              Case: 12-13647     Date Filed: 02/20/2014    Page: 1 of 23


                                                                           [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 12-13647
                                Argument Calendar
                            ________________________

                       D.C. Docket No. 4:11-cr-10021-JEM-2

UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

                                        versus

CHRISTOPHER PATRICK CAMPBELL,

                                                                 Defendant-Appellant.
                            ________________________

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

                                 (February 20, 2014)

Before PRYOR, JORDAN, and FAY, Circuit Judges.

PRYOR, Circuit Judge:

      Two changes in law—a statutory change and a decisional change—require

us to reconsider whether the admission of a certification of the Secretary of State to

establish extraterritorial jurisdiction for a prosecution of drug trafficking on the
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high seas violates a defendant’s right to confront the witnesses against him at trial.

U.S. Const. Amend. VI. In United States v. Rojas, we held that the admission at

trial of a certification to establish jurisdiction over a Panamanian vessel laden with

cocaine and seized on the high seas did not violate the Confrontation Clause of the

Sixth Amendment. 53 F.3d 1212, 1216 (11th Cir. 1995). After we decided Rojas,

Congress amended the Maritime Drug Law Enforcement Act to provide that

“jurisdictional issues arising under this chapter are preliminary questions of law to

be determined solely by the trial judge,” and that the “[j]urisdiction of the United

States with respect to a vessel subject to this chapter is not an element of an

offense.” Pub. L. 104-324, § 1138, 110 Stat. 3901, 3988-89, (1996) (codified as

amended 46 U.S.C. § 70504(a)). Also after we decided Rojas, the Supreme Court

overruled its decision in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531 (1980), and

held that the Confrontation Clause bars the admission of a testimonial statement by

“a witness who did not appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.” Crawford v.

Washington, 541 U.S. 36, 53–54, 124 S. Ct. 1354, 1365 (2004). In the light of

these changes in law, we reach the same decision we reached in Rojas, but for a

different reason. Because the certification proves jurisdiction, as a diplomatic

courtesy to a foreign nation, and does not prove an element of a defendant’s

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culpability, we conclude that the pretrial admission of the certification does not

violate the Confrontation Clause.

                                I. BACKGROUND

      On October 26, 2011, the United States Coast Guard observed a vessel in the

international waters off the eastern coast of Jamaica. While the Coast Guard was

pursuing the vessel, the three individuals aboard the vessel discarded dozens of

bales into the water, which the Coast Guard later determined to be approximately

997 kilograms of marijuana. The vessel lacked all indicia of nationality: it

displayed no flag, port, or registration number. Glenroy Parchment identified

himself as the master of the vessel and claimed the vessel was registered in Haiti.

The Coast Guard then contacted the Republic of Haiti to inquire whether the vessel

was of Haitian nationality. The government of Haiti responded that it could neither

confirm nor deny the registry. The other two individuals aboard the vessel,

Christopher Patrick Campbell and Pierre Nadin Alegrand, as well as Parchment

later admitted that they knew they were illegally transporting marijuana.

      After a federal grand jury indicted Campbell, Alegrand, and Parchment

under the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70501 et seq., for

conspiracy to possess and for possession with intent to distribute 100 kilograms or

more of marijuana, id. §§ 70503(a)(1), 70506(a), 70506(b); 21 U.S.C.

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§ 960(b)(2)(G), Campbell filed a motion to dismiss for lack of jurisdiction on three

grounds: (1) that admission of a certification of the Secretary of State to prove a

response to a claim of registry, see 46 U.S.C. § 70502(d)(2), would violate

Campbell’s right under the Confrontation Clause and that there was insufficient

evidence to prove that Campbell was aboard a vessel subject to the jurisdiction of

the United States; (2) that the Act violated Campbell’s right to due process of law

under the Fifth Amendment because he had no contacts with the United States; and

(3) that Congress exceeded its constitutional power to define and punish felonies

committed on the high seas when it enacted the Act. Campbell conceded that our

precedents foreclosed his last two arguments, but he stated his intent to preserve

his objections for further review.

