United States Court of Appeals 

For the First Circuit 

No. 16-2089 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JEFFRI DÁVILA-REYES, 

Defendant, Appellant. 

No. 16-2143 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JOSÉ D. REYES-VALDIVIA, 

Defendant, Appellant. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Francisco A. Besosa, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Lipez and Thompson, Circuit Judges. 

Thomas F. Klumper, Assistant United States Attorney, with 
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana 

E. Bauzá-Almonte, Assistant United States Attorney, Chief, 

Appellate Division, and John A. Mathews II, Assistant United States 

Attorney, were on brief, for appellee. 

Franco L. Pérez-Redondo, Research and Writing Specialist, 

with whom Eric Alexander Vos, Federal Public Defender, Vivianne M. 

Marrero, Assistant Federal Public Defender, and Liza L. RosadoRodríguez, Research and Writing Specialist, were on brief, for 

appellant Jose D. Reyes-Valdivia. 

Raymond L. Sánchez-Maceira on brief for appellant Jeffri 

Dávila-Reyes. 

September 3, 2019 
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LIPEZ, Circuit Judge. These consolidated appeals arise 

from the U.S. Coast Guard's interdiction of a small speed boat in 

the western Caribbean Sea and the subsequent arrest and indictment 

of the three men on board the boat for drug trafficking under the 

Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. §§ 70501-

70508. In a motion to dismiss the indictment, appellants José 

Reyes-Valdivia and Jeffri Dávila-Reyes challenged the 

constitutionality of the MDLEA. They argued that the statute, 

which in certain circumstances allows U.S. law enforcement to 

arrest foreign nationals for drug crimes committed in 

international waters, exceeds Congress's authority under Article 

I of the Constitution and violates the Due Process Clause. The 

district court denied the motion to dismiss. Both appellants then 

pleaded guilty pursuant to plea agreements in which each waived 

his right to appeal if sentenced in accordance with his agreement's 

sentencing recommendation provision. 

On appeal, appellants renew their constitutional 

objections to their prosecution. However, their primary argument 

-- that their vessel was not properly deemed stateless -- founders 

on our governing precedent concerning the protective principle of 

international law. That principle, as applied by our court, 

permits prosecution under the MDLEA even of foreigners on foreign 

vessels. That precedent may only be reconsidered by the en banc 

court. We as a panel may not do so. Hence, we affirm both 
- 4 - 

appellants' convictions. Reyes-Valdivia also asserts sentencing 

error, but we find no abuse of discretion in the sentence imposed. 

I. 

We draw the following facts from appellants' change of 

plea colloquies and the uncontested portions of their Presentence 

Investigation Reports ("PSRs"). See United States v. VélezLuciano, 814 F.3d 553, 556 (1st Cir. 2016). While patrolling 

waters approximately 30 nautical miles southeast of San Andrés 

Island, Colombia,1 U.S. Coast Guard officers observed a small 

vessel moving at a high rate of speed. When the occupants of the 

vessel became aware of the Coast Guard boat nearby, they began 

throwing packages and fuel barrels overboard. The Coast Guard 

officers approached the boat and began to question its occupants, 

the two appellants and a third co-defendant. The "master"2 of the 

vessel "claimed Costa Rican nationality for the vessel," but did 

not provide any documentation of Costa Rican registry. The Coast 

Guard then contacted the government of Costa Rica, which neither 

confirmed nor denied the registry of the vessel. The Coast Guard 

 1 San Andrés Island, although part of Colombia, is located 

off the coast of Nicaragua. 

2 The term "master" is synonymous with "captain." It is a 

legal term of art meaning "he [or she] to whom are committed the 

government, care, and direction of the vessel and cargo." 

Kennerson v. Jane R., Inc., 274 F. Supp. 28, 30 (S.D. Tex. 1967). 

The government did not specify which of the three men the Coast 

Guard identified as the "master" of the vessel. 
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officers thus determined that, pursuant to § 70502(d)(1)(C) of the 

MDLEA,3 the boat was "without nationality" and subject to U.S. 

jurisdiction, and they proceeded to board and search it. The 

officers did not find any contraband, but a chemical test found 

traces of cocaine. Based on that evidence, the Coast Guard 

detained the three men -- all citizens of Costa Rica -- and took 

them to the U.S. Naval Base at Guantánamo Bay, Cuba, and then 

eventually to Puerto Rico. 

