          United States Court of Appeals
                     For the First Circuit


No. 16-2089

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      JEFFRI DÁVILA-REYES,

                      Defendant, Appellant.

No. 16-2143

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     JOSÉ D. REYES-VALDIVIA,

                      Defendant, Appellant.




          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Francisco A. Besosa, U.S. District Judge]


                             Before

                       Howard, Chief Judge,
               Lipez and Thompson, Circuit Judges.


     Thomas F. Klumper, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and John A. Mathews II, Assistant United States
Attorney, were on brief, for appellee.
     Franco L. Pérez-Redondo, Research and Writing Specialist,
with whom Eric Alexander Vos, Federal Public Defender, Vivianne M.
Marrero, Assistant Federal Public Defender, and Liza L. Rosado-
Rodríguez, Research and Writing Specialist, were on brief, for
appellant Jose D. Reyes-Valdivia.
     Raymond L. Sánchez-Maceira on brief for appellant Jeffri
Dávila-Reyes.


                        September 3, 2019
            LIPEZ, Circuit Judge.      These consolidated appeals arise

from the U.S. Coast Guard's interdiction of a small speed boat in

the western Caribbean Sea and the subsequent arrest and indictment

of the three men on board the boat for drug trafficking under the

Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. §§ 70501-

70508.     In a motion to dismiss the indictment, appellants José

Reyes-Valdivia       and    Jeffri         Dávila-Reyes        challenged    the

constitutionality of the MDLEA.             They argued that the statute,

which in certain circumstances allows U.S. law enforcement to

arrest     foreign    nationals      for     drug     crimes     committed    in

international waters, exceeds Congress's authority under Article

I of the Constitution and violates the Due Process Clause.                   The

district court denied the motion to dismiss.            Both appellants then

pleaded guilty pursuant to plea agreements in which each waived

his right to appeal if sentenced in accordance with his agreement's

sentencing recommendation provision.

            On   appeal,    appellants        renew    their     constitutional

objections to their prosecution.           However, their primary argument

-- that their vessel was not properly deemed stateless -- founders

on our governing precedent concerning the protective principle of

international law.         That principle, as applied by our court,

permits prosecution under the MDLEA even of foreigners on foreign

vessels.    That precedent may only be reconsidered by the en banc

court.     We as a panel may not do so.               Hence, we affirm both


                                     - 3 -
appellants' convictions.    Reyes-Valdivia also asserts sentencing

error, but we find no abuse of discretion in the sentence imposed.

                                 I.

          We draw the following facts from appellants' change of

plea colloquies and the uncontested portions of their Presentence

Investigation   Reports   ("PSRs").   See   United    States   v.   Vélez-

Luciano, 814 F.3d 553, 556 (1st Cir. 2016).             While patrolling

waters approximately 30 nautical miles southeast of San Andrés

Island, Colombia,1 U.S. Coast Guard officers observed a small

vessel moving at a high rate of speed.      When the occupants of the

vessel became aware of the Coast Guard boat nearby, they began

throwing packages and fuel barrels overboard.           The Coast Guard

officers approached the boat and began to question its occupants,

the two appellants and a third co-defendant.         The "master"2 of the

vessel "claimed Costa Rican nationality for the vessel," but did

not provide any documentation of Costa Rican registry.         The Coast

Guard then contacted the government of Costa Rica, which neither

confirmed nor denied the registry of the vessel.         The Coast Guard



     1 San Andrés Island, although part of Colombia, is located
off the coast of Nicaragua.
     2 The term "master" is synonymous with "captain." It is a
legal term of art meaning "he [or she] to whom are committed the
government, care, and direction of the vessel and cargo."
Kennerson v. Jane R., Inc., 274 F. Supp. 28, 30 (S.D. Tex. 1967).
The government did not specify which of the three men the Coast
Guard identified as the "master" of the vessel.


                                - 4 -
officers thus determined that, pursuant to § 70502(d)(1)(C) of the

MDLEA,3 the boat was "without nationality" and subject to U.S.

jurisdiction, and they proceeded to board and search it.                              The

officers did not find any contraband, but a chemical test found

traces of cocaine.            Based on that evidence, the Coast Guard

detained the three men -- all citizens of Costa Rica -- and took

them to the U.S. Naval Base at Guantánamo Bay, Cuba, and then

eventually to Puerto Rico.

             All three defendants were charged with two counts of

trafficking cocaine in violation of the MDLEA.                  Reyes-Valdivia and

Dávila-Reyes     moved      to      dismiss   the        indictment    for    lack     of

jurisdiction,         arguing         that         the      MDLEA,      particularly

§ 70502(d)(1)(C),        is      unconstitutional.              In     their     view,

§ 70502(d)(1)(C) exceeds Congress's authority under Article I of

the Constitution, and it violates the Due Process Clause of the

Fifth Amendment because it is unconstitutionally vague, subject to

arbitrary enforcement, and criminalizes conduct that has no nexus

with the United States.          The district court denied the motion.

             Reyes-Valdivia and Dávila-Reyes both subsequently agreed

to   plead   guilty    to     one    count    of    possession       with    intent    to



      3This provision defines a "vessel without nationality" as
one "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).


