Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 02-50084

v.  D.C. No.

LEONAR NELLINO SEGURA PERLAZA, CR-00-03209-TJW

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 02-50089

v.  D.C. No.

GUSTAVO SALAZAR PALACIOS, CR-00-03209-TJW

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 02-50093

v.  D.C. No.

HUGO MARQUEZ, CR-00-03209-W-08

Defendant-Appellant. 

2559
UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 02-50102  D.C. No. JOSE WALTER ROMAN SOLISBARNAZA, aka Jose Walter Rodman CR-00-03209-TJW

Solis Barnaza,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 02-50108

v.  D.C. No.

MANUEL PLACIDO RENGIFO-AUDIVER, CR-00-03209-W

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 02-50133

v.  D.C. No.

CARLOS JULIO VALENCIA-SANCHEZ, CR-00-03209-W

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 02-50136

v.  D.C. No.

JOSE NEFFER CASTRO-CARVAJAL, CR-00-03209-TJW

Defendant-Appellant. 

2560 UNITED STATES v. PERLAZA
UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 02-50188

v.  D.C. No.

DIONASIO ABORNO, CR-00-03209-TJW

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 02-50199

v.  D.C. No.

FERNANDO LOPEZ, CR-00-03209-TJW

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 02-50200

v.  D.C. No.

DAVID MURILLO, CR-00-03209-TJW

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

No. 02-50207 Plaintiff-Appellee,

D.C. No.

v.  CR-00-03209-TJW

ABRUAL RECIO CARRASCO,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Thomas J. Whelan, District Judge, Presiding

UNITED STATES v. PERLAZA 2561
Argued and Submitted

February 23, 2004*

Pasadena, California

Filed March 14, 2006

Before: Betty B. Fletcher, Harry Pregerson, and

Melvin Brunetti, Circuit Judges.

Opinion by Judge Pregerson;

Partial Concurrence and Partial Dissent by Judge Brunetti

*This panel unanimously finds No. 02-50108 and No. 02-50136 suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

2562 UNITED STATES v. PERLAZA
COUNSEL

Jeanne G. Knight (brief), San Diego, California; Janice Deaton (brief & argued), San Diego, California; Michael J.

McCabe (brief & argued), San Diego, California; John Lanahan (brief & argued), San Diego, California; Michael J. Messina, Trost, Woods & Messina (brief), San Diego, California;

Beverly A. Barnett (brief), San Diego, California; Ezekiel E.

Cortez (brief), San Diego, California; D. Chipman Venie

(brief), San Diego, California; Casey Donovan, (brief &

argued) Donovan & Donovan, San Diego, California; Lori B.

Schoenberg (brief & argued), San Diego, California; and

Mark Fleming (argued), San Diego, California, for the

defendants-appellants.

William V. Gallo (argued), Assistant United States Attorney;

Patrick K. O’Toole (argued), Assistant United States Attorney; and Jay Alvarez (brief), Assistant United States Attorney, San Diego, California, for the plaintiff-appellee. 

2566 UNITED STATES v. PERLAZA
OPINION

PREGERSON, Circuit Judge: 

Throughout the late Summer of 2000, the USS De Wert, a

Navy frigate, and other United States Navy and Coast Guard

ships were engaged in maritime surveillance of vessels suspected of drug trafficking in the Eastern waters of the Pacific

off the coasts of Ecuador, Colombia, and Peru. On September

11, 2000, the De Wert’s radar alerted its crew and members

of a United States Coast Guard Law Enforcement Detachment

team aboard it to suspicious activity by a speedboat and a

Colombian fishing vessel, the Gran Tauro, twenty miles

away. The De Wert’s helicopter was dispatched to the site of

the suspicious activity. Once the speedboat’s crew realized

that they had been detected, they jettisoned cargo (later determined to be approximately 2,000 kilograms of cocaine) and

55-gallon gasoline drums before crashing the speedboat into

the stern of the Gran Tauro in an apparent attempt to scuttle

the speedboat and destroy evidence of illegal activity. United

States Navy and Coast Guard personnel suspected that the

Gran Tauro served as a logistical support vessel for the

speedboat by providing gasoline for the speedboat’s run from

Colombia to Central Mexico. 

The five speedboat crew members and seven crew members of the Gran Tauro were prosecuted under the Maritime

Drug Law Enforcement Act. Two members of the speedboat

crew pled guilty, and the remaining ten Defendants opted for

a jury trial and were convicted on all charges. These consolidated appeals followed. 

We have jurisdiction. See 28 U.S.C. § 1291. We reverse the

convictions of all ten Defendants who opted for trial and

direct the district court to dismiss the indictment because the

district court erroneously exercised jurisdiction over them

without first requiring the Government to allege in the indictment and prove to a jury beyond a reasonable doubt certain

UNITED STATES v. PERLAZA 2567
facts necessary to establish jurisdiction. We also hold alternatively that, even if the district court had jurisdiction over these

Defendants, reversal of their convictions would still be

required because the Government committed prosecutorial

misconduct during closing argument and the district court

failed to adequately cure it. Our reversal is without prejudice

to re-indictment and retrial because we find that the Government’s evidence was sufficient to sustain these Defendants’

convictions and that the Government’s improper closing argument did not trigger the Double Jeopardy Clause’s bar to

retrial. We affirm the conviction of one speedboat crew member who pled guilty, but nonetheless appeals, because the sole

challenge to his conviction properly before us lacks merit. 

I. FACTUAL BACKGROUND1

The preferred method of smuggling cocaine from South

America to the United States in the Eastern Pacific requires

the use of speedboats to transfer and land drugs2 and larger

logistical support vessels (“LSVs”) to serve as roving refueling stations.3

 LSVs are typically discovered in three transit

1The following facts are undisputed unless otherwise noted. 

2

“Coast Guard officials refer to such vessels as ‘go-fast’ boats because

they can travel at high rates of speed, which makes them a favored vehicle

for drug and alien smuggling operations.” United States v. Rendon, 354

F.3d 1320, 1322 n.1 (11th Cir. 2003) (quotations and citation omitted).

The trial witnesses and parties use the term “Go-Fast” to refer (a) generically to speed boats suspected of transporting drugs between larger vessels

or between vessels and land and (b) specifically to the speed boat at issue

in this case. We do the same throughout this opinion. 

According to the Government’s expert, there are three types of Go-Fast

vessels used by maritime drug smugglers: (1) 25- to 35-foot vessels with

a short range of 250 miles; (2) 35- to 45-foot vessels with an intermediate

range of 750 miles; and (3) 45-foot or longer vessels with a long range of

1500 miles. 

3The term LSV was adopted following the shift in drug smuggling from

the Carribean to the Eastern Pacific and the discovery that fishing boats

from Latin America were carrying extra fuel, food, and crew for smugglers aboard the Go-Fasts. 

2568 UNITED STATES v. PERLAZA
corridors between the source of the narcotics (typically,

Colombia) and the narcotics’ destination (typically, Central

Mexico). The first route is along the territorial sea of South

and Central American countries. The second is a straight line

from Colombia to Mexico. The third route, least used because

of distance and cost, is in the Middle Pacific, sufficiently west

of the Central and South America coasts to make detection

unlikely.

Federal law enforcement has learned that, upon departure,

Go-Fast crews are typically given coordinates so they know

where to meet their LSVs. At the rendezvous location, a

member of the LSV crew provides coordinates for the next

LSV meeting. The Go-Fasts and LSVs use global positioning

satellite (“GPS”) devices to coordinate proper rendezvous.

Because of the altitude at which surveillance aircraft fly, neither the United States Coast Guard (“Coast Guard”) nor the

United States Navy (“Navy”) has ever seen an LSV refueling

a Go-Fast. Nonetheless, each has seen Go-Fasts rendezvous

with LSVs in the Eastern Pacific, and confidential informants

have confirmed such events.

A. Early September 2000 Surveillance of the Gran

Tauro

In late-Summer 2000, the De Wert was conducting a

counter-narcotics patrol in the Eastern Pacific off the coasts

of Colombia, Ecuador, and Peru. A Coast Guard Law

Enforcement Detachment (“LEDET”) team and Navy personnel aboard the De Wert had information that the Gran Tauro,

a fishing vessel flying the Colombian flag, was possibly an

LSV and one of six vessels possibly involved in drug smuggling. On September 1, 2000, the De Wert’s helicopter located

the Gran Tauro drifting or moving at a very slow speed.

Nobody aboard the vessel was fishing. The same observations

were made the following evening. On September 3, 2000, the

De Wert again observed the Gran Tauro. Under the “Agreement between the Government of the United States of AmerUNITED STATES v. PERLAZA 2569
ica and the Government of the Republic of Colombia to

Suppress Illicit Traffic by Sea” (the “Bilateral Agreement”),

the LEDET team received permission from the Colombian

government to board the Gran Tauro. The team approached

the Gran Tauro in a rigid hull inflatable boat (“boarding

boat”) that can be lowered from and lifted onto a frigate.

Coast Guard Chief Warrant Officer Christopher Van Pelt, the

boarding officer, noticed the intense smell of gasoline. Once

aboard, Van Pelt located the Gran Tauro’s master, Defendant

José Walter Roman Solis-Barnaza (“Barnaza”), who gave

Van Pelt the crew manifest and vessel documentation. Van

Pelt identified as members of the crew Defendants Manuel

Placido Rengifo-Audiver (“Audiver”), José Neffer CastroCarvajal (“Carvajal”), Hugo Marquez (“Marquez”), Gustavo

Salazar Palacios (“Palacios”), Leonar Nellino Segura Perlaza

(“Perlaza”), Carlos Julio Valencia-Sanchez (“Sanchez”), and

a fifteen-year-old juvenile. Van Pelt inspected the vessel and

noted that its nets were in poor condition, that there was no

bait in the fish hold, and that the ice in the fish hold was clean

with only one fish visible on top. 

Included among the documents that Van Pelt obtained from

Barnaza was a zarpe4 that indicated that the Gran Tauro had

left Buenaventura, Colombia, on August 25, 2000, and was

supposed to return on September 25, 2000. The zarpe

restricted the Gran Tauro to fishing in only Buenaventura

Zones 2 and 3 and, because the Gran Tauro ran on diesel, to

carrying only two 55-gallon drums of gasoline for its generators and pumps. Barnaza told Van Pelt that the Gran Tauro’s

only gasoline was in one blue 55-gallon drum on the Gran

Tauro’s fantail, but Van Pelt found approximately 6,000 gal4A zarpe is a written permit — akin to a visa for marine vessels —

authorizing a vessel to leave port and restricting the scope and duration of

the vessel’s voyage. See Solano v. Gulf King 55, 212 F.3d 902, 904 (5th

Cir. 2000) (noting that Nicaraguan-imposed regulations require, among

other things, “the issuance of zarpe prior to each fishing trip restricting the

scope and duration of that trip”). 

2570 UNITED STATES v. PERLAZA
lons of gasoline in a tank aboard the vessel. The information

obtained by Van Pelt regarding the Gran Tauro’s gasoline

supply was relayed to the Colombian government, which

asked the LEDET team to order the Gran Tauro to return to

Buenaventura and report to the Port Captain.

B. Continued Surveillance of the Gran Tauro

After the September 3, 2000 boarding, the De Wert refueled at Golfito, Costa Rica, and was out of contact with the

Gran Tauro until the De Wert’s helicopter reestablished surveillance on September 7, 2000. Using the De Wert’s helicopter’s Forward Looking Infra-Red Camera (“infra-red

camera”), on September 7, 9, and 10, 2000, the helicopter’s

pilot observed the Gran Tauro. No fishing activity was

observed, and nothing aboard the vessel appeared to have

been moved. 

C. The Go-Fast and the Gran Tauro

In the early morning hours of September 11, 2000, the De

Wert’s radar showed a vessel moving at approximately eighteen knots in a westerly direction toward another vessel that

was moving approximately one to two knots. Shortly thereafter, the two approaching vessels “merged” on the radar

screen, meaning that they were no more than 300 yards apart

from each other. These two vessels were later visually identified through binoculars from the De Wert’s bridge as a GoFast and the Gran Tauro. The Gran Tauro was still well outside its authorized fishing zones — at least 96 miles north of

the northwest boundary of Zone 2. Between September 3,

2000, when the Gran Tauro was ordered to return to Buenaventura, and when it was boarded on September 11, 2000, the

Gran Tauro had traveled only 290 to 300 miles toward

Colombia. 

At approximately 5:43 a.m., the De Wert launched its helicopter to investigate the radar contact merge. The helicopter’s

UNITED STATES v. PERLAZA 2571
surface radar showed two contacts of interest. The first was

a vessel approximately twenty-five nautical miles northeast of

the De Wert. The helicopter flew in that direction until it

determined that the vessel was not the Gran Tauro. The helicopter then made a hard right turn and flew in the direction

of the second contact, which was approximately eight nautical

miles southeast of the De Wert. Using the infra-red camera,

the helicopter crew determined that the second contact was

the Gran Tauro sitting dead in the water with its crew milling

about on the stern. About three minutes later, the helicopter

crew spotted the Go-Fast heading northwest away from the

Gran Tauro.

5

 The helicopter followed the Go-Fast and videotaped its actions with its infra-red camera. At one point, the

Go-Fast stopped, as if its crew detected the helicopter’s pursuit, and turned back toward the Gran Tauro. While being

taped, the Go-Fast weaved left and right and jettisoned large

bales of cargo. 

The Go-Fast traveled erratically toward the Gran Tauro

until it crashed into the Gran Tauro’s stern, causing substantial damage to the Go-Fast. The Gran Tauro began to steam

away, giving no assistance to the Go-Fast as it began to sink;

no one aboard the Gran Tauro even came out to the stern of

the vessel to see what hit it. Meanwhile, as the Go-Fast began

to capsize, its crew stripped themselves naked in an apparent

attempt to remove any trace evidence of having handled the

cocaine. 

