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United States v. Ruiz-Murillo

United States District Court, S.D. Alabama, Southern Division

March 15, 2017

UNITED STATES OF AMERICA
v.
TEOFILO RUIZ-MURILLO, ERCIRILO MURILLO-RUIZ, and JHONATAN GRANJA ANGULO, Defendants.

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on defendant Teofilo Ruiz-Murillo's Motion to Dismiss Indictment (doc. 41), Motion for Severance (doc. 42) and Motion to Suppress (doc. 47). The Motions have been briefed and are now ripe. Co-defendants Ercirilo Murillo-Ruiz and Jhonatan Granja Angulo have filed Motions to Adopt Ruiz-Murillo's Motion to Dismiss and Motion to Suppress. (See docs. 49 & 50.) These Motions to Adopt are granted. As such, the Court's rulings set forth herein as to Ruiz-Murillo's Motion to Dismiss and Motion to Suppress apply with equal force to all three defendants.[1]

         I. Background.

         On January 25, 2017, a two-count Indictment (doc. 32) was filed in open court as to defendants, Ercirilo Murillo-Ruiz, Teofilo Ruiz-Murillo, and Jhonatan Granja Angulo. Count One of the Indictment charges that, from on or about December 1, 2016 until on or about December 9, 2016, within the extraterritorial jurisdiction of the United States, defendants conspired to possess with intent to distribute at least one kilogram of cocaine on board a vessel subject to United States jurisdiction, all in violation of 46 U.S.C. § 70506(b). Count Two charges that on or about December 9, 2016, in the Southern District of Alabama and elsewhere, defendants possessed with intent to distribute approximately one kilogram of cocaine on board a vessel subject to United States jurisdiction, all in violation of 46 U.S.C. § 70503(a)(1). Thus, both counts are charged pursuant to the Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70501 et seq. (the “MDLEA”).

         Affidavits and written statements submitted by Government agents delineate the facts underlying the Indictment as follows:[2] On December 9, 2016, a Maritime Patrol Aircraft detected a Target of Interest (“TOI”) at a location off the coast of Colombia. The TOI was described as a 25-foot long Panga Go Fast Vessel with the name DIOS Y MADRE painted on the hull, with three crew members / passengers and two outboard engines. The U.S. Coast Guard cutter DEPENDABLE maneuvered to intercept the TOI, and dispatched its helicopter and small boat to assist in that endeavor. As the Coast Guard closed in on the DIOS Y MADRE, the TOI's crew jettisoned its cargo. The TOI then stopped, with all three crew members moving to the middle of the vessel and raising their hands. Coast Guard officials boarded the TOI, after which the three occupants (identified as Murillo-Ruiz, Ruiz-Murillo and Angulo) all claimed Colombian nationality. Murillo-Ruiz claimed to be the master of the TOI, and indicated that the DIOS Y MADRE was a Colombian flagged vessel. Ultimately, Murillo-Ruiz volunteered that he wished to make a confession about having illegal narcotics on board. The Coast Guard's search of the jettison field resulted in seizure of one kilogram-sized package that tested presumptively positive for cocaine. The three occupants of the TOI were detained and brought on board the DEPENDABLE. As for the Go Fast Vessel, it had been taking on water throughout the evening and there were no suitable towing points; therefore, Coast Guard officials sank the vessel as a hazard to navigation, but not before performing Ionscan swipes over the vessel's rails and holds, taking measurements, sketching out the vessel, and taking photographs. The Coast Guard transported the three defendants to Guantanamo Bay, Cuba, from which they were transported directly to Mobile, Alabama.

         II. Analysis of Motion to Dismiss Indictment.

         In his Motion to Dismiss Indictment, Ruiz-Murillo raises a host of objections. In particular, he demands relief on the following grounds: (i) lack of subject-matter jurisdiction, and violation of his Confrontation Clause rights as to evidence of jurisdiction; (ii) improper venue; (iii) failure by the Government to follow proper procedures for obtaining “Statement of No Objection” and “Right of Visit” approval from the Colombian government; (iv) destruction of vital evidence by the Coast Guard; and (v) unconstitutionality of the MDLEA. Each assertion will be addressed in sequence.