      The district court referred the motion to a magistrate judge, who held a

hearing about whether the certification of the Secretary of State established

jurisdiction. At the hearing, the United States introduced into evidence the

certification of the Secretary of State, which included the statement of Commander

Daniel Deptula of the United States Coast Guard that he had contacted the

Republic of Haiti to inquire whether the vessel was registered there and that Haiti

responded that it could neither confirm nor deny the registry of the vessel.

Campbell objected to the admission of the certification on the ground that it

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violated his right under the Confrontation Clause, but the magistrate judge

overruled the objection because the certification was “self-authenticating” and

“whether there should be further proof beyond the State Department document is

really a separate question and does not go to the admissibility of the certification.”

The magistrate judge issued a report and recommendation that the certification of

the Secretary of State established extraterritorial jurisdiction over the vessel and

that the Act was constitutional both on its face and as applied to Campbell. The

district court adopted the report and recommendation.

      Campbell waived his right to a trial by jury in a written statement signed by

him, his counsel, the prosecutor, and the district court judge, and at a bench trial,

the parties stipulated to the material facts. But Campbell maintained at trial that the

stipulation about the communication between Commander Deptula and Haiti

proved only the representation by the Coast Guard that a Haitian official could

neither confirm nor deny the registration of the vessel and not that the

communication from a Haitian official actually occurred. Campbell acknowledged

that the district court had already determined its jurisdiction based only on the

certification of the Secretary of State, but he argued “that there was nobody from

Haiti that actually signed a certificate or provided any documents.” The district

court found Campbell guilty on both the conspiracy and possession counts.

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                          II. STANDARDS OF REVIEW

      We review questions of law de novo and findings of fact for clear error. For

example, we review “de novo a district court’s interpretation and application of

statutory provisions that go to whether the court has subject matter jurisdiction. . . .

The district court’s factual findings with respect to jurisdiction, however, are

reviewed for clear error.” United States v. Tinoco, 304 F.3d 1088, 1114 (11th Cir.

2002) (internal quotation marks omitted). “We review de novo the legal question of

whether a statute is constitutional.” Id. at 1099. And we review constitutional

objections de novo. United States v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004).

                                 III. DISCUSSION

      The Constitution empowers Congress “[t]o define and punish Piracies and

Felonies committed on the high Seas, and Offences against the Law of Nations.”

U.S. Const. Art. I, § 8, cl. 10. The Supreme Court has interpreted that Clause to

contain three distinct grants of power: to define and punish piracies, to define and

punish felonies committed on the high seas, and to define and punish offenses

against the law of nations. United States v. Bellaizac–Hurtado, 700 F.3d 1245,

1248 (11th Cir. 2012). This appeal involves a conviction for an offense defined by

an act of Congress under the second grant of power.



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      Congress enacted the Maritime Drug Law Enforcement Act to prohibit any

person from “knowingly or intentionally . . . possess[ing] with intent to

manufacture or distribute, a controlled substance on board . . . a vessel subject to

the jurisdiction of the United States.” 46 U.S.C. § 70503(a)(1). In 1996, Congress

amended the Act to provide that “[j]urisdiction of the United States with respect to

a vessel subject to this chapter is not an element of an offense.” 46 U.S.C. §

70504(a). The section continues that “[j]urisdictional issues arising under this

chapter are preliminary questions of law to be determined solely by the trial

judge.” Id.

      The Act declares “a vessel without nationality” as subject to the jurisdiction

of the United States and defines a stateless vessel as including “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.” Id. § 70502(c)(1)(A), (d)(1)(C). Congress made

clear that the Act “applies even though the act is committed outside the territorial

jurisdiction of the United States.” Id. § 70503(b). The Act permits several methods

for obtaining a response from a foreign nation to a claim of registry and provides

that a certification of the Secretary of State is conclusive proof of a response to a

claim of registry by a foreign nation: “The response of a foreign nation to a claim

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of registry under paragraph (1)(A) or (C) may be made by radio, telephone, or

similar oral or electronic means, and is proved conclusively by certification of the

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

added). The Act does not require the certification of the Secretary of State to

include the details of how an official received or from whom the official received

the response to a claim of registry from a foreign nation.