All three defendants were charged with two counts of 

trafficking cocaine in violation of the MDLEA. Reyes-Valdivia and 

Dávila-Reyes moved to dismiss the indictment for lack of 

jurisdiction, arguing that the MDLEA, particularly 

§ 70502(d)(1)(C), is unconstitutional. In their view, 

§ 70502(d)(1)(C) exceeds Congress's authority under Article I of 

the Constitution, and it violates the Due Process Clause of the 

Fifth Amendment because it is unconstitutionally vague, subject to 

arbitrary enforcement, and criminalizes conduct that has no nexus 

with the United States. The district court denied the motion. 

Reyes-Valdivia and Dávila-Reyes both subsequently agreed 

to plead guilty to one count of possession with intent to 

 3 This provision defines a "vessel without nationality" as 

one "aboard which the master or individual in charge makes a claim 

of registry and for which the claimed nation of registry does not 

affirmatively and unequivocally assert that the vessel is of its 

nationality." 46 U.S.C. § 70502(d)(1)(C). 
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distribute five or more kilograms of cocaine in violation of the 

MDLEA. See 46 U.S.C. § 70503(a)(1).4 The plea agreements for both 

men calculated a total offense level of 27, based on a base offense 

level of 30 and a three-level deduction for acceptance of 

responsibility. See U.S.S.G. §§ 2D1.1(a); 3E1.1(a)-(b). The 

parties' recommended sentences depended on the court's eventual 

finding of the Criminal History Category ("CHC"), with the 

statutory minimum of 120 months' imprisonment to be recommended 

unless the court found CHC VI (the highest level) applicable. In 

a supplement to Reyes-Valdivia's plea agreement, the parties 

agreed to recommend a 57-month term if he qualified for the "safety 

valve" exception to the mandatory minimum. See 18 U.S.C. 

§ 3553(f)(1)-(5); U.S.S.G. § 5C1.2.5 Both men agreed to waive 

appellate review if sentenced in accordance with the sentencing 

recommendation provisions. 

The PSRs calculated the total base offense levels 

consistently with the plea agreements and assigned Reyes-Valdivia 

 4 The third defendant also pleaded guilty to this count and 

was sentenced to a 57-month term of imprisonment. He did not file 

an appeal. 

5 Section 3553(f) allows a court to disregard the mandatory 

minimum sentence for certain drug offenses when the defendant has 

met specified requirements, including having a limited criminal 

history and truthfully providing the government with all 

information about the offense. 
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a CHC of I and Dávila-Reyes a CHC of III, triggering the 120-month 

recommendation or, for Reyes-Valdivia, a 57-month term if he were 

found eligible for the safety valve. However, Reyes-Valdivia's 

PSR also concluded that he should be given a two-level enhancement 

for being the "captain" of the vessel. See U.S.S.G. 

§ 2D1.1(b)(3)(C). After Reyes-Valdivia informally objected to the 

enhancement, the Probation Officer filed an addendum to the PSR 

stating that Reyes-Valdivia had told federal agents upon his 

arrival in Puerto Rico that he was the vessel's captain. ReyesValdivia then filed a written objection to the PSR in which he 

argued, inter alia, that the captain enhancement was inapplicable 

because he did not possess the "specialized skills" it required. 

Consistent with the plea agreements, the parties jointly 

recommended a sentence of 120 months for Dávila-Reyes and a 

sentence of 57 months for Reyes-Valdivia. The court sentenced 

Dávila-Reyes to 120 months, but sentenced Reyes-Valdivia to 70 

months based on its finding that both the safety valve and the 

captain enhancement applied. Reyes-Valdivia's motion for 

reconsideration was denied. Both Reyes-Valdivia and Dávila-Reyes 

then appealed. 

II. 

 The government contends that Reyes-Valdivia and DávilaReyes each waived his right to appeal in two distinct ways: by the 

express appellate waiver provisions in their plea agreements and 
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by entry of unconditional guilty pleas to drug trafficking in 

violation of the MDLEA. With respect to Reyes-Valdivia, the 

government is wrong in arguing that he is barred by his plea 

agreement. As described above, the district court declined to 

follow the parties' recommended term of 57 months and instead 

sentenced him to a 70-month term of imprisonment. Because ReyesValdivia's sentence exceeded the recommendation, the waiver 

provision plainly does not apply.6

 Dávila-Reyes, however, received a 120-month sentence 

that aligns with the recommendation in his plea agreement. He 

argues that, despite the enforceable waiver, we should exercise 

our inherent authority to consider his claims to avoid "a 

miscarriage of justice." United States v. Teeter, 257 F.3d 14, 

25-26 (1st Cir. 2001). He contends that his appeal raises 

"important questions of law and [of] first impression" -- including 

the constitutionality of § 70502(d)(1)(C) of the MDLEA -- and that 

preventing him from presenting that challenge would be unjust. 