         A. Jurisdiction / Confrontation Clause.

         The MDLEA provides that “[j]urisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge.” 46 U.S.C. § 70504(a). The statute makes it unlawful for an individual “[w]hile on board a covered vessel” knowingly or intentionally to “manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance.” 46 U.S.C. § 70503(a)(1). This prohibition applies “even though the act is committed outside the territorial jurisdiction of the United States.” § 70503(b). The term “covered vessel” is defined as meaning, in relevant part, “a vessel of the United States or a vessel subject to the jurisdiction of the United States.” § 70503(e)(1). And the statutory prerequisite of a “vessel subject to the jurisdiction of the United States” may be satisfied under the MDLEA in any of six enumerated manners, including “a vessel without nationality.” 46 U.S.C. § 70502(c)(1)(A).[3] Finally, the term “vessel without nationality” is statutorily defined 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.” 46 U.S.C. § 70502(d)(1)(C).[4] Taken in the aggregate, then, the MDLEA provides that the United States has subject matter jurisdiction over a defendant's possession with intent to distribute a controlled substance on board a vessel without nationality, meaning a vessel for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.

         Here, the Government's evidence (which defendants neither refute nor contradict) is that after the Coast Guard boarded the DIOS Y MADRE, defendant Murillo-Ruiz represented that he was the master of the vessel and claimed that it was a Colombian flagged vessel. (Doc. 52-2, at 6, 25.)[5] The Government also has produced a Certification by the United States Department of State dated January 11, 2017, bearing the signature of then-Secretary of State John F. Kerry (subscribed by the Assistant Authentication Officer of the Department of State), and the seal of the Department of State. (Doc. 52-1.) That Certification reflects that, after Murillo-Ruiz made a claim to Coast Guard officials that the DIOS Y MADRE was of Colombian nationality, “the Government of the United States requested that the Government of the Republic of Colombia verify the registry or nationality of the suspect vessel, and if confirmed, grant authorization to board and search the vessel.” (Doc. 52-1, ¶ 4(b).) On the same date, [6] the Certification continues, “the Government of the Republic of Colombia replied that it could neither confirm nor deny the vessel's registry or nationality.” (Id., ¶ 4(c).) On its face, then, the State Department Certification establishes that the DIOS Y MADRE was a “vessel without nationality” (and, hence, a vessel subject to United States jurisdiction pursuant to § 70502(c)(1)(A)) because it was “a vessel aboard which the master or individual in charge makes a claim of nationality 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).

         Moreover, insofar as Ruiz-Murillo would argue that the Certification is insufficient proof of jurisdiction, the plain language of the MDLEA is fatal to any such contention. After all, the MDLEA expressly provides “[t]he response of a foreign nation to a claim of registry under paragraph [§ 70502(d)(1)(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.” 46 U.S.C. § 70502(d)(2) (emphasis added). Simply put, then, the Certification is conclusive proof that the Republic of Colombia notified the U.S. Government that it could neither confirm nor deny that the DIOS Y MADRE was of Colombian nationality, and thus, that the vessel qualified as a “vessel without nationality” giving rise to MDLEA jurisdiction pursuant to § 70502(c)(1)(A).

         In response, Ruiz-Murillo balks that this arrangement violates his rights under the Confrontation Clause. Defendant's position is that, “To the extent that the government relies on the Certification by the Secretary of State to establish facts without the real right of confrontation, the MDLEA is unconstitutional.” (Doc. 56, at 2.) Although Ruiz-Murillo does not acknowledge it, the Eleventh Circuit has definitively rejected this precise argument in the MDLEA context. See, e.g., United States v. Campbell, 743 F.3d 802, 806 (11th Cir. 2014) (“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.”).[7] Thus, Ruiz-Murillo's Confrontation Clause objection to the Government's use of the Certification as conclusive proof that the DIOS Y MADRE was a vessel subject to United States jurisdiction for purposes of the MDLEA is misplaced and unpersuasive.

         For all of the foregoing reasons, the Court concludes that the Government has made a sufficient showing to establish subject-matter jurisdiction and to defeat Ruiz-Murillo's jurisdictional challenge as set forth in the Motion to Dismiss Indictment.

