[00:00:05] Speaker 00: Case number 16-3096 at L, United States of America versus Alfredo Mosquera Morello, also known as Alfredo Lopez Gutierrez, appellant. [00:00:15] Speaker 00: May I check the clock for the appellant? [00:00:34] Speaker 02: May I please the court? [00:00:37] Speaker 02: This court should vacate upon its convictions because there's no subject matter jurisdiction over this prosecution. [00:00:41] Speaker 02: As a legal matter, the government is wrong that the MDLA grants a foreign nation the power only to grant or withhold blanket consent. [00:00:51] Speaker 02: Nothing in the text creates that limitation. [00:00:54] Speaker 02: And as this court held in Miranda, the entire purpose of the jurisdictional provision is to avoid friction between the United States and foreign nations by giving foreign nations the power to decide whether to cooperate with the United States. [00:01:08] Speaker 02: There's no reason that Congress would have wanted to limit this power in such an arbitrary way. [00:01:13] Speaker 02: As a factual matter, the certification couldn't be more clear, and the certification is conclusive proof. [00:01:20] Speaker 02: It does not grant blanket consent. [00:01:22] Speaker 02: Rather, it specifies the particular entities as to which enforcement is permitted, and that is the misbe, contraband associated with the misbe, and people on board the misbe, not appellants. [00:01:33] Speaker 05: So do you disagree with the proposition that the misbe is a vessel subject to the jurisdiction of the United States? [00:01:39] Speaker 02: Yes, for purposes of this prosecution, Your Honor. [00:01:42] Speaker 02: I think in a prosecution as to defendants for which the Columbia granted consent to enforce United States law, as to them, the misbe would properly be deemed a vessel subject to the jurisdiction of the United States, but that's not the case in a prosecution against appellants because Columbia did not grant prosecution. [00:02:01] Speaker 05: Even though we have a certification. [00:02:03] Speaker 02: That's correct, Your Honor. [00:02:05] Speaker 02: I think the alternative argument that the government makes is that a foreign nation can grant consent only as to a vessel, but I don't think the MDLA requires that. [00:02:16] Speaker 02: I think, rather, there's nothing in the text that says that. [00:02:20] Speaker 02: Instead, it says that a vessel is deemed subject to the jurisdiction of the United States when a foreign nation grants consent to enforcement of United States law by the United States. [00:02:31] Speaker 02: It doesn't follow that by saying [00:02:32] Speaker 02: as to the vessel. [00:02:33] Speaker 02: And United States law is enforced against many categories of entities apart from a vessel. [00:02:41] Speaker 03: Well, the provision at issue is vessels subject to the jurisdiction of the United States. [00:02:46] Speaker 03: That's what this all falls under. [00:02:49] Speaker 03: And they explicitly said you have jurisdiction over the vessel, MISB. [00:02:54] Speaker 03: Your debate is about whether people had to be on board or included people who are off [00:03:00] Speaker 03: the ship, but as to the vessel itself, it was quite explicit and that structurally, isn't that how we have to read what they're talking about the consent given the heading? [00:03:10] Speaker 02: I don't think so, Your Honor. [00:03:11] Speaker 02: I think that the vessel is just a definitional hook that triggers an inquiry into subject matter jurisdiction in any particular case. [00:03:19] Speaker 02: I don't think it limits the substantive power of a foreign nation to decide whether to grant consent as to other particular entities or to deny consent as to particular entities. [00:03:30] Speaker 02: I think the government's argument would mean that even if Colombia said we forbid consent, [00:03:37] Speaker 02: as to appellants that as long as they, because as long as they consent to the vessel, that would nonetheless sort of override their consent. [00:03:45] Speaker 03: But as to the individuals, Columbia is in complete control by not extraditing people. [00:03:51] Speaker 03: I'm sorry, what? [00:03:52] Speaker 03: Columbia still has complete control to protect people, especially people who are not on the vessel at all, through the extradition process. [00:04:00] Speaker 03: So it seems to me that Congress here was addressing the vessel [00:04:04] Speaker 03: itself, and that is the precondition for jurisdiction. [00:04:07] Speaker 02: Again, I don't think that's right, Your Honor. [00:04:09] Speaker 02: I don't think the text creates that limitation. [00:04:11] Speaker 02: It doesn't say that Columbia can only consent or withhold consent as to the vessel. [00:04:17] Speaker 01: I think law is naturally enforced against appellants, and I don't think extradition... Is it essential to your argument that we hold that the vessel is not a vessel subject to the jurisdiction of the United States? [00:04:29] Speaker 01: Assume that we read the statute [00:04:31] Speaker 01: as including this vessel. [00:04:33] Speaker 01: Does that mean that the Colombians have necessarily authorized the United States to have jurisdiction over people who never were on the vessel, conspired with respect to the vessel? [00:04:49] Speaker 02: I think what Your Honor is saying is in line with my argument, which is that if Colombia did not grant consent as to appellants... What I'm saying is [00:05:00] Speaker 01: Is it essential to your argument that we hold that the vessel is not a vessel subject to the jurisdiction of the United States? [00:05:08] Speaker 01: Or could we hold that it is subject to the jurisdiction of the United States and still hold that the jurisdiction does not extend to elitist conspirators who were never on the vessel? [00:05:18] Speaker 02: I think it would be important for the Your Honor, or it would not be in conflict with our argument, or essential to our argument, to say that the MSP is not a vessel subject to the jurisdiction of the United States in all cases, or in some cases. [00:05:32] Speaker 02: It is essential for our argument that you say that in our case, that is... But if you lose that point, you've lost the case. [00:05:39] Speaker 02: I think that's right, Your Honor. [00:05:41] Speaker 05: At least on the jurisdictional issue. [00:05:42] Speaker 05: I'm sorry, what? [00:05:43] Speaker 05: On the jurisdictional issue. [00:05:44] Speaker 02: On the jurisdictional issue. [00:05:44] Speaker 02: On the jurisdictional issue. [00:05:45] Speaker 01: You've still got a separate argument, but... You still have the other, the sentencing issue. [00:05:48] Speaker 02: That's right, Your Honor. [00:05:50] Speaker 02: I did want to just reiterate, though, I think under Miranda, this Court explained that the focus of the jurisdictional provision is to avoid friction with foreign countries, and I don't see why Congress would have wanted to limit that to require nations to grant or issue blanket consent. [00:06:08] Speaker 05: I don't think extradition... But what about the point that Judge Mulatt raised, which is that there is a mechanism for the country to protect itself through the extradition process? [00:06:16] Speaker 02: I don't think extradition provides a mechanism here for several reasons. [00:06:20] Speaker 02: First, the indictment here alleged that appellants had already committed this crime. [00:06:26] Speaker 02: That is, that their boat was subject to the jurisdiction of the United States. [00:06:29] Speaker 02: So when Columbia granted extradition, it was effectively on the representation by the United States that Columbia had already consented. [00:06:36] Speaker 02: And so I don't think you can read their subsequent extradition as somehow being the consent within the meaning of the MDLEA. [00:06:45] Speaker 02: Also, I think subject matter jurisdiction needs to be established at the initiation of a case. [00:06:53] Speaker 02: And so I think a subsequent extradition can somehow supply or cure that jurisdictional defect. [00:07:00] Speaker 02: Also, for the reasons we described in our brief, I don't think extradition categorically can be the kind of consent contemplated by the MDLEA, and that's because... I'm not suggesting that extradition necessarily would constitute consent. [00:07:12] Speaker 05: I guess what I'm suggesting is that even if there's consent that's proved conclusively by certification of the Secretary of State, which is the language of the statute, and as to which we do have a certification, [00:07:22] Speaker 