     17-2926
     United States v. Van Der End


       17‐2926
       United States v. Van Der End

 1                            UNITED STATES COURT OF APPEALS
 2                                FOR THE SECOND CIRCUIT
 3                                  ____________________
 4
 5                                      August Term, 2018
 6
 7     (Argued: August 13, 2018                              Decided: November 14, 2019)
 8
 9                                      Docket No. 17‐2926
10
11                                     ____________________
12
13     UNITED STATES OF AMERICA,
14
15                                       Appellee,
16
17                          v.
18
19     STEFAN VAN DER END, AKA STEFAN VAN
20     DAM EASEL,
21
22                                Defendant‐Appellant.1
23
24                                     ____________________
25
26     Before: NEWMAN and POOLER, Circuit Judges, and COTE, District Judge.2
27




       1   The Clerk of the Court is directed to amend the caption as above.
       2Denise Cote, United States District Court for the Southern District of New York,
       sitting by designation.
 1         Appeal from United States District Court for the Southern District of New

 2   York (Richard J. Sullivan, J.), convicting defendant Stefan Van Der End, after a

 3   plea of guilty, of engaging in drug trafficking activity, and conspiring to do so, in

 4   violation of the Maritime Drug Law Enforcement Act (the “MDLEA”), 46 U.S.C.

 5   §§ 70501 et seq. Because Van Der End has waived his Confrontation Clause and

 6   jury trial right challenges to his conviction by pleading guilty, and because the

 7   Due Process Clause does not require a nexus between the United States and

 8   MDLEA violations that transpire on a vessel without nationality, we affirm the

 9   conviction.

10         Affirmed.

11                                 ____________________

12                             BENJAMIN SILVERMAN, Patel & Shellow LLP, New
13                             York, N.Y., for Defendant‐Appellant.
14
15                             Jill R. Shellow, New York, N.Y., for Defendant‐Appellant
16                             (on the brief).
17
18                             AMANDA L. HOULE, Assistant United States Attorney
19                             (Jason M. Swergold, Karl Metzner, Assistant United
20                             States Attorneys, on the brief), for Geoffrey S. Berman,
21                             United States Attorney for the Southern District of New
22                             York, New York, N.Y., for Appellee.
23



                                               2
 1   POOLER, Circuit Judge:

 2         Defendant‐Appellant Stefan Van Der End appeals from a judgment of the

 3   United States District Court for the Southern District of New York (Richard J.

 4   Sullivan, J.), convicting him, after a plea of guilty, of engaging in drug trafficking

 5   activity, and conspiring to do so, in violation of the Maritime Drug Law

 6   Enforcement Act (the “MDLEA”), 46 U.S.C. §§ 70501 et seq. Because Van Der

 7   End has waived his Confrontation Clause and jury trial right challenges to his

 8   conviction by pleading guilty, and because the Due Process Clause does not

 9   require a nexus between the United States and MDLEA violations that transpire

10   on a vessel without nationality, we affirm the conviction.

11                                    BACKGROUND

12   I.    Factual Background

13         Stefan Van Der End, a citizen of the Netherlands, was one of three foreign

14   nationals on board the Sunshine, carrying more than 1,000 kilograms of cocaine

15   from Grenada to Canada when it was stopped by the United States Coast Guard

16   on May 23, 2016. Richard Dow, the master of the Sunshine, told the Coast Guard

17   that the boat was registered in St. Vincent and the Grenadines (“SVG”) and

18   provided the vessel’s registration information. The next morning, Coast Guard
                                               3
 1   officers boarded the boat—subject to the authority granted them by a treaty with

 2   SVG—and found more than 600 kilograms of cocaine below deck. The vessel

 3   began to sink after one of the crewmembers attempted to scuttle it, so the

 4   government was unable to recover all of the cocaine; however, the government

 5   subsequently learned that there were another 640 kilograms hidden on the

 6   Sunshine. Coast Guard officers detained Van Der End and the other members of

 7   the crew.

 8         Coast Guard officers then inquired with SVG authorities about the

 9   Sunshine’s registration. SVG authorities disclosed that the Sunshine’s registration

10   had expired on February 25, 2016, and that SVG did not consider the Sunshine to

11   be subject to the SVG’s jurisdiction. Van Der End and the other crewmembers

12   who were on board the Sunshine were then brought to New York and

13   subsequently arrested on June 3, 2016.