 We agree that the constitutional issues Dávila-Reyes 

raises are significant and that the other factors allowing us to 

 6 The government contends that Reyes-Valdivia is nonetheless 

bound by the waiver provision because he failed to explain in his 

opening brief why it is inapplicable. However, it is apparent on 

the face of the plea agreement that Reyes-Valdivia was not 

sentenced in accordance with the sentencing recommendation 

provision, and he was not obligated to make that obvious point in 

his opening brief. See United States v. Colón-Rosario, 921 F.3d 

306, 310-11 (1st Cir. 2019). 
- 9 - 

exercise our discretion to disregard the appellate waiver also are 

present to the necessary degree. See, e.g., United States v. 

Ortiz-Vega, 860 F.3d 20, 27-28 (1st Cir. 2017). Particularly 

important is the lack of prejudice to the government, given ReyesValdivia's presentation of the same issues as Dávila-Reyes. See 

id. at 27. Indeed, if appellants request and obtain en banc 

reconsideration of the precedent that currently forecloses their 

constitutional claims, see infra, the potential for relief should 

not depend on the happenstance that the district court added an 

enhancement to Reyes-Valdivia's sentence. Thus, we exercise our 

discretion to decline to enforce Dávila-Reyes's appellate waiver. 

 Nor do appellants' guilty pleas foreclose their right to 

challenge the constitutionality of the MDLEA. The Supreme Court 

recently held in Class v. United States that "a guilty plea by 

itself" does not bar "a federal criminal defendant from challenging 

the constitutionality of the statute of conviction on direct 

appeal." 138 S. Ct. 798, 803 (2018). In their briefing and oral 

argument, appellants present claims that are permissible under 

Class. Although they conceded through their guilty pleas that the 

MDLEA, by its terms, allows the government to prosecute them under 

U.S. law, they argue that Congress lacked authority to enact the 

applicable provisions. In other words, appellants accepted that 

their convictions were "proper" under the statute, but nonetheless 

unconstitutional. Such claims may proceed notwithstanding an 
- 10 - 

unconditional guilty plea. See United States v. Aybar-Ulloa, 913 

F.3d 47, 51 (1st Cir. 2019), petition for reh'g en banc filed, 

No. 15-2377 (Jan. 23, 2019); cf. United States v. Miranda, 780 

F.3d 1185, 1194 (D.C. Cir. 2015) (noting that Congress would want 

the "'[j]urisdiction of the United States with respect to a 

vessel,' [46] U.S.C. § 70504(a), to be insulated from waiver or 

forfeiture by a defendant" because "[t]he requirement aims to 

protect the interests of foreign nations, not merely the interests 

of the defendant"). 

III.

 Appellants' primary constitutional challenge targets a 

section of the MDLEA that allows U.S. authorities to deem a vessel 

"without nationality" -- i.e., "stateless" -- when certain 

conditions are met. See 46 U.S.C. § 70502(d)(1). It is undisputed 

in this case that the "vessel without nationality" provision of 

the MDLEA was enacted pursuant to Congress's authority to "define 

and punish . . . Felonies committed on the high Seas" ("the 

Felonies Clause"). U.S. Const. art. I, § 8, cl. 10; see United 

States v. Cruickshank, 837 F.3d 1182, 1187 (11th Cir. 2016) 

(stating that the MDLEA "was enacted under Congress's authority 

provided by the Felonies Clause"); United States v. Matos-Luchi,

627 F.3d 1, 3 (1st Cir. 2010) (stating that, in criminalizing drug 

trafficking in the MDLEA, Congress was "[i]nvoking its 

constitutional power" under the Felonies Clause). Appellants 
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argue that Congress's authority under the Felonies Clause is 

limited by the principles of international law, and they maintain 

that, under that law, their vessel cannot be deemed stateless. 

Specifically, they contend that the definition of a stateless 

vessel relied upon by the government to support jurisdiction over 

their boat improperly disregards a master's verbal claim of 

nationality or registry based on mere inaction by the named 

country, i.e., its failure to confirm or deny "that the vessel is 

of its nationality." 46 U.S.C. § 70502(d)(1)(C). Thus, they say, 

their arrests and prosecution were unconstitutional. 

 Under our caselaw, however, appellants' prosecution does 

not depend on their vessel having been properly deemed stateless. 

Even if their challenge to the MDLEA's statelessness definition 

were successful, appellants would still confront our precedent 

holding that the MDLEA is consistent with the "protective 

principle" of international law, which permits a nation "to assert 

jurisdiction over a person whose conduct outside the nation's 

territory threatens the nation's security." United States v. 

Cardales, 168 F.3d 548, 553 (1st Cir. 1999) (quoting United States 

v. Robinson, 843 F.2d 1, 3 (1st Cir. 1988) (Breyer, J.)). 