05: that it still wouldn't mean that the country at issue couldn't protect its own interests because it could protect its interests by declining extradition. [00:07:31] Speaker 02: They could decline extradition, I think that's right, but I think there are different entities that [00:07:38] Speaker 02: It's the judicial system that grants extradition pursuant to a treaty with the United States. [00:07:43] Speaker 02: I think that's very different from the kind of consent under the MDLEA, which I think is processed by the Navy. [00:07:49] Speaker 02: I'm not sure that those two entities are necessarily in communication with each other. [00:07:54] Speaker 02: Plus, I think the extradition treaty is premised on the idea that there is already a crime committed. [00:08:00] Speaker 02: So I think it would be very strange to somehow understand that, [00:08:05] Speaker 02: to protect the nation's interests in the way that Congress intended the nation's interests be protected through the actual crime itself, through defining the crime itself. [00:08:16] Speaker 02: If I may, if the court has no further questions on jurisdiction, I would turn to the safety valve. [00:08:23] Speaker 02: If the court concludes that there is jurisdiction here, appellants are entitled to a remand for resentencing because they're legally eligible for safety valve relief. [00:08:31] Speaker 02: Appellant's offense is under section 960 for purposes of the safety valve. [00:08:36] Speaker 02: That's a natural reading of the statutory text because their offense is punished by 960. [00:08:42] Speaker 01: And also because 960 is not what criminalizes the act though. [00:08:50] Speaker 02: 960 does criminalize an element of the offense, which is the essential drug weight element for appellant's offense. [00:08:56] Speaker 02: So it does in part criminalize their conduct. [00:09:00] Speaker 05: In furtherance of that argument, at least you've got the point that both the indictment and the plea agreement and the judgment all reference 960 in determining the offense of conviction. [00:09:10] Speaker 02: That's correct, Your Honor, as is required. [00:09:13] Speaker 05: So I guess my question is, would your argument mean then that a prosecution under 860 would be safety valve eligible also? [00:09:23] Speaker 02: No, Your Honor. [00:09:24] Speaker 02: 860 has an entirely separate punishment scheme. [00:09:27] Speaker 02: 860 says that, for example, the punishments of 841 are doubled and it slices and dices the punishment scheme in 841 to provide its own punishment scheme. [00:09:41] Speaker 02: That's entirely different than the MDLEA, which provides that the punishment scheme of 960 is wholesale applicable to appellant's offense. [00:09:50] Speaker 05: But it still incorporates 841, right? [00:09:53] Speaker 05: So, for example, if there's an indictment for a violation of 860, would that indictment, like the indictment in this case, also cross-reference 841? [00:10:03] Speaker 02: It would cross-reference 841. [00:10:05] Speaker 02: Pellin's primary argument is that [00:10:07] Speaker 02: that our offense is punished under 960 and that's why it is an offense under 960, I don't think that that argument is applicable to convictions under 860. [00:10:17] Speaker 02: I don't think those are properly deemed punished under 841 for the reasons I just explained. [00:10:22] Speaker 02: And none of the cases addressing 841 and 860 suggest otherwise. [00:10:28] Speaker 02: Appellants or defendants in those cases argued that, for example, [00:10:32] Speaker 02: 860 was subject to safety valve relief because it was a greater offense than 841 or because it was simply a sentencing enhancement. [00:10:39] Speaker 02: Those are not appellants' arguments. [00:10:41] Speaker 02: And again, I think that the schemes, the punishment schemes in 860 and the MDLA are sufficiently different that our argument would absolutely not extend that safety valve relief. [00:10:51] Speaker 05: So suppose you had an 860 statute that said, for example, that suppose it's 860 itself, so it's distribution near a school, and then it says, the punishment shall be the punishment set forth in 841B. [00:11:03] Speaker 05: You think there's a dispositive distinction between a statute that says that and the statute that we have here? [00:11:12] Speaker 02: No, Your Honor, I think if it said that, if it said the punishment shall be effectively wholesale what is provided in 841B, then I think... So the difference is it says twice. [00:11:21] Speaker 02: The difference is that it slices and dices the punishment scheme to create an entirely new punishment. [00:11:27] Speaker 05: But by saying twice? [00:11:29] Speaker 02: It says twice. [00:11:29] Speaker 02: I think it also provides, for example, that 841 would be the mandatory minimum, unless there would be a higher minimum under 860. [00:11:40] Speaker 02: I think the supervised release term and the fine are also different. [00:11:43] Speaker 05: But suppose all it did was... I'm not saying this is necessarily wrong. [00:11:46] Speaker 05: I'm just wondering about the implications of your argument. [00:11:48] Speaker 05: So suppose you just had a statute that says, take the punishments as set forth and pick your statute either 960B or 841B, the punishments for violation of this offense, for violation of this provision shall be twice. [00:12:02] Speaker 02: I think that that would not be eligible for safety valve relief. [00:12:04] Speaker 02: I think that would evince an intent by Congress to create a different penalty scheme. [00:12:08] Speaker 02: So I think there is a meaningful distinction between an offense that says, this is the punishment scheme entirely, [00:12:17] Speaker 02: Effectively and one that says here take this punishment scheme and do some math and come up with a slightly different punishment scheme. [00:12:23] Speaker 03: That's correct How important to your argument is it that the 960 Factors here the drug and the amount are actual elements of the crime and [00:12:38] Speaker 03: I think that's an alternative reason why we're entitled to relief, but I think if this... What's an alternative? [00:12:43] Speaker 03: Why isn't that... I mean, you're saying that that is together part of the crime of which they're convicted here. [00:12:50] Speaker 03: I'm just not sure why you say alternative. [00:12:54] Speaker 03: Why isn't the court? [00:12:55] Speaker 03: 960B here is part of the elements of the crime of which they were convicted. [00:13:00] Speaker 02: I think that is absolutely a reason why we're entitled to relief. [00:13:03] Speaker 02: I think that if [00:13:06] Speaker 02: You know, even if the court were to define offense more narrowly or not see that as an element of the crime under the statutory definition of offense here, we would still be entitled to relief because of punishments. [00:13:16] Speaker 03: Well, if you had to be punished under statute X, and then all statutes added was if you've got three prior offenses or something. [00:13:26] Speaker 03: So imagine there's a 960C, and 960C says double the punishment if, or add 30, or add a minimum of 50 years if they have two prior felony convictions. [00:13:41] Speaker 03: In that situation, [00:13:44] Speaker 03: Would that be different than the situation here, where when they say punish under 960, they're actually adding additional elements, creating what Aline calls a distinct and aggravated crime? [00:14:00] Speaker 03: Would it be different? [00:14:00] Speaker 02: I'm sorry, I'm not sure I follow, Your Honor. [00:14:04] Speaker 03: What they said in Aline is that when you have things that are labeled sentencing factors, but in fact, [00:14:10] Speaker 03: change the mandatory trigger or change the scope of a mandatory minimum, those become elements of the actual crime of offense. [00:14:18] Speaker 03: They are part of the crime. [00:14:19] Speaker 03: And as to those, so that's one category. [00:14:24] Speaker 03: That's 960B. [00:14:26] Speaker 03: If you have something that's going to affect their sentencing but is not an element of the crime, like prior convictions, would your position still be the same? [00:14:36] Speaker 02: Yes, Your Honor, because it would still be punishing our offense, although I would say I think that a prior conviction is still an element of the offense, even if it doesn't need to be proved to the jury under a special role of the Supreme Court. [00:14:48] Speaker 02: But in either case, I think we would be entitled to safety valve relief as long as there