14   II.   Procedural History

15         In an indictment filed on June 30, 2016, a grand jury indicted Van Der End

16   and the other crewmembers with one count of manufacture and distribution, and

17   possession with intent to manufacture and distribute, five kilograms and more of

18   mixtures and substances containing a detectable amount of cocaine while aboard
                                              4
 1   a vessel subject to the jurisdiction of the United States in violation of the MDLEA,

 2   46 U.S.C. §§ 70503(a)(1), 70504(b)(1), 70506(a); 18 U.S.C. §§ 3238 & 2; 21 U.S.C.

 3   § 960(b)(1)(B), and one count of conspiracy to engage in the above‐described

 4   drug trafficking activity in violation of the MDLEA, 46 U.S.C. §§ 70503, 70506(b),

 5   70504(b)(1); 18 U.S.C. § 3238; 21 U.S.C. § 960(b)(1)(B).3

 6         On April 24, 2017, Van Der End filed a motion to dismiss the indictment

 7   for lack of subject matter jurisdiction. He also challenged the constitutionality of

 8   the MDLEA as applied to him on due process grounds and raised a Sixth

 9   Amendment challenge to his prosecution based on the government’s alleged

10   forum shopping. The same day, the government filed a motion in limine in

11   which it argued that the defendants should be precluded from arguing to a jury

12   that the Sunshine was not subject to the jurisdiction of the United States.

13         At a May 4, 2017, hearing, the district court orally ruled in favor of the

14   government on all issues. The district court also ruled that it would permit the

15   government to enter into evidence documents from the SVG government

16   regarding ownership of the Sunshine. After the district court’s rulings, Van Der



     3The text of some of the MDLEA’s provisions have since changed in ways that
     are immaterial for purposes of this appeal.
                                             5
 1   End stated that he intended to enter a guilty plea. The district court scheduled a

 2   plea hearing for that same afternoon, during which Van Der End pled guilty to

 3   both counts of the indictment without a plea agreement or otherwise reserving

 4   any rights to challenge his conviction on appeal. The district court later

 5   published an opinion and order formally announcing its ruling on subject matter

 6   jurisdiction, statelessness, and the other challenges to the indictment Van Der

 7   End and one of his codefendants had raised. United States v. Suarez, 16‐cr‐453

 8   (RJS), 2017 WL 2417016, at *1 (S.D.N.Y. June 1, 2017).

 9         On September 8, 2017, the district court sentenced Van Der End to 25 years

10   of imprisonment and five years of supervised release, and entered judgment the

11   same day. This appeal followed.

12                                       DISCUSSION

13         On appeal, Van Der End primarily argues that the district court erred by

14   denying his motion to dismiss the indictment because (1) the government

15   presented insufficient evidence that the Sunshine was a vessel subject to the

16   jurisdiction of the United States, (2) the Fifth and Sixth Amendments required

17   the district court to submit that question to a jury rather than decide it for itself,

18   and (3) his conduct lacked the nexus to the United States that due process
                                                6
 1   requires. In reviewing the denial of a motion to dismiss an indictment, we review

 2   the district court’s findings of fact for clear error and its conclusions of law de

 3   novo. United States v. Bout, 731 F.3d 233, 237‐38 (2d Cir. 2013).

 4   I.    Evidence of Statelessness

 5         A.     The MDLEA’s Requirements

 6         As presently drafted, the MDLEA makes it a federal crime to engage in

 7   certain specified drug trafficking activity “[w]hile on board a covered vessel.” 46

 8   U.S.C. § 70503(a). A “covered vessel” includes, as relevant here, “a vessel subject

 9   to the jurisdiction of the United States.” Id. § 70503(e)(1). A vessel may be subject

10   to the jurisdiction of the United States if, inter alia, it is “a vessel without

11   nationality.” Id. § 70502(c)(1)(A). For present purposes, a vessel is without

12   nationality if “the master or individual in charge makes a claim of registry that is

13   denied by the nation whose registry is claimed.” Id. § 70502(d)(1)(A). A claim of

14   registry may be made in one of three ways: “(1) possession on board the vessel

15   and production of documents evidencing the vessel’s nationality . . . ; (2) flying

16   its nation’s ensign or flag; or (3) a verbal claim of nationality or registry by the

17   master or individual in charge of the vessel.” Id. § 70502(e). “The response of a



                                                 7
 1   foreign nation to a claim of registry . . . is proved conclusively by certification of

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

 3         “Jurisdiction of the United States with respect to a vessel subject to this