      Campbell challenges his convictions on five grounds, four of which attack

the constitutionality of the Act. First, Campbell argues that the admission of the

certification of the Secretary of State to establish extraterritorial jurisdiction

violated his right under the Confrontation Clause. Second, Campbell contends that

the pretrial determination of jurisdiction under the Act violated his rights under the

Fifth and Sixth Amendments to have a jury determine that issue. Third, Campbell

argues that the certification of the Secretary of State provided insufficient evidence

for the district court to determine that it had jurisdiction. Fourth, Campbell argues

that Congress lacked the power under the Felonies Clause to define his conduct as

a criminal offense. Fifth, Campbell argues that his conviction violated his right to

due process under the Fifth Amendment because he had no contacts with the

United States. These arguments fail.



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A. The Confrontation Clause Does Not Bar the Admission of a Certification of the
          Secretary of State To Establish Extraterritorial Jurisdiction.

      Campbell argues that the admission of the certification of the Secretary of

State without the ability to cross-examine a Haitian witness violated his right under

the Confrontation Clause, but that argument fails. The Confrontation Clause does

not bar the admission of hearsay to make a pretrial determination of jurisdiction

when that hearsay does not pertain to an element of the offense. Because the

stateless nature of Campbell’s vessel was not an element of his offense to be

proved at trial, the admission of the certification did not violate his right to

confront the witnesses against him.

      The Confrontation Clause provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him

. . . .” U.S. Const. Amend. VI. In Crawford, the Supreme Court ruled that the

Confrontation Clause bars the admission of a testimonial statement by “a witness

who did not appear at trial unless he was unavailable to testify, and the defendant

had had a prior opportunity for cross-examination.” 541 U.S. at 53–54, 124 S. Ct.

at 1365 (emphasis added). The Supreme Court explained that a testimonial

statement “is typically a solemn declaration or affirmation made for the purpose of

establishing or proving some fact,” such as an affidavit, custodial examination, or

prior testimony at a preliminary hearing. Id. at 51, 124 S. Ct. at 1364 (internal
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quotation marks omitted). But the Supreme Court has never extended the reach of

the Confrontation Clause beyond the confines of a trial. See Bullcoming v. New

Mexico, --- U.S. ---, 131 S. Ct. 2705, 2713 (2011) (“As a rule, if an out-of-court

statement is testimonial in nature, it may not be introduced against the accused at

trial unless the witness who made the statement is unavailable and the accused has

had an opportunity to confront that witness.” (emphasis added)); Michigan v.

Bryant, --- U.S. ---, 131 S. Ct. 1143, 1162 (2011) (“[W]hen a court must determine

whether the Confrontation Clause bars the admission of a statement at trial, it

should determine the primary purpose of the interrogation by objectively

evaluating the statements and actions of the parties to the encounter, in light of the

circumstances in which the interrogation occurs.” (emphasis added) (internal

quotation marks omitted)); Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S. Ct.

989, 999 (1987) (opinion of Powell, J.) (“The opinions of this Court show that the

right to confrontation is a trial right, designed to prevent improper restrictions on

the types of questions that defense counsel may ask during cross-examination.”);

California v. Green, 399 U.S. 149, 157, 90 S. Ct. 1930, 1934–35 (1970) (“Our own

decisions seem to have recognized at an early date that it is this literal right to

‘confront’ the witnesses at the time of trial that forms the core of the values

furthered by the Confrontation Clause.” (emphasis added)); Barber v. Page, 390

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U.S. 719, 725, 88 S. Ct. 1318, 1322 (1968) (“The right to confrontation is basically

a trial right.” (emphasis added)).

      In Rojas, we rejected a challenge, under the Confrontation Clause, to the

introduction of a certification of the Secretary of State under the Act, 53 F.3d at

1216, but we decided that issue before Congress made the determination of

extraterritorial jurisdiction a pretrial issue of law for the district court and before

the Supreme Court decided Crawford. Our decision in Rojas relied on the pre-

Crawford standard that permitted the admission of hearsay if it was sufficiently

reliable. Id.; Roberts, 448 U.S. at 66, 100 S. Ct. at 2539, abrogated by Crawford,

541 U.S. at 61–62, 124 S. Ct. at 1370–71. And Congress amended the Act to

provide that extraterritorial jurisdiction is “not an element of an offense,” but is

instead a “preliminary question[] of law to be determined solely by the trial judge.”