is an eligible provision that provides the punishment for appellant's offense. [00:14:57] Speaker 02: I think they are eligible for relief. [00:14:59] Speaker 02: But I agree that it makes our argument even stronger, the fact that [00:15:03] Speaker 02: one of the essential elements of the offense is defined in 960. [00:15:07] Speaker 05: So can I just follow up on the way that 70506A is worded? [00:15:12] Speaker 05: It says a person violating paragraph one shall be punished as provided in section 960. [00:15:17] Speaker 05: If it says shall be punished as provided in section 960 as such that the punishment shall be twice the punishment set forth therein, you would say then there's no safety eligibility. [00:15:29] Speaker 02: I would say that under the definition that under means punished by, that's right, we wouldn't be eligible for leave, but if it means defined by under, I agree with Judge Mallette, that our offense would still be included because an essential element of the offense would be included. [00:15:45] Speaker 03: I'd also point the court- Wait, so I'm gonna be clear. [00:15:47] Speaker 03: What is the answer to that question? [00:15:48] Speaker 03: Since you would still have to go over and adopt a couple elements out of 960B as elements of your crime, and then you'd come back to, [00:15:55] Speaker 03: MD LEA and double it? [00:15:57] Speaker 03: So is the answer that that would be an offense under or not? [00:16:00] Speaker 05: I think it would be an offense under because if the court adopts... I thought you were saying that there would be no safety valve eligibility. [00:16:08] Speaker 02: I think it depends on the definition of under that this court adopts. [00:16:10] Speaker 02: If this court adopts the definition of under that it means that it at least includes offenses punished by, I don't think it would be punished by the 960 in that case because it would double the punishment. [00:16:21] Speaker 02: But focusing instead on the definition that under means defined, at least in part by, as long as there are elements in 960 that are part of appellant's offense, then yes, it would still be eligible for safety valve relief. [00:16:35] Speaker 05: Okay, so let's take that second theory. [00:16:38] Speaker 05: As you're conceptualizing it, would that second theory also apply to 860? [00:16:43] Speaker 02: I think that that would apply to 860, correct. [00:16:47] Speaker 02: I think that may be why the court would, if the court is concerned about that and concerned about the case law regarding AID-60, I think that would recommend the former approach that an offense be understood to mean, or offense under an eligible provision be understood to mean an offense punished by an eligible provision. [00:17:06] Speaker 02: I wanted to turn briefly to the statutory history and the congressional purpose here, which I think suggests that even if, Your Honor, think there's some ambiguity in the specific text that we're talking about for appellants position, I think both those sources strongly suggest that Congress intended to offer appellants or people in appellant situations safe develop relief. [00:17:31] Speaker 02: There is a decades long practice [00:17:34] Speaker 02: of punishing offenses in international waters no more harshly than offenses in domestic waters. [00:17:41] Speaker 02: And so regardless of 841 and 860, which I don't think have any similar statutory history, I think it's clear that there was no intent through the safety valve to deviate from that policy. [00:17:54] Speaker 02: I also think there's no basis to conclude that Congress intended to exempt MDLEA offenders of all people from safety valve relief when virtually every other drug offender is eligible. [00:18:08] Speaker 04: Thank you. [00:18:20] Speaker 07: May it please the court, John Pelletary on behalf of the United States. [00:18:24] Speaker 07: I'll speak briefly about jurisdiction and then turn to the safety valve. [00:18:27] Speaker 07: Regarding jurisdiction, the MDLEA requires that the jurisdictional provisions of the MDLEA require that the United States have jurisdiction over a vessel. [00:18:38] Speaker 07: The statute uses the term vessel subject to the jurisdiction of the United States. [00:18:44] Speaker 07: The statute says that jurisdiction of the United States with respect to a vessel is not an element of the offense. [00:18:52] Speaker 07: And in defining the term vessel subject to the United States, the statute enumerates vessels with certain attributes, whether a vessel without nationality, a vessel in the customs order of the United States, or the provision in this case is [00:19:08] Speaker 07: a vessel registered to a foreign nation that consents to jurisdiction of the United States. [00:19:15] Speaker 07: It's undisputed in this case that Columbia consented to jurisdiction over the Mississippi. [00:19:20] Speaker 07: That in itself is sufficient to establish subject matter jurisdiction under the MDLEA. [00:19:25] Speaker 01: That I think is the question I had. [00:19:26] Speaker 01: Is it automatic that that would necessarily include jurisdiction over persons who had never been on the vessel who had done [00:19:36] Speaker 01: allegedly conspired but had not been on the vessel. [00:19:39] Speaker 07: Yes, there's subject matter jurisdiction. [00:19:41] Speaker 07: If a country under this provision consents to jurisdiction over a vessel, then there's subject matter jurisdiction in federal court for prosecution under the MDLEA to individuals on board as well as conspirators who are not on board. [00:19:56] Speaker 07: And there are other mechanisms. [00:19:59] Speaker 03: What control does the government of Columbia here have over the scope [00:20:04] Speaker 03: of its agreement to jurisdiction. [00:20:07] Speaker 03: For example, if they said, you have a jurisdiction over the deck, but not cabin or anything underground, underneath the boat. [00:20:19] Speaker 03: Could they do that? [00:20:20] Speaker 07: Well, I think you have to, I'm sorry. [00:20:23] Speaker 03: Can they qualify it? [00:20:25] Speaker 07: Well, you'd have to evaluate whether their grant of jurisdiction applied to the vessel. [00:20:33] Speaker 07: Now, I guess what Your Honor is saying is a jurisdiction over a portion of the vessel, jurisdiction over the vessel. [00:20:40] Speaker 07: I think that's a harder, maybe a harder case. [00:20:42] Speaker 03: What if they said you have jurisdiction over the vessel, but over no Colombians? [00:20:47] Speaker 07: we would have subject matter jurisdiction in the United States under the MDLEA to prosecute the individuals. [00:20:52] Speaker 07: Now, there are other mechanisms to give effect to Colombia's desire for the United States not to prosecute individuals. [00:21:01] Speaker 07: There are diplomatic measures. [00:21:03] Speaker 03: There are... Where does the statute say that the consent cannot be qualified? [00:21:09] Speaker 03: That's just not how... [00:21:11] Speaker 03: consent to what hears of a waiver of sovereign immunity or sharing a sovereign immunity, how it's ordinarily understood. [00:21:19] Speaker 03: I don't see anything in the statute that says it's all or nothing. [00:21:23] Speaker 07: Well, it's the language of the statute means consent with respect to a vessel, consent over a vessel. [00:21:29] Speaker 05: What the statute says is a, let's see, a vessel subject to jurisdiction in the United States [00:21:35] Speaker 05: includes, and then it says, for example, 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. [00:21:44] Speaker 05: Is that the relevant language? [00:21:46] Speaker 05: Yes. [00:21:46] Speaker 05: So what if the nation says, all right, I consent to the enforcement of United States law by the United States to people who are on the top floor. [00:21:55] Speaker 05: I don't consent to the enforcement of United States law by the United States for people who are on the basement floor. [00:22:01] Speaker 05: Then don't you have a non-consent? [00:22:03] Speaker 07: I don't know if that – under those – under that hypothetical, there is a question whether Colombia can – or the country consented to jurisdiction over the vessel. [00:22:12] Speaker 07: There was no mention of the vessel. [00:22:13] Speaker 05: There's mention only of part of the vessel. [00:22:14] Speaker 05: No, they are. [00:22:15] Speaker 05: They're saying, I do consent to jurisdiction over the vessel in this – In part. [00:22:19] Speaker 05: – in circumstance A. I don't consent to jurisdictional jurisdiction over the vessel