 4   chapter is not an element of an offense.” Id. § 70504(a). Rather, “[j]urisdictional

 5   issues” that arise under MDLEA “are preliminary questions of law to be

 6   determined solely by the trial judge.” Id. As we have recently explained, the

 7   function of MDLEA’s jurisdictional language “is not to confer subject matter

 8   jurisdiction on the federal courts, but rather to specify the reach of the statute

 9   beyond the customary borders of the United States.” United States v. Prado, 933

10   F.3d 121, 132 (2d Cir. 2019).

11         However, where there is no factual basis to find that the vessel on which a

12   defendant was apprehended was a vessel subject to the jurisdiction of the United

13   States, the defendant may still be permitted to raise that issue on appeal even

14   after pleading guilty. That is because “a defective guilty plea will not necessarily

15   be deemed to waive all objections to a conviction.” Id. at 151. And when the

16   government’s proof that a vessel was subject to the jurisdiction of the United

17   States is lacking, a district court might run afoul of Federal Rule of Criminal

18   Procedure 11(b)(1)(G), which “requires that the court must inform the defendant
                                                8
 1   of, and determine that the defendant understands, . . . the nature of each charge

 2   to which the defendant is pleading,” and 11(b)(3), which “requires the court to

 3   determine that there is a factual basis for the plea,” rendering the defendant’s

 4   guilty plea invalid. Id. at 152 (alteration in original) (internal quotation marks

 5   omitted).

 6         B.     The Sunshine Was a Vessel Without Nationality

 7         Van Der End argues that the government did not present sufficient

 8   evidence from which the district court could properly conclude that the Sunshine

 9   was a vessel without nationality. He argues that the district court’s reliance on

10   the State Department certification violated the Confrontation Clause because it

11   amounted to a testimonial statement by a witness whom Van Der End did not

12   have an opportunity to confront. This argument is without merit. Van Der End’s

13   guilty plea waived his right to raise that Sixth Amendment challenge to the

14   evidence on which the government’s prosecution relied. Boykin v. Alabama, 395

15   U.S. 238, 243 (1969) (observing that “the right to confront one’s accusers” is

16   among the “federal constitutional rights [that] are involved in a waiver that takes

17   place when a plea of guilty is entered”); United States v. Dhinsa, 243 F.3d 635, 651

18   (2d Cir. 2001) (“[A] defendant who enters a plea of guilty waives his rights under
                                               9
 1   the Confrontation Clause.”); see also Class v. United States, 138 S. Ct. 798, 803

 2   (2018) (differentiating claims that call into question “the very power of the State

 3   to prosecute the defendant” from constitutional claims “related to events (say,

 4   grand jury proceedings) that had occurred prior to the entry of the guilty plea”

 5   (internal quotation marks omitted)).

 6         Moreover, we are satisfied that the evidence the government presented of

 7   the Sunshine’s statelessness sufficed. In Prado, we found problematic the “Coast

 8   Guard boarding party’s inattention” to the MDLEA’s procedures for establishing

 9   a vessel’s statelessness. 933 F.3d at 130. Most significantly, the government there

10   relied on the fact that the master of the vessel did not make a verbal claim of

11   nationality or registry; however, the government adduced no evidence that “an

12   officer of the United States authorized to enforce applicable provisions of United

13   States law,” 46 U.S.C. § 70502(d)(2), had made such a request. Id. at 130 & n.5.

14   And, because the Coast Guard had destroyed the vessel, “it became virtually

15   impossible for the government to demonstrate to the court in the statutorily

16   mandated preliminary hearing that the vessel was subject to the jurisdiction of

17   the United States and therefore that the MDLEA applied.” Id. at 132. Further, at

18   the defendants’ plea allocution, the district court made “no reference either to the
                                               10
 1   requirement that the vessel have been subject to the jurisdiction of the United

 2   States or to the crucial issue of its statelessness,” nor did the defendants

 3   “demonstrate awareness . . . of the crucial significance of statelessness.” Id. at

 4   152‐53. Thus, neither through the Government’s evidence nor the defendants

 5   themselves, was there any “factual basis for the plea.” Id. at 153.

 6         Here, however, the Coast Guard’s investigation suffered none of the same

 7   defects. As explained above, Dow, the master of the Sunshine, claimed that the

 8   vessel was registered in SVG and provided the Coast Guard with SVG

 9   registration information. That sufficed to make a claim of registry. See 46 U.S.C.

