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Case number 13-3107, United States of America v. Javier Eduardo Juan Ballestas, also known as El Mano Appellant.

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Ms.

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Park for the appellant, Mr. Meisler for the appellee.

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Your Honors, may it please the Court, Marie Park for Mr. Javier Ballestas.

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I'd like to reserve four minutes for rebuttal.

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When Congress extends the United States' territorial jurisdiction in a criminal statute to include crimes committed on international waters,

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That does not mean that a court should then interpret this statute to apply abroad without any restraint.

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The Maritime Drug Law Enforcement Act is clear in its plain meaning.

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Section 70503B limits the extension of jurisdiction to the geographic location of international waters.

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If this court believes that this limitation is ambiguous, the presumption against extraterritorial jurisdiction applies.

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In Kiobel, the Supreme Court considered different extraterritorial zones.

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Imagine, if you will, three concentric circles.

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The inner smaller circle represents the United States.

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The second outer circle represents the high seas.

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And the third outer circle, foreign territory.

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In Cable, the petitioners made a similar argument the department is making here, that quote, because Congress surely intended the alien tort statute to provide jurisdiction for actions against pirates on the high seas,

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It necessarily anticipated the statute would apply to conduct occurring abroad.

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What we now know from Kielbel is that it takes a big jump to make it to that outer third circle.

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In Kyobel, the Supreme Court reiterated the holding in Morrison that, quote, when a statute provides for some extraterritorial application, the presumption against extraterritoriality operates to limit that provision to its terms.

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So this statute, it clearly applies extraterritorially with respect to the underlying substantive offense.

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Yes.

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But it's a limited extension, though, just to the high seas, international waters in some circumstances, to the territorial waters of foreign countries.

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So it seems like the question then is if the underlying substantive offense applies extraterritorially in some dimension, then does the conspiracy and attempt parts of the statute, do they piggyback onto that extension as well?

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Yes, in our briefing we addressed two different ways that the statute could be, the extraterritorial jurisdiction could be applied.

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We're focusing now on this oral argument to the geographic limitation which was raised in our brief.

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In other words, the government raised in page 18 of their brief, they noted

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for a different argument, that the extraterritorial reach of an ancillary offense like aiding and abetting and conspiracy is coterminous with that of the underlying statute.

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So under Section A, it's clear that the extension is limited to the high seas and on certain occasions, the territorial waters of sovereign countries.

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So you agree that it applies, because territorially, what you're saying is to be a conspirator, the conspiracy actually has to occur

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Is it on the high seas or on board a vessel?

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Yes.

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And that's how the government has been using that statute.

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This statute has existed since 1980, the precursor statute, marijuana on the high seas.

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Over 30 years, the department has been using this conspiracy statute to charge crew members and captains in situations where the drugs were thrown overboard or the drugs are hidden in a vessel.

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And it's difficult to prove knowledge or intent.

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And would you just say the same thing about attempt?

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I'm sorry, to attempt?

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Yeah, because attempt and conspiracy are treated in the same provision.

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Yes, but be limited, again, to the extent of the extension, which is here, clear.

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It's only to the high seas and in limited circumstances to territorial waters.

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So for example, so an attempt, if there's a vessel that's endeavoring to make it out to the high seas, it's at 11 and a half miles.

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and it's interdicted just before it gets to the 12-mile international waters threshold, you would say the statute doesn't reach that attempt.

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For the crew member on the board of the vessel?

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Right.

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Yes.

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For the crew member on the board of the vessel.

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But there's two different potential limitations.

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One is on board of the vessel.

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Yes.

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And one is reaching the high seas.

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Right.

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Because you could be on board the vessel and not yet gotten to the high seas.

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Yes.

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And which one of those are you relying on?

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Well, our position is, if you just take the language in its plain reading, that it applies to the high seas and the territorial waters of foreign countries.

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But as I'm not sure if you're suggesting, but under Belize-Cortado, it's questionable whether the territorial waters area still applies.

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But let's say, just for the sake of argument, the high seas and on certain occasions, territorial waters, foreign countries.

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The conspiracy statute here, the government makes this big argument about the deterrence effect, how it's necessary to prosecute these leaders of DTOs who are pushing these vessels off the sea.

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But I just want to make the point that Congress has provided the government with more than one tool in its toolbox to prosecute this, to fight the war on drugs.

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Section 21 USC 959 has been used by the department regularly to prosecute leaders of the DTOs who are hiring the crew and

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distributing drugs with an intent to import it to the United States.

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So in other words, we believe this prosecution is not only inconsistent with the intent behind the Maritime Drug Law Enforcement Act, but they also aren't circumventing the intent of Congress in 21959

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Because that provision, Congress has made it clear that they seek prosecutions for conduct abroad only when there's a showing that the defendant knew or intended to import the drugs to the United States.

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Can I just make sure that I understand your position?

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The government argues that the language in 70503B

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applies to conspiracy explicitly, and therefore no analysis under the Charming Betsy canon of construction is necessary.

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You're not conceding that point, right?

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No.

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And your argument is that the conspiracy

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Statute, well, conspiracy is a separate offense, and it appears at 06.

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In the penalty provision, yes.

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In the penalty provision, but that the, I guess what I'm trying to understand is, are you saying that you think that this language in 03B can be read into 06 or not?

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We're proceeding with our strongest argument, and our argument is that the conspiracy provision, that it's exitory to the reach, is co-extensive, as this court said in Ali, with the underlying statute.

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So in other words, the conspirators who are on board the vessels, they can be charged under the statute.

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Okay, so to the extent that

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So to the extent that the government is arguing that

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06 conspiracy extends to co-conspirators who are entirely on land outside of the high seas and outside the jurisdiction of the United States.

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You believe that the charming Betsy analysis is required to determine whether the statute reaches that far.