in circumstance B. Why isn't that just – it's both. [00:22:27] Speaker 05: It's a consent. [00:22:29] Speaker 05: with respect to what's within the scope of the consent. [00:22:32] Speaker 05: It's a non-consent with respect to that which is explicitly made without the consent. [00:22:37] Speaker 07: Well, I think that the way these operate is that the United States asks for consent with respect to a vessel. [00:22:45] Speaker 07: And that's what we ask when we communicate with foreign countries. [00:22:49] Speaker 07: We tell them when we negotiate agreements with foreign countries, we sit down with them and say, this is how the MTLA works. [00:22:56] Speaker 07: We're going to come and ask for consent over a vessel. [00:22:58] Speaker 07: And then this is the jurisdiction of the United States. [00:23:01] Speaker 05: Well, I guess I just assume what would happen in that kind of situation then is that for our purposes, [00:23:05] Speaker 05: Consent or waiver is proved conclusively by certification of the Secretary of State. [00:23:09] Speaker 05: So I would assume what would happen in that sort of situation is exactly along the lines of what you were suggesting there would be a process and then we would get a certification that would say [00:23:17] Speaker 07: the certification would be that there is consent as to Circumstance A and there's not consent as to Circumstance B. Well, as I understand hypothetical, Circumstance A and B are not necessarily are kind of different parts of the vessel, it sounds like. [00:23:33] Speaker 05: Yeah, or different nationalities of individuals, or you can pick how you define it. [00:23:37] Speaker 07: Right. [00:23:38] Speaker 07: If the country said you have consent over the vessel but not over individual A or B, then that's clear as far as we're concerned. [00:23:46] Speaker 01: Here we have the question of whether consent over the vessel, and I realize I'm going further than the fellow that asked me to. [00:23:52] Speaker 01: But we have the word the consent as related in the certification refers to the vessel. [00:23:58] Speaker 01: And it's silent as to anyone who has not been on the vessel. [00:24:04] Speaker 01: It's not the same as saying you don't have consent as the person not on the vessel. [00:24:07] Speaker 01: It doesn't give consent. [00:24:09] Speaker 01: So why is it necessarily the case that the consent that this is a vessel, meaning that definition, gives the United States jurisdiction in another country with respect to [00:24:20] Speaker 01: actions by persons who are not on the vessel. [00:24:23] Speaker 07: Because this is just a matter of subject matter jurisdiction. [00:24:26] Speaker 01: Just a matter of subject matter jurisdiction. [00:24:29] Speaker 07: Well, Your Honor, there are other mechanisms, as we've discussed, to carve out various people, various types of prosecutions, but this provision... Before we get to the carve out, you have to get it in the jurisdiction. [00:24:41] Speaker 01: You have to have... I'm wondering why it's automatically the case that jurisdiction over a vessel [00:24:47] Speaker 01: confers jurisdiction over someone who's never been on to this. [00:24:50] Speaker 07: Because that's the statute as written by Congress, and that's the language on it. [00:24:53] Speaker 01: What language? [00:24:53] Speaker 01: Tell me the part of the statute that says that. [00:24:55] Speaker 01: What language? [00:24:55] Speaker 07: Well, it says, jurisdiction of the United States with respect to a vessel. [00:24:59] Speaker 07: It refers to a vessel. [00:25:01] Speaker 01: Yeah, it refers to a vessel. [00:25:02] Speaker 01: Now, why is it automated? [00:25:03] Speaker 01: If the jurisdiction over a vessel [00:25:05] Speaker 01: includes jurisdiction over persons who have never been on the vessel. [00:25:08] Speaker 07: Because the first inquiry, the subject matter jurisdiction inquiry asks, is there jurisdiction over the vessel? [00:25:14] Speaker 01: Yeah, that's the first. [00:25:15] Speaker 01: That's the first. [00:25:16] Speaker 01: We get there. [00:25:17] Speaker 01: Congress did say that. [00:25:19] Speaker 01: The Congress is silent as to persons not on the vessel, isn't it? [00:25:22] Speaker 07: Then the question is, well, then once there's a vessel that's subject to the jurisdiction of the United States, the United States can prosecute for substantive violations of the MDLEA. [00:25:36] Speaker 07: And the MDLEA sets forth substantive violations against individuals on board the vessel and individuals that were not on board the vessel, conspirators who were maybe land-based. [00:25:46] Speaker 07: So there's the subject matter jurisdiction inquiry. [00:25:49] Speaker 03: And then once that trigger is, once the jurisdiction is triggered, then the United States... You're jumping right over when jurisdiction is triggered when we're asking the question, what happens when the government qualifies its consent? [00:26:04] Speaker 03: You're jumping right over. [00:26:05] Speaker 03: You're saying, as long as they said vote, we can ignore any qualification they made as to people. [00:26:10] Speaker 03: That's what you're saying. [00:26:11] Speaker 03: That is the government's position. [00:26:12] Speaker 03: I get that. [00:26:13] Speaker 03: And I'm trying, but I don't see that in the text. [00:26:16] Speaker 03: And given sort of background principles of... [00:26:18] Speaker 03: international sovereignty and comedy, why would we read that into the statute when you can't point to any language? [00:26:26] Speaker 07: It's absolutely true that the statute promotes comedy, but it's also true that the statute doesn't eliminate potential tension. [00:26:35] Speaker 03: And there are other mechanisms that are well established to eliminate... What are our background principles? [00:26:43] Speaker 03: You want us to construe the statute into international tension, you just said. [00:26:53] Speaker 07: My understanding is that general international practice is that vessels that are in a sovereign's name are subject to that country's jurisdiction unless they consent to another country's jurisdiction over the vessel. [00:27:07] Speaker 07: It's conceived of in terms of vessels. [00:27:09] Speaker 07: That's my understanding of international practice and how it works. [00:27:12] Speaker 01: So is there an analog in Law of Nations, if it's law, with reference to jurisdiction over a vessel conferring jurisdiction over persons who have not been on that vessel? [00:27:25] Speaker 01: For example, Law of Nations has provided for [00:27:28] Speaker 01: centuries that piracy could be prosecuted by anyone who takes the vessel on the high seas. [00:27:34] Speaker 01: Has it been, and I don't know the answer to this question, I'm asking this as a legitimate question, has it been the case that the United States and or other nations have prosecuted persons who were not part of the piracy per se, had never been on the pirate vessel, were they prosecuted by nations who took the pirate vessel? [00:27:52] Speaker 01: I don't know the answer to that question, Your Honor. [00:28:09] Speaker 07: I think what we're getting into a little bit is personal jurisdiction and perhaps due process. [00:28:13] Speaker 01: I think we're talking about subject matter jurisdiction. [00:28:20] Speaker 07: Well, once there's subject matter jurisdiction, there's also a question of personal jurisdiction. [00:28:23] Speaker 05: I thought Miranda and neither of the people were on the vessel. [00:28:26] Speaker 07: Correct. [00:28:27] Speaker 07: And it blessed us, I believe, held that it's either Miranda or it blessed us held that it's permissible to prosecute individuals who are not on the vessel who conspire with individuals on the vessel. [00:28:39] Speaker 03: Did you have a qualified [00:28:41] Speaker 03: grant waiver or grant of consent in those cases. [00:28:46] Speaker 07: That was not an issue in those cases and it's really not the circumstance in this case. [00:28:51] Speaker 07: There was no qualification. [00:28:55] Speaker 03: All persons on board. [00:28:56] Speaker 03: I'm not sure it's silent when they add the words on board. [00:29:01] Speaker 03: That doesn't have meaning if we say that includes people who are not on board. [00:29:06] Speaker 03: The only way to give meaning to the words they use is to give meaning to the word on board. [00:29:10] Speaker 07: Well, I think it's silent with respect to people who are not on board. [00:29:13] Speaker 03: It's not silent if you add a qualification. [00:29:17] Speaker 