 In Cardales, we stated that the protective principle may 

be triggered in cases brought under the MDLEA "because Congress 

has determined that all drug trafficking aboard vessels threatens 

our nation's security." Id. (emphasis added). In so concluding, 
- 12 - 

we relied on a provision of the MDLEA stating, in pertinent part: 

"Congress finds and declares that [] trafficking in controlled 

substances aboard vessels is a serious international problem, is 

universally condemned, and presents a specific threat to the 

security and societal well-being of the United States." 46 U.S.C. 

§ 70501. Our court, albeit in mostly split panels, has 

subsequently accepted as governing precedent the view expressed in 

Cardales that the protective principle can be applied to drug 

trafficking in violation of the MDLEA. See, e.g., Aybar-Ulloa, 

913 F.3d at 56 (majority opinion); United States v. VilchesNavarrete, 523 F.3d 1, 21-22 (1st Cir. 2008) (separate opinion of 

Lynch and Howard, JJ.); United States v. Bravo, 489 F.3d 1, 7-8 

(1st Cir. 2007); but see, e.g., Aybar-Ulloa, 913 F.3d at 58-59 

(Torruella, J., joining in part and dissenting in part).7

 Significantly for the case before us, Cardales invoked 

the protective principle with respect to foreigners on a foreign 

vessel, initially spotted about 150 miles south of Puerto Rico. 

See 168 F.3d at 551. The captain of the boat, which was boarded 

by Coast Guard officers over the captain's objection, claimed it 

 7 Although our court discussed the protective principle at 

some length in Robinson, we ultimately sidestepped questions 

surrounding the principle's scope because the vessel's flag nation 

had consented to U.S. jurisdiction. See 843 F.2d at 3-4. We 

recognized in Robinson, however, that "any assertion of 

jurisdiction under the protective principle must be 'reasonable.'" 

Id. at 3 (citing Restatement (Revised) § 403; Brown, "Protective 

Jurisdiction," 34 Am. J. Int'l L. 112, 114 (1940)). 
- 13 - 

was a Venezuelan vessel. Id. at 551-52. The Venezuelan government 

later confirmed that the vessel was registered there, and it 

authorized U.S. intervention. Id. at 552. 

 Although Venezuela's consent played a large role in the 

panel's rejection of the defendants' due process challenge to their 

prosecution, which was based on the lack of a nexus between their 

criminal conduct and the United States, see id. at 552-53, consent 

appeared to play no role in the panel's brief discussion of the 

protective principle as an alternative rationale for upholding 

U.S. jurisdiction over the defendants, see id. at 553. In a single 

paragraph, the panel described the principle and noted that 

Congress's specific finding of a security threat to the United 

States in § 70501 was "[c]onsistent with this principle." Id. As 

we observed in Aybar-Ulloa, "[t]here is no indication in this 

aspect of Cardales's reasoning that its broad assertion regarding 

the United States' entitlement to assert protective jurisdiction, 

under international law, was limited only to cases in which the 

flag nation has consented to the United States' assertion of 

jurisdiction over a vessel and those on board it." 913 F.3d at 

56. Rather, the Cardales panel seemingly treated the congressional 

declaration of a security threat as adequate on its own to support 
- 14 - 

protective jurisdiction over the vessel under international law. 

See id.8

 Accordingly, even if appellants' vessel possessed Costa 

Rican nationality, as they claim, appellants would nonetheless be 

subject to U.S. jurisdiction under our circuit's view of the 

protective principle. See Vilches-Navarrete, 523 F.3d at 5 

(Honduran flagged vessel); Cardales, 168 F.3d at 552 (Venezuelan 

registry). Notwithstanding Cardales and the cases reiterating its 

approach, appellants urge us to reject the protective principle as 

a proper basis for U.S. jurisdiction over their vessel. That 

entreaty, however, can only be made to the en banc court. Based 

on our precedent, we must affirm appellants' convictions. 

IV. 

Reyes-Valdivia claims the district court committed 

procedural sentencing error when it applied a two-level 

enhancement based on his being the "captain" of the vessel. See 

U.S.S.G. § 2D1.1(b)(3)(C) (requiring a two-level enhancement if 

the defendant acted, inter alia, as a "pilot, copilot, captain, 

[or] navigator . . . aboard any craft or vessel carrying a 

 8 In a footnote, the Cardales panel observed that "[t]o the 

extent that international law requires a nexus to the United 

States, that nexus requirement is not overridden by the MDLEA, but 

instead is satisfied by the foreign flag nation's authorization to 

apply U.S. law to the defendants and by the congressional finding 

that drug trafficking aboard vessels threatens the security of the 

United States." 168 F.3d at 553 n.2 (emphasis added). 
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controlled substance"). He acknowledges that he stated at the 

time of his arrest that he was the captain, but he asserts that 

the evidence in fact shows that he shared the duties of steering 

the vessel with others. Reyes-Valdivia highlights the 

government's view, expressed at the sentencing hearing, that the 

enhancement should not apply "[g]iven the nature of the ship, and 

the fact that a captain of one of these boats could be one person 

one minute and, literally, another person the other minute." 