10   §§ 70502(e)(1), (e)(3). The Coast Guard then contacted SVG officials who “refuted

11   the vessel’s claimed nationality.” App’x at 55. That established that the vessel

12   was without nationality. See 46 U.S.C. § 70502(d)(1)(A). Finally, the government

13   produced a certification from the United States Department of State that “proved

14   conclusively” the response of the SVG government. See id. § 70502(d)(2).

15         In short, a MDLEA defendant does not automatically waive his or her

16   ability to challenge the sufficiency of the government’s evidence regarding

17   whether a vessel is subject to the jurisdiction of the United States by pleading

18   guilty. See Prado, 933 F.3d at 151‐52. However, that does not mean that a MDLEA
                                               11
 1   defendant who enters an unconditional guilty plea may still challenge all aspects

 2   of the government’s evidence. We are satisfied here that there was a factual basis

 3   for Van Der End’s guilty plea, such that he has waived his right to challenge the

 4   district court’s determination that the vessel was subject to the jurisdiction of the

 5   United States.

 6   II.   Jury Trial Rights

 7         Van Der End further argues that the district court was required to submit

 8   to a jury the question of whether the Sunshine was subject to the jurisdiction of

 9   the United States. This argument fails for much the same reason his

10   Confrontation Clause argument fails. By pleading guilty, Van Der End waived

11   his right to a jury trial. McMann v. Richardson, 397 U.S. 759, 766 (1970); see also

12   Class, 138 S. Ct. at 804‐05.

13         To be clear, we recently recognized that, if the issue were properly

14   presented for appellate review, Section “70504(a)’s provision that the jurisdiction

15   of the United States be determined solely by the trial judge” might be stricken as

16   violative of a criminal defendant’s right to a jury trial. Prado, 933 F.3d at 139 n.9;

17   see also id. at 157 (Pooler, J., concurring in the judgment). We thus cautioned that

18   district courts would be well advised “to submit the issue of jurisdiction over the
                                               12
 1   vessel to the jury notwithstanding the statutory word ‘solely’”—“after making

 2   the preliminary determination required by § 70504(a) so that trial may proceed.”

 3   Id. at 139 n.9. But here, the district court had no opportunity to submit the

 4   question to a jury because Van Der End pled guilty after the district court made

 5   the preliminary determination MDLEA requires.

 6   III.   Due Process

 7          Finally, Van Der End argues that his prosecution violated the Due Process

 8   Clause because there was no nexus between the offense conduct and the United

 9   States. The government contends that no nexus is required because the Sunshine

10   was a stateless vessel and, even if a nexus were required, there was a sufficient

11   nexus here to satisfy due process.

12          As a threshold matter, we hold that Van Der End did not waive this

13   challenge to his prosecution by pleading guilty. We have previously held that a

14   criminal defendant who pleads guilty waives the argument “that the indictment

15   to which he [or she] pled guilty failed to adequately allege a nexus between his

16   [or her] alleged conduct and the United States, as required by the Due Process

17   Clause of the Fifth Amendment before a criminal statute may apply

18   extraterritorially.” United States v. Yousef, 750 F.3d 254, 256, 262 (2d Cir. 2014).
                                                13
 1   However, the Supreme Court has since clarified that a guilty plea does not “by

 2   itself bar[] a federal criminal defendant from challenging the constitutionality of

 3   the statute of conviction on direct appeal.” Class, 138 S. Ct. at 803. Although

 4   criminal defendants cannot “contradict the terms of the indictment” to which

 5   they pled guilty “or written plea agreement[s]” pursuant to which they pled

 6   guilty, defendants may still raise constitutional challenges to the statute of

 7   conviction that “can be resolved without any need to venture beyond the

 8   record.” Id. at 804 (internal quotation marks omitted). In other words, criminal

 9   defendants who have pled guilty may still “challenge the Government’s power

10   to criminalize [their] (admitted) conduct,” “thereby call[ing] into question the

11   Government’s power to constitutionally prosecute” them. Id. at 805. Here, Van

12   Der End raises precisely such a challenge. Whether the Due Process Clause

13   requires MDLEA crimes committed on board a stateless vessel to have a nexus to

14   the United States is a purely legal question on which the government’s

15   constitutional power to prosecute Van Der End turns.

