On November 14, 2019, the Second Circuit (Newman, Pooler, Cote) issued a decision in United States v. Van Der End, affirming the conviction of a defendant who pled guilty to drug trafficking conspiracy and activity, in violation of the Maritime Drug Enforcement Act (the “MDLEA”), 46 U.S.C. §§ 70501 et seq. Most drug prosecutions in federal court are initiated pursuant to the Controlled Substances Act but this case involved issues of maritime apprehension, and was charged under MDLEA.

Background

Stefan Van Der End, a citizen of the Netherlands, was one of three foreign nationals on board the vessel the Sunshine when it was stopped by the United States Coast Guard on May 23, 2016. The master of the Sunshine told the Coast Guard that the boat was registered in St. Vincent and the Grenadines (“SVG”) and provided the registration information. The authorities eventually discovered that the Sunshine had more than 1200 kilograms of cocaine on board. The Coast Guard inquired with SVG authorities about the boat’s registration and the SVG authorities disclosed that the Sunshine’s registration had expired and that SVG did not consider the vessel to be subject to SVG’s jurisdiction. Van Der End and the other crewmembers aboard the Sunshine were brought to New York and arrested.

A grand jury indicted Van Der End and the other crewmembers with manufacturing and distributing, and possessing with intent to manufacture and distribute, five or more kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United States in violation of the MDLEA. The indictment also charged Van Der End and his codefendants with conspiracy to engage in drug trafficking activity, also in violation of the MDLEA.

Van Der End filed a motion to dismiss the indictment for lack of subject matter jurisdiction. He also challenged the constitutionality of the MDLEA as applied to him on due process grounds and raised a Sixth Amendment challenge to his prosecution. The district court denied Van Der End’s motion and he then entered a guilty plea without a plea agreement. Van Der End was sentenced to 25 years of imprisonment and 5 years supervised released.

The Appeal

Van Der End appealed his conviction on three grounds: (1) the government presented insufficient evidence that the Sunshine was a vessel subject to the jurisdiction of the United States (as would be required for a prosecution pursuant to the MDLEA); (2) the Fifth and Sixth Amendments required the district court to submit the question of jurisdiction to a jury; and (3) his conduct lacked the nexus to the United States that due process requires.

With respect to Van Der End’s first argument, the MDLEA makes it a federal crime to engage in certain drug trafficking activities while on board a vessel that is subject to the jurisdiction of the United States. A vessel can be considered subject to the jurisdiction of the United States if the vessel is without a nationality, such as where the master makes a claim of registry in another country that is denied by that country. If there was no factual basis upon which to conclude that a vessel was subject to the jurisdiction of the United States, a defendant may still be permitted to raise that issue on appeal even after pleading guilty. This is because if the government’s proof on this issue was lacking, the district court may have failed to fulfill its obligations under Federal Rule of Criminal Procedure 11, which requires that the court inform the defendant of and ensure that the defendant understand the nature of each charge to which he is pleading guilty, and that the court itself determine that there is a factual basis for the plea.

Here, however, the master of the Sunshine claimed SVG nationality, which the SVG authorities denied. And the Court rejected Van Der End’s attempt to bring a Sixth Amendment challenge to some of the evidence upon which the government relied to establish that SVG had disclaimed authority over the Sunshine, finding that Van Der End had waived the right to bring such a challenge (a nonjurisdictional claim) when he pled guilty. The Court therefore concluded that there was a factual basis for Van Der End’s guilty plea, such that he waived his right to challenge the district court’s determination that the vessel was subject to the jurisdiction of the United States.

With respect to Van Der End’s second argument, the Court easily rejected his claim that the district court should have submitted to a jury the question of jurisdiction over the Sunshine. By pleading guilty, the Court concluded, Van Der End waived his right to a jury trial, including the right to have a jury determine an element of the offense charged.

The Court also rejected Van Der End’s final argument that his prosecution violated the Due Process Clause because there was no nexus between the offense conduct and the United States. The Court found that Van Der End had not waived this challenge by pleading guilty, citing a recent Supreme Court decision, Class v United States, 138 S. Ct. 798 (2018), holding that a guilty plea does not by itself bar a criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal. A defendant who has pled guilty can still, on appeal, challenge the government’s authority to criminalize the conduct that the defendant admitted to.

Nonetheless, the Court concluded that due process does not require that there be a nexus between the United States and MDLEA violations that transpire on a vessel without nationality. The Court noted that the MDLEA has extraterritorial application and that, where Congress has expressed an intent that a statute apply extraterritorially, the burden is a heavy one for a defendant challenging that extraterritorial application as violative of due process. See United States v. Epskamp, 832 F.3d 154, 168 (2d Cir. 2016).

MDLEA prosecutions involving stateless vessels do not present “nexus” concerns because such vessels subject themselves to the jurisdiction of all nations precisely because they are stateless. A person caught trafficking drugs on board a stateless vessel would not have a legitimate expectation that he or she is subject only to the laws of a particular nation. Moreover, people who traffic drugs are charged with knowledge that their actions are illegal and may be prosecuted somewhere – and, being on a stateless vessel they can be prosecuted anywhere – so there is no worry about a lack of fair warning that might implicate due process concerns. The Second Circuit therefore affirmed the judgment of conviction.

Commentary

The decision to plead guilty waives many, although not all, rights to challenge the government’s proof. The defendant retains the right to contend that the charges brought by the government exceed the jurisdiction of the federal courts, and likewise can challenge the government’s power to criminalize the defendant’s conduct. Unfortunately for the defendant here, the claims that could be made notwithstanding the guilty plea were lacking in sufficient merit to lead to reversal.

Other claims, however, cannot be pressed. Here, the most compelling claims were the ones waived by the guilty plea. For example, the defendant seemed to have a strong argument that the use of the State Department certification would have been violative of the Confrontation Clause given that it seems like a testimonial statement made out of court and offered for the truth of the matter. See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (holding that a drug lab report is testimonial and barred under the Confrontation Clause). In addition, the Court made pretty clear that allowing the judge to decide whether the jurisdiction of the United States exists is likely violative of the right to have a jury trial. The defendant might have retained the right to challenge these aspects of his case if he had entered a conditional guilty plea that reserved to him the right to appeal. See Fed. R. Crim. P. 11(a)(2). In the alternative, a defendant can propose a stipulated facts bench trial, which results in a trial conviction from which an appeal can be taken, but without the time and expense of a full trial.