46 U.S.C. § 70504(a).

      Although these changes in law mean that Rojas no longer controls this issue,

the admission of the certification of the Secretary of State did not violate

Campbell’s right under the Confrontation Clause. In United States v. Tinoco, we

held that Congress was entitled to remove the jurisdictional requirement from

consideration by the jury because that requirement “does not raise factual questions

that traditionally would have been treated as elements of an offense under the

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common law,” such as the actus reus, causation, and the mens rea elements. 304

F.3d at 1108. Instead, the jurisdictional requirement serves as a “diplomatic

courtesy to foreign nations and as a matter of international comity.” Id. Proof of

jurisdiction “does not affect the defendant’s blameworthiness or culpability, which

is based on the defendant’s participation in drug trafficking activities, not on the

smoothness of international relations between countries.” Id. at 1109; see also

United States v. Rendon, 354 F.3d 1320, 1327 (11th Cir. 2003) (reiterating that

extraterritorial jurisdiction is not an element of the offense). And, unlike some

federal crimes in which the jurisdictional element provides Congress with the

authority to proscribe the offense under Article I, the Act makes the determination

of jurisdiction a discretionary “statutory hurdle[] to a court’s subject matter

jurisdiction.” Tinoco, 304 F.3d at 1104 n.18; see also id. at 1110 n.21 (explaining

that many federal criminal statutes, such as the Hobbs Act, 18 U.S.C. § 1951(a),

and the Travel Act, id. § 1952(a), “require[] a particularized, case-by-case factual

finding that some product or activity of the defendant relate in some way to

interstate commerce”). This jurisdictional requirement “is unique because it is not

meant to have any bearing on the individual defendant, but instead is meant to bear

only on the diplomatic relations between the United States and foreign

governments.” Id. at 1109. The Confrontation Clause protects a defendant’s trial

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right to confront testimony offered against him to establish his guilt, and the

Supreme Court has never extended the reach of the Confrontation Clause beyond

the confines of a trial. And, because a pretrial determination of extraterritorial

jurisdiction does not implicate the Confrontation Clause, we need not decide

whether the certification of the Secretary of State is testimonial in nature. Cf.

United States v. Mitchell–Hunter, 663 F.3d 45, 52 (1st Cir. 2011) (expressing

doubt that a certification of the Secretary of State is testimonial hearsay because

“an objective State Department designee would not expect that the certifications

would be used at trial, as they are relegated by statute to the pretrial jurisdiction

determination”); United States v. Angulo–Hernández, 565 F.3d 2, 12 (1st Cir.

2009) (questioning whether a certification of the Secretary of State under the Act is

testimonial within the meaning of the Confrontation Clause).

      Our analysis aligns with other authorities too. For example, faced with the

same issue raised by Campbell, the First Circuit held that, “in this non-trial

context, where evidence does not go to guilt or innocence, the Confrontation

Clause does not apply.” United States v. Nueci–Peña, 711 F.3d 191, 199 (1st Cir.

2013) (internal quotation marks omitted); see also Mitchell–Hunter, 663 F.3d at

51. And both this Court and other courts have declined to extend the right to

confront witnesses to other pre- and post-trial proceedings that do not concern the

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adjudication of a defendant’s guilt or innocence. See, e.g., United States v. Powell,

650 F.3d 388, 392–93 (4th Cir. 2011) (holding that the Confrontation Clause does

not apply at sentencing and noting that all other federal circuit courts that hear

criminal appeals agree); United States v. Cantellano, 430 F.3d 1142, 1146 (11th

Cir. 2005) (holding that, even after Crawford, the confrontation right does not

apply at a non-capital sentencing hearing); United States v. Smith, 79 F.3d 1208,

1210 (D.C. Cir. 1996) (holding that the confrontation right does not apply at a

pretrial detention hearing because the purpose is to determine whether accused

may remain at large, and it “is neither a discovery device for the defense nor a trial

on the merits”); United States v. Andrus, 775 F.2d 825, 836 (7th Cir. 1985)