D. Rescue of the Go-Fast Crew, Scuttling of the GoFast, and Recovery of Cocaine and Other Items

The Go-Fast was videotaped as it capsized and as the crew

(Defendants Dionasio Aborno (“Aborno”), Abrual Recio Car5The Go-Fast used in this case was of the short-range variety, see supra

note 2, powered by twin Yamaha 200-hp two-stroke outboard engines. It

appeared to have no hull markings designating national origin and did not

appear to be flying a flag. 

2572 UNITED STATES v. PERLAZA
rasco (“Carrasco”), Fernando Lopez (“Lopez”), David

Murillo (“Murillo”), and Ferrnei Reina (“Reina”)) were rescued from the water by the De Wert’s LEDET team and

brought aboard the De Wert, before being transferred to the

custody of the LEDET team aboard the USS Valley Forge.

Meanwhile, the Go-Fast bobbed in the water, as it was barely

able to stay afloat. The crane used for lowering and lifting the

boarding boat aboard the De Wert could not have been used

to salvage the Go-Fast because the Go-Fast was too big, too

heavy, and did not have any hoisting points from which to lift

it out of the water. Thus, the Go-Fast was destroyed because

it was a hazard to navigation and because it held and was surrounded by fuel that could be ignited. In the Go-Fast’s debris

field were at least a dozen 55-gallon drums riding low in the

water, indicating that they were full.

Another LEDET team aboard the USS Firebolt assisted in

recovering the items jettisoned from the Go-Fast. That team

recovered 77 bales of cocaine, a blue 55-gallon fuel drum, and

other non-drug evidence. The De Wert’s LEDET team also

recovered some cocaine. The total cocaine recovered weighed

1,964 kilograms. 

E. September 11, 2000, Boarding of the Gran Tauro

After the Go-Fast crashed into the Gran Tauro, the LEDET

team aboard the Valley Forge contacted the Gran Tauro by

radio in Spanish. In response, Barnaza indicated that the Gran

Tauro’s last port-of-call was Buenaventura on August 20, 2000;6

that the next port-of-call was also to be Buenaventura on or

about September 25, 2000; that the cargo aboard was fifteen

kilograms of fish; and that there were a total of eight people

aboard, all from Colombia. The Valley Forge LEDET team,

like the De Wert LEDET team on September 3, 2000,

6As noted earlier, the Gran Tauro’s zarpe indicated that the Gran Tauro

had actually left Buenaventura on August 25, 2000. See supra Part I(A).

This discrepancy is not germane to this appeal. 

UNITED STATES v. PERLAZA 2573
obtained permission from the Colombian government under

the Bilateral Agreement to board the Gran Tauro. 

The LEDET team traveled on its boarding boat in a horseshoe pattern around the Gran Tauro to determine whether the

vessel had any noticeable safety hazards. Coast Guard Petty

Officer Max Seda noticed a strong smell of gasoline coming

from the Gran Tauro. When the LEDET team came aboard

the Gran Tauro, it noticed that the vessel’s fishing gear was

bundled up in front of the crew and that there was a strong

smell of gasoline where they stood. When Barnaza turned

over the Gran Tauro’s documents, he stated that he did not

know in which fishing zone he was supposed to be or in

which fishing zone, if any, he was at the time of the boarding.

Barnaza also said that they had fished only four days and

three nights, that they had caught only a little bit of fish, and

that the last time that they caught any fish was one week earlier on September 4, 2000. He said that he did not know how

to operate the high-frequency radio located in the state room

behind the pilot house and indicated that he did not know how

to use the boat’s GPS. Finally, he said that Audiver was the

Administrator of the vessel and the person responsible for

giving directions as to where the Gran Tauro would travel. 

F. Pumps and Hoses Aboard the Gran Tauro

When asked about the Gran Tauro’s gasoline reserves,

Marquez told the LEDET team that there were about 200 gallons in the center aft fuel tank and that it was used for the

Gran Tauro’s bilge pumps. The LEDET team noted that the

Gran Tauro’s two pumps and generator all had four-stroke,

single cylinder engines.7 The intake and discharge points of

one of the pumps, both ends of a hose hooked up to it, and

an unattached hose all smelled of gasoline. In an experiment,

7A four-stroke engine can burn only pure gasoline, whereas two-stroke,

outboard motors such as twin Yamahas seen on the Go-Fast burn a

gasoline/oil mixture. 

2574 UNITED STATES v. PERLAZA
the LEDET team moved the pump and hoses near the aft tank

and, within two minutes, hooked them up without any help

from the Gran Tauro crew. The gasoline in the aft tank was

approximately three feet from the top, and one of the gassmelling hoses was long enough to reach the gasoline. From

this exercise, Seda concluded that the crew aboard the Gran

Tauro could use it to refuel other vessels at sea.8 Marquez

denied that the pump had been used to pump gasoline from

the aft tank. 

G. Results from Comparison of the Gasoline Aboard

the Gran Tauro and the Go-Fast’s 55-Gallon Drum

Samples were taken from the blue 55-gallon drum recovered from the Go-Fast’s debris field. They were compared

with samples taken from a similar blue 55-gallon drum aboard

the Gran Tauro and from the Gran Tauro’s aft tank. An

expert testified at trial that all the gasoline came from the

same source; that all the gasoline contained motor oil; that

none of it would be suitable for four-stroke engines like the

engines on the Gran Tauro’s generator and pumps; but that it

would be suitable for two-stroke engines like the twin

Yamahas on the Go-Fast. Nor could the gasoline have been

used to power the Gran Tauro because, as noted earlier, the

Gran Tauro ran on diesel. From all of this evidence, the Government’s expert opined at trial that on September 11, 2000,

the Gran Tauro was, indeed, an LSV participating in a

narcotics-trafficking operation. 

II. PROCEDURAL BACKGROUND

On October 11, 2000, a federal grand jury in the Southern

8After the Gran Tauro was dry-docked in San Diego, California, it was

found to contain approximately 1,500 gallons of gasoline — almost 4,500

gallons fewer than found during the September 3, 2000, boarding. This

further indicates that the Gran Tauro was refueling other vessels while on

its voyage. 

UNITED STATES v. PERLAZA 2575
District of California returned a two-count indictment. Count

One charged all the individuals aboard the Go-Fast and the

Gran Tauro (except the fifteen-year-old juvenile) — Aborno,

Audiver, Barnaza, Carrasco, Carvajal, Lopez, Marquez,

Murillo, Palacios, Perlaza, Reina, and Sanchez — with conspiracy to possess cocaine with intent to distribute, aboard a

vessel, in violation of certain sections of the Maritime Drug

Law Enforcement Act (“MDLEA”), 46 App. U.S.C.

§ 1903(a), (c), and (j). Count Two charged the individuals

aboard the Go-Fast — Aborno, Carrasco, Lopez, Murillo, and

Reina — with possession of cocaine with intent to distribute,

on a vessel, also in violation of the MDLEA — in particular,

46 App. U.S.C. § 1903(a), (c)(1)(A), and (f).

Before trial, Defendants filed various motions, including

motions to dismiss the indictment. Relevant to our decision,

Defendants sought to dismiss the indictment on the bases

(1) that the MDLEA is unconstitutional because it

does not require an effect on interstate or foreign commerce; and

(2) that the district court lacked jurisdiction over

Defendants because the Government did not

allege in the indictment that the Go-Fast was

stateless and because the Government did not

produce any “evidence of nexus at all” between

Defendants and the United States. 

The district court denied these motions. 

On October 18, 2001, Aborno and Reina pled guilty to both

counts and were sentenced to 108 and 135 months in custody,

respectively. The remaining ten Defendants were convicted

on November 9, 2001, after a three-week jury trial. Carrasco,

Lopez, and Murillo were convicted of both counts. Audiver,

Barnaza, Carvajal, Marquez, Palacios, Perlaza, and Sanchez

were convicted of Count One. The district court, Judge

2576 UNITED STATES v. PERLAZA
Thomas Whelan presiding, sentenced Carvajal, Palacios, Perlaza, and Sanchez to 135 months in custody; Audiver,

Barnaza, and Marquez to 188 months in custody; and Carrasco, Lopez, and Murillo to 200 months in custody. Appeals

from all twelve Defendants followed.9

III. DISCUSSION

In their briefs, all of the remaining eleven Defendants raise

various challenges to their convictions.10 Defendants Carrasco

and Lopez also raise sentencing issues. After the Supreme

Court decided Blakely v. Washington, 542 U.S. 296 (2004),

and while these consolidated appeals were under submission,

all ten of the Defendants who had opted for trial — including

9Defendant Reina’s appeal was severed from these consolidated

appeals, and his conviction was affirmed by memorandum disposition. See

United States v. Reina, 74 Fed. App. 835, 2003 WL 22137240 (9th Cir.

Sep. 8, 2003). Thus, these consolidated appeals now consist of only eleven

Defendants’ cases. 

10In addition to the grounds discussed in this opinion, the ten Defendants who opted for trial challenge their convictions on the basis that “the

Government engaged in outrageous [pretrial] misconduct,” such that the

district court should have dismissed the indictment under its “inherent

supervisory powers.” 

Gran Tauro Defendant Marquez also challenges his conviction on the

basis that certain statements he made during the September 3 and 11,

2000, boardings were obtained in violation of his Miranda v. Arizona, 384

U.S. 436 (1966), rights. Go-Fast Defendants Carrasco and Lopez also

challenge their convictions on the basis that the district court erred by

refusing to sever their trials from the trial of the Gran Tauro Defendants,

whose defenses, they contend, were antagonistic. Additionally, Lopez

argues that the district court’s refusal to sever his trial violated his Sixth

Amendment Confrontation Clause rights under Bruton v. United States,

319 U.S. 123 (1968), and Crawford v. Washington, 541 U.S. 36 (2004).

Because these issues are “likely to arise again on remand,” United

States v. Smith-Balthier, 424 F.3d 913, 915 (9th Cir. 2005) (addressing

issue not dispositive of appeal but “likely to arise again on remand”),

should these Defendants be re-indicted, we have considered their arguments and find them to be without merit. 

UNITED STATES v. PERLAZA 2577
the eight who did not raise sentencing issues in their opening

briefs — filed supplemental papers arguing that Blakely rendered their sentences unconstitutional. 

Because we find, for the reasons explained below, that the

convictions of the ten Defendants who opted for trial cannot

stand, their sentencing issues are moot. We begin our analysis

with Defendants’ challenges to the district court’s denial of

their motions to dismiss the indictment.

A. The MDLEA is Constitutional11

Before trial, Defendants moved to dismiss the indictment

on the basis that the MDLEA is unconstitutional because it

fails to require an effect on interstate or foreign commerce.

The district court rejected this argument, ruling that the

MDLEA was properly enacted under Article I of the Constitution’s Piracies and Felonies Clause. See U.S. Const., art. I,

§ 8, cl. 10. Defendants challenge this ruling. 

[1] The Constitution empowers Congress “[t]o define and

punish Piracies and Felonies on the high Seas, and Offenses

against the Law of Nations.” U.S. Const., art. I, § 8, cl. 10.

Defendants acknowledge that we upheld the MDLEA as a

proper exercise of Congress’ constitutional power under the

Piracies and Felonies Clause in United States v. Aikins, 946

F.2d 608 (9th Cir. 1991), and in United States v. Davis, 905

F.2d 245 (9th Cir. 1990). Nonetheless, they argue that neither

Aikins nor Davis is binding because neither decision analyzes

the scope of the Piracies and Felonies Clause, and thus, both

decisions’ statements about the constitutionality of the

MDLEA are dicta. Defendants are incorrect. 

Aikins’ and Davis’ statements that the MDLEA is constitutional were “necessarily involved in the case[s,] essential to

11We review the constitutionality of a federal statute de novo. See

United States v. McCoy, 323 F.3d 1114, 1117 (9th Cir. 2003). 

2578 UNITED STATES v. PERLAZA
[their] determination,” and therefore not dicta. BLACK’S LAW

DICTIONARY 454 (6th ed. 1990); see also Bryan A. Garner, A

DICTIONARY OF MODERN LEGAL USAGE 274-75 (2d ed. 1995);

accord, Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th

Cir. 2004) (“A statement is dictum when it is made during the

course of delivering a judicial opinion, but is unnecessary to

the decision in the case and is therefore not precedential.”

(citations, quotations, and alterations omitted)).12 For example, in Davis, the defendant was caught by the Coast Guard

approximately 100 miles west of California with over 7,000

pounds of marijuana aboard his vessel. See 905 F.2d at 247.

Among other things, the defendant argued “that the provisions

of the . . . [MDLEA] do not apply to persons on foreign vessels outside the territory of the United States.” Id. We trifurcated our analysis of the defendant’s argument, the first part

of which was “whether Congress has constitutional authority

to give extraterritorial effect to the [MDLEA].” Id. at 248. In

answering that question in the affirmative, we noted that

“[t]he Constitution gives Congress the power to ‘define and

punish piracies and felonies on the high seas . . . .’ and that

the Constitution authorized Congress to give extraterritorial

effect to the Act.” Id. (quoting U.S. Const., art. I, § 8, cl. 10).

Similarly, in Aikins, the defendants were caught by the

Coast Guard on the high seas southeast of the Hawaiian

Islands with approximately 21,000 pounds of marijuana

aboard their vessel. See 946 F.2d at 611. Among other things,

the defendants contended that the MDLEA was unconstitutional as applied to them. See id. at 613. At the beginning of

12What is dicta has been the subject of frequent discussion by en banc

panels of our court. See, e.g., Barapind v. Enomoto, 400 F.3d 744 (9th Cir.