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Yes, and also the presumption against extraterritoriality, because the question is, does this statute apply extraterritorially?

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The question when you're looking at the statutes, does this statute apply to conduct on foreign soil?

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And when you ask that question, we believe the statute's clear in its meaning that Congress did not have that intent.

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But if you disagree, if this court disagrees, then the presumption against extraterritoriality still applies.

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The presumption always stays with the statute.

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Just because it's rebutted for one question doesn't mean you don't apply the presumption for the other question.

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The government says that, based on kind of the protective jurisdiction in international law, that we should read it to extend to that.

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What's your response?

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Well, if you look at their argument on page 25, they're basically collapsing the charming Betsy doctrine into the presumption against extraterritoriality.

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They argue that because Congress intended to apply this statute, clearly they intended to apply it extraterritorially, so there's no need to do the Charming Betsy analysis.

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And that's what they urged the court in Carver Hall and the court in our case.

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And the problem is the Charming Betsy can is its own independent separate canon of construction.

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And so just because Congress intends a statute to have some limited extraterritorial reach, that doesn't mean you don't go to the second question of whether Congress, did they intend to exceed international law norms.

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And in regard to the protective principle, if you could look at Judge Collier's decision, she noted at footnote 15 that the department was seeking a jurisdiction in excess of that provided by the 1988 convention, because the convention requires that the object of the conspiracy must be the commission of a crime in the United States.

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And she cited to Article 4 of the 1988 convention.

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Also, Judge Collier in her decision, she explained that the protective principle was an imperfect fit.

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But the problem was she didn't carry through the Charming Betsy analysis.

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She stopped short.

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She said, well, it's clear this statute has extraterritorial effect, so there's no need to do the Charming Betsy analysis.

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And we believe that's not a correct analysis of these two separate canons of construction.

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You think that that's not correct under Ali?

[00:11:07] Speaker 02:
Yes.

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In the Ali case, this court did the Charming Betsy analysis first and then looked at the presumption against extraterritoriality when you're looking at the aiding and abetting offense for piracy.

[00:11:19] Speaker 05:
Well, it did it first for the piracy, but what about with respect to the hostage-taking?

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Yes.

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For the hostage-taking offense, this case is different than that because the hostage-taking statute, if you look at the language, there's no limitation on the extraterritorial application.

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It's clearly just abroad in the way the statute's drafted.

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Also, the hostage-taking statute was signed by Congress to implement the hostage-taking convention, which is based on the universal principle that hostage-taking can be prosecuted by any country.

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So it provided global notice to Mr. Ali that he could be brought into any court.

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But this statute's very different.

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If the conspirators have to be on board the vessel, which I take it is what you're saying is your strongest position now, based on Ali, then what does the...

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What does the conspiracy, the allowance for conspiracy, add over and above the underlying substance of offense given that you can get somebody for aiding and abetting?

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This provision has existed over 30 years and the department regularly charges crew members both with the underlying offense and with conspiracy.

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And why do you have us?

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We can ask them, of course.

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But what is the conspiracy adding if you're already on board the vessel?

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Where the drugs are hidden inside the vessel, or the drugs are thrown overboard, the Department has been using this conspiracy statute to help obtain prosecutions for these individuals at sea.

[00:13:02] Speaker 04:
I understand how is that different.

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What does that add?

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Oh, because under the conspiracy, the only evidence they have to provide is that there's an intent to do a criminal act.

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They don't have an intent to participate in the conspiracy.

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They don't have to show an intent to the actual possession of the drugs.

[00:13:26] Speaker 05:
So you're saying that if the drugs are overboard or if they're hidden, the government might not be able to prove possession or constructive possession?

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Yes.

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And if you think about this statute, it's over 30 years old.

[00:13:38] Speaker 04:
I'm still not following how you can get a conspiracy conviction with respect to somebody who is on board where you could not also get the underlying conviction.

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If they...

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don't intend for there to be possession, then they can't get the conspiracy conviction either.

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You still have to intend the object of the conspiracy.

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Well, you know what's so interesting about this statute, it doesn't define what conspiracy is.

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We have to go by analogy to section 371.

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Of the eight sections, conspiracy is only mentioned once.

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And it's in the penalty revision.

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It simply says that the jail term for someone who commits a conspiracy is the same as the jail term for someone who commits the underlying offense.

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That's all it says.

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But they still have to commit the conspiracy.

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A person attempting or conspiring to violate 705-03

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gets the same penalty as the person who does.

[00:14:39] Speaker 06:
Yes.

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So I'm just following up on Judge Shinobasan's question, which is, since they get the same penalty,

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What would the point of the conspiracy provision be with respect to somebody who is on board?

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Oh, I think just from basic criminal law, there's something that's worse than just committing the underlying fact.

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The act of a conspiracy, the fact that people are making an agreement to commit a crime, that's always, just in U.S.

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criminal law, it's treated as a separate criminal offense.

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It is, but it's harder to prove than the other.

[00:15:09] Speaker 04:
So I'm still not following

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What's the purpose of the conspiracy provision if a person is on board?

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How does that make the government's case easier for somebody who's on board?

[00:15:23] Speaker 04:
That's the question.

[00:15:25] Speaker 02:
For somebody who's not on board?

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Who is on board?

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Oh, who is on board.

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Well, if you look at, as we briefed in our

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in our briefing, there's one theory that the reason is that the people on the motherships, okay, so they would be conspired, making an agreement, they could be charged with the conspiracy, but I just want to be clear, this, the department has regularly been using this conspiracy strategy.

[00:15:50] Speaker 04:
It doesn't really make any difference what the department's been doing.

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Sometimes the department does things legally, sometimes they do it illegally, sometimes they do it

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for no reason, sometimes they do it for a good reason, sometimes it's tactical, sometimes it's stupid.