(holding that the Sixth Amendment does not provide a confrontation right at a

preliminary hearing); LaChappelle v. Moran, 699 F.2d 560, 564–65 (1st Cir. 1983)

(holding that the confrontation right does not apply at an in camera conference to

determine the reason a witness refuses to answer a question because such a judicial

proceeding “is not a stage of the trial at which an accused must be present”);

United States v. Harris, 458 F.2d 670, 677–78 (5th Cir. 1972), (holding that the

confrontation right does not apply at a preliminary hearing); see also Wolff v.

McDonnell, 418 U.S. 539, 567–68, 94 S. Ct. 2963, 2980 (1974) (“[Confrontation

and cross-examination] are essential in criminal trials where the accused, if found

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guilty, may be subjected to the most serious deprivations. . . . But they are not

rights universally applicable to all hearings[,] . . . and it does not appear that

confrontation and cross-examination are generally required in [disciplinary

hearings in prisons].”); cf. United States v. Clark, 475 F.2d 240, 247 (2d Cir. 1973)

(holding that the confrontation right applies at a pretrial suppression hearing

because “the suppression hearing centers upon the validity of the search for and

seizure of evidence which the government plans to use later in seeking to prove

guilt”). We need not decide whether the Confrontation Clause could ever apply to

a pretrial determination and conclude only that it does not apply to this pretrial

determination of jurisdiction where the certification does not implicate either the

guilt or innocence of a defendant charged with an offense under the Act.

 B. The Pretrial Determination of Jurisdiction Does Not Violate the Fifth or Sixth
                                   Amendment.

      Campbell argues that the Fifth and Sixth Amendments require a jury to

determine whether extraterritorial jurisdiction exists, but Campbell’s argument

fails for two reasons. First, Campbell waived his right to a jury trial in a signed,

written filing. Second, as explained in the preceding section, we have rejected the

argument that a jury must determine jurisdiction under the Act. See Rendon, 354

F.3d at 1327; Tinoco, 304 F.3d at 1109–10. Campbell acknowledges that these

precedents foreclose his argument. After all, the Supreme Court long ago held, in a
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case about a ship seized at sea for carrying contraband (liquor during Prohibition),

that a district court could decide before trial the jurisdictional issue about the

location of the vessel without submitting that issue to a jury. Ford v. United States,

273 U.S. 593, 606, 47 S. Ct. 531, 535 (1927). The Supreme Court explained that

the issue of jurisdiction “was necessarily preliminary to th[e] trial” because “[t]he

issue whether the ship was seized within the prescribed limit did not affect the

question of the defendants’ guilt or innocence. It only affected the right of the court

to hold their persons for trial.” Id.

 C. The District Court Did Not Err When It Determined It Had Jurisdiction Based
                   on the Certification of the Secretary of State.

       Campbell argues that the district court erred when it determined that

extraterritorial jurisdiction existed. He argues that the certification of the Secretary

of State 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. The district court did not err.

       Campbell stipulated to the admission of the representations by the Coast

Guard in the certification, and the Act provides that the certification is conclusive

proof of a response to a claim of registry. The certification contained the

statements of Commander Deptula, who explained that he had asked the Haitian

government whether the suspect vessel was registered in Haiti and that Haiti
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responded that it could neither confirm nor deny the registry. The certification

therefore provided conclusive proof that the vessel was within the jurisdiction of

the United States under the Act.

D. The Act Is a Constitutional Exercise of Congressional Power under the Felonies
                                      Clause.

      Campbell argues that Congress exceeded its authority under the Felonies

Clause when it enacted the Act because his drug trafficking offense lacked any

nexus to the United States and because drug trafficking was not a capital offense

during the Founding era, but he acknowledges that his arguments are foreclosed by

our precedents. “[W]e have always upheld extraterritorial convictions under our

drug trafficking laws as an exercise of power under the Felonies Clause.” See

Bellaizac–Hurtado, 700 F.3d at 1257. And we have long upheld the authority of

Congress to “extend[] the criminal jurisdiction of this country to any stateless

vessel in international waters engaged in the distribution of controlled substances.”