                                        - 5 -
distribute five or more kilograms of cocaine in violation of the

MDLEA.      See 46 U.S.C. § 70503(a)(1).4             The plea agreements for both

men calculated a total offense level of 27, based on a base offense

level       of   30    and    a    three-level     deduction    for   acceptance       of

responsibility.              See U.S.S.G. §§ 2D1.1(a); 3E1.1(a)-(b).                 The

parties' recommended sentences depended on the court's eventual

finding      of    the      Criminal     History     Category   ("CHC"),      with    the

statutory minimum of 120 months' imprisonment to be recommended

unless the court found CHC VI (the highest level) applicable.                         In

a   supplement         to    Reyes-Valdivia's        plea   agreement,      the   parties

agreed to recommend a 57-month term if he qualified for the "safety

valve"      exception        to    the   mandatory     minimum.       See    18    U.S.C.

§ 3553(f)(1)-(5); U.S.S.G. § 5C1.2.5                    Both men agreed to waive

appellate review if sentenced in accordance with the sentencing

recommendation provisions.

                 The   PSRs       calculated   the    total   base    offense      levels

consistently with the plea agreements and assigned Reyes-Valdivia




        4
       The third defendant also pleaded guilty to this count and
was sentenced to a 57-month term of imprisonment. He did not file
an appeal.
        5
       Section 3553(f) allows a court to disregard the mandatory
minimum sentence for certain drug offenses when the defendant has
met specified requirements, including having a limited criminal
history and truthfully providing the government with all
information about the offense.




                                           - 6 -
a CHC of I and Dávila-Reyes a CHC of III, triggering the 120-month

recommendation or, for Reyes-Valdivia, a 57-month term if he were

found eligible for the safety valve.           However, Reyes-Valdivia's

PSR also concluded that he should be given a two-level enhancement

for   being   the   "captain"   of       the   vessel.       See   U.S.S.G.

§ 2D1.1(b)(3)(C).   After Reyes-Valdivia informally objected to the

enhancement, the Probation Officer filed an addendum to the PSR

stating that Reyes-Valdivia had told federal agents upon his

arrival in Puerto Rico that he was the vessel's captain.             Reyes-

Valdivia then filed a written objection to the PSR in which he

argued, inter alia, that the captain enhancement was inapplicable

because he did not possess the "specialized skills" it required.

          Consistent with the plea agreements, the parties jointly

recommended a sentence of 120 months for Dávila-Reyes and a

sentence of 57 months for Reyes-Valdivia.           The court sentenced

Dávila-Reyes to 120 months, but sentenced Reyes-Valdivia to 70

months based on its finding that both the safety valve and the

captain   enhancement   applied.          Reyes-Valdivia's     motion   for

reconsideration was denied.     Both Reyes-Valdivia and Dávila-Reyes

then appealed.

                                   II.

          The government contends that Reyes-Valdivia and Dávila-

Reyes each waived his right to appeal in two distinct ways: by the

express appellate waiver provisions in their plea agreements and


                                 - 7 -
by entry of unconditional guilty pleas to drug trafficking in

violation of the MDLEA.                 With respect to Reyes-Valdivia, the

government is wrong in arguing that he is barred by his plea

agreement.         As described above, the district court declined to

follow the parties' recommended term of 57 months and instead

sentenced him to a 70-month term of imprisonment.                    Because Reyes-

Valdivia's         sentence   exceeded     the    recommendation,       the   waiver

provision plainly does not apply.6

               Dávila-Reyes, however, received a 120-month sentence

that aligns with the recommendation in his plea agreement.                         He

argues that, despite the enforceable waiver, we should exercise

our   inherent       authority     to    consider     his   claims    to   avoid   "a

miscarriage of justice."            United States v. Teeter, 257 F.3d 14,

25-26       (1st   Cir.   2001).    He     contends    that   his    appeal   raises

"important questions of law and [of] first impression" -- including

the constitutionality of § 70502(d)(1)(C) of the MDLEA -- and that

preventing him from presenting that challenge would be unjust.

               We agree that the constitutional issues Dávila-Reyes

raises are significant and that the other factors allowing us to


        6
       The government contends that Reyes-Valdivia is nonetheless
bound by the waiver provision because he failed to explain in his
opening brief why it is inapplicable. However, it is apparent on
the face of the plea agreement that Reyes-Valdivia was not
sentenced in accordance with the sentencing recommendation
provision, and he was not obligated to make that obvious point in
his opening brief. See United States v. Colón-Rosario, 921 F.3d
306, 310-11 (1st Cir. 2019).


                                          - 8 -
exercise our discretion to disregard the appellate waiver also are

present to the necessary degree.       See, e.g., United States v.

Ortiz-Vega, 860 F.3d 20, 27-28 (1st Cir. 2017).       Particularly

important is the lack of prejudice to the government, given Reyes-

Valdivia's presentation of the same issues as Dávila-Reyes.    See

id. at 27.     Indeed, if appellants request and obtain en banc

reconsideration of the precedent that currently forecloses their

constitutional claims, see infra, the potential for relief should

not depend on the happenstance that the district court added an

enhancement to Reyes-Valdivia's sentence.    Thus, we exercise our

discretion to decline to enforce Dávila-Reyes's appellate waiver.