[00:16:03] Speaker 04:
That doesn't really resolve the question for us.

[00:16:06] Speaker 04:
The question is what did Congress mean by the conspiracy section?

[00:16:10] Speaker 02:
Well, I think what Congress meant is the same reason they have the same conspiracy provision in Section 21, USC 959.

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It just adds another element of criminality.

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They charge both.

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Sometimes they get a conviction for one and not the other.

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They also get a double jail term, usually.

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Sometimes the sentences are run consecutively.

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There's lots of reasons that Congress typically puts in a conspiracy provision with any criminal statute.

[00:16:35] Speaker 05:
But aren't there instances where the government might not be able to prove possession, but could prove conspiracy?

[00:16:44] Speaker 02:
Yes, exactly.

[00:16:45] Speaker 02:
That was what I meant, Your Honor, when I was talking about the drugs being thrown overboard, or the crew member who claims he has no idea that the drugs were hidden in the vessel.

[00:16:56] Speaker 04:
But if he had no idea, then he couldn't be convicted of conspiracy either, could he?

[00:17:01] Speaker 02:
I'm sorry?

[00:17:02] Speaker 04:
If he has no idea that the drugs were on the boat, you can't convict the person of conspiracy.

[00:17:08] Speaker 02:
Well, he could have made an agreement to distribute drugs on board a vessel prior to getting on the boat.

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The conspiracy doesn't have... He could be a conspirator in that sense too.

[00:17:20] Speaker 04:
So he could do it... You can make a conspiracy off?

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Then your position is that somebody could, the entire crime could be committed off the boat?

[00:17:29] Speaker 02:
No, he can make an agreement to commit the conspiracy while on the boat.

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I mean, in terms of the act and furthers the conspiracy, that would be on the boat when he was on the boat.

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The extraterritorial net that is cast by the Department of Interpretation, I just want to explain how vast it is because they're using a single vessel to become a gateway to the United States to prosecute potentially all drug-related crimes in coastal waters.

[00:17:58] Speaker 02:
Now, it is a required search of the imagination.

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If you look at page 23 of the appendix, they include as one of the acts of this conspiracy a cargo truck that traveled from Medellin, Colombia to Turbo, Colombia.

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Now, suddenly, it was seized on February 2, 2009.

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Suddenly, we have the United States' jurisdiction over a truck and truck driver more easily than we have jurisdiction over a crew and the vessel, because only the latter requires state department certification.

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Only the latter requires consent from the foreign country.

[00:18:34] Speaker 04:
But the high-seize provision that you're talking about, that's not actually in the statute.

[00:18:39] Speaker 04:
That's the constitutional provision?

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Is that where you're reading this in?

[00:18:43] Speaker 02:
No, the geographic limitation as far as the extension, that's in the statute.

[00:18:48] Speaker 04:
Which section is that?

[00:18:50] Speaker 02:
You look at section 70503A, it refers to vessels, U.S.

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vessels, vessels subject to U.S.

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jurisdiction, and vessels with American, wherever they may be found.

[00:19:03] Speaker 02:
And the statute describes what's a vessel subject to U.S.

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jurisdiction.

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And they're all vessels that are on the high seas, international waters,

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or in certain circumstances the territorial waters of a sovereign country.

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In other words, a vessel, it's our position, a vessel would never be on land.

[00:19:23] Speaker 04:
I just want to figure out where the high seas requirement comes in with respect to a vessel without nationality.

[00:19:30] Speaker 02:
Well, a vessel without nationality, that does not come in for that.

[00:19:34] Speaker 02:
But it's a vessel.

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There's not a vessel on land, in other words.

[00:19:38] Speaker 02:
This statute.

[00:19:39] Speaker 04:
It's a high seas versus territorial seas that I'm asking.

[00:19:42] Speaker 04:
I assume that you're reading the words high seas out of Article 1 of the Constitution.

[00:19:50] Speaker 02:
International waters, which are also known as the high seas.

[00:19:53] Speaker 02:
So maybe I should just emphasize international waters or territorial waters.

[00:19:57] Speaker 02:
That's all that's referred to in the statute.

[00:20:00] Speaker 04:
The vessel without nationality, where does that refer to what kind of waters it's in?

[00:20:05] Speaker 02:
Well, in the vessel without nationality, no.

[00:20:08] Speaker 02:
Yes, a vessel without nationality doesn't refer specifically to waters, but a vessel without nationality would be at sea with a captain claiming a certain country, say Honduras,

[00:20:22] Speaker 03:
So it sounds like a vessel without nationality, there's no high seas limitation.

[00:20:27] Speaker 03:
It can be in the territorial waters of a foreign state and it still comes within the Saturn.

[00:20:30] Speaker 02:
Yes, I was just talking about waters.

[00:20:31] Speaker 02:
When I described that second placentric circle, that could be international waters and in some circumstances, territorial waters.

[00:20:39] Speaker 02:
If it's a stateless vessel.

[00:20:41] Speaker 02:
Yes.

[00:20:42] Speaker 02:
But my position here is that this case is about whether Congress intended for this statute to apply to conduct in the Outer Third Circle.

[00:20:53] Speaker 03:
So can I go back to my question that I tried to ask earlier, which is that for the attempts part of the statute, if you have a vessel without nationality that's in the territorial waters of a foreign country, but it's headed to the high seas, there's no dispute, it's steaming towards the high seas, it's interjected before it gets to the high seas.

[00:21:13] Speaker 03:
Would you say that the attempt part of the statute doesn't apply to that?

[00:21:18] Speaker 03:
Or would you say that it's OK, because with a vessel without nationality, there's no limitation as to the high seas.

[00:21:24] Speaker 03:
The territorial waters are enough.

[00:21:27] Speaker 02:
Yes.