         B. Venue.

         Next, Ruiz-Murillo contends that the Indictment should be dismissed for improper venue. The MDLEA provides that for violations of § 70503 (i.e., possession of with intent to distribute a controlled substance on board a vessel subject to the jurisdiction of the United States), venue properly lies in “the district at which the person enters the United States.” 46 U.S.C. § 70504(b)(1). The Government states that the Coast Guard transported Ruiz-Murillo and his co-defendants to Guantanamo Bay, Cuba, where Special Agent Jason Greene of Homeland Security Investigations met with them, and subsequently accompanied them to Mobile, Alabama. Defendants have not controverted this narrative.[8] For purposes of § 70504(b)(1), Guantanamo Bay was not defendants' point of entry into the United States. See, e.g., United States v. Fuentes, 877 F.2d 895, 900 (11th Cir. 1989) (“Because the United States Naval Base at Guantanamo Bay does not have a federal district court, it is not a district within the meaning of 46 U.S.C.App. § 1903(f). … [V]enue is appropriate in the district into which a defendant is brought after his arrest on the high seas.”) (citations and footnote omitted). The Government's proffer reflects that the Southern District of Alabama was the first place defendants were brought in this country; therefore, absent any contrary showing or assertion by defendants, venue properly lies in this judicial district by operation of 46 U.S.C. § 70504(b). See United States v. Rendon, 354 F.3d 1320, 1326 (11th Cir. 2003) (“Venue was proper in the Middle District of Florida because it is uncontested that Rendon's entry into the United States occurred within that district.”). This objection is overruled.

         C. Statement of No Objection / Right of Visit.

         As his third ground for seeking dismissal of the Indictment, Ruiz-Murillo asserts that the Government failed to “follow the proper procedure for obtaining ‘Statement of No Objection' (SNO) and ‘Right of Visit' (ROV) approval from the Colombian government.” (Doc. 41, at 2-3.) In support of this contention, Ruiz-Murillo cites the subsection of the MDLEA providing that a vessel is subject to United States jurisdiction if it is “a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States.” 46 U.S.C. § 70502(c)(1)(C). Defendant's assertion, then, is that the Government failed to obtain consent or waiver from the Colombian government pursuant to § 70502(c)(1)(C).

         The fundamental shortcoming in defendant's argument is that the Government is not relying on § 70502(c)(1)(C) as the predicate for deeming the DIOS Y MADRE subject to the jurisdiction of the United States. As discussed supra, United States jurisdiction over the vessel was achieved pursuant to § 70502(c)(1)(A), because the DIOS Y MADRE qualified as a “vessel without nationality” for purposes of the MDLEA. Stated differently, the Government was not required to comply with the procedures of § 70502(c)(1)(C) because jurisdiction is supplied by § 70502(c)(1)(A). Relatedly, § 70502(c)(1)(C) is inapplicable because the DIOS Y MADRE was not a “vessel registered in a foreign nation” for MDLEA purposes; indeed, as reflected in the Certification, after Murillo-Ruiz claimed that the vessel was of Colombian nationality, the Colombian government notified United States authorities “that it could neither confirm nor deny the vessel's registry or nationality.” For this reason, as well, defendant's reliance on § 70502(c)(1)(C), and his reference to SNO and ROV procedures pursuant to that subsection, does not entitle him to relief from the Indictment.

         D. Destruction of Evidence.

         As the fourth ground for his Motion to Dismiss, Ruiz-Murillo objects that the Government violated his Due Process rights by sinking the DIOS Y MADRE rather than towing it to the nearest port. Ruiz-Murillo contends that through these actions, he was deprived “of evidence whose exculpatory value was apparent and which could be expected to play a significant role in his defense and which he would be unable to obtain by other reasonably available means.” (Doc. 41, at 4.)

         The Government's evidence, in the form of Coast Guard reports from officers involved in the interception of the DIOS Y MADRE and the detention of defendants, is that the vessel was in poor condition, that it was taking on water, and that there were no suitable towing points nearby. In light of these circumstances, the Coast Guard boarding team inspected the DIOS Y MADRE, took measurements and photographs of the vessel and its contents, drew sketches, took video, and inventoried defendants' personal belongings. (Doc. 52-2, at 26.) The boarding team also took nine Ionscan swipes of the vessel covering all rails and holds. (Id.)[9] Coast Guard officials ultimately sank the DIOS Y MADRE as a hazard ...


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