 We review a district court's interpretation and 

application of a sentencing enhancement de novo. See United States 

v. Trinidad, 839 F.3d 112, 114 (1st Cir. 2016). The court's 

underlying factual findings may be undone only if clearly 

erroneous, id., and its judgment calls must be upheld absent an 

abuse of discretion, United States v. Coleman, 854 F.3d 81, 85 

(1st Cir. 2017). 

 The transcript of the sentencing hearing makes plain 

that the district court understood the facts that prompted the 

government to conclude that the captain enhancement was 

unwarranted. The court acknowledged that Reyes-Valdivia may not 

have been the master of the vessel, and that he may have said he 

was the captain only to protect Dávila-Reyes (his cousin) from 

exposure to more severe punishment resulting from Dávila-Reyes's 

prior criminal activity. Nonetheless, Reyes-Valdivia not only 

reported being the captain, but, as his counsel noted at the 
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hearing, he admitted that "he did, in fact, steer along with the 

other co-[d]efendants in this case." On this record, we cannot 

conclude that the district court clearly erred in applying the 

enhancement. See United States v. Cruz-Mendez, 811 F.3d 1172, 

1175-76 (9th Cir. 2016) (joining other circuits, including the 

First Circuit, in construing the pilot/captain enhancement broadly 

to cover a defendant who shared piloting responsibilities); cf. 

Trinidad, 839 F.3d at 116 (rejecting defendant's "contention that 

he did not act as a navigator because he was a subordinate to the 

other man on the vessel"); United States v. Guerrero, 114 F.3d 

332, 346 (1st Cir. 1997) (rejecting defendant's argument that the 

enhancement "only applies to offense participants in a position of 

authority or command"). 

V. 

We do not reach appellants' challenge to the 

constitutionality of the MDLEA definition of a "vessel without 

nationality." Under governing First Circuit precedent, the 

protective principle of international law permitted the United 

States to arrest and prosecute appellants even if, as they claim, 

their vessel possessed Costa Rican nationality. Their argument 

seeking to change that precedent must be presented to the court en 

banc. 

 Accordingly, for the reasons given, we affirm the 

judgments of conviction and Reyes-Valdivia's sentence. 
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So ordered. 

-Concurring Opinion Follows- 

	
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LIPEZ, Circuit Judge, concurring. I write separately to 

explain why I believe our circuit's caselaw on the protective 

principle of international law is flawed and to urge my colleagues 

to reconsider that precedent en banc. The protective principle, 

as we have described it, permits prosecutions under the Maritime 

Drug Law Enforcement Act ("MDLEA") of foreigners on foreign vessels 

without any affirmative showing that the targeted drug trafficking 

impacts the United States or its citizens. That expansive reach 

of the principle far exceeds the traditional depiction of its scope 

as a proposition of international law. Indeed, such a broad view 

of U.S. jurisdiction over vessels is at odds with our obligation 

to respect every nation's authority over its own persons and 

vessels. 

Harmonizing our view of the protective principle with 

international law would bring to the forefront appellants' 

challenge to the MDLEA's "vessel without nationality" provision. 

In other words, if we concluded that the protective principle does 

not justify application of the MDLEA to drug trafficking carried 

out by foreigners on foreign vessels, absent a demonstrated nexus 

between the drug activity and U.S. security interests, we would 

need to address whether appellants' vessel was one "without 

nationality." That is so because the government has made no 

showing of such a nexus. Although I will not delve into the 

statutory issue here, I think it important to note that appellants 
- 19 - 

present a forceful argument that Congress exceeded its authority 

under Article I of the Constitution by expanding the definition of 

a stateless vessel beyond the bounds of international law. See 46 

U.S.C. § 70502(d)(1). 

Discussion 

 A close review of the cases in which we have considered 

the protective principle reveals that our court's approach to the 

doctrine rests on shaky footing. I describe that precedent below, 

explaining why its vulnerabilities warrant en banc reconsideration 

of our application of the principle, under the MDLEA, to drug 

trafficking aboard vessels in international waters. 