16         Nevertheless, Van Der End’s challenge fails on the merits. We have

17   previously held that the MDLEA’s predecessor statute did not, as a statutory

18   matter, require a nexus. United States v. Pinto‐Mejia, 720 F.2d 248, 261 (2d Cir.
                                              14
 1   1983), modified in part on denial of reh’g, 728 F.2d 142 (2d Cir. 1984); United States v.

 2   Henriquez, 731 F.2d 131, 134 (2d Cir. 1984). We now hold that due process does

 3   not require that there be a nexus between the United States and MDLEA

 4   violations that transpire on a vessel without nationality.4 To begin with, the

 5   MDLEA indisputably has extraterritorial application. 46 U.S.C. § 70503(b)

 6   (“Subsection (a) [which proscribes specified drug trafficking activity] applies

 7   even though the act is committed outside the territorial jurisdiction of the United

 8   States.”). And “[w]here Congress expressly intends for a statute to apply

 9   extraterritorially, . . . the burden is a heavy one for a defendant seeking to show

10   that extraterritorial application of the statute violates due process.” United States

11   v. Epskamp, 832 F.3d 154, 168 (2d Cir. 2016) (internal quotation marks omitted).

12         Van Der End cannot meet that burden. Although we have adopted a

13   “‘sufficient nexus’ test for determining whether the extraterritorial application of

14   federal criminal law comported with constitutional due process,” id., MDLEA

15   prosecutions involving stateless vessels do not present the same concerns that




     4We need not, and do not, decide what the Due Process Clause may require
     before persons who are not on board a vessel without nationality may be
     prosecuted for violating the MDLEA.
                                           15
 1   are present in the extraterritorial application of typical criminal statutes. That is

 2   because stateless “vessels are international pariahs” that “subject themselves to

 3   the jurisdiction of all nations solely as a consequence of the vessel’s status as

 4   stateless.” United States v. Caicedo, 47 F.3d 370, 372 (9th Cir. 1995) (internal

 5   quotation marks omitted). “Because stateless vessels do not fall within the veil of

 6   another sovereign’s territorial protection, all nations can treat them as their own

 7   territory and subject them to their laws.” Id. at 373. Thus, when a vessel is subject

 8   to the jurisdiction of another nation, a person trafficking drugs on board “would

 9   have a legitimate expectation that because he has subjected himself to the laws of

10   one nation, other nations will not be entitled to exercise jurisdiction without

11   some nexus.” Id. at 372. The same is not true when “a defendant attempts to

12   avoid the law of all nations by travelling on a stateless vessel.” Id. at 372‐73.

13         The purpose of requiring a sufficient nexus with the United States is to

14   prevent extraterritorial application of U.S. criminal laws from being “arbitrary or

15   fundamentally unfair.” See Epskamp, 832 F.3d at 168 (internal quotation marks

16   omitted); see also United States v. Ballestas, 795 F.3d 138, 148 (D.C. Cir. 2015)

17   (same). That “ultimate question” of arbitrariness or unfairness, Ballestas, 795 F.3d

18   at 148 (internal quotation marks omitted), in turn, hinges in part on the notion of
                                                16
 1   “fair warning.” Epskamp, 832 F.3d at 169. “The idea of fair warning is that no

 2   [person] shall be held criminally responsible for conduct which he [or she] could

 3   not reasonably understand to be proscribed.” United States v. Al Kassar, 660 F.3d

 4   108, 119 (2d Cir. 2011) (internal quotation marks omitted). “Fair warning does

 5   not require that the defendants understand that they could be subject to criminal

 6   prosecution in the United States so long as they would reasonably understand that

 7   their conduct was criminal and would subject them to prosecution somewhere.”

 8   Id.

 9         In other words, no nexus is required for the government to bring MDLEA

10   prosecutions against persons who are trafficking drugs on board stateless vessels

11   because such prosecutions are not arbitrary, since any nation may exercise

12   jurisdiction over stateless vessels, and they are not unfair, since persons who

13   traffic drugs may be charged with knowledge that such activity is illegal and

14   may be prosecuted somewhere. On that score, we have little trouble concluding

15   that those who participate in international drug trafficking activity are aware

16   that such conduct is illegal. See 46 U.S.C. § 70501 (congressional findings that

17   “trafficking in controlled substances aboard vessels is a serious international



                                              17
1   problem [and] is universally condemned”). In this context, that is all due process

2   requires.

3                                    CONCLUSION

4          We have considered the remainder of Van Der End’s arguments and find

5   them to be without merit. For the foregoing reasons, we AFFIRM the judgment

6   of the district court.




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