[00:21:27] Speaker 02:
Well, it depends on how this court attempts to apply Belize-Cortado.

[00:21:30] Speaker 02:
Belize-Cortado, that court found that the drug trafficking doesn't violate the law of nations.

[00:21:38] Speaker 02:
So it depends on how this court would address the Belize-Cortado decision.

[00:21:43] Speaker 03:
But there would be a constitutional limitation.

[00:21:45] Speaker 03:
But in terms of the statute, the statute would apply.

[00:21:48] Speaker 02:
Yes.

[00:21:50] Speaker 02:
Only if you found that the holding of a Laiska Hartada did not actually affect the vessel without nationality provision.

[00:22:04] Speaker 02:
Now, going back to the Charming Betsy analysis,

[00:22:10] Speaker 02:
The reason that Congress, the charming Betsy doctrine exists, it's spread in the idea of separation of powers.

[00:22:16] Speaker 04:
We're sort of well out of time.

[00:22:18] Speaker 04:
Unless there's more questions on this specific topic we've been discussing, you might want to switch to some other topic, unless you want to leave the rest of your issues for the briefs.

[00:22:29] Speaker 02:
Sorry, you can proceed with your question.

[00:22:33] Speaker 04:
I think we're out of time.

[00:22:35] Speaker 02:
We're well out of time.

[00:22:36] Speaker 04:
You're eight minutes over almost.

[00:22:38] Speaker 04:
But I'll give you a few more minutes if you want to talk about another topic in your brief.

[00:22:42] Speaker 04:
But if you want to rest the other topics on the brief, that's also fine.

[00:22:45] Speaker 02:
OK.

[00:22:46] Speaker 02:
Thank you, Your Honor.

[00:22:48] Speaker 02:
Now, I just want to briefly address the Fifth Amendment due process claims.

[00:22:52] Speaker 02:
The district court here acknowledged at sentencing that Mr. Balestiz's role was minimal.

[00:22:56] Speaker 02:
He never handled the drugs.

[00:22:58] Speaker 02:
He had no decision-making authority or knowledge of their intended destination.

[00:23:03] Speaker 02:
Under the relevant UN Convention, the 1988 Convention did not put Mr. Balestan on notice of global prosecutions in contrast to the Ali decision.

[00:23:13] Speaker 02:
The intended purpose of the 1988 Convention is specifically for each signatory country to develop its own domestic laws and for the enforcement to be by the domestic country.

[00:23:27] Speaker 02:
Here we have a Colombian prosecution, a Colombian investigation, Colombian wiretap, Colombian defendant, all the conduct, his relative conduct was in the country of Colombia.

[00:23:39] Speaker 03:
He gave information about the location of ships, U.S.

[00:23:45] Speaker 03:
Coast Guard ships.

[00:23:46] Speaker 03:
Is that right?

[00:23:48] Speaker 02:
Yes, he resold five maritime reports, but he did not, in other words, he did not inject himself into having an effect on the United States.

[00:24:00] Speaker 03:
Even though he gave information about whether the US Coast Guard could

[00:24:04] Speaker 03:
Right, and compared to other case law, usually there's a situation where someone communicated in the United States, where they intended to import drugs in the United States, or... So if he says, you know, one country you should be really wary of is the United States because their Coast Guard's very aggressive, here's a particular spot where the United States Coast Guard's vessels are located, you don't think that that puts himself within the purview of the United States, even though he's specifically talking about the United States as Coast Guard vessels?

[00:24:33] Speaker 02:
Now, I don't believe that'd be sufficient because the 1988 convention is very clear as far as its terms.

[00:24:39] Speaker 02:
Another thing I want...

[00:24:43] Speaker 02:
to address is, OK, as far as the fact that he's a Colombian defendant, Colombian national, Colombian contact, it's very similar to what Chief Justice Stevens said in the Morrison decision, where he wrote that this case has Australia written all over it.

[00:25:05] Speaker 02:
This case has Colombia written all over it.

[00:25:08] Speaker 02:
But this report by Liza Cortado, when they granted the motion to dismiss,

[00:25:12] Speaker 02:
The Panamanian defendants, when it was affirmed by the 11th Circuit, the Panamanian defendants were sent back to Panama, they were prosecuted in Panama, and they're now incarcerated in Panama.

[00:25:23] Speaker 02:
We're not asking that anything different should have happened here.

[00:25:25] Speaker 02:
Mr. Balestov should have been punished in Colombia and incarcerated in Colombia, not here in the United States.

[00:25:32] Speaker 04:
Thank you.

[00:25:32] Speaker 04:
Thank you very much.

[00:25:33] Speaker 04:
We'll hear from the government.

[00:25:56] Speaker 01:
Morning, Your Honor.

[00:25:57] Speaker 01:
May it please the Court, Scott Meisler on behalf of the United States.

[00:26:00] Speaker 01:
I'll start with the statutory question, if I can, and with the Palms for Alliance on the Kiobo case.

[00:26:06] Speaker 01:
Kiobo, I think, is very different than this for the very reason that this Court mentioned in the hostage-taking analysis in Ali, which is that this statute has a specific congressional declaration to apply extraterritorially.

[00:26:17] Speaker 01:
Kiobo was dealing with a civil statute that was kind of a sui generis statute, the alien tort statute, which courts were actually inferring

[00:26:24] Speaker 01:
causes of action that could be brought under a jurisdictional provision.

[00:26:28] Speaker 01:
So the court was advocating caution on the part of courts and inferring causes of action and didn't have before an explicit congressional declaration.

[00:26:37] Speaker 05:
Then you run into the issue of...

[00:26:39] Speaker 05:
Did the problem that the explicit extritorial application is for 05-3?

[00:26:49] Speaker 05:
I'm sorry, 705-03 instead of 06?