United States v. Marino–Garcia, 679 F.2d 1373, 1383 (11th Cir. 1982). Moreover,

in United States v. Estupinan, we rejected an argument “that Congress exceeded its

authority under the Piracies and Felonies Clause in enacting the [Maritime Drug

Law Enforcement Act].” 453 F.3d 1336, 1338 (11th Cir. 2006).

      We also have recognized that the conduct proscribed by the Act need not

have a nexus to the United States because universal and protective principles
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support its extraterritorial reach. See United States v. Saac, 632 F.3d 1203, 1209–

11 (11th Cir. 2011); Estupinan, 453 F.3d at 1338 (“[T]his circuit and other circuits

have not embellished the [Act] with the requirement of a nexus between a

defendant’s criminal conduct and the United States.” (internal quotation marks and

alterations omitted) (quoting Rendon, 354 F.3d at 1325)). The Felonies Clause

empowers Congress to punish crimes committed on the high seas. Saac, 632 F.3d

at 1210. And “inasmuch as the trafficking of narcotics is condemned universally by

law-abiding nations, we see no reason to conclude that it is ‘fundamentally unfair’

for Congress to provide for the punishment of persons apprehended with narcotics

on the high seas.” Estupinan, 453 F.3d at 1339 (internal quotation marks omitted).

Congress “may assert extraterritorial jurisdiction over vessels in the high seas that

are engaged in conduct that ‘has a potentially adverse effect and is generally

recognized as a crime by nations that have reasonably developed legal systems.’”

Tinoco, 304 F.3d at 1108 (quoting United States v. Gonzalez, 776 F.2d 931, 939

(11th Cir. 1985)). And “[t]he protective principle does not require that there be

proof of an actual or intended effect inside the Unites States.” Gonzalez, 776 F.2d

at 939. Congress also may assert extraterritorial jurisdiction because “the law

places no restrictions upon a nation’s right to subject stateless vessels to its

jurisdiction.” United States v. Ibarguen–Mosquera, 634 F.3d 1370, 1379 (11th Cir.

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2011) (internal quotation marks omitted). Stateless vessels, such as the one

Campbell boarded, are “international pariahs” that have “no internationally

recognized right to navigate freely on the high seas.” Marino–Garcia, 679 F.2d at

1382; see also United States v. Perlaza, 439 F.3d 1149, 1161 (9th Cir. 2006)

(discussing that for stateless vessels, no proof of nexus is required); Rendon, 354

F.3d at 1325 (“Because stateless vessels do not fall within the veil of another

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

and subject them to their laws.” (internal quotation marks omitted)).

      Campbell argues that Congress cannot proscribe drug trafficking on the high

seas under the Felonies Clause because only capital crimes were considered

felonies at the Founding, but we disagree. Although we have recognized that “there

is a dearth of authority interpreting the scope of Congress’s power under the

[Felonies] Clause,” Saac, 632 F.3d at 1209, the First Congress understood its

power under the Felonies Clause to include proscribing criminal conduct on the

high seas that did not warrant capital punishment. In the Crimes Act of 1790, the

First Congress made it a crime at sea to “entertain or conceal any such pirate or

robber, or receive or take into his custody any ship, vessel, goods or chattels,

which have been by any such pirate or robber piratically and feloniously taken”

and punished that conduct with “imprison[ment] not exceeding three years,” Ch. 9,

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§ 11, 1 Stat. 112, 114; imposed a three-year maximum sentence, if convicted, for

“any seaman or other person [who] commit[s] manslaughter upon the high seas,”

id. § 12, 1 Stat. at 115; and imposed a seven-year maximum sentence for intending

to “maim or disfigure” a person “upon the high seas, id. § 13.

      At the time of the Founding, there was “ambiguity in the meaning of [a]

felony.” Will Tress, Unintended Collateral Consequences: Defining Felony in the

Early American Republic, 57 Clev. St. L. Rev. 461, 465 (2009). “At common law,

[a felony was] an offense for which conviction result[ed] in forfeiture of the

defendant’s lands or goods (or both) to the Crown, regardless of whether any

capital or other punishment [was] mandated.” Black’s Law Dictionary 651 (8th ed.