2005) (en banc); Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en

banc); Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th Cir. 1987)

(en banc); United States v. Johnson, 256 F.3d 895 (9th Cir. 2001) (en

banc). We note that, regardless of the characterization of dicta that one

chooses, neither Aikins’ nor Davis’ finding that the MDLEA is constitutional is dicta. Compare Barapind, 400 F.3d at 751, with id. at 758

(Rymer, J., dissenting). 

UNITED STATES v. PERLAZA 2579
our “as applied” analysis, we noted that “[i]t has been established that the Act is intended by Congress to apply to conduct on the high seas” and that “[i]t is clear that Congress has

power ‘to define and punish piracies and felonies committed

on the high seas.’ ” Id. (citing U.S. Const., art. I, § 8, cl. 10;

Davis, 905 F.2d at 248). 

Moreover, even if our statements in Aikins and Davis were

dicta, in United States v. Moreno-Morillo, 334 F.3d 819 (9th

Cir. 2003), cert. denied, 540 U.S. 1156 (2004), decided after

the majority of the briefs were filed in this case, we adopted

Aikins’ and Davis’ discussions of the constitutionality of the

MDLEA. In Moreno-Morillo, we held that “Congress . . . was

acting within its constitutionally conferred authority when it

passed the MDLEA. That authority is expressly conferred by

Article I, Section 8, Clause 10 [the Piracies and Felonies

Clause] . . . .” 334 F.3d at 824-25; see also United States v.

Ledesma-Cuesta, 347 F.3d 527, 532 (3d Cir. 2003)

(“Congress had authority to enact [the MDLEA], pursuant to

its constitutional power to: ‘define and punish Piracies and

Felonies committed on the high seas, and Offenses against the

Law of Nations.’ Inasmuch as the trafficking of narcotics is

condemned universally by law-abiding nations, we see no reason to conclude that it is ‘fundamentally unfair’ for Congress

to provide for the punishment of persons apprehended with

narcotics on the high seas.” (quoting United States v.

Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993))). 

[2] Binding precedent compels us to find that the MDLEA

is constitutional under the Piracies and Felonies clause and to

reject Defendants’ constitutional challenge to it. 

B. The District Court Erred when It Concluded that It

Had Jurisdiction over the Defendants13

13We review questions of law, such as the MDLEA’s jurisdictional

requirements, de novo. See United States v. Bynum, 327 F.3d 986 (9th

Cir.) (reviewing de novo the district court’s construction of jurisdictional

elements of 18 U.S.C. § 666, the federal statute proscribing “theft or bribery concerning programs receiving Federal funds”), cert. denied, 540 U.S.

908 (2003). 

2580 UNITED STATES v. PERLAZA
Before trial, Defendants also moved to dismiss the indictment on the basis that the district court lacked jurisdiction

over them because the Government did not allege in the

indictment that the Go-Fast was stateless and because the

Government did not produce any “evidence of nexus at all”

between Defendants and the United States. The district court

rejected these arguments and found that it had jurisdiction

over Defendants. This was error. 

[3] The MDLEA prohibits possession, manufacture, or distribution of illicit drugs aboard a “vessel subject to the jurisdiction of the United States.” 46 App. U.S.C. § 1903(a). A

“vessel subject to the jurisdiction of the United States” is

defined as either (1) a vessel without nationality (also commonly referred to as a stateless vessel); (2) a vessel assimilated to a vessel without nationality; (3) a vessel registered in

a foreign nation where the nation of registration consents to

the United States’ enforcement of its laws aboard that ship;

(4) a vessel located in the customs waters of the United

States; or (5) a vessel located in the territorial waters of

another nation where that nation consents to enforcement of

United States laws by United States authorities. See id.

§ 1903(c). For the Government to prosecute someone under

the MDLEA, the Government must satisfy at least one of

these “statutory jurisdiction” requirements. United States v.

Medjuck (“Medjuck III”), 156 F.3d 916, 918 (9th Cir. 1998).

[4] In addition to the MDLEA’s “statutory jurisdiction”

requirements, where the MDLEA is being applied extraterritorially, as in this case, due process requires the Government

to demonstrate that there exists “a sufficient nexus between

the conduct condemned and the United States” such that the

application of the statute would not be arbitrary or fundamentally unfair to the defendant. United States v. Medjuck

(“Medjuck II”), 48 F.3d 1107, 1111 (9th Cir.1995); see also

Moreno-Morillo, 334 F.3d at 828; United States v.

Klimavicius-Viloria, 144 F.3d 1249, 1256-59 (9th Cir. 1998);

United States v. Khan, 35 F.3d 426, 429-30 (9th Cir. 1994);

UNITED STATES v. PERLAZA 2581
Davis, 905 F.2d at 248-49; United States v. Peterson, 812

F.2d 486, 493 (9th Cir. 1987).14 There is one exception, however, to this “constitutional jurisdiction” requirement: “[i]f a

vessel is deemed stateless, there is no requirement that the

government demonstrate a nexus between those on board and

the United States before exercising jurisdiction over them.”

Moreno-Morillo, 334 F.3d at 829; see also United States v.

Caicedo, 47 F.3d 370, 372-73 (9th Cir. 1995). 

In this case, the district court determined that both the statutory and constitutional jurisdiction questions were questions

for the court — not the jury — to decide. With respect to the

Go-Fast Defendants, the district court found that it had statutory jurisdiction because, after conducting evidentiary hearings, it determined that the Go-Fast was a stateless vessel.

Because it deemed the Go-Fast stateless, the district court

found that the Government was not required to establish constitutional jurisdiction by showing a nexus between the GoFast and the United States. With respect to the Gran Tauro

Defendants, the district court found that it had statutory jurisdiction because it determined that the Gran Tauro was a

Colombian-registered vessel and that the Colombian government had consented to the United States’ enforcement of its

laws aboard that ship. 

Although nexus is ordinarily required for foreign-flagged

vessels like the Gran Tauro, the district court found that the

Government need not show nexus between the Gran Tauro

Defendants and the United States. Specifically, the district

court found that the Gran Tauro Defendants were aiding and

abetting the Go-Fast Defendants and, as aiders and abettors,

“stand in the shoes of the principals, specifically the Go-Fast

defendants, for jurisdiction purposes.” Because the district

14Other circuits do not require a “nexus.” See United States v. Suerte,

291 F.3d 366, 375 (5th Cir. 2002); United States v. Perez-Oviedo, 281

F.3d 400, 403 (3d Cir. 2002); United States v. Cardales, 168 F.3d 548,

553 (1st Cir. 1999) (Hall, J., sitting by designation). 

2582 UNITED STATES v. PERLAZA
court had previously found that the Go-Fast was stateless and

that the district court had jurisdiction over the Defendants

aboard it, the district court concluded that it also had jurisdiction over the Gran Tauro Defendants and that the Government need not demonstrate a nexus between the Gran Tauro

and the United States. 

Defendants challenge all of these rulings. As a threshold

matter, the Government contends that we need not evaluate

Defendants’ challenges to these rulings because the district

court properly exercised jurisdiction over Defendants under

the “drug trafficking protective principle” and the United

States’ “universal jurisdiction” to prevent piracy, slave trading, and other universally condemned activities. Accordingly,

before considering the merits of Defendant’s challenges to the

district court’s statutory and constitutional jurisdiction analyses, we consider the “protective principle” and “universal

jurisdiction.” 

1. The “Protective Principle” and “Universal

Jurisdiction”

Our circuit has recognized the “protective principle”

15 as

part of its consideration of whether nexus exists, not as a substitute for it. We first discussed the “protective principle” in

Peterson, where we stated that

drug trafficking may be prevented under the protective principle of jurisdiction, without any showing of

15As recognized by the Second Circuit, under the “protective principle,”

a state “has jurisdiction to prescribe a rule of law attaching legal

consequences to conduct outside its territory that threatens its

security as a state or the operation of its governmental functions,

provided the conduct is generally recognized as a crime under the

law of states that have reasonably developed legal systems.” 

United States v. Pizzarusso, 388 F.2d 8, 10-11 (2d Cir. 1968) (quoting

Restatement (Second), Foreign Relations § 33 (1965)). 

UNITED STATES v. PERLAZA 2583
an actual effect on the United States. Protective

jurisdiction is proper if the activity threatens the

security or governmental functions of the United

States. Drug trafficking presents the sort of threat to

our nation’s ability to function that merits application of the protective principle of jurisdiction.

812 F.2d at 493 (citations omitted). 

There are limitations, however, to Peterson’s discussion of

the “protective principle.” First, the language in Peterson,

quoted above, concerning the “protective principle” is dicta.

It was “unnecessary to the decision of the case and . . . therefore not precedential,” Cetacean Cmty., 386 F.3d at 1173,

because, in that case, “there was more than a sufficient nexus

with the United States to allow exercise of jurisdiction,”

Peterson, 812 F.2d at 493. 

Second, the notion that Peterson’s “protective principle”

can be applied to “prohibiting foreigners on foreign ships 500

miles offshore from possessing drugs that . . . might be bound

for Canada, South America, or Zanzibar” — as suggested by

the Government here — has been repeatedly called into question by our Court and others. United States v. Robinson, 843

F.2d 1, 3 (1st Cir. 1988) (Breyer, J.) (questioning the reasonableness of a broad reading of the “protective principle”

because such a broad reading would allow the United States

to police any international conduct “against [any] important

state interests”); see also, e.g., Davis, 905 F.2d at 248-49 &

n.2; United States v. Suerte, No. CRIM. 00-0069, 2001 WL

1877264, *6 (S.D. Tex. June 6, 2001), vacated on other

grounds, 291 F.3d 366 (5th Cir. 2002); United States v. Juda,

797 F. Supp. 774, 777 (N.D. Cal. 1992) (“Juda I”), aff’d, 46

F.3d 961 (9th Cir. 1995) (“Juda II”). For example, in Davis,

we noted that “[i]nternational law principles,” such as the

“protective principle,” 

may be useful as a rough guide of whether a sufficient nexus exists between the defendant and the

2584 UNITED STATES v. PERLAZA
United States so that application of the statute in

question would not violate due process. However,

danger exists that emphasis on international law

principles will cause us to lose sight of the ultimate

question: would application of the statute to the

defendant be arbitrary or fundamentally unfair? 

902 F.2d at 249 n.2 (emphasis added) (citing Peterson, 812

F.2d at 493). 

Third, application of Peterson’s “protective principle”

without a showing of nexus or statelessness would nullify 46

App. U.S.C. § 1903(c) and a wealth of our MDLEA opinions

requiring nexus or statelessness for the United States to have

jurisdiction over drug smugglers captured on the high seas.

See, e.g., Moreno-Morillo, 334 F.3d at 827-28; Juda II, 46

F.3d at 965-66; Aikens, 923 F.2d at 655; Davis, 905 F.2d at

249.16

The Government also argues that the district court properly

found that it had jurisdiction over the Go-Fast defendants

under the “universal jurisdiction” to prevent piracy, slave

trade, and universally condemned activity. This argument is

simply a weaker version of the Government’s “protective

principle” argument that differs only inasmuch as it rests

exclusively on two Eleventh Circuit cases: United States v.

Marino-Garcia, 679 F.2d 1373, 1382 n.16 (11th Cir. 1982)

(noting “a growing consensus among nations to include drug

trafficking as a universally prohibited crime”), and Gonzalez,

776 F.2d at 939-40 (citing Marino-Garcia for the proposition

that “conduct may be forbidden if it has a potentially adverse

16Indeed, as Northern District of California Judge Charles Legge concluded, “Based upon the Davis court’s discussion on pp. 248-49, and particularly footnote 2 . . . the circuit has rejected the protective principle

discussed in Peterson . . . as being an independent ground for jurisdiction,

and instead requires a constitutionally sufficient nexus.” Juda I, 797 F.

Supp. at 777. 

UNITED STATES v. PERLAZA 2585
effect and is generally recognized as a crime by nations that

have reasonably developed legal systems”). 

[5] For these reasons, we reject the Government’s contention that either the “protective principle” or “universal jurisdiction” vitiated its obligation to establish statutory and

constitutional jurisdiction over Defendants. Thus, we now

consider whether the district court properly concluded that it

had statutory jurisdiction over Defendants. 

2. Statutory Jurisdiction

[6] “Prior to 1996, there was a consensus among the circuits that ‘the jurisdictional requirement in section 1903(a) is

an element of the crime charged and therefore must be

decided by the jury.’ ” Moreno-Morillo, 334 F.3d at 828

(quoting Medjuck II, 48 F.3d at 1110 (citing cases from the

First, Third, and Eleventh Circuits)). In 1996, Congress

amended § 1903 by adding a new subsection (f), which provides that “[j]urisdiction of the United States with respect to

vessels subject to this chapter is not an element of any

offense” and that “[a]ll jurisdictional issues arising under this

chapter are preliminary questions of law to be determined

solely by the trial judge.” 46 App. U.S.C. § 1903(f). In doing

so, Congress’ goal was to “expand the Government’s prosecutorial effectiveness in drug smuggling cases.” H.R. Conf. Rep.

104-854, at 142 (1996), reprinted in 1996 U.S.C.C.A.N. 4292,

4337; see also 32 Weekly Comp. Pres. Doc. 2212 (Oct. 28,

1996) (signing statement of President Clinton) (noting that the

general purpose of the amendment was to “strengthen [ ] the

hand of prosecutors in drug smuggling cases”). 

Defendants argue that, notwithstanding Congress’ addition

of subsection (f), whether they were “on board . . . a vessel

subject to the jurisdiction of the United States” remains an

element of an MDLEA offense and must be submitted to the

jury because subsection (f) is unconstitutional under the Fifth

2586 UNITED STATES v. PERLAZA
Amendment’s Due Process Clause and the Sixth Amendment’s right to trial by jury. 

Very few courts have analyzed the effect of § 1903(f) —

much less, the effect of 1903(f) in light of the Fifth and Sixth

Amendments. In United States v. Tinoco, 304 F.3d 1088,

1106-12 (11th Cir. 2002), the Eleventh Circuit held that

whether a vessel is subject to the jurisdiction of the United

States under § 1903(f) is an issue for only the judge to decide.