[00:26:53] Speaker 01:
I don't think so, Your Honor.

[00:26:54] Speaker 01:
The only difference drafting-wise between this statute, again, the LEA, and the hostage-taking statute is basically whether the word attempt to conspire is embedded in the substance of provision or whether it's dropped down a bit.

[00:27:07] Speaker 01:
I mean, I think this statute was modeled after the general

[00:27:09] Speaker 01:
drug statutes in Title 21, where Title 841, Section 841 is the substance of prohibition, 846 is the separate, the mail fraud statute, 1341 is the prohibition, 1349 is the attempt or conspire.

[00:27:23] Speaker 01:
That's just the way Congress often and usually drafts conspiracy provisions.

[00:27:27] Speaker 01:
Another point I'd make is that 70503, right, 70503A is the prohibition, 7053A

[00:27:34] Speaker 01:
B is the Extraterritorial Declaration 70503C is an affirmative defense.

[00:27:40] Speaker 01:
And I can't imagine that the government in a 7056 conspiracy case would say that the affirmative defense doesn't carry over to conspiracy.

[00:27:47] Speaker 01:
The conspiracy provision 70506B says 70503 as a whole.

[00:27:52] Speaker 01:
Doesn't say 70503A.

[00:27:53] Speaker 03:
So I take the other side to be saying that their strongest argument is not that

[00:27:59] Speaker 03:
The conspiracy provision doesn't apply extraterritorially at all.

[00:28:03] Speaker 03:
It's that based on the interpretive principle set out in Ali, which the government itself invokes, the extraterritorial reach of conspiracy is coterminous with the extraterritorial reach of the underlying substantive offense.

[00:28:16] Speaker 03:
And then what you would infer from that is that the conspirators also have to be on board the vessel.

[00:28:21] Speaker 01:
Right, I think there's a couple problems with that.

[00:28:22] Speaker 01:
One of the, we can talk about the practical differences in a moment, but I think one thing it does, it's important to mention, and we perhaps didn't emphasize it in our brief, but the district court did mention this in its oral decision denying the motion to dismiss.

[00:28:33] Speaker 01:
The MDLEA's conspiracy provision doesn't have an overact requirement.

[00:28:37] Speaker 01:
Some statutes do.

[00:28:38] Speaker 01:
371, general conspiracy statute in Title 18 does.

[00:28:41] Speaker 01:
But the drug statutes in Title 21 don't.

[00:28:44] Speaker 01:
Neither does the MDLA, which the district court recognized here.

[00:28:47] Speaker 01:
If you add in an onboard the vessel requirement, it's very similar to requiring an overt act to wit that the person be taken act to go onboard the vessel.

[00:28:56] Speaker 01:
And so it would really kind of reverse congressional drafting principles in terms of including or excluding an overt act requirement to make someone be onboard the vessel as part of the conspiracy.

[00:29:05] Speaker 05:
How are we supposed to know what conspiracy means within 06?

[00:29:10] Speaker 01:
Well, I think conspiracy has a well-established, and again, the overdraft requirement is part of that, right, has a well-established meaning at common law and in statutory drafting that is an agreement with an unlawful purpose and the person has to knowingly and willfully join that sharing its unlawful purpose.

[00:29:26] Speaker 05:
And they have to submit to overdrafts, right?

[00:29:29] Speaker 01:
You don't, Your Honor, because I think in this instance, the Supreme Court and the Shabani case from the 90s, which involved the drug statutes and with respect to the money laundering in Whitfield in 2005, particularly the general principle that's understood since the time of the Sherman Act in the early 20th century, that if Congress includes an overdraft requirement and it knows how to do so, the courts will enforce that.

[00:29:52] Speaker 01:
But if Congress doesn't put one in there, the courts do not read one in there.

[00:29:55] Speaker 01:
And that's the way it's operated in the drug statute in the Shabani case from 1994.

[00:29:58] Speaker 01:
I think the MDLA works and the LEA works in the same way.

[00:30:02] Speaker 01:
There's no overdact requirement in the statute.

[00:30:04] Speaker 01:
And if you enforce an onboard the vessel requirement, it's very similar to requiring an overdact, being onboard the vessel.

[00:30:10] Speaker 01:
So our submission is that doesn't make sense as a matter of statutory drafting and structure.

[00:30:15] Speaker 01:
And then you run into the practical problem that I think the conspiracy would add very little.

[00:30:19] Speaker 01:
Your Honor is right, Judge Wilkins, that in some instances you can envision a scenario, I think fairly rarely, where someone is going to be able to, the government is going to approve an agreement to traffic drugs on a vessel subject to U.S.

[00:30:31] Speaker 01:
jurisdiction.

[00:30:32] Speaker 01:
but be unable to prove constructive possession and absolute lack of knowledge on the part of the crew members.

[00:30:38] Speaker 01:
But that's rare.

[00:30:39] Speaker 01:
And so the Supreme Court's canons of construction say not only do you avoid reading a statute to render it meaningless, but also to render it insignificant.

[00:30:48] Speaker 01:
And so here, I think,

[00:30:49] Speaker 01:
reading it in that fashion would render the term insignificant.

[00:30:52] Speaker 01:
It also runs into the problem, as Judge Srinivasan suggested, about the neighboring attempt word.

[00:30:57] Speaker 01:
This court in the Delgado Garcia case involving the inducement of aliens to enter the U.S.

[00:31:01] Speaker 01:
focused on that.

[00:31:02] Speaker 01:
So basically, attempt is usually going to be outside the U.S.

[00:31:05] Speaker 01:
trying to come look inward.

[00:31:07] Speaker 01:
And the same is true here.

[00:31:08] Speaker 01:
It's that the attempt provision

[00:31:10] Speaker 01:
I think as a factual matter, it's likely to apply when someone is on a foreign land setting a vessel out at sea or, as your honor suggested, in territorial waters that aren't yet the high seas.