           Nor do appellants' guilty pleas foreclose their right to

challenge the constitutionality of the MDLEA.    The Supreme Court

recently held in Class v. United States that "a guilty plea by

itself" does not bar "a federal criminal defendant from challenging

the constitutionality of the statute of conviction on direct

appeal."   138 S. Ct. 798, 803 (2018).   In their briefing and oral

argument, appellants present claims that are permissible under

Class.   Although they conceded through their guilty pleas that the

MDLEA, by its terms, allows the government to prosecute them under

U.S. law, they argue that Congress lacked authority to enact the

applicable provisions.   In other words, appellants accepted that

their convictions were "proper" under the statute, but nonetheless

unconstitutional.    Such claims may proceed notwithstanding an


                               - 9 -
unconditional guilty plea.      See United States v. Aybar-Ulloa, 913

F.3d 47, 51 (1st Cir. 2019), petition for reh'g en banc filed,

No. 15-2377 (Jan. 23, 2019); cf. United States v. Miranda, 780

F.3d 1185, 1194 (D.C. Cir. 2015) (noting that Congress would want

the "'[j]urisdiction of the United States with respect to a

vessel,' [46] U.S.C. § 70504(a), to be insulated from waiver or

forfeiture by a defendant" because "[t]he requirement aims to

protect the interests of foreign nations, not merely the interests

of the defendant").

                                    III.

           Appellants' primary constitutional challenge targets a

section of the MDLEA that allows U.S. authorities to deem a vessel

"without   nationality"    --   i.e.,      "stateless"   --     when   certain

conditions are met. See 46 U.S.C. § 70502(d)(1). It is undisputed

in this case that the "vessel without nationality" provision of

the MDLEA was enacted pursuant to Congress's authority to "define

and   punish   . . . Felonies   committed     on   the   high    Seas"   ("the

Felonies Clause").     U.S. Const. art. I, § 8, cl. 10; see United

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

(stating that the MDLEA "was enacted under Congress's authority

provided by the Felonies Clause"); United States v. Matos-Luchi,

627 F.3d 1, 3 (1st Cir. 2010) (stating that, in criminalizing drug

trafficking     in   the   MDLEA,    Congress      was   "[i]nvoking       its

constitutional power" under the Felonies Clause).                 Appellants


                                 - 10 -
argue that Congress's authority under the Felonies Clause is

limited by the principles of international law, and they maintain

that, under that law, their vessel cannot be deemed stateless.

Specifically, they contend that the definition of a stateless

vessel relied upon by the government to support jurisdiction over

their   boat   improperly   disregards       a   master's   verbal   claim   of

nationality or registry based on mere inaction by the named

country, i.e., its failure to confirm or deny "that the vessel is

of its nationality."    46 U.S.C. § 70502(d)(1)(C).           Thus, they say,

their arrests and prosecution were unconstitutional.

           Under our caselaw, however, appellants' prosecution does

not depend on their vessel having been properly deemed stateless.

Even if their challenge to the MDLEA's statelessness definition

were successful, appellants would still confront our precedent

holding   that   the   MDLEA   is    consistent      with    the   "protective

principle" of international law, which permits a nation "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) (Breyer, J.)).

           In Cardales, we stated that the protective principle may

be triggered in cases brought under the MDLEA "because Congress

has determined that all drug trafficking aboard vessels threatens

our nation's security."     Id. (emphasis added).           In so concluding,


                                    - 11 -
we relied on a provision of the MDLEA stating, in pertinent part:

"Congress finds and declares that [] trafficking in controlled

substances aboard vessels is a serious international problem, is

universally condemned, and presents a specific threat to the

security and societal well-being of the United States."        46 U.S.C.

§   70501.     Our   court,   albeit   in   mostly   split   panels,   has

subsequently accepted as governing precedent the view expressed in

Cardales that the protective principle can be applied to drug

trafficking in violation of the MDLEA.         See, e.g., Aybar-Ulloa,

913 F.3d at 56 (majority opinion); United States v. Vilches-

Navarrete, 523 F.3d 1, 21-22 (1st Cir. 2008) (separate opinion of

Lynch and Howard, JJ.); United States v. Bravo, 489 F.3d 1, 7-8

(1st Cir. 2007); but see, e.g., Aybar-Ulloa, 913 F.3d at 58-59

(Torruella, J., joining in part and dissenting in part).7

             Significantly for the case before us, Cardales invoked

the protective principle with respect to foreigners on a foreign

vessel, initially spotted about 150 miles south of Puerto Rico.

See 168 F.3d at 551.     The captain of the boat, which was boarded

by Coast Guard officers over the captain's objection, claimed it


      7Although our court discussed the protective principle at
some length in Robinson, we ultimately sidestepped questions
surrounding the principle's scope because the vessel's flag nation
had consented to U.S. jurisdiction.     See 843 F.2d at 3-4.    We
recognized in Robinson, however, that "any assertion of
jurisdiction under the protective principle must be 'reasonable.'"
Id. at 3 (citing Restatement (Revised) § 403; Brown, "Protective
Jurisdiction," 34 Am. J. Int'l L. 112, 114 (1940)).


                                 - 12 -
was a Venezuelan vessel. Id. at 551-52. The Venezuelan government

later confirmed that the vessel was registered there, and it

authorized U.S. intervention.      Id. at 552.