According to the Eleventh Circuit, “statutory jurisdiction” is

no longer an element of an MDLEA offense, and, therefore,

whether a vessel is subject to the jurisdiction of the United

States need not be determined by a jury. See id.; see also

United States v. Bustos-Useche, 273 F.3d 622, 625-26 (5th

Cir. 2001) (defendant’s guilty plea did not waive challenge to

jurisdiction because, under § 1903(f), jurisdiction is no longer

an element of the crime to be found by a jury); but cf. United

States v. Gonzalez, 311 F.3d 440, 442-44 (1st Cir. 2002)

(holding that defendant’s guilty plea did waive objection to

jurisdiction over the vessel, but not reaching the question

whether jurisdiction over the vessel must be decided by a jury

after § 1903(f)).

We have considered the effect of subsection (f) in two

cases: United States v. Smith, 282 F.3d 758 (9th Cir. 2002),

and Moreno-Morillo. Neither case decides the precise question presented here, although Smith (as interpreted by

Moreno-Morillo) supports Defendants’ arguments.17

The defendants in Smith were arrested on a vessel allegedly

in United States customs waters. See 282 F.3d at 767. In that

case, the district court concluded that under § 1903(f), the

court, not the jury, should decide both (1) whether the United

States has jurisdiction over the place where the vessel was

allegedly intercepted (i.e., in Smith, if the place where the ves17We recognize that the district court was without the benefit of Smith

or Moreno-Morillo when it decided the jurisdictional issues in this case.

UNITED STATES v. PERLAZA 2587
sel was allegedly intercepted was within United States customs waters); and (2) whether the vessel was actually

intercepted at that place. See id. at 766. We rejected the district court’s interpretation as “over-inclusive,” finding that

“[s]ection 1903(f) empowers the court to make only the former determination; the latter question, as to where the vessel

was intercepted, is a question of fact to be decided by the

jury.” Id. 

In Moreno-Morillo, we read Smith as having narrowed the

effect of § 1903(f) to apply to only purely legal questions

while reserving factual questions for the jury. See 334 F.3d at

829-30. The Eleventh Circuit has also described Smith’s holding this way: “Generally speaking, the Ninth Circuit’s interpretation of § 1903(f) suggests that particularized, casespecific factual determinations that have to be made as part of

the MDLEA jurisdictional inquiry are to be decided by the

jury.” Tinoco, 304 F.3d at 1111 n.22 (discussing Smith). 

[7] In Moreno-Morillo, as in this case, statutory jurisdiction

depended not on the factual determination of where the vessel

was seized, as in Smith, but, rather, on the ship’s nationality

— in particular, whether the vessel was stateless. See

Moreno-Morillo, 334 F.3d at 829. The problem with Smith, as

we explained in Moreno-Morillo, is that not all jurisdictional

determinations under § 1903 may be split so easily into two

questions — one of which is purely legal and, under

§ 1903(f), is decided by the court, and the other, which is factual, is left for the jury. See id. at 829. For example, where

jurisdiction, as in this case, turns on a vessel’s nationality or

statelessness, there is only one question to be answered: 

[A] determination [of jurisdiction in a statelessness

case], unlike that faced by this court in Smith, a customs waters case, cannot be separated neatly into

two parts. Here, jurisdiction depends not on the

ship’s location (e.g., “the waters where a vessel is

allegedly intercepted,” Smith, 282 F.3d at 767), but

2588 UNITED STATES v. PERLAZA
rather upon its status: Either the Defendants’ ship is

stateless or it is not. 

Id.

Ultimately, in Moreno-Morillo, we concluded that we need

not resolve whether a judge or jury should decide a vessel’s

nationality or statelessness.18 Id. at 830. The day for deciding

the issue, however, is now upon us. 

Here, there is no dispute that the Gran Tauro was a Colombian flagged vessel for purposes of § 1903. The status of the

Go-Fast, however, is disputed. The Government may prove

that the Go-Fast was stateless in any one of three ways: (1)

by proving that a claim of registry was denied by the claimed

nation; (2) by proving that the master or person in charge

failed, when asked, to make a claim of nationality or registry;

or (3) by proving that the master or person in charge made a

claim of registry but that the claimed nation did not “affirmatively and unequivocally” confirm the vessel’s nationality. 46

App. U.S.C. § 1903(c)(2). 

Three Navy personnel who observed the Go-Fast through

binoculars from the De Wert’s bridge or with the De Wert’s

18With respect to one of the Moreno-Morillo defendants, we held that

the defendant waived his right to challenge § 1903(f) because the issue

“ha[d] not been properly preserved under the terms of his plea agreement.”

334 F.3d at 825. With respect to the remaining three Moreno-Morillo

defendants, we avoided the issue by finding that the district court had

made only a preliminary determination of statelessness on uncontested

facts in order to determine whether the court had personal jurisdiction. Id.

at 830-31 (where defendants failed to challenge substance of State Department certificate noting that Colombia would neither affirm nor deny vessel’s registry, “the substance of that certificate stands as the only — and

therefore uncontroverted — evidence in the record regarding statelessness”). The district court had not necessarily taken the ultimate question

of statelessness away from the jury, and the defendants pled guilty, so the

case never proceeded far enough for the district court to revisit the issue.

See id.

UNITED STATES v. PERLAZA 2589
helicopter’s infra-red camera testified at the district court’s

evidentiary hearing that they saw no flags of any kind, no

markings of any kind, no hull numbers, no name on the boat,

and no home-port inscription. Additionally, when Coast

Guard Petty Officer Craig Cruz asked the Go-Fast Defendants

if the vessel had a flag, Reina and Murillo simply shook their

heads back and forth, and Aborno stated, “Barco no tengo

bandera,” which literally means, “Boat I have no flag.” On the

other hand, Reina and Murillo both submitted declarations

stating that they were “from” Colombia and that the Go-Fast

was “from” Colombia. This could be read fairly as a statement of nationality.

At the evidentiary hearing, Petty Officer Cruz also testified

that later, when asked who was in charge of the Go-Fast,

Murillo stated that Go-Fast’s captain was a person named

“Freddy,” who was never found and, according to Cruz’s

report, “was the only one who really knew about the boat

expedition.” Although the district court indicated that this

statement was not produced for its truth — namely, that

“Freddy” was in fact the Go-Fast’s captain — the statement

indicates that, when Cruz inquired as to who was the GoFast’s captain, neither Murillo nor Reina claimed to be its

master or the person in charge. On the other hand, Reina and

Murillo may nonetheless have been in charge of the Go-Fast

at the time because “Freddy” was never found by the LEDET

teams investigating the Gran Tauro and the Go-Fast. Additionally, the Government also appears to have treated Reina

and Murillo as persons in charge by asking them about the

Go-Fast’s nationality. 

[8] After hearing all the evidence as to its status at a pretrial hearing, the district court determined that the Go-Fast

was a stateless vessel. We find that by not submitting this

issue to the jury, the district court erred. The evidence relating

to the Go-Fast’s statelessness presents precisely the kind of

disputed factual question that Smith requires a jury to resolve.19

19Our dissenting colleague’s assertion that “the Go-Fast’s status was a

question for the court, not the jury,” is dependent on his finding that “the

2590 UNITED STATES v. PERLAZA
Cf. Brosseau v. Haugen, 543 U.S. 194, 206 (2004) (Stevens,

J., dissenting) (“This is a quintessentially ‘fact-specific’ question, not a question that judges should try to answer ‘as a matter of law.’ ”). “[C]ase-specific factual determinations that

have to be made as part of the MDLEA jurisdictional inquiry

are to be decided by the jury.” Tinoco, 304 F.3d at 1111 n. 22

(discussing Smith).20

Notwithstanding the statutory language of § 1903(f) and

Congress’ prerogative in enacting the law of federal crimes,

see Staples v. United States, 511 U.S. 600, 604 (1994), we are

evidence presented with regard to the Go-Fast’s status is . . . uncontroverted.” Dissent at 2624; see also id. at 2626 (“Since no evidence was presented to create a factual dispute with regard to the Go-Fast’s status as a

‘vessel without nationality,’ under Moreno-Morillo, the district court properly determined that the vessel was stateless based on the uncontrovered

evidence in the record.”). For the reasons already explained above, we disagree with this reading of the evidence. 

Accordingly, contrary to our dissenting colleague’s assertion, see id. at

2623-24, the inquiry required to resolve the tension in these facts issue is

necessarily closer to the type of dispute that Smith required the jury to

resolve — i.e., whether the vessel was in fact intercepted at the location

alleged by the Government — rather than the legal question that Smith

required the judge to resolve — i.e., whether the United States had jurisdiction over the waters where the vessel was in fact intercepted, see 282

F.3d at 766. 

20The Government bears the burden of proving statelessness. See

Tinoco, 304 F.3d at 1114 (“[W]e note that the government bears the burden of establishing that the statutory requirements of subject matter jurisdiction imposed by the MDLEA have been met.”); cf. Medjuk III, 156

F.3d at 918 (stating that the government must demonstrate “nexus”). This

approach to the burdens of proof is consistent with the general rule that

the party invoking a federal court’s jurisdiction bears the burden of proving that all of the requirements for the exercise of jurisdiction have been

met. See Hunter v. United Van Lines, 746 F.2d 635, 639 (9th Cir. 1984)

(“We . . . note that the burden of establishing federal jurisdiction falls on

the party who invokes the removal statute.”); see also LSO, Ltd. v. Stroh,

205 F.3d 1146, 1152 (9th Cir. 2000) (“As the party seeking to invoke federal jurisdiction, LSO bears the burden of establishing its standing.”). 

UNITED STATES v. PERLAZA 2591
mindful that we must honor the strictures of the Fifth and

Sixth Amendments. Thus, this case presents one of the “limited circumstances” in which “facts not formally identified as

elements of the offense charged” must be submitted to the

jury and proved beyond a reasonable doubt. McMillan v.

Pennsylvania, 477 U.S. 79, 85 (1986). This is because “the

Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged.”

In re Winship, 397 U.S. 358, 364 (1970); see also Harris v.

United States, 536 U.S. 545, 561 (2002) (defining “elements”

as “ ‘fact[s] . . . legally essential to the punishment to be

inflicted.’ ” (quoting United States v. Reese, 92 U.S. 214, 232

(1876) (Clifford, J., dissenting))). “It is equally clear that the

‘Constitution gives a criminal defendant the right to demand

that a jury find him guilty of all the elements of the crime

with which he is charged.’ These basic precepts, firmly rooted

in the common law, have provided the basis for recent decisions interpreting modern criminal statutes . . . .” United

States v. Booker, 125 S. Ct. 738, 748 (2005) (quoting United

States v. Gaudin, 515 U.S. 506, 511 (1995)). 

Consistent with these precepts, the Supreme Court has

recently admonished that “Congress may not manipulate the

definition of a crime in a way that relieves the Government

of its constitutional obligations to charge each element in the

indictment, submit each element to the jury, and prove each

element beyond a reasonable doubt.” Harris, 536 U.S. at 556

(citing Jones v. United States, 526 U.S. 227, 240-41 (1999);

Mullaney v. Wilbur, 421 U.S. 684, 699 (1975)); see also Ring

v. Arizona, 536 U.S. 584, 606-07 (2002) (“In various settings,

we have interpreted the Constitution to require the addition of

an element or elements to the definition of a criminal offense

in order to narrow its scope. If a legislature responded to one

of these decisions by adding the element we held constitutionally required, surely the Sixth Amendment guarantee would

apply to that element.” (internal citations omitted)). But that

is precisely what Congress did with respect to § 1903. In

2592 UNITED STATES v. PERLAZA
adding subsection (f), it essentially overrode by statute the

consensus prevailing at that time that juries, not judges, would

decide whether § 1903(a)’s jurisdictional requirement was

satisfied. See Coast Guard Authorization Act of 1996, Pub. L.

104-324, § 1138(a)(5), 110 Stat. 3901 (1996). 

[9] When that jurisdictional inquiry turns on “factual issue-

[s],” such as the question “where the vessel was intercepted”

in Smith, 282 F.2d at 767, or in this case, whether the Go-Fast

was stateless, the jurisdictional inquiry must be resolved by a

jury. Accordingly, we must vacate Go-Fast Defendants Carrasco’s, Lopez’s, and Murillo’s convictions and direct the district court to dismiss the indictment against them.21

21Even though Defendant Aborno pled guilty unconditionally, he asserts

that his conviction must be reversed because the MDLEA violates the

Fifth and Sixth Amendments by removing the jurisdictional inquiry from

the jury. Ordinarily, in this circuit, “[c]laims that ‘the applicable statute is

unconstitutional or that the indictment fails to state an offense’ are jurisdictional claims not waived by the guilty plea.” United States v. Montilla,

870 F.2d 549, 552 (9th Cir. 1989) (quoting United States v. Broncheau,

597 F.2d 1260, 1262 n.1 (9th Cir. 1979)), amended by 907 F.2d 115 (9th

Cir. 1990); see also United States v. Lopez-Armenta, 400 F.3d 1173, 1175

(9th Cir. 2005) (“[I]t is well-settled that an unconditional guilty plea constitutes a waiver of the right to appeal all nonjurisdictional antecedent rulings and cures all antecedent constitutional defects.” (emphasis added)

(citing United States v. Floyd, 108 F.3d 202, 204 (9th Cir. 1997); United

States v. Cortez, 973 F.2d 764, 766 (9th Cir. 1992))). Nonetheless,

Aborno’s argument is foreclosed by Moreno-Morillo, where we held that

“claim[s] that the MDLEA violates the Fifth and Sixth Amendments

because it removes from the jury an element of the offense” must be

expressly reserved for appeal. 334 F.3d at 825-26 (citing United States v.