[00:31:21] Speaker 01:
So that provision also, I think, would have a very limited impact, if at all, unless it's read to apply to conspiratorial conduct on foreign soil.

[00:31:29] Speaker 05:
Where is this overt act argument made in your brief?

[00:31:32] Speaker 01:
It's not made in the brief, Your Honor.

[00:31:34] Speaker 01:
I tried to fess up at the beginning.

[00:31:36] Speaker 01:
But as I was preparing for argument, I thought that that was an interesting point, that the onboard the vessel requirement really would have meant to overact.

[00:31:43] Speaker 01:
I'd be happy to submit a letter if the court likes with the citations I mentioned, if that would be helpful.

[00:31:48] Speaker 01:
But I think it's really part of our textual and structural argument, though, which is that this is really nullifying the full reach and the meaning of the term conspiracy.

[00:31:58] Speaker 01:
And we do the same thing with the term attempt.

[00:32:01] Speaker 05:
The government prosecutes cases every day where they may not be able to prove possession if, let's say, they have drugs found in the trunk of a car.

[00:32:12] Speaker 05:
Or here we can just say that they're in somewhere hidden in the boat.

[00:32:17] Speaker 05:
and they might be able to prosecute the owner of the boat successfully for possession because they can infer to the jury more easily that the owner would have knowledge and both dominion and control over the drugs, but not a passenger or a crew member.

[00:32:39] Speaker 05:
Isn't that the work that conspiracy can do in this context?

[00:32:43] Speaker 01:
I think it can.

[00:32:44] Speaker 05:
Even without an overt act requirement?

[00:32:47] Speaker 01:
It can.

[00:32:48] Speaker 01:
I don't want to overstate it by saying that I think reading the statute in the way the appellant reads it would render the conspiracy provision meaningless.

[00:32:55] Speaker 01:
I think it would render it much less significant.

[00:32:58] Speaker 05:
And contrary to what Congress was trying to accomplish, it would really read the statute as- Much less significant in that it wouldn't reach people on foreign soil, but not much less significant that it could

[00:33:09] Speaker 05:
it would still reach people who were part of the conspiracy as far as one vote, right?

[00:33:14] Speaker 01:
Right, but I think it has the effect, then, of reading the statute as a crew member statute.

[00:33:18] Speaker 01:
It reads the statute as applying only to the folks on the lowest part of the drug trafficking hierarchy.

[00:33:24] Speaker 01:
And the legislative history isn't incredibly informative here, but we have quoted the Senate report.

[00:33:28] Speaker 01:
I think it does recognize that Congress is after two parts of this, right?

[00:33:32] Speaker 01:
They were after not just the crew members, but the trafficking organizations.

[00:33:36] Speaker 05:
And the people on the motherships, right?

[00:33:38] Speaker 01:
I think so, and I think it's important to point out that if you look at the House report, the mothership provision ended up being addressed by the statute, by what's currently the statute that the defense counsel mentioned here, which is the statutes that govern importation.

[00:33:52] Speaker 01:
And what Congress was also worried about was the difficulty, and the Senate report says this as well, Your Honor, the difficulty of proving intent to import.

[00:34:01] Speaker 01:
And so the separate part of the statute that became the MDLA did address that.

[00:34:05] Speaker 01:
did address intent to import motherships, but Congress also said more broadly.

[00:34:10] Speaker 05:
motherships could only be prosecuted under this intent to import the 959 provision?

[00:34:16] Speaker 01:
They're not, but again, I think that's, but when you're talking about motherships, that was an enterprise by which a boat sat just outside territorial waters and sent other vessels into U.S.

[00:34:28] Speaker 01:
territorial waters.

[00:34:29] Speaker 01:
So I think intent to import in those cases wasn't as difficult to prove.

[00:34:33] Speaker 01:
I'd also mention I think you're creating basically another type of mothership problem here.

[00:34:37] Speaker 01:
It's again the scenario where the Judge Srinivasan described earlier, where you have boats that are or even just take land-based conspirators, anyone as soon as they hit international waters, you have on a stateless vessel, you have vessel that nationality under the statute, you have unquestionable Article 1 authority under the High Seas Clause,

[00:34:54] Speaker 01:
But the person, as one of Mr. Bias's co-conspirators here, the person who put the engines on the boat to make it a go-fast vessel, who's to wave goodbye from the dock, he's out.

[00:35:04] Speaker 01:
So you're creating another barrier where it's just on one side of the line, what used to be a mothership, is now the person at the dock, loading the boat to go into international waters.

[00:35:12] Speaker 03:
I don't know if the mothership occurs in the real world, and maybe it does, but under the statute, would it have to be the case then if mothership was part of the impetus behind the conspiracy provision, that the mothership itself would have to be a vessel subject to the jurisdiction of the United States?

[00:35:32] Speaker 01:
I don't know the answer to that, Your Honor.

[00:35:33] Speaker 01:
I don't know the answer to that.

[00:35:35] Speaker 03:
Because otherwise, how does the vessel come within the statute?

[00:35:38] Speaker 03:
If it's somebody on... In other words, you have to be on board the vessel, and the goal is to get people who are on board a mothership.

[00:35:46] Speaker 03:
then I take it in order to come within the statute, the mothership itself would have to be a vessel subject to the jurisdiction.

[00:35:53] Speaker 01:
Is your question on the balanced interpretation of the statute?

[00:35:55] Speaker 01:
Yes.

[00:35:56] Speaker 01:
I agree.

[00:35:56] Speaker 01:
I think that's correct.

[00:35:57] Speaker 03:
I just don't know how this happens in the real world.