03: If I say to my kids, you can have the car until 9, that's not silent as to whether they can have it at 10. [00:29:25] Speaker 05: Do we know, by the way, that that's, in fact, the way that the consent was communicated? [00:29:30] Speaker 05: Because I thought that the relevant line in the certification, you have to deal with the person's on board part. [00:29:36] Speaker 05: There's no doubt about that. [00:29:38] Speaker 05: But for our purposes, the certification is conclusive. [00:29:41] Speaker 05: And the conclusion of the certification is, accordingly, the government of the United States determined that the GOFAS vessel was subject to the jurisdiction of the United States. [00:29:50] Speaker 05: I would have assumed that if there's a situation in which the government of the United States, in dialogue with another country, was under the impression that the other country only consented to jurisdiction over the vessel in certain circumstances, then we'd get a certification that would say that. [00:30:05] Speaker 05: That would say, accordingly, the government of the United States determined that the GoFast vessel is subject to the jurisdiction of the United States for people on the first floor, but not for people on the second floor. [00:30:15] Speaker 05: Is that not what would happen? [00:30:18] Speaker 07: The way that Article 16 works, because this is a vessel under Columbia's flag, we negotiated with Columbia Article 16, where consent by Columbia over jurisdiction [00:30:35] Speaker 07: Consent to Colombia for jurisdiction by the United States is automatic when certain prerequisites are met. [00:30:43] Speaker 07: Those prerequisites, if they're present, automatically trigger the consent to jurisdiction of the United States, and those prerequisites are the United States comes across a vote in Colombia's name in international waters, that word has reason to believe it's engaging in trafficking, [00:30:58] Speaker 07: and Colombia has not initiated a prior criminal action. [00:31:01] Speaker 07: So if the United States is the first to initiate a criminal action and it comes across a boat in Colombia's waters that's trafficking drugs, automatic consent under Article 16, the United States doesn't have to ask for consent, doesn't have to – we – in this case, we did happen to just go to the Colombian authorities and say, can you just confirm that we're – we correctly understand that Article 16 is triggered here. [00:31:24] Speaker 07: We didn't even have to get anything by the State Department. [00:31:27] Speaker 07: The State Department certification says, yes, we certify that under Article 16, that was the understanding of the United States and Columbia, that the United States had jurisdiction here. [00:31:36] Speaker 07: And then it had surplusage, surplusage about persons on board and property on board. [00:31:40] Speaker 03: Under what authority do we read a certification language as surplusage? [00:31:46] Speaker 03: Surely you wouldn't call it surplusage if they were disputing all the contents on board. [00:31:50] Speaker 03: You'd go, no, they said it right there. [00:31:52] Speaker 07: Well, we'd be saying it was unnecessary. [00:31:54] Speaker 07: We'd be saying that the Columbia consented to jurisdiction over the vessel, and that anything else is just unnecessary. [00:32:05] Speaker 07: And we therefore had jurisdiction over it. [00:32:08] Speaker 05: What if it said that the person's on board, but not persons? [00:32:12] Speaker 05: who are not on board, you would still say it's unnecessary? [00:32:15] Speaker 07: If they say, if Columbia says we have jurisdiction over the vessel, then it would be unnecessary because... No, but they don't. [00:32:22] Speaker 05: They say you do have jurisdiction over the vessel insofar as we're talking about people on the vessel. [00:32:27] Speaker 05: You don't have jurisdiction over the vessel insofar as we're talking about people who are not on the vessel. [00:32:30] Speaker 07: That potentially would be a much harder case. [00:32:33] Speaker 07: It's not this case. [00:32:34] Speaker 07: And in our view, there was consent over the vessel and people not on the vessel at the very beginning through Article 16. [00:32:40] Speaker 03: If we thought that was this case, if we thought the onboard language was not surplusage, so we thought there was consent here, and they said consent of jurisdiction of this vessel as to people who are onboard. [00:32:56] Speaker 07: I don't know that then that would be, because you're not saying you have jurisdiction over this vessel. [00:33:02] Speaker 07: I think we'd have to figure out, is that granting jurisdiction over the vessel when you're saying that you only have over certain parts of the vessel? [00:33:10] Speaker 07: And so it would really depend on the communication between Columbia and the United States. [00:33:16] Speaker 07: I think if Columbia were to say, [00:33:18] Speaker 07: You have jurisdiction over the vessel, but not people on board the vessel. [00:33:22] Speaker 07: And our view is that we do have subject matter jurisdiction over people on board the vessel. [00:33:24] Speaker 03: So it's your position that you just don't have or need subject matter jurisdiction over people. [00:33:28] Speaker 03: You only need subject matter jurisdiction over the vessel. [00:33:32] Speaker 07: Well, the subject matter jurisdiction under the statute doesn't pertain to people at all. [00:33:36] Speaker 07: It pertains to the jurisdiction over the vessel. [00:33:38] Speaker 07: And then there are other provisions. [00:33:39] Speaker 03: I'm asking. [00:33:40] Speaker 03: So the subject matter jurisdiction for the statute is just not required over the people? [00:33:45] Speaker 07: Correct, Your Honor. [00:33:45] Speaker 07: Correct. [00:33:46] Speaker 07: It has to the vessel. [00:33:47] Speaker 05: It still doesn't, that may be true, and the statute may best be read that way, but that doesn't tell us what happens in a situation in which the country gives you subject matter jurisdiction over the vessel, but then attaches conditions that don't have to do, that don't give you an all or nothing proposition over the vessel. [00:34:02] Speaker 07: If they don't give you an all or nothing proposition over the vessel, for example, you don't understand if you have the top floor, but not the bottom floor. [00:34:10] Speaker 07: That's a question of whether we have jurisdiction over the vessel. [00:34:13] Speaker 05: It just seems to me the answer to that is yes, for the parts where you do, and no for the parts where you don't. [00:34:20] Speaker 05: And that's what's governing to us. [00:34:23] Speaker 05: But you're resisting that. [00:34:24] Speaker 07: As these things operate, as a practical matter, how these things actually move forward, we tell the country we're going to ask for jurisdiction over the vessel, and then you say you're in a different sector. [00:34:34] Speaker 01: We're not interested in how things are practical. [00:34:36] Speaker 01: We're interested in what the law is, I'm saying. [00:34:38] Speaker 01: Yes, I think it's it. [00:34:39] Speaker 01: If this is the way we do it, therefore we can keep doing it this way. [00:34:42] Speaker 01: It doesn't get you there. [00:34:43] Speaker 07: Well, I think it gives a background principle for how to understand the language in the statute and how it works. [00:34:48] Speaker 05: Well, how about, can I just ask you this final question, then we can move to the safety valve, and let's focus on other questions, which is there is this provision that says consent or waiver is proved conclusively by certification of the Secretary of State. [00:35:00] Speaker 07: Yes. [00:35:01] Speaker 05: Is it your assertion on behalf of the United States [00:35:05] Speaker 05: that that provision is operative here, because there's the part of the certification that says, accordingly, the government determined that the GO-FAST vessel was subject to the jurisdiction. [00:35:14] Speaker 07: Yes, absolutely. [00:35:15] Speaker 07: That's our position. [00:35:16] Speaker 07: It conclusively establishes that there is jurisdiction over the vessel, and that triggers subject matter jurisdiction. [00:35:24] Speaker 07: And so we have subject matter jurisdiction over individuals who are on board the vessel, as well as co-conspirators who are not on board the vessel. [00:35:32] Speaker 07: Turning to the safety valve. [00:35:34] Speaker 07: The safety valve statute states that a district court can impose sentence below any