Chon, 210 F.3d 990, 995 (9th Cir. 2000)); cf. Gonzalez, 311 F.3d at 444

(holding that an MDLEA defendant who unconditionally pleads guilty forfeits his right to challenge the district court’s jurisdiction on appeal).

Accordingly, our reversal of the Go-Fast Defendants’ convictions and dismissal of the indictment against them on the basis that the Go-Fast’s

nationality must be proved to a jury do not apply to Aborno. 

In addition, on October 6, 2003, Aborno attempted to expand the scope

of his appeal when he filed a motion to join in the challenges raised by

his co-Defendants. On October 23, 2003, a motions and screening panel

UNITED STATES v. PERLAZA 2593
On remand, should the Government re-indict Go-Fast

Defendants Carrasco, Lopez, and Murillo, and should a jury

conclude that the Go-Fast was stateless, the district court’s

jurisdictional inquiry with respect to them will be complete

because, as we noted earlier, “[i]f a vessel is deemed stateless,

there is no requirement that the government demonstrate a

nexus between those on board and the United States before

exercising jurisdiction over them.” Moreno-Morillo, 334 F.3d

at 829; see also Caicedo, 47 F.3d at 372-73. In contrast,

should a jury conclude on remand that the Go-Fast was

Colombian, the district court will, consistent with the principles outlined in the following section, have to determine

whether the Government established a sufficient nexus

between the Go-Fast and the United States. 

3. Constitutional Jurisdiction

As noted earlier, in addition to establishing a statutory basis

for jurisdiction over foreign-flagged vessels, we also require

a showing of nexus between the prohibited activity and the

United States. See Medjuck III, 156 F.3d at 918. “The nexus

requirement is a judicial gloss applied to ensure that a defendant is not improperly haled before a court for trial . . . . [It]

serves the same purpose as the ‘minimum contacts’ test in

personal jurisdiction.” Moreno-Morillo, 334 F.3d at 830 n.8

(quoting Klimavicius-Viloria, 144 F.3d at 1257). As we noted

above, the nexus requirement turns on the status of the vessel:

“With respect to those apprehended aboard foreign-flagged

vessels, there must be some nexus to the United States before

jurisdiction can be established . . . .” Id. at 828; see also

of our Court referred Aborno’s motion to this merits panel for resolution.

In light of the precedents cited in the preceding paragraph, we deny

Aborno’s motion to join in the challenges raised by his co-Defendants

with respect to all issues except their challenge to Congress’ power to

enact the MDLEA. Having already decided that issue against Defendants,

and it being Aborno’s only challenge to his conviction properly before us,

his conviction must be affirmed. 

2594 UNITED STATES v. PERLAZA
Klimavicius-Viloria, 144 F.3d at 1257 (“A defendant on [a

foreign-flagged ship] would have a legitimate expectation that

because he has submitted himself to the laws of one nation

[the foreign-flag nation], other nations will not be entitled to

exercise jurisdiction without some nexus.” (citation omitted)).

[10] The Gran Tauro was, without dispute, a Colombian

vessel, and the Colombian government gave the De Wert’s

and Valley Forge’s LEDET teams telephonic consent under

the Bilateral Agreement to board the Gran Tauro. This satisfied the Government’s statutory jurisdiction obligations under

§ 1903(c). See 46 App. U.S.C. § 1903(c)(1) (“[A] ‘vessel subject to the jurisdiction of the United States’ includes . . . a vessel registered in a foreign nation where the flag nation has

consented or waived objection to the enforcement of United

States law by the United States . . . . Consent or waiver of

objection by a foreign nation . . . may be obtained by radio,

telephone, or similar oral or electronic means . . . .”). Under

such circumstances, however, and as we noted above, our

case law requires the Government to also show nexus

between the prohibited activity and the United States. 

[11] Here, the district court concluded that the Government

need not show nexus as to the Gran Tauro because the Gran

Tauro aided and abetted the Go-Fast, over which the district

court already concluded that it had jurisdiction by virtue of

the Go-Fast’s statelessness. The district court’s conclusion

that the Government need not show nexus as to the Gran

Tauro was erroneous. 

First, the district court’s ruling as to the Gran Tauro cannot

stand because we have already reversed the antecedent ruling

on which it relied — namely, that the Go-Fast was stateless.

But even if we had affirmed the district court’s ruling that the

Go-Fast was stateless, we would still reverse its ruling as to

the Gran Tauro. 

Relying on the theory of aiding and abetting does not vitiate the need to consider the underlying bases for jurisdiction.

UNITED STATES v. PERLAZA 2595
In Klimavicius-Viloria, we noted that criminal liability under

the MDLEA could be predicated on an aider-and-abettor theory, but we conducted a nexus analysis nevertheless. See

Klimavicius-Viloria, 144 F.3d at 1257. Aiding and abetting is

a substantive area of criminal law that allows courts to punish

vicariously a defendant who, in some way, associates himself

with an illegal venture, participates in it as in something he

wishes to bring about, and seeks by his actions to make it succeed. Id. at 1263 (citing Nye & Nissen v. United States, 336

U.S. 613, 619 (1949)). The ability of a United States court to

exercise jurisdiction over that particular defendant, however,

is a preliminary determination totally distinct from the crime

itself and must be considered before any United States court

or jury may determine whether the defendant acted as a principal or an aider and abettor. See id. at 1257. 

[12] The fact that the Government received Colombia’s

consent to seize the members of the Gran Tauro, remove

them to the United States, and prosecute them under United

States law in federal court does not eliminate the nexus

requirement. The consent permitted the United States to prosecute defendants under United States law — nothing more.

See id. at 1256-57 (conducting nexus analysis despite Panama’s consent to United States to seize the Panamanianflagged vessel and the contraband, arrest the crew, and prosecute under United States law). For a United States court to

properly exercise jurisdiction, the Government still needs to

establish some detrimental effect within, or nexus to, the

United States. Cf. United States v. Hill, 279 F.3d 731, 739

(9th Cir. 2002) (“Under the territorial jurisdiction theory,

jurisdiction is appropriate if the acts performed outside the

United States produce detrimental effects within the United

States.”); United States v. Felix-Gutierrez, 940 F.2d 1200,

1205-06 (9th Cir. 1991) (holding that accessory-after-the-fact

liability can attach extraterritorially if the underlying statute

was intended to reach extraterritorially, but international law

jurisdictional limits still apply). Until nexus is established, we

cannot apply United States aiding-and-abetting law, and, by

2596 UNITED STATES v. PERLAZA
applying it in lieu of holding the Government to its obligation

to establish nexus, the district judge put the proverbial cart

before the horse.

[13] Nor can we find that the district court’s failure to

require the Government to establish nexus was harmless

because, here, the Government conceded at oral argument

before us that it did not present any evidence indicating that

the cocaine jettisoned from the Go-Fast had any nexus to the

United States. Thus, the district court erred in exercising jurisdiction over the Gran Tauro Defendants, who were members

of an undisputably foreign-flagged vessel. Because nexus is

an essential part of the jurisdictional analysis that our case law

requires, we reverse the Gran Tauro Defendants’ convictions

and direct the district court to dismiss the indictment against

them. 

C. The Government Committed Prosecutorial

Misconduct Sufficient to Warrant Reversal of

Defendants’ Convictions22

The ten Defendants who opted for trial contend that the

Government committed prosecutorial misconduct on multiple

occasions throughout their trial. We need not consider each

alleged instance of prosecutorial misconduct because we find

that one of them in particular is a sufficient alternative basis

to warrant reversal of the convictions of the ten Defendants

who opted for trial. 

At the close of Defendants’ three-week trial, the Prosecutor

made the following statement in his rebuttal argument:

[I]n a short period of time, the case will be handed

to you. You’re going to go back into that deliberation room and that presumption of innocence, that

22We review whether closing argument constitutes misconduct de novo.

See United States v. Santiago, 46 F.3d 885, 892 (9th Cir. 1995). 

UNITED STATES v. PERLAZA 2597
presumption of innocence that these men have all

been cloaked with for the last year, the last year

while we’ve litigated motions — you’ve heard about

all the motions that have been held beforehand.

That’s why it’s taken so long to get here. That presumption, when you go back in the room right

behind you, is going to vanish when you start deliberating. And that’s when the presumption of guilt is

going to take over you . . . . [interrupted by objection] 

Defendants’ counsel responded to this statement with a flurry

of objections, all of which the district judge overruled. Immediately after the court overruled the objections, one of Defendants’ counsel made the following additional comment:

“That’s misconduct. There is no presumption of guilt” and “I

move for mistrial,” to which the district court responded,

“That’s proper rebuttal. Go ahead. You are all right.”

Defense counsel finished by stating, “Presumption of guilt

can’t be proper, Your Honor.” The Prosecutor continued with

his remarks,23 which lasted approximately twenty pages of

transcript until a break in the proceedings allowed counsel

and the district judge to discuss more fully the Prosecutor’s

statement. 

Defense counsel forcefully argued that, not only was the

Prosecutor’s statement a misstatement of law, but it constituted prosecutorial misconduct. Defense counsel asserted that

they did not believe that a curative instruction could cure the

prejudice suffered by the defendants from this remark; however, one of Defendants’ counsel stated, 

But I think that if Your Honor is going to give one,

23During this sequence of rebuttal, the Prosecutor attempted to give his

own “curative instruction,” stating that the Defendants had nothing to

prove and that it was the Government’s burden to prove its case beyond

a reasonable doubt. 

2598 UNITED STATES v. PERLAZA
as we are bound to request under the Ninth Circuit,

it should be something along the lines of: that was

absolute misconduct by the prosecutor, it was inexcusable, and there is no — and then instruct them on

the correct law, which is the presumption of innocence applies unless and until it is disproven and that

there is no presumption of guilt.

When given the opportunity to respond, the Prosecutor confirmed that his statement was intentional: “That’s what I said,

when they get back there and start looking at it is when the

presumption takes over, presumption of guilt.” 

The district court concluded that the Prosecutor’s statement

did not constitute misconduct and denied the motion for mistrial but agreed to give a curative instruction. After the break,

the court allowed the Prosecutor to continue without making

any statement to the jury, and only after the Prosecutor finished his rebuttal arguments — this time, about thirty-six transcript pages later — did the district court give the following

instruction:

[I]t is my duty at this time to instruct you on the law

that applies in this case . . . . Also, I’m sure you’re

all aware of this, but let me just tell you this before

we begin. There is no such thing as a presumption of

guilt in a criminal case. All defendants in a criminal

case are presumed to be innocent unless or until such

time as the evidence establishes their guilt. 

The court continued with its instructions, stating that “the

defendants are presumed to be innocent,” “the government

has the burden of proof of proving every element of each

charge beyond a reasonable doubt,” and “[n]o presumption of

guilt may be raised and no inference of any kind may be

drawn from the fact that a defendant did not testify.” The

court then provided a fairly comprehensive explanation of the

legal standard for proof beyond a reasonable doubt. 

UNITED STATES v. PERLAZA 2599
Defendants argue that the Government’s “presumption of

guilt” comment impermissibly shifted the burden of proof to

the defense. The Government concedes in its Answering Brief

that the comment was improper but argues that it was harmless and cured by the district court’s curative instruction and

repeated instructions on the burden of proof. So too does our

dissenting colleague. See Dissent at 2628. We disagree. 

[14] Criminal defendants have a constitutional right to the

presumption of innocence and to have the government prove

guilt beyond a reasonable doubt. Estelle v. Williams, 425 U.S.

501, 503 (1976) (“The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. The presumption

of innocence, although not articulated in the Constitution, is

a basic component of a fair trial under our system of criminal

justice.” (citation omitted)); In re Winship, 397 U.S. 358, 362

(1970) (“[I]t [is] the duty of the Government to establish . . .

guilt beyond a reasonable doubt. This notion — basic in our

law and rightly one of the boasts of a free society — is a

requirement and a safeguard of due process of law in the historic, procedural content of ‘due process.’ ” (quoting Leland

v. Oregon, 343 U.S. 790, 802-03 (Frankfurter, J., dissenting))).24

24See also United States v. Gaudin, 515 U.S. 506, 510 (1995) (“We

have held that [the Fifth and Sixth Amendments] require criminal convictions to rest upon a jury determination that the defendant is guilty of every

element of the crime with which he is charged, beyond a reasonable

doubt.”); Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993) (“What the

factfinder must determine to return a verdict of guilty is prescribed by the

Due Process Clause. The prosecution bears the burden of proving all elements of the offense charged, and must persuade the factfinder ‘beyond a

reasonable doubt’ of the facts necessary to establish each of those elements.” (citations omitted)); Patterson v. New York, 432 U.S. 197, 210

(1977) (“[T]he Due Process Clause requires the prosecution to prove

beyond a reasonable doubt all of the elements included in the definition

of the offense of which the defendant is charged.”); Coffin v. United

States, 156 U.S. 432, 453 (1895) (“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic

and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”); United States v. Cummings, 468 F.2d 274,

280 (9th Cir. 1972) (the presumption of innocence “is the converse of the

government’s burden to prove and persuade beyond a reasonable doubt”).

2600 UNITED STATES v. PERLAZA
If we view what happened in this case as constitutional

error, we must reverse unless the error was harmless beyond

a reasonable doubt. See Neder v. United States, 527 U.S. 1,

15 (1999). If we view what happened in this case as nonconstitutional error, we must reverse unless “it is more probable than not that the error did not materially affect the verdict.” United States v. Mitchell, 172 F.3d 1104, 1111 (9th Cir.