[00:36:01] Speaker 03:
In the real world, to the extent there are the motherships that kind of direct the activities of satellite operations,

[00:36:07] Speaker 03:
did those tend to be stateless vessels too, or are those flagged vessels?

[00:36:13] Speaker 01:
I don't know, Your Honor, if there's been recent mothership prosecutions.

[00:36:16] Speaker 01:
The most cases I've reviewed of the mothership problem was, I think, a way of doing business many years ago when the marijuana on the high seas act was

[00:36:22] Speaker 01:
It was passed.

[00:36:23] Speaker 01:
I don't want to say that it's not used now.

[00:36:25] Speaker 01:
I just don't know.

[00:36:26] Speaker 01:
OK.

[00:36:26] Speaker 01:
But most of the cases we reviewed and have already cited here don't involve mothership scenarios.

[00:36:30] Speaker 01:
The closest one I can think of is the Prolasa case with the Ninth Circuit, which wasn't really a mothership.

[00:36:33] Speaker 01:
It was a refueling vessel that went alongside a fishing vessel.

[00:36:37] Speaker 01:
But I'm not sure the answer to that.

[00:36:44] Speaker 01:
Sorry.

[00:36:47] Speaker 01:
I did want to mention the point, which I think is important, that there are different requirements potentially under the statute and Article 1.

[00:36:55] Speaker 01:
I think that folks were looking before for the international waters or high sea references in the current version of the MDLEA, and they're not there.

[00:37:02] Speaker 01:
There was a reference to high seas in the Marijuana on the High Seas Act when it was passed.

[00:37:06] Speaker 01:
But I believe starting in 1986, when the MDLA was passed, Congress removed that reference.

[00:37:11] Speaker 01:
So there may be scenarios, as I think counsel rightly pointed out, where the statute will reach into territorial waters and not require the high seas.

[00:37:20] Speaker 01:
And then that would raise an Article I issue.

[00:37:22] Speaker 01:
But again, that's not an issue in this case.

[00:37:24] Speaker 01:
And I do want to emphasize that this case is not Eliza Kurtado.

[00:37:28] Speaker 01:
We tried to demonstrate both on the basis of the stipulated facts agreed to by the parties and on the basis of the judicially noticed documents we provided.

[00:37:35] Speaker 01:
in this case involve both travel on and vessel seizure in international waters.

[00:37:40] Speaker 03:
So if you don't have the travel on and seizure in international waters, does your argument change?

[00:37:45] Speaker 03:
In other words, assume away the necessary and proper clause for a second and just focus on the felonies clause.

[00:37:53] Speaker 03:
So it's to define and punish felonies committed on the high seas.

[00:37:57] Speaker 03:
So if all you have is two individuals reaching an agreement on foreign soil and nothing ever happens on the high seas,

[00:38:05] Speaker 03:
There's still a conspiracy, particularly you don't need an overact.

[00:38:08] Speaker 03:
There's still a conspiracy.

[00:38:10] Speaker 03:
And are you saying that your interpretation of the constitutional provision is that even though everything occurred, all the actus reus occurred on foreign soil, that's still a felony committed on the high seas?

[00:38:21] Speaker 01:
So our understanding, it's hard for me to put aside the necessary and proper clause, I think that's pretty important here, but our understanding of the high seas clause power is that it would apply to an agreement where there was no overact committed on the high seas, but that it contemplated and planned use of the high seas.

[00:38:37] Speaker 03:
And how is that punishing a felony committed on, what's being committed on the high seas?

[00:38:42] Speaker 01:
That is committed on the high seas there, but

[00:38:45] Speaker 01:
But there's planned use of the high seas.

[00:38:47] Speaker 01:
So our understanding of how conspiracy law works, of course, is the conspiracy law criminalizes the unlawful agreement itself.

[00:38:55] Speaker 01:
And so it would be, I think, extremely difficult to prove.

[00:38:58] Speaker 01:
You can imagine a scenario where there was a wiretap, and there was a detailed explanation of what happened in that rare scenario.

[00:39:04] Speaker 01:
One could imagine a prosecution, but it would be extremely difficult to prove that.

[00:39:07] Speaker 01:
I think you'd have to have concrete use, concrete planned use of the high seas.

[00:39:11] Speaker 01:
Again, this is, I think, I'm talking really here about a constitutional matter.

[00:39:14] Speaker 01:
Not as a statutory matter, because one can imagine, again, a planned law enforcement knowledge that there was a planned use of a stateless vessel that would qualify as a vessel subject to U.S.

[00:39:23] Speaker 01:
jurisdiction, and that wouldn't necessarily comply with Article 1.

[00:39:29] Speaker 05:
This seems to completely contradict the argument in your brief.

[00:39:33] Speaker 05:
Your argument in your brief was that under a Pinkerton type theory of liability for conspiracy, you could impute the acts on the high seas to someone who stayed on land.

[00:39:46] Speaker 05:
And therefore, if you construe the statute that way, then there's no Article 1 problem because you're just imputing acts on the high seas to which

[00:39:59] Speaker 05:
there's clearly jurisdiction to someone who stays on land.

[00:40:05] Speaker 05:
Now you're saying that even if no acts are ever committed on the high seas, the statute still applies.

[00:40:11] Speaker 05:
Which interpretive engine are you using here?

[00:40:17] Speaker 01:
I think we're using both.

[00:40:18] Speaker 01:
One, I think it's a hypothetical case where there's much, I think, a harder case for us, which is nothing ever happens.

[00:40:24] Speaker 01:
Could we still, would we still have Article 1 authority?

[00:40:26] Speaker 01:
There's no actual use of the high seas.

[00:40:29] Speaker 01:
I'm talking about a scenario where we have evidence of planned or contemplated use of the high seas.

[00:40:33] Speaker 01:
And that, I think, is a harder case for us, but still would still apply.

