    Page: 11 of 16


United States in February 2017, and the docket sheet reflects that he appeared for

arraignment on February 27, 2017.

      The government had, at a minimum, neutral reasons for its delay. The

district court identified three activities that delayed Jimenez’s prosecution: the

“ongoing investigation,” the “coordination of [the defendants’] arrests,” and “the

logistics of locating defendants in Colombia and extraditing them.” We readily

dispose of the latter two activities based on our precedents holding that delays

attributable to seeking the assistance of a foreign government and to marshaling

codefendants for trial weigh minimally against the government. In United States v.

Hayes, 40 F.3d 362 (11th Cir. 1994), we held that the government had a valid

reason for sealing the indictment and delaying the defendant’s trial for almost five

years while working with the United Kingdom and the government of Zimbabwe

to locate, arrest, and extradite a codefendant who might have “frustrated . . .

attempts to secure his arrest and deportation if he [had been] aware of [the

indictment].” Id. at 365–66. And in United States v. Davenport, 935 F.2d 1223,

1239–40 (11th Cir. 1991), we held that a delay of almost two years “inherent to the

government’s good faith effort to conduct a complex . . . trial involving nineteen

codefendants” in a manner consistent with this Circuit’s “judicial policy favoring

joint trials” in conspiracy cases provided “at worst, neutral reasons” for the delay.

Id. at 1239–40. The delays owing to the collaboration with Colombian authorities


                                          11
             Case: 17-14694      Date Filed: 11/29/2018    Page: 12 of 16


to coordinate the defendants’ arrests and to extradite the defendants “will not be

held against the Government.” See Hayes, 40 F.3d at 366.

      The district court did not err in classifying the ongoing international

investigation, at worst, as a neutral reason that weighed “only slightly against” the

government. As the Supreme Court stated when addressing whether an

investigation that contributes to preindictment delay violates the Due Process

Clause of the Fifth Amendment, “investigative delay is fundamentally unlike delay

undertaken by the Government solely to gain tactical advantage over the accused,

precisely because investigative delay is not so one-sided.” United States v.

Lovasco, 431 U.S. 783, 795 (1977) (internal quotation marks and citation omitted).

Investigative delay can involve “fully exploit[ing] . . . potentially fruitful sources

of information,” id. at 792, and protecting those informants, see id. at 796 n.19, and

those matters may be “beyond the control of the prosecuting authorities.” Id. The

government had to balance its “duty to make a diligent, good faith effort to bring

an indicted defendant to trial promptly,” Hayes, 40 F.3d at 365, with its needs to

discover the full scope of drug trafficking by Jimenez and his cohorts, to protect

informants, and to assist Colombian authorities with their investigation. As the

district court stated, the government sensibly “decided [not] to jeopardize [its]

investigations and relations with Colombia by unsealing the indictment earlier.”

While Jimenez’s indictment was sealed, the task force amassed evidence of


                                           12
             Case: 17-14694      Date Filed: 11/29/2018    Page: 13 of 16


international drug trafficking and interrupted those illegal activities. Because the

government postponed action for the investigation, and “[t]here is absolutely no

evidence of bad faith by the government,” Davenport, 935 F.2d at 1240, the delay

attributable to the investigation counts marginally against the government.

      The district court did not err by denying Jimenez’s motion to dismiss for

lack of a speedy trial. The Supreme Court “has consistently been of the view that

‘[t]he right of a speedy trial is necessarily relative.’” United States v. Ewell, 383

U.S. 116, 120 (1966) (quoting Beavers v. Haubert, 198 U.S. 77, 87 (1905)). “It

secures rights to a defendant” while guarding “the rights of public justice.” Id.

(quoting Beavers). The government provided compelling reasons for its delay: to

protect the maritime drug trafficking investigation and its informants, to preserve

amity with Colombian authorities, and to arrest and extradite Jimenez and his

codefendants. Jimenez offered no evidence that the government delayed

prosecution to prejudice him or to gain a tactical advantage for itself. See Barker,

407 U.S. at 531. Although the first and third Barker factors—the length of the

delay and Jimenez’s prompt assertion of his right to a speedy trial—weigh heavily

against the government, the second factor—the reasons for the delay—weighs

“only slightly against it.” When “the reasons for the delay do not weigh heavily

against the government [, the defendant is] . . . not excuse[d] from . . . showing . . .

actual prejudice.” Davenport, 935 F.2d at 1240. Jimenez never alleged that he was


                                           13
             Case: 17-14694     Date Filed: 11/29/2018    Page: 14 of 16


prejudiced by the delay. A balancing of the Barker factors establishes that the

government did not deprive Jimenez of his right to a speedy trial.

      B. The District Court Also Did Not Err by Denying Jimenez’s Omnibus
                                Motion to Dismiss.

      Jimenez argues that his conviction under the Maritime Drug Law

Enforcement Act is unconstitutional in four ways. He also argues that his

ineligibility for relief from a mandatory minimum sentence under the safety valve,

18 U.S.C. § 3553(f), violates his constitutional right to equal protection of the law

under the Fifth Amendment.

      Our precedents foreclose Jimenez’s four challenges to his conviction for

violating the Act. First, Jimenez argues that the power of Congress to punish

maritime felonies does not extend to drug trafficking offenses that lack a nexus to

the United States, but “we have repeatedly held that Congress has the power, under

the Felonies Clause, to proscribe drug trafficking on the high seas,” United States

v. Campbell, 743 F.3d 802, 812 (11th Cir. 2014); see Cruickshank, 837 F.3d at

1188. Second, Jimenez argues that the district court violated the Due Process

Clause of the Fifth Amendment by exercising jurisdiction over his offense without

proof of a domestic nexus, but in Campbell we held that “the conduct proscribed

by the Act need not have a nexus to the United States because universal and

protective principles support its extraterritorial reach,” 743 F.3d at 810. Third,

Jimenez argues that the Act violates his right to due process under the Fifth
                                          14
             Case: 17-14694     Date Filed: 11/29/2018    Page: 15 of 16


Amendment and his right to a jury trial under the Sixth Amendment because it

removes the factual basis of the jurisdictional requirement from a jury’s

consideration, but the Court in Campbell also held that the Fifth and Sixth

Amendments do not require a jury to determine whether extraterritorial jurisdiction

exists under the Maritime Act, 743 F.3d at 809. Fourth, Jimenez argues that the

acceptance by the district court of a certificate from the Secretary of State as

conclusive proof of jurisdiction under the Act violates his right of confrontation

under the Sixth Amendment, but we explained in Cruickshank that a “certification

of jurisdiction under the [Act] does not implicate the Confrontation Clause because

it does not affect the guilt or innocence of a defendant,” 837 F.3d at 1191.

      Our recent decision in United States v. Castillo, 899 F.3d 1208 (11th Cir.

2018), also forecloses Jimenez’s challenge to his sentence. In Castillo, we held that

“international concerns” provided Congress a rational basis to “mete out [more]

hefty sentences to maritime drug runners” than to their domestic counterparts. Id.

at 1213. We concluded that “Congress has legitimate reasons to craft strict

sentences for violations of the Act” because, “[i]n contrast with domestic drug

offenses, “international drug trafficking raises pressing concerns about foreign

relations and global obligations,” as evidenced by our commitment by treaty to

thwart maritime drug trafficking, and because the more severe penalty for maritime

trafficking could “deter would-be offenders.” Id.


                                          15
     Case: 17-14694   Date Filed: 11/29/2018   Page: 16 of 16


                      IV. CONCLUSION

We AFFIRM Jimenez’s conviction and sentence.




                               16