1999).25

[15] In our view, the instruction specifically intended to be

curative by the district court was inadequate to correct the district court’s earlier error and, therefore, precludes the Government from meeting the burden under either test. As noted

earlier, the district court instructed the jury that “defendants

in a criminal case are presumed innocent unless or until such

time as the evidence establishes their guilt.” This instruction

was not adequate to correct the Prosecutor’s improper comment because it fails to set forth the Government’s proper burden of persuasion — namely, guilt beyond a reasonable

doubt. 

In United States v. Cummings, 468 F.2d 274 (9th Cir.

1972), we considered the following instruction: 

Presumptions, like the presumption of innocence, are

also deductions and conclusions. They are deductions or conclusions which the law requires the jury

to make in the absence of evidence which leads the

jury to a different or contrary conclusion. A presumption continues to exist only so long as it is not

25We applied the harmlessness test for non-constitutional error to a

Prosecutor’s burden-shifting closing argument in United States v. Cox,

633 F.2d 871 (9th Cir. 1980). Cox, however, is factually distinguishable

from this case because in Cox, the district court sustained defense counsel’s objection and admonished the prosecutor. See 633 F.2d at 875. The

critical difference in this case is that the district court initially ratified the

Prosecutor’s burden-shifting by stating in the presence of the jury, “That’s

proper rebuttal. Go ahead. You are all right.” 

UNITED STATES v. PERLAZA 2601
overcome or outweighed by evidence to the contrary.

But unless and until the presumption is outweighed,

the jury should find in accordance with the presumption of innocence. 

Id. at 280. We found error in this instruction because “[t]he

presumption [of innocence] does not disappear when evidence

to the contrary is received; it is overcome only by evidence

convincing the jury beyond a reasonable doubt.” Id. (emphasis added). In this case before us, the district court’s curative

instruction failed to state that only evidence that convinces the

jury of guilt beyond a reasonable doubt will overcome the

presumption of innocence. 

The district court’s curative instruction was flawed in other

respects as well. It did not specify that the presumption of

innocence “go[es] with the jury when it deliberates.” Cummings, 468 F.2d at 280. The district court’s instruction should

have done so — particularly because of the Prosecutor’s statement that the “presumption, when you go back in the room

right behind you, is going to vanish when you start deliberating.” It is true that, in its standard instructions at the conclusion of the evidence, the district court told the jury that the

defendants “are presumed innocent.” But the jury may have

tried to reconcile this instruction with the district court’s earlier erroneous instruction — i.e., that “defendants in a criminal case are presumed innocent unless or until such time as

the evidence establishes their guilt” — by concluding that

criminal defendants “are presumed innocent” only until deliberations begin. 

The district court also delayed its curative instruction over

a period that spanned more than fifty pages of transcript and

then failed to tie explicitly the instruction to the Prosecutor’s

and the court’s earlier statements. The district court did not

tell the jury that the Prosecutor had been wrong, notwithstanding that the Prosecutor’s statement was patently improper and

intentional, as the Prosecutor confirmed when he stated,

2602 UNITED STATES v. PERLAZA
“That’s what I said . . . when they get back there and start

looking at it is when the presumption takes over, the presumption of guilt.” Most importantly, the district court never told

the jury of the earlier mistake when the judge ratified the

Prosecutor’s burden-shifting statement. 

We recognize that in its prepared jury instructions, the district court explained the reasonable doubt standard and told

the jury that the Government bears the burden of proving

every element beyond a reasonable doubt. At that point, however, the proper instruction regarding burden of proof became

one of several conflicting statements that the court made to

the jury. When a district court delays its curative instruction

on an error so fundamental, the court must refer specifically

to its earlier error so that the jury understands which of the

court’s instructions should be followed and which should be

ignored. 

[16] Based on the district court’s ratification of the Prosecutor’s intentional and improper burden-shifting statement,

we cannot conclude that what happened in this case was

harmless under any standard of harmlessness.26 Accordingly,

26While we do not address the other alleged instances of misconduct by

the Government in this case, we are nonetheless deeply troubled by the

Prosecutor’s conduct throughout the trial. 

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation

to govern impartially is as compelling as its obligation to govern

at all; and whose interest, therefore, in a criminal prosecution is

not that it shall win a case, but that justice shall be done. As such,

he is in a peculiar and very definite sense the servant of the law,

the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor

indeed, he should do so. But, while he may strike hard blows, he

is not at liberty to strike foul ones. It is as much his duty to

refrain from improper methods calculated to produce a wrongful

conviction as it is to use every legitimate means to bring about

a just one. 

UNITED STATES v. PERLAZA 2603
the convictions of the ten Defendants who opted for trial must

be reversed on this basis as well. 

[17] Although we find the Prosecutor’s burden-shifting

statement to have been intentional and not harmless, it does

not bar retrial. For the Double Jeopardy Clause to bar retrial,

Defendants must demonstrate that the “governmental conduct

in question [was] intended to ‘goad’ the defendants into moving for a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 676

(1982). In other words, “unless [the Prosecutor] is trying to

abort the trial, his misconduct will not bar a retrial. It doesn’t

even matter that he knows he is acting improperly, provided

that his aim is to get a conviction. The only relevant intent is

intent to terminate the trial, not intent to prevail at this trial

by impermissible means.” United States v. Oseni, 996 F.2d

186, 188 (7th Cir. 1993) (citations omitted); see also United

States v. Lewis, 368 F.3d 1102, 1108 (9th Cir. 2004) (noting

that the Double Jeopardy Clause “prevents prosecutors from

sinking a case they knew was doomed to end in an acquittal

in the hope of having better luck before a second jury”).

Based on the “objective facts and circumstances” discernable

from the record, Kennedy, 456 U.S. at 675, we cannot conclude that the Government was trying to abort the trial here.

Accordingly, our finding of prosecutorial misconduct does not

trigger the Double Jeopardy Clause’s bar to retrial. 

D. The Evidence Was Sufficient to Sustain

Defendants’ Convictions27

It is fair to say that the average jury, in a greater or less degree,

has confidence that these obligations, which so plainly rest upon

the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions . . . are apt to carry much weight

against the accused when they should properly carry none. 

Berger v. United States, 295 U.S. 78, 88 (1935). 

27We review claims of insufficient evidence de novo. See United States

v. Odom, 329 F.3d 1032, 1034 (9th Cir. 2003). “Evidence is sufficient if,

2604 UNITED STATES v. PERLAZA
Eight of the ten Defendants who opted for trial — Go-Fast

Defendant Lopez and all seven of the Gran Tauro Defendants

— assert that the Government’s evidence was insufficient to

support their convictions. Although we have already held that

the convictions of the ten Defendants who opted for trial must

be reversed, “we must still consider [the] contention[s of these

eight Defendants] that the evidence was insufficient to sustain

[their] conviction[s], because a challenge to the sufficiency of

the evidence implicates a defendant’s rights under the Double

Jeopardy Clause.” United States v. Boulware, 384 F.3d 794,

809-10 (9th Cir. 2004) (citing United States v. Recio, 371

F.3d 1093, 1104 (9th Cir. 2004); United States v. Gergen, 172

F.3d 719, 724-25 (9th Cir. 1999)). That is, we must determine

whether the evidence presented against the eight Defendants

was sufficient to sustain their convictions “in order to determine whether there should be an acquittal or retrial upon

remand.” Gergen, 172 F.3d at 724. 

As noted earlier, Go-Fast Defendant Lopez and his fellow

crew members were convicted of both conspiracy to possess

cocaine aboard a vessel with intent to distribute (Count One)

and possession of cocaine aboard a vessel with intent to distribute (Count Two). The Gran Tauro Defendants were convicted of only conspiracy to possess cocaine aboard a vessel

with intent to distribute (Count One). As Defendants and the

Government agree, Defendants’ sufficiency claims turn on

whether the Government submitted sufficient evidence of

Defendants’ knowledge of the presence of cocaine aboard the

Go-Fast. “There need not be [direct] evidence of specific

intent to distribute because that intent can be inferred from the

large quantity of cocaine” — 1,964 kilograms — recovered.

Klmavicius-Viloria, 144 F.3d at 1263 (citing United States v.

Humphrey, 759 F.2d 743, 751 (9th Cir. 1985)). We first conviewed in a light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citing United States v. Carranza, 289 F.3d 634, 641 (9th

Cir. 2002)). 

UNITED STATES v. PERLAZA 2605
sider Go-Fast Defendant Lopez’s contention that the evidence

was insufficient to support his conviction. 

2606 UNITED STATES v. PERLAZA
Volume 2 of 2

UNITED STATES v. PERLAZA 2607
1. Go-Fast Defendant Lopez28

Lopez argues that the evidence cannot sustain his conviction because the Government proved nothing more than his

“mere presence” aboard a vessel that happened to contain

almost 2,000 kilograms of cocaine. In doing so, Lopez relies

on a handful of our cases that can be characterized as embracing the “mere houseguest,” “mere passenger,” or “mere presence” defenses to narcotic trafficking liability. See, e.g.,

United States v. Estrada-Macias, 218 F.3d 1064, 1066 (9th

Cir. 2000) (holding that living in a trailer at a site where

methamphetamine was being produced and knowing that it

was being produced, without evidence of participation in

28Go-Fast Defendants Carrasco and Murillo do not contest the sufficiency of the evidence against them. As noted earlier, Go-Fast Defendant

Reina’s appeal, having already been decided, is not before us. See supra

note 9. And, as also noted earlier, we deny Go-Fast Defendant Aborno’s

motion to join in his co-Defendants’ challenges except with respect to

Congress’ power to enact the MDLEA. See supra note 21. Accordingly,

with respect to the evidence against the Go-Fast Defendants, we consider

whether the evidence was sufficient to sustain only Defendant Lopez’s

conviction. 

2610 UNITED STATES v. PERLAZA
methamphetamine production or distribution, was insufficient

to sustain conviction for conspiracy to manufacture methamphetamine); United States v. Vasquez-Chan, 978 F.2d 546,

549-50 (9th Cir. 1992) (holding that being a caretaker and a

guest in a house where cocaine was kept and knowing of the

cocaine’s presence, without evidence of participation in the

scheme to distribute the cocaine, was insufficient to sustain

conviction for possession with intent to distribute cocaine);

United States v. Sanchez-Mata, 925 F.2d 1166, 1168 (9th Cir.

1991) (holding that being “merely a passenger” in a vehicle

transporting marijuana is insufficient to sustain a conviction

for possession with intent to distribute narcotics or conspiracy

to possess with intent to distribute narcotics); United States v.

Whitman, 469 F.2d 1370, 1370 (9th Cir. 1972) (holding that

“mere presence” in a vehicle carrying marijuana is insufficient to sustain a conviction for “facilitating the transportation

of marihuana”); see also United States v. Herrera-Gonzalez,

263 F.3d 1092, 1096-97 (9th Cir. 2001) (discussing, inter

alia, Estrada-Macias, Vasquez-Chan, and Sanchez-Mata). 

Were Lopez temporarily residing in or visiting a house

where narcotics were kept or manufactured, merely riding in

an automobile that contained narcotics, or perhaps even

aboard a vessel significantly larger than the Go-Fast, these

precedents might compel us to conclude that the evidence

against him was insufficient to sustain his conviction. But

Lopez’s case is distinguishable from all of these scenarios,

and, as the Government properly notes, we have already articulated “a number of factors” that may be used to demonstrate

“knowing participation” in a maritime narcotics-trafficking

prosecution under the MDLEA. Klimavicius-Viloria, 144 F.3d

at 1263. 

These factors include:

a long voyage on a small vessel evincing a close

relationship between captain and crew; suspicious

behavior or diversionary maneuvers before appreUNITED STATES v. PERLAZA 2611
hension; attempts to flee; inculpatory statements

made after apprehension; witnessed participation as

a crewman; obviousness of the contraband; or

absence of equipment necessary to the intended use

of the vessel. 

Id. (quoting United States v. Ospina, 823 F.2d 429, 433 (11th

Cir. 1987)). The factors relevant in this case include the

length of the Go-Fast’s voyage, the Go-Fast’s size, and the

Go-Fast crew’s suspicious behavior and diversionary maneuvers. 

As we noted earlier, the Go-Fast was of the short-range

variety, with one small cabin and estimated by the Government’s expert to be between twenty-five and thirty-five feet

in length. In addition to the 1,964 kilograms of cocaine, the

Go-Fast contained at least a dozen 55-gallon drums of gasoline, suggesting that its planned voyage was lengthy and, as

the Government’s expert opined, likely destined for Central

Mexico.29 Once detected by the De Wert’s helicopter, the GoFast engaged in diversionary maneuvers, weaving left and

right, jettisoning the large bales of cocaine, and eventually

crashing into the rear of the Gran Tauro. Additionally, once

29The Defendants who opted for trial contend that the district court

erred when it admitted expert testimony regarding maritime drug smuggling. According to Defendants, this evidence constituted inadmissible

“drug courier profile evidence.” We review a district court’s decision to

admit expert testimony for abuse of discretion. See United States v. Dorotich, 900 F.2d 192, 194 (9th Cir. 1990). The district court’s decision here

to admit the Government’s expert testimony was not an abuse of discretion. See Klimavicius-Viloria, 144 F.3d at 1260 (finding that district court

did not abuse its discretion when it allowed a Government expert to testify

“about fifteen different smuggling routes over air, land and sea, and gave

a detailed explanation of the complexity of maritime smuggling. She

related how mother ships, which may be disguised as fishing vessels, take

circuitous routes to their destinations to avoid detection. She also

explained that drug trafficking organizations are compartmentalized, in

that different groups are responsible for different functions, so that each

group has limited knowledge of the operation.”). 

2612 UNITED STATES v. PERLAZA
the Go-Fast began to capsize, its crew — including Lopez —

stripped themselves naked in an apparent attempt to remove

any trace evidence of having handled the cocaine. From this

evidence, “any rational trier of fact could have found” that no

member of the Go-Fast crew could have been aboard that vessel without knowing of the cocaine’s presence and participating in its transport. Odom, 329 F.3d at 1034. Accordingly, we

find that the evidence was sufficient to sustain Lopez’s conviction. 