             Although Venezuela's consent played a large role in the

panel's rejection of the defendants' due process challenge to their

prosecution, which was based on the lack of a nexus between their

criminal conduct and the United States, see id. at 552-53, consent

appeared to play no role in the panel's brief discussion of the

protective principle as an alternative rationale for upholding

U.S. jurisdiction over the defendants, see id. at 553. In a single

paragraph,    the   panel   described   the   principle   and   noted   that

Congress's specific finding of a security threat to the United

States in § 70501 was "[c]onsistent with this principle."           Id.   As

we observed in Aybar-Ulloa, "[t]here is no indication in this

aspect of Cardales's reasoning that its broad assertion regarding

the United States' entitlement to assert protective jurisdiction,

under international law, was limited only to cases in which the

flag nation has consented to the United States' assertion of

jurisdiction over a vessel and those on board it."              913 F.3d at

56. Rather, the Cardales panel seemingly treated the congressional

declaration of a security threat as adequate on its own to support




                                  - 13 -
protective jurisdiction over the vessel under international law.

See id.8

               Accordingly, even if appellants' vessel possessed Costa

Rican nationality, as they claim, appellants would nonetheless be

subject to U.S. jurisdiction under our circuit's view of the

protective      principle.      See     Vilches-Navarrete,       523       F.3d   at   5

(Honduran flagged vessel); Cardales, 168 F.3d at 552 (Venezuelan

registry).      Notwithstanding Cardales and the cases reiterating its

approach, appellants urge us to reject the protective principle as

a proper basis for U.S. jurisdiction over their vessel.                            That

entreaty, however, can only be made to the en banc court.                         Based

on our precedent, we must affirm appellants' convictions.

                                         IV.

               Reyes-Valdivia    claims       the   district    court       committed

procedural       sentencing     error     when      it   applied       a    two-level

enhancement based on his being the "captain" of the vessel.                        See

U.S.S.G. § 2D1.1(b)(3)(C) (requiring a two-level enhancement if

the defendant acted, inter alia, as a "pilot, copilot, captain,

[or]       navigator   . . . aboard     any    craft     or   vessel       carrying    a



       8
       In a footnote, the Cardales panel observed that "[t]o the
extent that international law requires a nexus to the United
States, that nexus requirement is not overridden by the MDLEA, but
instead is satisfied by the foreign flag nation's authorization to
apply U.S. law to the defendants and by the congressional finding
that drug trafficking aboard vessels threatens the security of the
United States." 168 F.3d at 553 n.2 (emphasis added).


                                      - 14 -
controlled substance").           He acknowledges that he stated at the

time of his arrest that he was the captain, but he asserts that

the evidence in fact shows that he shared the duties of steering

the   vessel       with     others.       Reyes-Valdivia        highlights    the

government's view, expressed at the sentencing hearing, that the

enhancement should not apply "[g]iven the nature of the ship, and

the fact that a captain of one of these boats could be one person

one minute and, literally, another person the other minute."

             We    review    a    district      court's    interpretation      and

application of a sentencing enhancement de novo. See United States

v. Trinidad, 839 F.3d 112, 114 (1st Cir. 2016).                       The court's

underlying     factual      findings    may     be   undone    only   if   clearly

erroneous, id., and its judgment calls must be upheld absent an

abuse of discretion, United States v. Coleman, 854 F.3d 81, 85

(1st Cir. 2017).

             The transcript of the sentencing hearing makes plain

that the district court understood the facts that prompted the

government        to   conclude    that    the       captain   enhancement     was

unwarranted.       The court acknowledged that Reyes-Valdivia may not

have been the master of the vessel, and that he may have said he

was the captain only to protect Dávila-Reyes (his cousin) from

exposure to more severe punishment resulting from Dávila-Reyes's

prior criminal activity.           Nonetheless, Reyes-Valdivia not only

reported being the captain, but, as his counsel noted at the


                                       - 15 -
hearing, he admitted that "he did, in fact, steer along with the

other co-[d]efendants in this case."            On this record, we cannot

conclude that the district court clearly erred in applying the

enhancement.    See United States v. Cruz-Mendez, 811 F.3d 1172,

1175-76 (9th Cir. 2016) (joining other circuits, including the

First Circuit, in construing the pilot/captain enhancement broadly

to cover a defendant who shared piloting responsibilities); cf.

Trinidad, 839 F.3d at 116 (rejecting defendant's "contention that

he did not act as a navigator because he was a subordinate to the

other man on the vessel"); United States v. Guerrero, 114 F.3d

332, 346 (1st Cir. 1997) (rejecting defendant's argument that the

enhancement "only applies to offense participants in a position of

authority or command").

                                      V.

          We    do     not    reach      appellants'     challenge     to    the

constitutionality of the MDLEA definition of a "vessel without

nationality."        Under   governing     First     Circuit   precedent,    the

protective principle of international law permitted the United

States to arrest and prosecute appellants even if, as they claim,

their vessel possessed Costa Rican nationality.                Their argument

seeking to change that precedent must be presented to the court en

banc.

          Accordingly,       for   the     reasons    given,   we   affirm   the

judgments of conviction and Reyes-Valdivia's sentence.


                                   - 16 -
So ordered.




              -Concurring Opinion Follows-




                         - 17 -
            LIPEZ, Circuit Judge, concurring.         I write separately to

explain why I believe our circuit's caselaw on the protective

principle of international law is flawed and to urge my colleagues

to reconsider that precedent en banc.           The protective principle,

as we have described it, permits prosecutions under the Maritime

Drug Law Enforcement Act ("MDLEA") of foreigners on foreign vessels

without any affirmative showing that the targeted drug trafficking

impacts the United States or its citizens.            That expansive reach

of the principle far exceeds the traditional depiction of its scope

as a proposition of international law.          Indeed, such a broad view

of U.S. jurisdiction over vessels is at odds with our obligation

to respect every nation's authority over its own persons and

vessels.