2004); see also 4 William Blackstone, Commentaries *94 (1769) (“Felony, in the

general acceptation of our English law, comprize[d] every species of crime, which

occasioned at common law the forfeiture of lands or goods.”); Giles Jacob, A New

Law Dictionary (10th ed. 1782) (listing types of punishment for felonies at

common law, including death, loss of inheritance, and forfeiture of goods and

lands). “By the late seventeenth century, felony had come to mean any very serious

crime, especially those punishable by death.” Eugene Kontorovich, The “Define

and Punish” Clause and the Limits of Universal Jurisdiction, 103 Nw. U. L. Rev.

149, 160 (2009) (quoting Blackstone, supra, at *94); see also Jacob, supra

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(“Felony is diſtinguifhed from lighter offences, in that the puniſment of it is death:

but not always, for petit larceny is felony, . . . yet it is not puniſhed by death,

though it be loſs of goods . . . .”). And at the time of the Founding, felony was “a

multi-definitional term” with “so many meanings from so many parts of the

common law[] and so many statutes . . . that it is impossible to know precisely in

what sense we are to understand this word.” Tress, supra, at 463, 465 (quoting 6

Nathan Dane, Digest of American Law 715 (1823)); see 2 Timothy Cunningham,

A New and Complete Law Dictionary (3d ed. 1783) (explaining that, “by the law at

this day,” felonies included treason, murder, homicide, burning of houses,

burglary, robbery, rape, chance-medley, and petit larceny and that punishments for

felonies ranged from death and forfeiture of goods and chattels to terms of

imprisonment and hard labor). As James Madison explained, in defense of the

power of Congress to define felonies on the high seas, the term “felony” has a

“loose signification.” The Federalist No. 42, at 262 (James Madison) (Clinton

Rossiter ed., 1961); see also United States v. Smith, 18 U.S. (5 Wheat.) 153, 159

(1820) (acknowledging the “indeterminate” definition of felony under the Felonies

Clause). Campbell’s argument that only capital crimes were felonies at the time of

the Founding fails because the Founding generation would have understood the

term to include a broader range of crimes.

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      Campbell cites United States v. Palmer, 16 U.S. (3 Wheat.) 610, (1818), to

support his argument that Congress may punish only capital offenses under the

Felonies Clause, but Palmer did not address this issue. In Palmer, the Supreme

Court upheld a law enacted by Congress under the Piracies and Felonies Clause

that prohibited “murder or robbery, or any other offence, which, if committed

within the body of a county, would by the laws of the United States, be punishable

with death.” Id. at 626–27. But the Court explained that “punishable with death”

served solely to identify which other crimes were included in the statute even

though not particularly recited. Id. at 628. Palmer did not address whether

Congress could exercise its power, under the Felonies Clause, to proscribe conduct

not punishable by death. Although Palmer did not address this issue, we have

repeatedly held that Congress has the power, under the Felonies Clause, to

proscribe drug trafficking on the high seas. See, e.g., Estupinan, 453 F.3d at 1339;

Rendon, 354 F.3d at 1326.

       E. Campbell’s Conviction Did Not Violate His Right to Due Process.

      Campbell argues that his convictions violated his right to due process

because his offense of drug trafficking lacked a nexus to the United States, but he

concedes that our precedents foreclose this argument too. We held in Rendon that

the Due Process Clause of the Fifth Amendment does not prohibit the trial and

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conviction of an alien captured on the high seas while drug trafficking, because the

Act provides clear notice that all nations prohibit and condemn drug trafficking

aboard stateless vessels on the high seas. 354 F.3d at 1326. And “this [C]ircuit and

other circuits have not embellished the [Act] with the requirement of a nexus

between a defendant’s criminal conduct and the United States.” Estupinan, 453

F.3d at 1338 (internal quotation marks and alternations omitted). Campbell’s

conviction did not violate his right to due process under the Fifth Amendment.

                               IV. CONCLUSION

      We AFFIRM Campbell’s judgment of convictions.




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