A. The Protective Principle and the MDLEA

 The "protective principle" is a long-recognized concept 

of international law that permits a nation to punish 

extraterritorial conduct that poses a risk to its security or other 

important state interests. See, e.g., United States v. Robinson, 

843 F.2d 1, 3 (1st Cir. 1988). The current version of the 

applicable Restatement provision describes "Jurisdiction Based on 

the Protective Principle" as follows: 

International law recognizes a state's 

jurisdiction to prescribe law with respect to 

certain conduct outside its territory by 

persons not its nationals that is directed 

against the security of the state or against 

a limited class of other fundamental state 

interests, such as espionage, certain acts of 

terrorism, murder of government officials, 

counterfeiting of the state's seal or 
- 20 - 

currency, falsification of official 

documents, perjury before consular officials, 

and conspiracy to violate immigration or 

customs laws. 

Restatement (Fourth) of Foreign Relations Law of the United States 

§ 412 (2019). 

 The language of the MDLEA's declaration on drug 

trafficking, asserting that trafficking of controlled substances 

aboard vessels "presents a specific threat to the security and 

societal well-being of the United States," 46 U.S.C. § 70501,9

tracks the Restatement provision, and it thus suggests a deliberate 

desire by Congress to bring drug trafficking within the protective 

principle. Significantly, the security risk as declared by 

Congress is not expressly limited to drug activity with a 

demonstrated impact on, or nexus to, the United States. Rather, 

the broadly worded statement would on its face include within its 

scope drug trafficking aboard a vessel halfway around the world, 

without any showing that those drugs were headed toward the United 

States or would otherwise affect the United States or its citizens. 

See United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999) 

 9 Section 70501 states, in pertinent part: "Congress finds 

and declares that [] trafficking in controlled substances aboard 

vessels is a serious international problem, is universally 

condemned, and presents a specific threat to the security and 

societal well-being of the United States." 
- 21 - 

(noting Congress's finding that "all drug trafficking aboard 

vessels threatens our nation's security" (emphasis added)).10

 The other circuits have not taken a uniform stance on 

whether a direct nexus to the United States must be shown to 

trigger the protective principle with respect to drug trafficking. 

Compare, e.g., United States v. Perlaza, 439 F.3d 1149, 1162 (9th 

Cir. 2006) (rejecting "the notion that [the] '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'" (quoting Robinson, 

843 F.2d at 3) with United States v. Gonzalez, 776 F.2d 931, 939 

(11th Cir. 1985) (stating that "[t]he protective principle does 

not require that there be proof of an actual or intended effect 

inside the United States" and concluding that "conduct may be 

forbidden if it has a potentially adverse effect and is generally 

recognized as a crime by nations that have reasonably developed 

legal systems"). 

 The debate over the nexus requirement for drug 

trafficking in violation of the MDLEA could be framed as a debate 

over the types of crimes properly within the scope of the 

 10 Although we have acknowledged that the assertion of 

jurisdiction under the protective principle must be reasonable, 

see Robinson, 843 F.2d at 3, we did not discuss reasonableness in 

the post-Robinson cases adopting the protective principle and we 

have not defined the limits of "reasonable" protective principle 

jurisdiction.
- 22 - 

protective principle. A Reporters' Note to the Restatement 

provision on protective jurisdiction observes that "no constituent 

element of the offense and no actual or intended effect in the 

territory of the regulating state need be shown." Restatement 

(Fourth) of Foreign Relations Law § 412 n.1 (emphasis added). 

However, the crimes the Restatement specifies in describing the 

protective principle -- such as counterfeiting, espionage, and 

perjury before consular officials -- by their nature directly 

affect state interests wherever they occur. That is, the crimes 

traditionally associated with the protective principle are those 

that inherently include a "nexus" with the prosecuting country as 

an element. That category of crimes is small, and drug trafficking 

would not naturally fit within it. See id. cmts. a, b (describing 

the limited scope of the protective principle); Eugene 

Kontorovich, Beyond the Article I Horizon: Congress's Enumerated 

Powers and Universal Jurisdiction Over Drug Crimes, 93 Minn. L. 

Rev. 1191, 1229 (2009) (noting that the protective principle has 

been invoked to "allow[] a state to punish extraterritorially 'a 

limited class of offenses . . . directed against the security of 

the state or other offenses threatening the integrity of 

governmental functions'" (quoting Restatement (Third) of Foreign 

Relations Law § 402 cmt. f (1987)); id. at 1230 ("Commentators 

stress that the category of protective jurisdiction offenses is 
- 23 - 

quite small, and none suggest drug smuggling as one of [the 

offenses within it]."). 