            Harmonizing our view of the protective principle with

international    law    would    bring   to    the   forefront    appellants'

challenge to the MDLEA's "vessel without nationality" provision.

In other words, if we concluded that the protective principle does

not justify application of the MDLEA to drug trafficking carried

out by foreigners on foreign vessels, absent a demonstrated nexus

between the drug activity and U.S. security interests, we would

need   to   address    whether   appellants'    vessel   was     one   "without

nationality."     That is so because the government has made no

showing of such a nexus.          Although I will not delve into the

statutory issue here, I think it important to note that appellants


                                   - 18 -
present a forceful argument that Congress exceeded its authority

under Article I of the Constitution by expanding the definition of

a stateless vessel beyond the bounds of international law.     See 46

U.S.C. § 70502(d)(1).

                             Discussion

          A close review of the cases in which we have considered

the protective principle reveals that our court's approach to the

doctrine rests on shaky footing.   I describe that precedent below,

explaining why its vulnerabilities warrant en banc reconsideration

of our application of the principle, under the MDLEA, to drug

trafficking aboard vessels in international waters.

A. The Protective Principle and the MDLEA

          The "protective principle" is a long-recognized concept

of   international   law   that    permits   a   nation   to   punish

extraterritorial conduct that poses a risk to its security or other

important state interests.   See, e.g., United States v. Robinson,

843 F.2d 1, 3 (1st Cir. 1988).          The current version of the

applicable Restatement provision describes "Jurisdiction Based on

the Protective Principle" as follows:

          International   law   recognizes   a   state's
          jurisdiction to prescribe law with respect to
          certain conduct outside its territory by
          persons not its nationals that is directed
          against the security of the state or against
          a limited class of other fundamental state
          interests, such as espionage, certain acts of
          terrorism, murder of government officials,
          counterfeiting   of  the   state's   seal   or


                               - 19 -
             currency,     falsification    of    official
             documents, perjury before consular officials,
             and conspiracy to violate immigration or
             customs laws.

Restatement (Fourth) of Foreign Relations Law of the United States

§ 412 (2019).

             The    language   of    the   MDLEA's     declaration       on   drug

trafficking, asserting that trafficking of controlled substances

aboard vessels "presents a specific threat to the security and

societal well-being of the United States," 46 U.S.C. § 70501,9

tracks the Restatement provision, and it thus suggests a deliberate

desire by Congress to bring drug trafficking within the protective

principle.         Significantly,    the   security    risk    as   declared     by

Congress   is      not   expressly   limited   to     drug    activity    with   a

demonstrated impact on, or nexus to, the United States.                   Rather,

the broadly worded statement would on its face include within its

scope drug trafficking aboard a vessel halfway around the world,

without any showing that those drugs were headed toward the United

States or would otherwise affect the United States or its citizens.

See United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999)




     9 Section 70501 states, in pertinent part: "Congress finds
and declares that [] trafficking in controlled substances aboard
vessels is a serious international problem, is universally
condemned, and presents a specific threat to the security and
societal well-being of the United States."


                                     - 20 -
(noting     Congress's      finding   that   "all    drug   trafficking     aboard

vessels threatens our nation's security" (emphasis added)).10

              The other circuits have not taken a uniform stance on

whether a direct nexus to the United States must be shown to

trigger the protective principle with respect to drug trafficking.

Compare, e.g., United States v. Perlaza, 439 F.3d 1149, 1162 (9th

Cir.    2006)       (rejecting   "the    notion      that   [the]   'protective

principle' can be applied to 'prohibiting foreigners on foreign

ships 500 miles offshore from possessing drugs that . . . might be

bound for Canada, South America, or Zanzibar'" (quoting Robinson,

843 F.2d at 3) with United States v. Gonzalez, 776 F.2d 931, 939

(11th Cir. 1985) (stating that "[t]he protective principle does

not require that there be proof of an actual or intended effect

inside the United States" and concluding that "conduct may be

forbidden if it has a potentially adverse effect and is generally

recognized as a crime by nations that have reasonably developed

legal systems").

              The    debate    over   the    nexus    requirement     for      drug

trafficking in violation of the MDLEA could be framed as a debate

over    the   types    of   crimes    properly    within    the   scope   of   the


       10
        Although we have acknowledged that the assertion of
jurisdiction under the protective principle must be reasonable,
see Robinson, 843 F.2d at 3, we did not discuss reasonableness in
the post-Robinson cases adopting the protective principle and we
have not defined the limits of "reasonable" protective principle
jurisdiction.


                                      - 21 -
protective    principle.         A   Reporters'   Note   to   the   Restatement

provision on protective jurisdiction observes that "no constituent

element of the offense and no actual or intended effect in the

territory of the regulating state need be shown."                   Restatement

(Fourth) of Foreign Relations Law § 412 n.1 (emphasis added).