otherwise applicable statutory mandatory minimum when sentencing a defendant for offense quote offenses under and then mentions list certain sections of title 21. [00:35:52] Speaker 07: 841, 844, 846, 960, and 963. [00:35:59] Speaker 07: Now obviously the MDLEA is not listed among [00:36:01] Speaker 07: those statutes, and as a result... Why does it need to be in this case? [00:36:07] Speaker 03: These folks were indicted for violating Section 960B. [00:36:15] Speaker 03: They pled to violating [00:36:18] Speaker 03: And the judgment says they are adjudicated guilty of these offenses, one of which is violation of 960B. [00:36:27] Speaker 03: How can you be adjudicated guilty of an offense under 960B but not be guilty of an offense under 960B for the safety of that? [00:36:36] Speaker 07: Well, the indictment lists and mentions 960B, because under Elaine, the government has to... Let's go to the judgment. [00:36:49] Speaker 03: Okay, JA 305. [00:36:51] Speaker 03: Defendant, and it does this for all three of them, is adjudicated guilty of these three offenses, 46 USC 70503 and 70506. [00:37:05] Speaker 03: 21 USC 960Bs and 18 USC 2. [00:37:09] Speaker 03: All three treated as substantive criminal offenses and they are declared as a matter of United States law to be guilty of that offense using the word offense. [00:37:18] Speaker 03: So how can that not be an offense under the Safety Bell Act? [00:37:24] Speaker 07: Your Honor, there's a few reasons why we don't think that that is determinative here. [00:37:31] Speaker 07: Number one being the language of the statutes is what is what is Determined the language requires an offense under I'm just put away MD LEA the safety of access offense under 960 counts and the reason why Yes, an offense under 960 is in is among the offenses and in our view an offense under 960 is one of the offenses [00:37:52] Speaker 07: reference in 960A. [00:37:55] Speaker 07: When you go to 960, that lists offenses. [00:37:57] Speaker 07: It's not an offense that is punished in accordance with the penalties. [00:38:02] Speaker 03: Does the safety bill say 960A or 960? [00:38:05] Speaker 07: It says 960, Your Honor, and I can explain why. [00:38:08] Speaker 03: I'm asking plain text. [00:38:11] Speaker 07: Well, for example, Your Honor, if that reading is correct, [00:38:15] Speaker 07: then there would be no reason for Congress to have listed 846. [00:38:20] Speaker 07: And here's why. [00:38:21] Speaker 07: 841 makes it unlawful to distribute or possess with the intent to distribute drugs. [00:38:27] Speaker 07: 846 says if you attempt or conspire to violate 841, [00:38:32] Speaker 07: then you are punished in accordance with the penalties that you would otherwise be subject to under 841. [00:38:39] Speaker 07: If the defense reading is correct, Congress had no reason to put in 846, right? [00:38:47] Speaker 07: Because it would be mean because they're subject to the penalties of 846. [00:38:50] Speaker 03: You know what? [00:38:50] Speaker 03: Congress can belt some suspender all it wants. [00:38:53] Speaker 03: What I'm saying is there's a safety valve act that says if you have committed an offense under 960, you get safety valve act. [00:39:01] Speaker 03: These three defendants, [00:39:02] Speaker 03: were indicted for, pled guilty to, and convicted of, quote, offenses under 960. [00:39:11] Speaker 03: I just don't know why maybe, you know, maybe you shouldn't have phrased it that way. [00:39:17] Speaker 03: But that's what this record says. [00:39:19] Speaker 03: How do we extract ourselves? [00:39:20] Speaker 03: And you want us to say, pay no attention to that offense under 960 for which they were convicted. [00:39:26] Speaker 03: Pay no attention to that, because they were also convicted of MD LEA violations. [00:39:31] Speaker 07: Let me explain why 960 is listed in the indictment. [00:39:34] Speaker 07: Under Elaine and Apprendi before it, and then as explained further in Elaine, the government has to allege an indictment, drug quantity, in order for a defendant to be subject to mandatory minimum penalties. [00:39:49] Speaker 07: That was not the law at the time Congress passed it. [00:39:51] Speaker 03: Again, Elaine, again. [00:39:54] Speaker 03: Does anything require you at the end of a plea agreement to adjudicate them guilty of a violation of 960? [00:40:04] Speaker 07: If we want to trigger no it's not an offense under 960 it's an offense under the MDLEA and it's subject to the penalties of 960B and we allege a mount as an element of the offense. [00:40:16] Speaker 03: How can you have a judgment that finds them guilty of both the offense of violating the MDLEA and the offense of violating 960? [00:40:23] Speaker 03: How can that judgment be accurate? [00:40:25] Speaker 07: Indictments are intended to provide... I'm done with the judgment. [00:40:29] Speaker 05: The judgment states... And the plea agreement. [00:40:31] Speaker 05: The plea agreement says the same thing. [00:40:33] Speaker 07: Well, all these things are intended to give notice and establish that the defendant is subject to the mandatory minimum penalties that are triggered by drug quantity. [00:40:42] Speaker 07: But you have to look at the actual language of the safety valve to determine what offenses... Look at the actual language of your indictment. [00:40:49] Speaker 01: It says, all in violation of, he lets seize, title it 960. [00:40:54] Speaker 01: It lists 960 after the word, all in violation of. [00:40:59] Speaker 01: Why doesn't that make it an offense under [00:41:02] Speaker 01: recognition for the United States that you're charging an offense under 960. [00:41:06] Speaker 07: Because that's not how Congress uses or refers to the indictment. [00:41:09] Speaker 01: Never mind how Congress used it. [00:41:10] Speaker 01: You put it in the indictment. [00:41:12] Speaker 01: You or somebody in the U.S. [00:41:13] Speaker 01: attorney's office drew it that way. [00:41:15] Speaker 01: You took a plea to it that involved pleading to violation under or in violation of 960. [00:41:23] Speaker 01: Why aren't you charging a violation under 960? [00:41:26] Speaker 07: Well, we didn't have to use the language offenses under. [00:41:29] Speaker 07: We just had to provide notice that he's being charged. [00:41:31] Speaker 01: You used the language in violation of. [00:41:33] Speaker 01: Right. [00:41:34] Speaker 07: Your Honor. [00:41:34] Speaker 01: Why isn't in violation of a statute charging a violation under that statute? [00:41:41] Speaker 07: In our view, we had to, we were required to charge to provide notice and he had to plead guilty, the defendant had to plead guilty to drug quantity in order under Alain to trigger the mandatory minimum sentences. [00:41:53] Speaker 01: Alain was deciding well after. [00:41:55] Speaker 01: We had to charge that because wouldn't have been that violation. [00:42:00] Speaker 01: Whoa! [00:42:01] Speaker 01: Therefore, isn't it a violation under that statute if you have to charge it to charge what they did? [00:42:07] Speaker 07: It is not an offense under 960, as used in the safety valve. [00:42:11] Speaker 03: Tell me what you mean. [00:42:12] Speaker 03: I'm sorry. [00:42:12] Speaker 03: You go ahead. [00:42:14] Speaker 05: It seems to me that your textual argument, and again, I'm not saying it's necessarily right or wrong, your textual argument is that the reference to 960 in the safety valve provision is actually a reference to 960A. [00:42:27] Speaker 05: Now, if that's true, then everything that's unfortunate for you [00:42:31] Speaker 05: that my colleagues have pointed out in terms of the indictment, the plea agreement, and the judgment doesn't matter because all those references are appropriately to 960B. [00:42:39] Speaker 05: And if the statute is already referenced in 960, in fact, is supposed to be a reference to 960A, then everything walk works out perfectly well. [00:42:47] Speaker 05: The safety valve would only apply to those offenses that are spelled out in 960A. [00:42:51] Speaker 05: The penalties that are set forth in 960B wouldn't matter. [00:42:54] Speaker 05: The unfortunate part of it is that the statute speaks in terms of 960, not 960A. [00:42:59] Speaker 05: So it seems like for you, for your argument to work, you'd have to persuade us that [00:43:04] Speaker 05: the reference to 960 and the safety valve provision, in fact, should be read as a reference to 960A, in which event then everything actually turns out to be okay, I think, because all the references and the case