 Recognizing that drug trafficking does not fall within 

the category of crimes permissibly triggering the protective 

principle would not prevent the United States from criminalizing 

some controlled-substance activity aboard vessels outside its 

territorial jurisdiction. A different principle recognized under 

international law is arguably a better fit for drug-trafficking 

crimes, although that doctrine requires that a nexus be shown 

between the conduct and the prosecuting country. A Restatement 

provision titled "Jurisdiction Based on Effects" states: 

"International law recognizes a state's jurisdiction to prescribe 

law with respect to conduct that has a substantial effect within 

its territory." Restatement (Fourth) of Foreign Relations Law 

§ 409 (2018). This jurisdictional principle allows nations to 

reach crimes other than those with a built-in nexus component -- 

i.e., crimes like counterfeiting and espionage, which fall within 

the protective principle as traditionally understood -- and would 

embrace drug trafficking that in fact "presents a specific threat 

to the security and societal well-being of the United States." 46 

U.S.C. § 70501. 
- 24 - 

B. The Protective Principle: First Circuit Precedent 

1. United States v. Robinson 

Only once has a panel majority of our court grappled 

with the international law implications of the protective 

principle. In that case, Robinson, the Coast Guard stopped a 

Panamanian ship about 500 nautical miles east of North Carolina, 

and boarding officers found a substantial quantity of marijuana in 

a fake fuel tank. 843 F.2d at 2. Writing for the panel, thenJudge Breyer noted that the appellants questioned the United 

States's justification for prosecuting drug crimes committed by 

foreigners on foreign vessels who "might be bound for Canada, South 

America, or Zanzibar." Id. at 3. He described as "forceful" 

appellants' argument that multiple courts had wrongly used 

international law principles to conclude that a predecessor 

statute to the MDLEA permitted such drug prosecutions in the 

absence of direct impact on the United States. Id. 

In raising doubts about such a broad application of the 

protective principle, Judge Breyer pointed to a then-current 

provision of the Restatement of Foreign Relations Law that 

described the principle as "giv[ing] [a] state [the] power to 

prescribe law protecting itself from actions taken abroad that 

harm it." Id. (quoting Restatement (Revised) of Foreign Relations 

Law § 402(3)). The emphasis in that description is Judge Breyer's. 

He also quoted a comment to the same Restatement that similarly 
- 25 - 

depicts the "protective principle [as] 'based on the effect . . . 

[of an offshore] act upon or in a state's territory.'" Id. 

(quoting § 402(3), cmt. f) (second alteration in Robinson). Again, 

the emphasis is Judge Breyer's. 

Robinson recognized the inherent tension that exists 

when a nation seeking to prosecute crime on the high seas must 

reconcile that objective with the bedrock principle of 

international law that "all nations have an equal and untrammeled 

right to navigate on the high seas." United States v. MarinoGarcia, 679 F.2d 1373, 1380 (11th Cir. 1982) (citing Convention on 

the High Seas, art. 2, Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 

5200); see also id. (noting that "international law generally 

prohibits any country from asserting jurisdiction over foreign 

vessels on the high seas," and that "vessels are normally 

considered within the exclusive jurisdiction of the country whose 

flag they fly"). Cognizant of the need to respect the sovereign 

interests of other nations, Congress has stated its intention "to 

stay within the boundaries of international law" when 

criminalizing maritime drug trafficking. United States v. MatosLuchi, 627 F.3d 1, 11 (1st Cir. 2010) (Lipez, J., dissenting); see 

also S. Rep. 96-855 (1980), at 2 (reporting that the MDLEA's 

predecessor legislation, the Marijuana on the High Seas Act, would 

"give the Justice Department the maximum prosecutorial authority 

permitted under international law"); 125 Cong. Rec. 20,083 (1979) 
- 26 - 

(statement of Rep. Paul McCloskey) (explaining, in reference to 

the same law, that it authorizes prosecution "to the broadest 

extent possible under international law"). We also have 

acknowledged that deference to other nations' interests is a 

component of the MDLEA, observing that "Congress inserted the 

requirement that a vessel be subject to the jurisdiction of the 

United States . . . as a matter of diplomatic comity." United 

States v. Vilches-Navarrete, 523 F.3d 1, 22 (1st Cir. 2008) 

(separate opinion of Lynch & Howard, JJ.) (citing United States v. 