However, the crimes the Restatement specifies in describing the

protective principle -- such as counterfeiting, espionage, and

perjury before consular officials -- by their nature directly

affect state interests wherever they occur.              That is, the crimes

traditionally associated with the protective principle are those

that inherently include a "nexus" with the prosecuting country as

an element. That category of crimes is small, and drug trafficking

would not naturally fit within it.           See id. cmts. a, b (describing

the   limited      scope    of       the   protective    principle);    Eugene

Kontorovich, Beyond the Article I Horizon: Congress's Enumerated

Powers and Universal Jurisdiction Over Drug Crimes, 93 Minn. L.

Rev. 1191, 1229 (2009) (noting that the protective principle has

been invoked to "allow[] a state to punish extraterritorially 'a

limited class of offenses . . . directed against the security of

the   state   or    other   offenses       threatening    the   integrity    of

governmental functions'" (quoting Restatement (Third) of Foreign

Relations Law § 402 cmt. f (1987)); id. at 1230 ("Commentators

stress that the category of protective jurisdiction offenses is




                                       - 22 -
quite small, and none suggest drug smuggling as one of [the

offenses within it].").

            Recognizing that drug trafficking does not fall within

the   category   of   crimes   permissibly   triggering   the   protective

principle would not prevent the United States from criminalizing

some controlled-substance activity aboard vessels outside its

territorial jurisdiction.       A different principle recognized under

international law is arguably a better fit for drug-trafficking

crimes, although that doctrine requires that a nexus be shown

between the conduct and the prosecuting country.           A Restatement

provision    titled    "Jurisdiction    Based    on   Effects"     states:

"International law recognizes a state's jurisdiction to prescribe

law with respect to conduct that has a substantial effect within

its territory."       Restatement (Fourth) of Foreign Relations Law

§ 409 (2018).     This jurisdictional principle allows nations to

reach crimes other than those with a built-in nexus component --

i.e., crimes like counterfeiting and espionage, which fall within

the protective principle as traditionally understood -- and would

embrace drug trafficking that in fact "presents a specific threat

to the security and societal well-being of the United States."          46

U.S.C. § 70501.




                                  - 23 -
B. The Protective Principle: First Circuit Precedent

             1.    United States v. Robinson

             Only once has a panel majority of our court grappled

with   the    international     law     implications      of     the      protective

principle.        In that case, Robinson, the Coast Guard stopped a

Panamanian ship about 500 nautical miles east of North Carolina,

and boarding officers found a substantial quantity of marijuana in

a fake fuel tank.        843 F.2d at 2.        Writing for the panel, then-

Judge Breyer noted that the appellants questioned the United

States's justification for prosecuting drug crimes committed by

foreigners on foreign vessels who "might be bound for Canada, South

America, or Zanzibar."         Id. at 3.        He described as "forceful"

appellants'       argument   that    multiple    courts    had       wrongly      used

international      law   principles     to   conclude     that       a   predecessor

statute to the MDLEA permitted such drug prosecutions in the

absence of direct impact on the United States.                 Id.

             In raising doubts about such a broad application of the

protective    principle,     Judge    Breyer    pointed    to    a       then-current

provision    of    the   Restatement    of     Foreign    Relations         Law   that

described the principle as "giv[ing] [a] state [the] power to

prescribe law protecting itself from actions taken abroad that

harm it."    Id. (quoting Restatement (Revised) of Foreign Relations

Law § 402(3)). The emphasis in that description is Judge Breyer's.

He also quoted a comment to the same Restatement that similarly


                                      - 24 -
depicts the "protective principle [as] 'based on the effect . . .

[of an offshore] act upon or in a state's territory.'"                          Id.

(quoting § 402(3), cmt. f) (second alteration in Robinson). Again,

the emphasis is Judge Breyer's.

            Robinson recognized the inherent tension that exists

when a nation seeking to prosecute crime on the high seas must

reconcile      that   objective       with        the    bedrock    principle    of

international law that "all nations have an equal and untrammeled

right to navigate on the high seas."                    United States v. Marino-

Garcia, 679 F.2d 1373, 1380 (11th Cir. 1982) (citing Convention on

the High Seas, art. 2, Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No.

5200); see also id. (noting that "international law generally

prohibits any country from asserting jurisdiction over foreign

vessels   on    the   high   seas,"    and        that   "vessels   are   normally

considered within the exclusive jurisdiction of the country whose

flag they fly").      Cognizant of the need to respect the sovereign

interests of other nations, Congress has stated its intention "to

stay   within     the    boundaries          of     international     law"      when

criminalizing maritime drug trafficking.                 United States v. Matos-

Luchi, 627 F.3d 1, 11 (1st Cir. 2010) (Lipez, J., dissenting); see

also S. Rep. 96-855 (1980), at 2 (reporting that the MDLEA's

predecessor legislation, the Marijuana on the High Seas Act, would

"give the Justice Department the maximum prosecutorial authority

permitted under international law"); 125 Cong. Rec. 20,083 (1979)


                                  - 25 -
(statement of Rep. Paul McCloskey) (explaining, in reference to

the same law, that it authorizes prosecution "to the broadest

extent     possible    under       international     law").       We    also     have

acknowledged that deference to other nations' interests is a

component of the MDLEA, observing that "Congress inserted the

requirement that a vessel be subject to the jurisdiction of the

United States . . . as a matter of diplomatic comity."                         United

States v. Vilches-Navarrete, 523 F.3d 1, 22 (1st Cir. 2008)

(separate opinion of Lynch & Howard, JJ.) (citing United States v.