materials are to 960B. [00:43:17] Speaker 07: And here's why we think that's the case, because the statute refers to these various provisions, including 841, for example. [00:43:25] Speaker 07: 841A lists unlawful acts, 841B [00:43:29] Speaker 07: And for two reasons, that provision, when referring to 841, refers to offenses under 841A, not offenses punishable by 841B, because number one, [00:43:46] Speaker 07: If it recruited offenses punishable by 841B, there would be no reason whatsoever to put 846 in. [00:43:53] Speaker 07: It would be purely additional, and you have to read statutes. [00:43:57] Speaker 03: We just want to make clear that attempting conspiracy are also in. [00:44:00] Speaker 03: They're making clear that attempting conspiracy are also in. [00:44:02] Speaker 03: But you have to read statutes. [00:44:03] Speaker 03: Because you're not in 841, right? [00:44:04] Speaker 07: But statutes have to be read where every component of it actually functions in some manner. [00:44:11] Speaker 07: If under their interpretation, the reference to 846 means nothing. [00:44:15] Speaker 05: And in addition... You always have the argument with surplusage that they're making extra sure, and there's always a question about whether [00:44:22] Speaker 05: which which party has a better canon in its favor and you've got surplusage and they would have, they're just making extra sure that attempts and concerns are covered. [00:44:32] Speaker 01: I'm not sure. [00:44:35] Speaker 01: And there are other indications as well. [00:44:38] Speaker 07: There are other indications as well. [00:44:40] Speaker 07: For example, the defense agrees that an offense under 860 is not [00:44:48] Speaker 05: So can I ask you a question on that? [00:44:50] Speaker 05: So with an 860 prosecution, would the indictment talk about violating 841B? [00:44:58] Speaker 07: Would the indictment talk about it would have to if it's going to trigger a mandatory minimum based on quantity? [00:45:03] Speaker 07: Yes. [00:45:04] Speaker 03: Does it have to say violation? [00:45:06] Speaker 03: Because the 11th Circuit case said, phrased it in terms of a violation of substantive offense to be penal and to be penalized under. [00:45:16] Speaker 03: If the indictment said that, [00:45:18] Speaker 03: And then lay out, obviously, the drug and the amount as well. [00:45:22] Speaker 03: Did that satisfy Aline? [00:45:24] Speaker 07: I don't think the indictment here had to say a violation of. [00:45:27] Speaker 07: It happened to say a violation of. [00:45:29] Speaker 07: All it had to do is provide the notice. [00:45:31] Speaker 03: Yes. [00:45:32] Speaker 03: I'm asking you, your defense seems to, one of your arguments seems to be that [00:45:38] Speaker 03: We have to say it that way because of Aleem. [00:45:42] Speaker 03: But you don't have to say it that way. [00:45:43] Speaker 03: You can say it just the way the 11th Circuit said it and still comply with Aleem, assuming we obviously did the proof of everything down the line. [00:45:49] Speaker 07: In an indictment to trigger a mandatory minimum penalty, we don't have to say it's a violation of 841B or whatever the mandatory minimum provision is. [00:45:56] Speaker 07: We just have to provide notice that we're charging drug quantity. [00:45:59] Speaker 03: Exactly. [00:45:59] Speaker 03: When you say violation there, and for me what's more important than the indictment, [00:46:04] Speaker 03: is the plea, and what's even more important than the plea [00:46:08] Speaker 03: by the way, Aline not applying, is the offense. [00:46:12] Speaker 03: This is what they've been convicted of as a matter of U.S. [00:46:14] Speaker 03: law. [00:46:15] Speaker 03: And as to those in this case, maybe you don't do it in other cases, I don't know, but in this case, as to these defendants, they've clearly been convicted of an offense under 916. [00:46:25] Speaker 07: Your Honor, the language used in an indictment or a plea agreement does not shed light on what Congress intends in the statute. [00:46:34] Speaker 01: That doesn't mean he can't shed light on what governs in this case, Counsel. [00:46:37] Speaker 01: Well, we don't want it to be used that way. [00:46:40] Speaker 01: Don't draw them that way. [00:46:42] Speaker 03: I mean, I'm not sure what ambiguity are you relying on. [00:46:46] Speaker 03: We have to have an ambiguous word. [00:46:47] Speaker 03: And when they say that offenses under 21 USC 960 get safety valve, [00:46:55] Speaker 03: What's the ambiguity that you're relying on for this interpretation? [00:46:59] Speaker 07: We don't think there's any ambiguity. [00:47:01] Speaker 07: We think the offense is under 960A. [00:47:04] Speaker 03: There's no ambiguity that if you're convicted of an offense under 960, you get safety valve. [00:47:10] Speaker 07: And the offenses under 960, when you look to 960, are listed there. [00:47:14] Speaker 05: And 960A. [00:47:15] Speaker 05: 960A. [00:47:16] Speaker 05: Yes. [00:47:17] Speaker 05: On the, so that's the argument that the reference to 960 is reporting to the offenses spelled out in 960A, not the penalties spelled out in 960B. [00:47:25] Speaker 05: Right, that's what you're saying, is that? [00:47:27] Speaker 05: Yes, because in offense under 960 are the unlawful acts under that statute, which are listed in A. With respect to my colleagues' questions, with the way that the judgment is framed, the sentence, the document that ultimately tells the individuals, here's what you're being sentenced for having violated and here's your sentence, [00:47:45] Speaker 05: Is that something that's drawn up by the government? [00:47:48] Speaker 07: No. [00:47:49] Speaker 07: The judgments are, I believe, by the court or the clerk's office, as I understand it. [00:47:53] Speaker 05: And can I ask this question? [00:47:55] Speaker 05: Is, under your argument, [00:47:58] Speaker 05: The flexibility that the government would have with respect to the indictment and framing the plea agreement, which is within the government's control, even if the framing of the ultimate judgment is not, with respect to those, if you have flexibility to articulate it in the way that Judge Millett was outlining under the kind of framework laid out in the 11th Circuit decision, is there a difference on whether you could do that in this case as opposed to in an 860 case? [00:48:26] Speaker 05: to both statutes. [00:48:27] Speaker 05: Does the NDLA work the same way as an 860 case with respect to the framing of the indictment and the plea agreement? [00:48:36] Speaker 07: No, I think that if the government wanted to charge drug quantity in order to trigger a mandatory minimum sentence when charging either 860 [00:48:45] Speaker 07: or a violation of the MDLEA, the government could use the exact same language. [00:48:52] Speaker 07: It just has to provide notice that we're charging drug quantity and that it triggers this mandatory amendment, so that the defendant can defend against it and that it has to be found by a reasonable doubt by a jury or a plea guilty by the defendant. [00:49:08] Speaker 07: There's no difference in language we would have to use under either statute. [00:49:12] Speaker 07: Now, another factor that's present is that Congress commonly refers to the MDLEA and other statutes, including other sentencing statutes under the Armed Career Criminal Act. [00:49:27] Speaker 07: which creates an enhanced sentence for individuals convicted of being a felon in possession of a firearm. [00:49:33] Speaker 07: The Armed Career Criminal Act established a 15-year mandatory minimum if the defendant has three prior serious drug offenses. [00:49:43] Speaker 05: So Congress definitely could have made it easier by specifically referring to the MDLA. [00:49:46] Speaker 05: I don't think anybody could. [00:49:48] Speaker 05: dispute that, just the question is, even though they didn't, does this still operate in the way that you say it does? [00:49:53] Speaker 07: Well, we think Congress would have, and Congress did, in fact, in the crime bill, that the safety valve was a part of. [00:50:00] Speaker 07: Congress did, in another provision, specifically refer to the MDLEA. [00:50:04] Speaker 07: So it knew how to do it, it would have done it here, it didn't do it, and for those reasons, the safety valve eligibility is not present here. [00:50:11] Speaker 07: Unless the Court has any additional questions, we'd ask you affirm. [00:50:14] Speaker 05: Thank you. [00:50:20] Speaker 06: We'll give you three minutes in light of how long we've