[00:40:36] Speaker 01:
This case is the Pinkerton scenario your honor described.

[00:40:39] Speaker 01:
We have actual use of the high seas by co-conspirators.

[00:40:43] Speaker 01:
And so that can be imputed to these land-based conspirators who, again, knowingly, willfully join in this conspiracy.

[00:40:51] Speaker 01:
And as Judge Srinivasan mentioned earlier, you have stipulated facts here agreeing that the defendant provided not just asset maps in general, but asset maps that inform the location of US Coast Guard vessels.

[00:41:02] Speaker 01:
So this was not, I guess, maybe the transition to the due process point before my time runs out.

[00:41:07] Speaker 01:
This is not a scenario where there's absolutely no foreseeable prosecution in the US.

[00:41:12] Speaker 01:
I think it's foreseeable that when you give someone a map and say, here's how you avoid these law enforcement, these US forces, and something goes wrong, and they're unable to avoid US forces, that the place they're going to be prosecuted is by the forces that catch them.

[00:41:24] Speaker 03:
Can I just follow up on the Pinkerton point?

[00:41:25] Speaker 03:
So in the Pinkerton scenario, is it that you have convicted conduct that occurred on the high seas?

[00:41:31] Speaker 03:
Is that you have charged conduct that occurred on the high seas?

[00:41:35] Speaker 03:
Where are you getting the

[00:41:38] Speaker 03:
the ability to piggyback on something that, in fact, occurred on the high seas?

[00:41:42] Speaker 01:
Well, I think in the scenario of a motion to dismiss Schreiner, it would have to be charged conduct, right?

[00:41:46] Speaker 01:
Because if there's a pretrial motion to dismiss based on an unconstitutional application of the MDA, that would be an unsupplied challenge, I take it.

[00:41:53] Speaker 01:
I think you'd be talking about charge conduct in that case.

[00:41:56] Speaker 01:
I think for that purpose, as the district court, we have to accept the allegations in the indictment made by the government and rule on that basis.

[00:42:05] Speaker 01:
And just to finish up the due process point here, I think our primary submission, based on the same kind of imputation theory and foreseeability theory, is that no circuit would require a nexus where you have stateless vessels.

[00:42:16] Speaker 01:
And it's true that those cases have involved the crew members of the vessels, but we think the same principle applies here.

[00:42:23] Speaker 01:
So no circuit would require a due process nexus.

[00:42:25] Speaker 01:
where stateless vessels are used in the high seas.

[00:42:29] Speaker 01:
We think the same applies here.

[00:42:30] Speaker 01:
And even if not, under this court's analysis in Ali, the concluding parts of Ali, they don't actually endorse specific due process tests.

[00:42:38] Speaker 01:
They discuss the arbitrary and fundamentally unfair standard.

[00:42:41] Speaker 01:
I've mentioned some facts and stipulated facts here.

[00:42:43] Speaker 01:
that we think are crucial to establishing that it wouldn't be unfair or arbitrary in any way to apply U.S.

[00:42:49] Speaker 01:
law here.

[00:42:49] Speaker 01:
But even if not, the end of Ali also mentions that it's not required that you absolutely know that your prosecution is going to be in the U.S.

[00:42:56] Speaker 01:
so long as you know the conduct you've committed is criminal and will be prosecuted somewhere on the court side of the Second Circuit case without proposition.

[00:43:03] Speaker 01:
If that's the test,

[00:43:05] Speaker 01:
and only didn't settle on one, that we think, again, it's easily met because the 1988 convention and the laws of Colombia and the US, of course, make this criminal conduct.

[00:43:16] Speaker 01:
Any further questions?

[00:43:16] Speaker 01:
Questions from the back?

[00:43:18] Speaker 04:
Thank you very much.

[00:43:19] Speaker 04:
I know there's no time left, but we'll give you another minute anyway.

[00:43:24] Speaker 02:
I want to bring the court's attention.

[00:43:27] Speaker 02:
As far as the legislative history, if you look at page 48 of the appendix, we have a complete quotation of the block paragraph that the government cites in their brief at page 22.

[00:43:38] Speaker 02:
And they omitted a preceding sentence that makes it clear that when Congress enacted the statute, their concern with those traders apprehended on the high seas.

[00:43:49] Speaker 02:
I'd also like to point out, as far as other statutes,

[00:43:53] Speaker 02:
If you compare this statute with 18 U.S.C.

[00:43:57] Speaker 02:
Section 2339B, the criminal statute for providing aid to terrorist organizations, the Air Congress has been very clear in the extent of how extraterritorial jurisdiction should apply.

[00:44:09] Speaker 02:
They have a specific provision that says that U.S.

[00:44:12] Speaker 02:
jurisdiction could extend to conspirators who directly conspired with U.S.

[00:44:16] Speaker 02:
nationals or resident aliens.

[00:44:18] Speaker 02:
I also want to point out the government cited to the case of US v. Lawrence.

[00:44:22] Speaker 02:
And in that case, the conspirators were a US citizen and a US resident whose conduct and furtherance of the conspiracy occurred on US soil.

[00:44:31] Speaker 02:
This case is very different.

[00:44:33] Speaker 02:
And the Fifth Circuit in US v. Lawrence specifically limited its holding, says, quote, we do not today address the question of application of 959B to a crime where no actions related to the crime were committed in the United States.

[00:44:50] Speaker 02:
Do you have any more questions?

[00:44:52] Speaker 04:
Thank you.

[00:44:53] Speaker 04:
Thank you.

[00:44:53] Speaker 04:
Case will be taken under submission.

[00:44:55] Speaker 04:
Ms.

[00:44:56] Speaker 04:
Park, you are appointed by the court to represent the appellant and we're very grateful for your assistance, which was excellent.

[00:45:02] Speaker 04:
Thank you.