2. The Gran Tauro Defendants

Like Lopez, the seven Gran Tauro Defendants argue that

the Government failed to establish that they were knowing

participants in the Go-Fast crew members’ conspiracy to

transport cocaine. In response, the Government relies on

Klimavicius-Viloria, where we said that “[c]ourts have found

knowing participation [in a maritime narcotics-trafficking

scheme] when a ship’s asserted legitimate purpose appears to

be a ruse.” 144 F.3d at 1264 (emphasis added). The Government then argues that there is convincing evidence in this case

that the Gran Tauro’s alleged fishing expedition was cover

for it serving as a floating gasoline station and that this suggests that the Gran Tauro Defendants knowingly participated

in the drug trafficking scheme. We agree with the Government that the evidence properly allowed the jury to conclude

beyond a reasonable doubt that the Gran Tauro’s alleged fishing expedition was a ruse, that the Gran Tauro’s true purpose

was to serve as a floating gasoline station, and that the Gran

Tauro, did in fact, refuel the Go-Fast. We also agree with the

Government that, from this evidence, a reasonable jury could

conclude beyond a reasonable doubt that the Gran Tauro

Defendants knowingly agreed to refuel vessels carrying narcotics. 

On each occasion that the Gran Tauro was observed (September 1, 2, 7, 9, and 10), all eye-witnesses aboard the De

Wert and its helicopter saw the Gran Tauro dead in the water

UNITED STATES v. PERLAZA 2613
or moving very slowly with no one aboard fishing. LEDET

team members testified that the Gran Tauro’s fishing nets

were stored improperly, dry, rotted, and had dry floats. The

vessel’s gangions and hooks were on the second level of the

vessel and not easily accessible for fishing. The vessel’s only

fishing crane was rusted and unusable. Though the ice in the

fish hold was observed to be clean and fresh during the

LEDET team’s September 3, 2000, boarding, by September

11, the ice was glazed over and appeared to have not been

stirred.30 The fish aboard were not stored whole as is usually

the case on fishing vessels, but instead were perfectly layered,

filleted, and clean, as if ready for market.31

Further supporting the Government’s theory that the Gran

Tauro’s purported fishing expedition was a ruse is the fact

that the Gran Tauro was found well outside its approved fishing zones. The Government presented evidence from which a

jury could conclude, Barnaza’s protestations to the contrary

notwithstanding, that he knew the locations of the Gran

Tauro’s approved fishing zones (Buenaventura Zones 2 and

3) and knew how to use the high frequency radio aboard it.32

30By the time the Gran Tauro reached San Diego on September 26,

2000 — one day after its scheduled return to port at Buenaventura — its

ice had entirely solidified into a block and the fish below it was discolored, odoriferous, and unmarketable. The Government presented evidence

that the fish was likely bad by as early as September 11, 2003, as no member of the Gran Tauro’s crew ate any of the filleted fish from its hold during their trip to San Diego, notwithstanding that the crew claimed to run

out of food and had to be replenished by the Valley Forge. 

31Had the 950 kilograms of fish aboard the Gran Tauro been stored

whole but gutted and de-headed, the quantity might suggest that the vessel

was actually on a fishing expedition. 

32The Government introduced into evidence the Gran Tauro’s log book,

which indicated that, on two prior occasions in June 2000, while under the

control of Barnaza, the Gran Tauro had in fact fished in Zones 2 and 3.

Though Defendants did not object to the admission of the log books when

originally admitted, Barnaza’s counsel objected on hearsay and Rule

404(b) grounds to the Government’s examination of Petty Officer Seda

2614 UNITED STATES v. PERLAZA
Finally, when Chief Warrant Officer Van Pelt boarded the

Gran Tauro on September 3, 2000, he found almost 6,000

gallons of gasoline in the Gran Tauro’s tanks. The smell of

gasoline was so noticeable that both the September 3 and September 11 LEDET boarding teams could smell it from outside

the Gran Tauro as they approached on their boarding boats.

Notwithstanding the thousands of gallons of gasoline found

aboard, Barnaza claimed that the Gran Tauro’s only gasoline

was contained in one 55-gallon drum, and Marquez stated that

all the tanks aboard the Gran Tauro were filled with diesel —

the Gran Tauro’s fuel-type. When the Gran Tauro was

boarded on September 11, 2000, approximately three-quarters

of its gasoline supply had been depleted and its pump and

hoses smelled of gasoline. 

The Gran Tauro Defendants argue that, regardless of how

compellingly or convincingly this evidence established that

the Gran Tauro was a refueling — and not a fishing — vessel, the Government, nonetheless, failed to offer any evidence

that the Gran Tauro’s crew knew that the Go-Fast or any

other vessel that it may have refueled in September 2000 was

carrying narcotics. In support of this argument, the Gran

about their contents. The district court properly overruled these objections.

First, the log book clearly falls under the business records exception to the

hearsay rule. See Fed. R. Evid. 803(6). Barnaza contends that the log book

does not fall under the business record exception because Barnaza, who

refused to testify, did not authenticate it. This argument fails, however,

because Van Pelt’s testimony that Barnaza gave it to him with the rest of

the Gran Tauro’s documents provides sufficient authentication. 

Nor is the log inadmissible 404(b) evidence. The log book was not

admitted as other bad act evidence, but rather as evidence of Barnaza’s

knowledge of Zones 2 and 3 and “absence of mistake” when the Gran

Tauro was found outside of Zones 2 and 3. See Fed. R. Evid. 404(b).

Barnaza asserts that, even if the log book was not “other bad acts” evidence, it was still improperly admitted because the Government failed to

comply with Rule 404(b)’s notice provision. This assertion is belied by the

record. Barnaza had access to the log book months before trial and it was

on the Government’s trial exhibit list. 

UNITED STATES v. PERLAZA 2615
Tauro Defendants rely on our decision in Estrada-Macias. In

Estrada-Macias, we recognized that, “[w]hen there is an innocent explanation for a defendant’s conduct as well as one that

suggests that the defendant was engaged in wrongdoing, the

government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter

explanation is the correct one.” 218 F.3d at 1067 (quoting

Vasquez-Chan, 978 F.2d at 549). The Gran Tauro Defendants

assert that their “innocent explanation” is that the Gran Tauro

and its crew departed Buenaventura on an expedition to profit

from refueling other vessels on the high seas and that the

Government provided no evidence to allow the jury to reject

this explanation beyond a reasonable doubt. 

[18] We reject this contention. It is well-settled in this circuit that, once the existence of a conspiracy is established, a

defendant may be convicted of knowing participation therein

if the evidence establishes, beyond a reasonable doubt, “even

a slight connection” between the defendants and the conspiracy. United States v. Wright, 215 F.3d 1020, 1028 (9th Cir.

2000). There is no doubt that the Government established a

“slight connection” between the Gran Tauro Defendants and

the cocaine recovered from the Go-Fast’s debris field. Moreover, we will accept a defendant’s allegedly “innocent explanation” only when that explanation is plausible. Compare

United States v. Jose Luis L., 978 F.2d 543, 545-46 (9th Cir.

1992) (insufficient evidence to support conviction for possession where defendant’s story was plausible and consistent

with defendant’s actions), and Vasquez-Chan, 978 F.2d at 553

(same), with Mayes, 524 F.2d at 807-08 (9th Cir. 1975) (sufficient evidence to support conviction for possession where the

only innocent explanation of the evidence was so implausible

that a reasonable jury could have dismissed it). It is highly

improbable that anyone unconnected with the conspiracy

would know of the existence of other vessels needing gasoline, such as the Go-Fast, much less be aware of their precise

location at a given time and be able to sell them gasoline in

the middle of the high seas. Accordingly, we find that the evi2616 UNITED STATES v. PERLAZA
dence was sufficient to establish that the Gran Tauro Defendants knowingly participated in the Go-Fast crew members’

conspiracy to possess cocaine aboard a vessel with intent to

distribute and that the indictment against the Gran Tauro

Defendants, though dismissed for the reasons discussed earlier, is without prejudice to re-indictment and retrial.

CONCLUSION

In light of the foregoing, we reverse the convictions of the

ten Defendants who opted for trial and remand with instructions that the district court dismiss the indictment because the

district court erroneously exercised jurisdiction over these

Defendants without first requiring the Government to allege

in the indictment and prove to a jury beyond a reasonable

doubt certain facts necessary to establish the district court’s

jurisdiction. We also find that, even if the district court had

jurisdiction over these Defendants, we would still reverse

their convictions because of the Prosecutor’s improper closing

argument and the district court’s failure to adequately cure it.

The district court’s dismissal shall be without prejudice

because the Government’s evidence was sufficient to sustain

these Defendants’ convictions and the prosecutorial misconduct did not trigger the Double Jeopardy Clause’s bar to

retrial. We affirm Defendant Aborno’s conviction because we

reject the one challenge he raises that is properly before us.

REVERSED IN PART, AFFIRMED IN PART, and

REMANDED.

BRUNETTI, Circuit Judge, concurring in part and dissenting

in part: 

The majority of the panel has reversed the convictions of

the ten Defendants who opted for trial, holding that the district court erred when it concluded it had jurisdiction over the

UNITED STATES v. PERLAZA 2617
defendants and, alternatively, because of the Government’s

prosecutorial misconduct. I agree with the majority opinion,

Section D, that the evidence was sufficient to sustain the

defendants’ convictions and that the Gran Tauro defendants’

convictions should be reversed on jurisdictional grounds. 

I disagree with the majority, however, with regard to the

Go-Fast defendants because the district court correctly

decided the issue of statutory jurisdiction as applied to the

Go-Fast defendants, and any prosecutorial misconduct

resulted in harmless error. Therefore, I respectfully dissent. 

Proceedings Below

Before trial, Defendants sought to dismiss the indictment

on the basis that the district court lacked jurisdiction. The district court denied this motion, after an evidentiary hearing,

finding that it had jurisdiction over both the Go-Fast and Gran

Tauro defendants, in part because the Go-Fast was a stateless

vessel.

On October 18, 2001 Defendants Aborno and Reina pled

guilty to both charges (conspiracy to possess cocaine with

intent to distribute and possession of cocaine with intent to

distribute, both under the MDLEA) and were sentenced to

108 and 135 months in custody, respectively. The remaining

ten defendants went to trial. 

At the close of remaining defendants’ three-week trial, the

Assistant U.S. Attorney made the following statement in his

rebuttal arguments:

[I]n a short period of time, the case will be handed

to you. You’re going to go back into that deliberation room and that presumption of innocence, that

presumption of innocence that these men have all

been cloaked with the last year, the last year while

we’ve litigated motions — you’ve heard about all

2618 UNITED STATES v. PERLAZA
the motions that have been held beforehand. That’s

why it’s taken so long to get here. That presumption,

when you go back in that room right behind you, is

going to vanish when you start deliberating. And

that’s when the presumption of guilt is going to take

over once you — 

Defendants’ counsel responded to this statement with a flurry

of objections, which the trial court judge overruled. Immediately after the court overruled the objections, defense counsel

made the following additional comments: “That’s misconduct. There is no presumption of guilt” and “I move for mistrial,” to which the judge responded, “That’s proper rebuttal.

Go ahead. You are all right.” Defense counsel finished by

stating, “Presumption of guilt can’t be proper, Your Honor.”

The Assistant U.S. Attorney continued with his remarks

which lasted some 20 pages-worth of trial transcript until a

break in the proceedings allowed counsel and the trial judge

to discuss more fully the Assistant U.S. Attorney’s statement.

Defense counsel forcefully argued that not only was the

Government’s statement a misstatement of law but that it constituted prosecutorial misconduct. Counsel stated that they did

not believe that a curative instruction could cure the prejudice

suffered by the defendants from this remark. When given the

opportunity to respond, the Assistant U.S. Attorney said,

“That’s what I said, when they get back there and start looking at it is when the presumption takes over, presumption of

guilt.” The court concluded that the Assistant U.S. Attorney’s

statement did not constitute misconduct and denied the

motion for mistrial, but agreed to give a curative instruction.

After the break, the court allowed the Assistant U.S. Attorney

to continue without making any statement to the jury, and

only after he finished his rebuttal arguments—this time, some

36 transcript pages later—did the court make the following

statement:

[I]t is my duty at this time to instruct you on the law

that applies in this case . . . Also, I’m sure you’re all

UNITED STATES v. PERLAZA 2619
aware of this, but let me just tell you this before we

begin. There is no such thing as a presumption of

guilt in a criminal case. All defendants in a criminal

case are presumed to be innocent unless or until such

time as the evidence established guilt.

The court continued with his instructions, including stating

that “the defendants are presumed to be innocent,” “the government has the burden of proof of proving every element of

each charge beyond a reasonable doubt,” and “[n]o presumption of guilt may be raised and no inference of any kind may

be drawn from the fact that a defendant did not testify.” The

court then provided a comprehensive explanation of the legal

standard for proof beyond a reasonable doubt. 

The ten defendants were convicted on November 9, 2001,

after a three-week jury trial. Three of the ten defendants were

convicted of both counts (conspiracy to possess cocaine with

intent to distribute and possession of cocaine with intent to

distribute, both under the MDLEA ) and the remaining seven

were convicted solely of the conspiracy count. 

Discussion

I. Jurisdictional Inquiry

Although I agree with the majority that the district court

erred in concluding it had jurisdiction over the Gran Tauro

defendants, I diverge from the majority in its conclusion that

the district court erred in finding it had jurisdiction over the

Go-Fast defendants. 

Section 1903(a), under which all defendants were prosecuted, states:

It is unlawful for any person on board a vessel of the

United States, or on board a vessel subject to the

jurisdiction of the United States, or who is a citizen

2620 UNITED STATES v. PERLAZA
of the United States . . . on board any vessel, to

knowingly or intentionally manufacture or distribute,

or to possess with intent to manufacture or distribute,

a controlled substance. 