gone so far. [00:50:30] Speaker 02: Thanks. [00:50:31] Speaker 02: I wanted to briefly address Your Honor's question, or I wanted to start first with the jurisdiction argument, and then I'll talk about the safety valve. [00:50:37] Speaker 02: But Your Honor asked whether extradition could suffice to protect a foreign nation's interests. [00:50:42] Speaker 02: And I think as Your Honor's questions were sort of getting at, to the extent we're talking about people on the boat, absolutely extradition would not provide any protection as to those people. [00:50:51] Speaker 02: If Columbia had said, we consent to the vote, we deny consent as to anyone on the boat, under the government's theory, apparently, [00:50:59] Speaker 02: the United States would still be able to deem the vessel subject to the jurisdiction of the United States for purposes of those people's prosecution. [00:51:06] Speaker 02: An extradition would do nothing to protect them. [00:51:09] Speaker 02: I wanted to respond briefly to Judge Santel to clarify my answer. [00:51:12] Speaker 02: Earlier, I think there's a difference between a factual inquiry and the legal inquiry that my colleague is talking about. [00:51:19] Speaker 02: If the court were to rule as a matter of law, that consent as to the vessel operates as to everyone, then yes, we would lose. [00:51:26] Speaker 02: If you're with me, that's not true, then no, consent to the vessel absolutely does not operate as to consent to appellants. [00:51:35] Speaker 02: And for purposes of this prosecution, the boat would not be a vessel subject to the jurisdiction of the United States, even though it would in other cases. [00:51:42] Speaker 02: I wanted to address Judge Srinivasan. [00:51:44] Speaker 02: You mentioned Miranda. [00:51:45] Speaker 02: In that case, the boat was a stateless vessel, and that's why it was subject to the jurisdiction of the United States. [00:51:50] Speaker 02: It didn't involve consent, so I don't think that guides us here. [00:51:55] Speaker 01: We have had cases before that involved co-conspirators who were not on the vessel. [00:52:00] Speaker 02: That's correct. [00:52:01] Speaker 02: And in a case where the boat is subject to the jurisdiction on a different basis, it wouldn't matter whether a foreign nation had consented. [00:52:08] Speaker 02: So if it's stateless, the vessel's character doesn't change. [00:52:12] Speaker 02: But here, where it depends on consent, [00:52:14] Speaker 02: It would change or it would depend on what the consent was. [00:52:18] Speaker 02: And I don't think this court has seen any cases like this. [00:52:22] Speaker 02: Also, I wanted to mention Article 16. [00:52:25] Speaker 02: My colleague mentioned he thinks that Article 16 grants consent [00:52:30] Speaker 02: as a matter of right, but actually Article 16 corroborates our interpretation of the certification, which is that consent only extended to people that the United States encountered at sea. [00:52:43] Speaker 02: There's an exception that allows a foreign nation to use its own law, sorry, that allows the United States to enforce its own law only as to people it encountered at sea who engaged in unlawful acts if [00:52:55] Speaker 02: The United States previously initiated a criminal proceeding. [00:52:59] Speaker 02: Even if that's true for people on board, it is obviously not true for people not on board. [00:53:04] Speaker 02: So Article 16 does not grant consent. [00:53:07] Speaker 02: Your Honor also mentioned the United States [00:53:10] Speaker 02: reference that the government determined the boat is subject to the jurisdiction of the United States. [00:53:15] Speaker 02: The conclusive proof requirement applies to the consent. [00:53:19] Speaker 02: It does not apply to the government's determination about whether the boat is subject to the jurisdiction of the United States. [00:53:24] Speaker 02: So I think the key operative language and the certification is about the scope of Columbia's consent, which refers to the people on board and not the subsequent determination by the United States as to the vessel. [00:53:36] Speaker 02: If I may address the safety valve briefly. [00:53:38] Speaker 02: My colleague mentioned that 846 is redundant. [00:53:43] Speaker 02: Now, I agree with Judge Mallette that insofar as you agree, it's just a balance of standards type situation, but I don't think it's redundant. [00:53:51] Speaker 02: And I would be happy to explain why, but it is very complicated. [00:53:55] Speaker 03: And I would be happy to do it in a letter or... I'd like to hear it. [00:53:58] Speaker 03: Well, how long is your complicated answer? [00:54:01] Speaker 02: Probably a couple of minutes. [00:54:05] Speaker 02: I don't think 846 is redundant, but I think that it depends on how you read the interaction between the safety valve and 846. [00:54:13] Speaker 02: So if you understand the safety valves express reference to 846 as declaring that all conspiracies and all attempts are eligible for safety valve relief, [00:54:23] Speaker 02: which I think is the best reading of the statute, then it's absolutely not redundant because 846 creates an entire class of conspiracies and offenses that were not otherwise eligible for relief that now are. [00:54:35] Speaker 02: Now, alternatively, the court could read the reference to 846 or read the interaction between the safety valve and 846 to say that only offenses that would otherwise be eligible for safety valve relief [00:54:49] Speaker 02: only conspiracies for which the substantive offense would be eligible for safety valve relief are eligible for safety valve relief. [00:54:55] Speaker 02: Now if the court did that, that would necessarily be, or that must be, the only basis on which the court could do that is [00:55:02] Speaker 02: 846 says that the conspiracy shall be punished, shall be subject to the same penalty as provided for the substantive offense. [00:55:10] Speaker 02: In other words, the court would have to be declaring that safety valve eligibility or ineligibility is part of the penalty for the substantive offense. [00:55:19] Speaker 02: And if the court takes that view, then two things. [00:55:21] Speaker 02: First of all, the safety valve's reference to 846 is redundant in that case anyway because the [00:55:29] Speaker 02: Conspiracy should already be subject to safety valve eligibility or ineligibility based on the substantive offense. [00:55:36] Speaker 02: And also, I think it supports appellant's argument that part of the penalty for a substantive offense is eligibility or ineligibility for safety valve relief. [00:55:46] Speaker 02: That is, in the MDLEA, when 70506 and 70503 effectively say that they will be punished as provided in 960, that means that it incorporates the safety valve eligibility or ineligibility. [00:56:01] Speaker 02: for that offense. [00:56:02] Speaker 03: Can you tell me one other thing? [00:56:04] Speaker 03: So Ali in the Supreme Court said, when you have these factors that trigger a mandatory minimum, that effective vote you have is a distinct and aggravated crime. [00:56:16] Speaker 03: And so what I'm having a little trouble understanding is putting aside how this one was charged and the judgment of offense is written. [00:56:25] Speaker 03: In a case like this, where two statutes are working together, [00:56:31] Speaker 03: What are the drug amount and the drugs? [00:56:38] Speaker 03: What is the distinct and aggravated crime that we have here? [00:56:41] Speaker 03: Is it an MD LEA 960 B blend? [00:56:46] Speaker 02: I think it's sort of a metaphysical question, in a sense, about whether a crime exists with or without a punishment. [00:56:53] Speaker 02: But I think I would answer the question, no, that it needs to include a punishment. [00:56:59] Speaker 02: And I would say that the crime is under both the MDLEA [00:57:05] Speaker 02: And there's a series of aggravating offenses. [00:57:10] Speaker 02: Subsection B has an escalating table of drug quantities and the corresponding penalties. [00:57:18] Speaker 02: I believe the third subsection of subsection B has no quantity. [00:57:23] Speaker 02: So that would be, in a sense, the non-aggravated offense. [00:57:27] Speaker 02: And the offense with which we were charged and pleaded guilty is the most aggravated of the offenses. [00:57:35] Speaker 02: If the court has no further questions, I ask that the court vacate the convictions. [00:57:41] Speaker 05: Thank you. [00:57:42] Speaker 05: Thank you, counsels. [00:57:43] Speaker 05: The case is submitted.