Tinoco, 304 F.3d 1088, 1108 (11th Cir. 2002)); cf. Jesner v. Arab

Bank, PLC, 138 S. Ct. 1386, 1417 (2018) (Gorsuch, J., concurring)

("[W]hen the framers gathered to write the Constitution they

included    among     their    chief    priorities     endowing    the    national

government     with    sufficient       power   to     ensure     the    country's

compliance with the law of nations.").11

            The discussion in Robinson was subsequently described by

the   Ninth    Circuit        as    having   "called    into      question"       the



      11
       To be sure, Congress in enacting the MDLEA apparently sought
to expand U.S. jurisdiction over drug trafficking beyond what was
contemplated by its predecessor statute, the Marijuana on the High
Seas Act. See S. Rep. No. 99-530, at 15 (1986) (observing that
"defendants in cases involving foreign or stateless vessel
boardings and seizures have been relying heavily on international
jurisdictional questions as legal technicalities to escape
conviction").    Nonetheless, as described above, Congress has
recognized   that   the  United    States   must   adhere  to   its
responsibilities to the international community when prosecuting
crimes on the high seas.


                                       - 26 -
"reasonableness of a broad reading of the 'protective principle.'"

Perlaza, 439 F.3d at 1162 (citing Robinson, among other cases).

The     Robinson        court     ultimately          sidestepped          the      questions

surrounding the scope of the principle, however, because it found

"another, different, but perfectly adequate basis in international

law for the assertion of American jurisdiction."                           843 F.2d at 4.

The country of the vessel's nationality, Panama, had "agreed to

permit the United States to apply its law on her ship," and the

panel    held     that    this     acquiescence           sufficed    to     support       U.S.

prosecution of persons on the vessel under U.S. drug laws.                             Id.

             2.    United States v. Cardales

             Despite the questions about the scope of the protective

principle raised in Robinson, and without addressing those issues,

we    held   in    Cardales      that    "application         of     the    MDLEA     to    the

defendants        is    consistent       with       the    protective        principle       of

international law."              168 F.3d at 553.             As our panel opinion

reports, the court in Cardales based that pronouncement on the

congressional          finding    that       drug     trafficking          aboard    vessels

"presents a specific threat to the security . . . of the United

States," id. at 553 (quoting 46 U.S.C. § 70501), and we have

accepted     Cardales's         view    of    the     protective     principle        as   our

governing precedent, see, e.g., United States v. Aybar-Ulloa, 913

F.3d 47, 56 (1st Cir. 2019) (citing Cardales), petition for reh'g




                                             - 27 -
en banc filed, No. 15-2377 (Jan. 23, 2019); Vilches-Navarrete, 523

F.3d at 22 (same) (separate opinion of Lynch & Howard, JJ.).

             Whether Cardales deserves such acceptance, however, is

debatable.     In Cardales, we upheld the defendants' convictions by

relying on the foreign government's consent to the application of

U.S. law to both the vessel and the vessel's crew.      See Cardales,

168 F.3d at 551-52 (describing the consent of Venezuela, the

country of registration).       Unlike in Robinson, our discussion

focused primarily on consent, and we only briefly addressed the

protective principle.     See id. at 553.   We ultimately rejected the

defendants' due process challenge to their prosecution under the

MDLEA because "due process is satisfied when the foreign nation in

which the vessel is registered authorizes the application of United

States law to the persons on board the vessel."       Id.   We further

explained:

             When the foreign flag nation consents to the
             application of United States law, jurisdiction
             attaches under the statutory requirements of
             the MDLEA without violation of due process or
             the principles of international law because
             the flag nation's consent eliminates any
             concern that the application of United States
             law may be arbitrary or fundamentally unfair.

Id.   Our one-paragraph consideration of the protective principle

was offered as an additional basis for jurisdiction over the

vessel's occupants.     Id.




                                - 28 -
            The Cardales panel did not consider whether due process

required a "domestic nexus requirement" in an MDLEA prosecution,

but we concluded that the government need not "prove a nexus

between a defendant's criminal conduct and the United States in a

prosecution under the MDLEA when the flag nation has consented to

the application of United States law to the defendants."                  Id. at

552-53.     In    a    footnote,      the   panel   observed   that,    even    if

international law required a nexus, the requirement was satisfied

by   Venezuela's      consent   and    by   Congress's   "finding      that   drug

trafficking aboard vessels threatens the security of the United

States."    Id. at 553 n.2 (referring to 46 U.S.C. § 70501).

            Our extended discussion of the protective principle in

Robinson suggests a concern that a broad view of its scope may

transgress longstanding "limits [on] law enforcement on [the] high

seas."     Robinson, 843 F.2d at 3.             Against that backdrop, the

cursory treatment of the principle in Cardales and the expansive

approach adopted there -- applying the principle to cover even

foreigners on foreign vessels -- should give us pause.