46 App. U.S.C. § 1903(a) (emphasis added). In this circuit,

whether a vessel is subject to the jurisdiction of the United

States involves an analysis of two distinct elements, which

have been coined “statutory jurisdiction” and “constitutional

jurisdiction.” United States v. Medjuck, 156 F.3d 916, 918

(9th Cir. 1998). The district court found that it had statutory

jurisdiction over the Go-Fast defendants because the Go-Fast

was a stateless vessel, or a “vessel without nationality.” 

Section 1903(c) defines vessels that are “subject to the

jurisdiction of the United States” under the MDLEA. Included

is “a vessel without nationality.” § 1903(c)(1)(A). “A vessel

without nationality,” for purposes of the MDLEA, can take

one of three forms: 

(A) a vessel aboard which the master or person in

charge makes a claim of registry, which claim is

denied by the flag nation whose registry is claimed;

(B) any vessel aboard which the master or person

in charge fails, upon request of an officer of the

United States empowered to enforce applicable provisions of United States law, to make a claim of

nationality or registry for that vessel; and 

(C) a vessel aboard which the master or person in

charge makes a claim of registry and the claimed

nation of registry does not affirmatively and

unequivocally assert that the vessel is of its nationality. 

46 App. U.S.C. § 1903(c)(2). Section § 1903(c)(3) further

defines “a claim of nationality or registry” as including only:

UNITED STATES v. PERLAZA 2621
(A) possession on board the vessel and production

of documents evidencing the vessel’s nationality in

accordance with article 5 of the 1958 Convention on

the High Seas; 

(B) flying its flag nation’s ensign or flag; or 

(C) a verbal claim of nationality or registry by the

master or person in charge of the vessel. 

Id. § 1903(c)(3). 

In 1996, Congress amended § 1903 by adding § 1903(f),

which states: “Jurisdiction of the United States with respect to

vessels subject to this chapter is not an element of any

offense. All jurisdictional issues arising under this chapter are

preliminary questions of law to be determined solely by the

trial judge.” 46 U.S.C. App. § 1903(f). Congress made clear

through this amendment that the jurisdictional requirement is

not an element of a § 1903(a) substantive offense, but rather

is an issue that goes only to the subject matter jurisdiction of

the federal courts. Constitutional limitations on congressional

power to remove issues from the jury’s determination are narrow: “[t]he definition of the elements of a criminal offense is

entrusted to the legislature, particularly in the case of federal

crimes, which are solely creatures of statute.” Staples v.

United States, 511 U.S. 600, 604 (1994) (internal quotations

omitted). Although Congress’s decision on how to define the

elements of the offense “is usually dispositive,” McMillan v.

Pennsylvania, 477 U.S. 79, 85 (1986), the majority’s holding

will render § 1903(f) meaningless in this case. 

We have analyzed the effect of § 1903(f) in two cases, and

in both cases held that the determination of whether the court

had jurisdiction over the vessel, or the waters where the vessel

was intercepted, was a question for the court, consistent with

the language of Congress’ 1996 amendment. In United States

v. Smith, 282 F.3d 758 (9th Cir. 2002), the district court con2622 UNITED STATES v. PERLAZA
cluded that under § 1903(f), the court, not the jury, should

decide both (1) whether the United States has jurisdiction

over the place where the vessel was allegedly intercepted; and

(2) whether the vessel was actually intercepted at that place.

Id. at 766. This circuit rejected the district court’s interpretation as “over-inclusive,” holding that where the vessel was

actually intercepted was a question for the jury, but that

§ 1903(f) empowers the court to make the determination of

whether the United States has jurisdiction over that location.

Id. 

In the subsequent case of United States v. Moreno-Morillo,

334 F.3d 819 (9th Cir. 2003), as in this case, jurisdiction

depended not on the factual determination of where the ship

was seized, as in Smith, but, rather, of the ship’s status vis-avis statelessness. Id. at 829. The court noted that unlike Smith,

this case “cannot be separated neatly into two parts,” but concluded that the district court properly determined “that the

Defendants’ vessel falls within the definition of ‘vessel without nationality’ under the MDLEA.” Id. at 830. The court reasoned that because the defendants had failed to challenge the

substance of the State Department certificate noting that

Colombia would neither affirm nor deny the vessel’s registry,

“the substance of the certificate stands as the only—and therefore uncontroverted—evidence in the record regarding statelessness.” Id.

The case before us falls squarely within the contours of

Smith and Moreno-Morillo. In Smith, the court noted that “the

‘jurisdictional issue’—whether the United States has jurisdiction over the waters where a vessel is allegedly intercepted—

can and should be decided by the trial court as a preliminary

question of law.” Id. at 767. Here, the district court faced an

analogous jurisdictional issue: whether the United States had

jurisdiction over the Go-Fast. Just as in Smith, where the trial

court determined the status of the waters in question, here, the

district court determined the status of the vessel in question.

The jurisdictional inquiry in this case did not involve a “facUNITED STATES v. PERLAZA 2623
tual issue,” because the question was whether the United

States had jurisdiction over the vessel, not whether the GoFast defendants were on the vessel. 

This “dual inquiry” analysis is well-supported in our circuit. For example, in United States v. Warren, the defendant

was charged with stabbing a man at a Hawaii army base,

Schofield Barracks. 984 F.2d 325, 327 (9th Cir. 1993). At the

outset, the district court determined that Schofield Barracks

was within the jurisdiction of the United States, but the court

never had the jury find whether the stabbing actually took

place at the base. Id. We held that the district court properly

decided whether the base was within the jurisdiction of the

United States, but that the instruction improperly omitted the

issue of whether the stabbing occurred on the base. Id. Here,

the district court properly determined whether the Go-Fast

was subject to the jurisdiction of the United States, leaving

any question of whether the defendants were on the Go-Fast

to the jury. “A district court may determine as a matter of law

the existence of federal jurisdiction over the geographic area,

but the locus of the offense within that area is an issue for the

trier of fact.” Id. (internal quotations omitted); accord United

States v. Sohappy, 770 F.2d 816, 821 (9th Cir. 1985) (holding

that district court properly determined whether “Cooks Landing” was “Indian country” and then correctly “instructed jury

that they need only find that the violations occurred in Cooks

Landing”).

Moreno-Morillo’s interpretation of Smith further supports

the position that the Go-Fast’s status was a question for the

court, not the jury. In Moreno-Morillo, the court held that

since the evidence presented to the court regarding statelessness was uncontroverted, there were no factual issues for the

jury to determine. 334 F.3d at 831. Here, the evidence presented with regard to the Go-Fast’s status is similarly uncontroverted. A United States officer who observed the Go-Fast

by using sensitive surveillance equipment testified that they

saw no flags of any kind, no marking of any kind, no hull

2624 UNITED STATES v. PERLAZA
numbers, no name on the vessel, and no home-port inscription. Moreover, when Petty Officer Craig Cruz boarded the

Gran Tauro and asked the members of the Go-Fast if the vessel had a flag, Go-Fast defendants Reina and Murillo simply

shook their heads back and forth and defendant Aborno stated

“Barco no tengo bandera,” which literally means, “Boat I

have no flag.” Officer Cruz also testified that later, when

asked who was in charge of the Go-Fast, Murillo stated that

the ship captain was a person named Freddy, who, according

to Cruz’s report “was the only one who really knew about the

boat expedition.” Although the court indicated that this statement was not produced for its truth, i.e., that Freddy was in

fact the captain, the statement indicates that when Cruz

inquired as to the Go-Fast’s captain, neither Murillo nor Reina

proclaimed to be the master or person in charge. Reina and

Murillo individually introduced declarations to the district

court indicating that they both told Cruz that they were from

Colombia and that the boat was from Colombia. Murillos’s

declaration stated that “[I] told the Coast Guard Officers that

I was a Colombian citizen from the city of Buenaventura,

Colombia.” “Buenaventura” was crossed out in the declaration and replaced with illegible handwriting. The declaration

also stated: “I also told them that the our boat was from Buenaventura, Colombia.” Again, “Buenaventura” was crossed

out. Reina’s declaration similarly stated that “[I] told the

Coast Guard Officers that I was a Colombian citizen from the

City of Valle Sudano (Colombia).” “Valle Sudano” was

crossed out, and replaced with illegible writing. Reina’s declaration also stated “I also told them that our boat was from

Baiazolano (DM) Colombia.” Taken together, this evidence

does not leave any factual determinations that need to be

made by the jury. The defendants’ statements to Cruz that

they were from Colombia are legally insignificant under the

jurisdictional inquiry, as neither claimed to be the person in

charge of the vessel, as required by § 1903(c)(3)(C). The

statements that the boat “was from Colombia” made by persons not claiming to be the master or person in charge are also

UNITED STATES v. PERLAZA 2625
legally insignificant, and no further facts or documents to support a “claim of nationality or registry” were asserted by the

defendants. Since no evidence was presented to create a factual dispute with regard to the Go-Fast’s status as a “vessel

without nationality,” under Moreno-Morillo, the district court

properly determined that the vessel was stateless based on the

uncontroverted evidence in the record. 

For these reasons, the district court correctly concluded that

it had jurisdiction over the Go-Fast defendants on the basis of

the vessel being “without a nationality” under § 1903(c), and

the convictions of the Go-Fast defendants should be upheld.

II. Prosecutorial misconduct

The majority holds that the Government committed prosecutorial misconduct by impermissibly shifting the burden of

proof to the defense, and that this error was not harmless. I

disagree because any prosecutorial misconduct was harmless

error, and therefore the convictions of the Go-Fast defendants

should not be reversed on these grounds. 

Given my concurrence with the majority that the district

court erred in not deciding the existence of a nexus as

required by the law in this circuit, vis-à-vis the Gran Tauro

defendants, I need only analyze the effect of the prosecutorial

misconduct with regard to the Go-Fast defendants. 

We review the record de novo in order to determine an

error’s harmlessness. Arizona v. Fulminante, 499 U.S. 279,

295 (1991) “The purpose of harmless-error analysis is to

avoid setting aside convictions for small errors or defects that

have little, if any, likelihood of having changed the result of

the trial.” United States v. Annigoni, 96 F.3d 1132, 1143 (9th

Cir. 1996) (internal citations omitted). “[B]efore a federal

constitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 295 (citing Chapman v.

2626 UNITED STATES v. PERLAZA
California, 386 U.S. 18, 24 (1967)). In so doing, it must be

determined whether the Government has met its burden of

demonstrating that the error did not contribute to the defendant’s conviction. Chapman, 386 U.S. at 26. The inquiry,

therefore, is whether allegedly improper behavior, considered

in the context of the entire trial, affected the jury’s ability to

judge the evidence fairly. United States v. McKoy, 771 F.2d

1207, 1212 (9th Cir. 1985) 

Courts consider several factors in determining whether an

error contributed to the defendant’s conviction. Included are

the relative strength of the case against the accused or whether

instructions given by the trial court sufficiently diluted any

prejudice. United States v. Hawkins, 595 F.2d 751, 755 (D.C.

Cir. 1978) (prosecutor’s improper statements during closing

argument harmless because they “did not substantially sway

the verdict”) (cited with approval in United States v. McKoy,

771 F.2d 1207 (9th Cir. 1985)). 

To determine whether the prosecutorial misconduct substantially swayed the verdict as to the Go-Fast defendants we

must assess the strength of the government’s case as well as

the effectiveness of the court’s curative instruction to determine whether the error improperly resulted in conviction. The

strength of government’s case is clearly established in the

majority opinion, Section D, which found the evidence was

sufficient to sustain the defendants’ convictions. The strength

of the government’s case against the Go-Fast defendants,

therefore, militates against a finding that the prosecutor’s

error produced a wrongful conviction. 

Moreover, we have held that the trial judge may neutralize

any potential harm of improper remarks by giving a curative

instruction. United States v. Endicott, 803 F.2d 506, 513 (9th

Cir. 1986). “A trial judge may cure the effect of improper prosecutorial comments ‘by admonishing counsel to refrain from

such remarks or by giving appropriate curative instructions to

UNITED STATES v. PERLAZA 2627
the jury.’ ” Id. (citing McKoy, 771 F.2d at 1213; United States

v. Birges, 723 F.2d 666, 672 (9th Cir. 1984)). 

Here, as noted above, the trial court first overruled defense

counsels’ objections to the Government’s statement, stating in

response, “That’s proper rebuttal. Go ahead. You are all

right.” After discussion with all counsel at a break, however,

the court agreed to make a curative instruction, although the

court refused to admonish the Assistant U.S. Attorney or indicate that his comment constituted gross misconduct. After the

Assistant U.S. Attorney’s rebuttal and before instructing the

jury on the law that applied in the case, the court highlighted

and gave a curative instruction which included a statement

that there is no such thing as a presumption of guilt in a criminal case. The court then instructed the jury on the law that

applied in this case and emphasized throughout his instructions that the government carried the burden of proof to prove

all the elements of the charged offenses beyond a reasonable

doubt. 

This curative instruction is sufficient to cure any prejudice

defendants suffered. Unlike in Fulminante, where the prosecution introduced the defendant’s completely damning

coerced confession, the jury here was able to ignore the prosecutor’s misstatement of law and follow the trial judge’s

instructions as to burden of proof and presumption of innocence. See Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d

1258, 1270 (9th Cir. 2000) (strong presumption that juries follow curative instructions). 

In sum, the strength of the government’s case against the

Go-Fast defendants, coupled with the trial court’s tardy, yet

clearly stated, curative instruction renders the error harmless,

and the convictions of the Go-Fast defendants should be

upheld. 

For these reasons, I dissent. 

2628 UNITED STATES v. PERLAZA