            3.    The Need to Revisit Cardales

            The    questions    concerning      the   proper   scope     of    the

protective principle that were bypassed in Robinson remain largely

unaddressed by our court.          Indeed, as the protective principle is

depicted by the Restatement, see supra, the principle arguably

does not apply to drug trafficking at all.               As described above,


                                       - 29 -
drug-trafficking offenses do not resemble the sorts of crimes

typically associated with the principle -- and the premise of "a

specific threat to the security and societal well-being of the

United States," 46 U.S.C. § 70501, is particularly inapt when there

is no evidence that the drugs at issue would reach the United

States or U.S. citizens.          As Judge Torruella has observed, "drugs

not destined for United States markets do not fall into the

'limited class of offenses . . . directed at the security of the

State,' since that principle 'refers to the safety and integrity

of the state apparatus itself (its "government functions" or "state

interests"), not its overall physical and moral well-being.'"

United States v. Angulo-Hernández, 576 F.3d 59, 61 (1st Cir. 2009)

(Torruella, J., dissenting from the denial of en banc review)

(quoting Kontorovich, supra, at 1229-31).                 Nor does it seem

adequate,      even    if   the     protective     principle     can    justify

jurisdiction over foreign individuals involved in drug trafficking

on foreign vessels, for Congress simply to invoke the principle

with an unsubstantiated "blanket assertion" of a threat.                 Aybar-

Ulloa,   913    F.3d   at   58    (Torruella,    J.,   joining   in    part   and

dissenting in part) (discussing 46 U.S.C. § 70501).

            Moreover, as Judge Torruella has emphasized, to accept

the pronouncement in the MDLEA that all drug trafficking poses a

security threat to the United States to justify reliance on the

protective principle -- without a "substantial showing of a nexus"


                                     - 30 -
-- "would render the protective principle coterminous with the

doctrine of universal jurisdiction."              Id. at 59.      The universal

jurisdiction doctrine permits "a nation [to] prosecute certain

serious offenses even though they have no nexus to its territory

or its nationals, and no impact on its territory or its citizens."

United States v. Cardales-Luna, 632 F.3d 731, 740 (1st Cir. 2011)

(Torruella, J., dissenting).             However, few offenses qualify as

universal jurisdiction crimes -- only those considered "so serious

and on such a scale that they can justly be regarded as an attack

on the international legal order."              Kontorovich, supra, at 1224

n.228        (quoting   Anne-Marie     Slaughter,     "Defining     the     Limits:

Universal        Jurisdiction    and     National     Courts,"    in      Universal

Jurisdiction:       National    Courts    and   the   Prosecution      of   Serious

Crimes under International Law 178-79 (Stephen Macedo ed., 2004)).

               The Restatement of Foreign Relations Law identifies the

crimes subject to universal jurisdiction as including "genocide,

crimes against humanity, war crimes, certain acts of terrorism,

piracy, the slave trade, and torture."                Restatement (Fourth) of

Foreign Relations Law § 413.12           According to the Restatement, this


        12
        In full, section 413, titled "Universal Jurisdiction,"
provides:
               International   law   recognizes   a   state's
               jurisdiction to prescribe law with respect to
               certain offenses of universal concern, such as
               genocide, crimes against humanity, war crimes,
               certain acts of terrorism, piracy, the slave
               trade, and torture, even if no specific

                                       - 31 -
list is limited -- covering only "the most serious offenses about

which a consensus has arisen for the existence of universal

jurisdiction" -- because universal jurisdiction "departs from the

more typical requirement of a specific connection between the state

exercising    jurisdiction     and     the   person     or   conduct    being

regulated."   Id. n.1; see also United States v. Bellaizac-Hurtado,

700 F.3d 1245, 1259 (11th Cir. 2012) (Barkett, J., specially

concurring) (noting that the theories of jurisdiction other than

"universality"   "permit     nations    to   exercise    jurisdiction   over

offenses that implicate domestic interests -- that is, offenses

that occur within a nation's territory and those that occur outside

the territory but have effects within it" (emphasis added)).             Our

precedent on the MDLEA has identified "[n]o source of customary

international law [that] has designated drug trafficking as being

subject to universal jurisdiction."          Id. at 1260-61.

          To be sure, "a global consensus about the negative

effects of drug trafficking" has developed over time, Aybar-Ulloa,

913 F.3d at 59 (Torruella, J., joining in part and dissenting in

part), and a close examination of international law norms in 2019

may suggest a different sensibility about the protective principle

or universal jurisdiction than Judge Breyer intimated in Robinson



          connection exists between the state and the
          persons or conduct being regulated.



                                 - 32 -
in 1988, see 843 F.2d at 3-4.         Yet, it also may remain true that,

"unlike genocide" -- or crimes against humanity, torture, etc. --

"the international community has addressed drug trafficking at the

domestic, instead of international, level."              Bellaizac-Hurtado,

700 F.3d at 1256 (Barkett, J., specially concurring).

                               Conclusion

             Although   appellants'    challenge    to   their    prosecution

under the MDLEA founders on the First Circuit's current approach

to the protective principle, there is a compelling argument that

our approach is neither deeply considered nor faithful to the

international law foundation on which it must rest.              The need for

our country to respect the sovereignty of other nations is reason

enough to warrant careful reexamination of our precedent.                 The

individual interests of defendants such as Reyes-Valdivia and

Dávila-Reyes -- citizens of Costa Rica plausibly claiming Costa

Rican nationality for their vessel -- reinforce the importance of

revisiting    caselaw   that   may    erroneously   allow    their   lengthy

imprisonment for violating U.S. law.        Hence, if appellants submit

a petition for en banc rehearing, I urge my colleagues to grant it

without hesitation or delay.




                                 - 33 -