Tinoco, 304 F.3d 1088, 1108 (11th Cir. 2002)); cf. Jesner v. Arab 

Bank, PLC, 138 S. Ct. 1386, 1417 (2018) (Gorsuch, J., concurring) 

("[W]hen the framers gathered to write the Constitution they 

included among their chief priorities endowing the national 

government with sufficient power to ensure the country's 

compliance with the law of nations.").11 

The discussion in Robinson was subsequently described by 

the Ninth Circuit as having "called into question" the 

 11 To be sure, Congress in enacting the MDLEA apparently sought 

to expand U.S. jurisdiction over drug trafficking beyond what was 

contemplated by its predecessor statute, the Marijuana on the High 

Seas Act. See S. Rep. No. 99-530, at 15 (1986) (observing that 

"defendants in cases involving foreign or stateless vessel 

boardings and seizures have been relying heavily on international 

jurisdictional questions as legal technicalities to escape 

conviction"). Nonetheless, as described above, Congress has 

recognized that the United States must adhere to its 

responsibilities to the international community when prosecuting 

crimes on the high seas. 
- 27 - 

"reasonableness of a broad reading of the 'protective principle.'" 

Perlaza, 439 F.3d at 1162 (citing Robinson, among other cases). 

The Robinson court ultimately sidestepped the questions 

surrounding the scope of the principle, however, because it found 

"another, different, but perfectly adequate basis in international 

law for the assertion of American jurisdiction." 843 F.2d at 4. 

The country of the vessel's nationality, Panama, had "agreed to 

permit the United States to apply its law on her ship," and the 

panel held that this acquiescence sufficed to support U.S. 

prosecution of persons on the vessel under U.S. drug laws. Id. 

 2. United States v. Cardales

 Despite the questions about the scope of the protective 

principle raised in Robinson, and without addressing those issues, 

we held in Cardales that "application of the MDLEA to the 

defendants is consistent with the protective principle of 

international law." 168 F.3d at 553. As our panel opinion 

reports, the court in Cardales based that pronouncement on the 

congressional finding that drug trafficking aboard vessels 

"presents a specific threat to the security . . . of the United 

States," id. at 553 (quoting 46 U.S.C. § 70501), and we have 

accepted Cardales's view of the protective principle as our 

governing precedent, see, e.g., United States v. Aybar-Ulloa, 913 

F.3d 47, 56 (1st Cir. 2019) (citing Cardales), petition for reh'g 
- 28 - 

en banc filed, No. 15-2377 (Jan. 23, 2019); Vilches-Navarrete, 523 

F.3d at 22 (same) (separate opinion of Lynch & Howard, JJ.). 

 Whether Cardales deserves such acceptance, however, is 

debatable. In Cardales, we upheld the defendants' convictions by 

relying on the foreign government's consent to the application of 

U.S. law to both the vessel and the vessel's crew. See Cardales, 

168 F.3d at 551-52 (describing the consent of Venezuela, the 

country of registration). Unlike in Robinson, our discussion 

focused primarily on consent, and we only briefly addressed the 

protective principle. See id. at 553. We ultimately rejected the 

defendants' due process challenge to their prosecution under the 

MDLEA because "due process is satisfied when the foreign nation in 

which the vessel is registered authorizes the application of United 

States law to the persons on board the vessel." Id. We further 

explained: 

When the foreign flag nation consents to the 

application of United States law, jurisdiction 

attaches under the statutory requirements of 

the MDLEA without violation of due process or 

the principles of international law because 

the flag nation's consent eliminates any 

concern that the application of United States 

law may be arbitrary or fundamentally unfair. 

Id. Our one-paragraph consideration of the protective principle 

was offered as an additional basis for jurisdiction over the 

vessel's occupants. Id. 
- 29 - 

 The Cardales panel did not consider whether due process 

required a "domestic nexus requirement" in an MDLEA prosecution, 

but we concluded that the government need not "prove a nexus 

between a defendant's criminal conduct and the United States in a 

prosecution under the MDLEA when the flag nation has consented to 

the application of United States law to the defendants." Id. at 

552-53. In a footnote, the panel observed that, even if 

international law required a nexus, the requirement was satisfied 

by Venezuela's consent and by Congress's "finding that drug 

trafficking aboard vessels threatens the security of the United 

States." Id. at 553 n.2 (referring to 46 U.S.C. § 70501). 

 Our extended discussion of the protective principle in 

Robinson suggests a concern that a broad view of its scope may 

transgress longstanding "limits [on] law enforcement on [the] high 

seas." Robinson, 843 F.2d at 3. Against that backdrop, the 

cursory treatment of the principle in Cardales and the expansive 

approach adopted there -- applying the principle to cover even 

foreigners on foreign vessels -- should give us pause. 

 3. The Need to Revisit Cardales 

 The questions concerning the proper scope of the 

protective principle that were bypassed in Robinson remain largely 

unaddressed by our court. Indeed, as the protective principle is 

depicted by the Restatement, see supra, the principle arguably 

does not apply to drug trafficking at all. As described above, 
- 30 - 

drug-trafficking offenses do not resemble the sorts of crimes 

typically associated with the principle -- and the premise of "a 

specific threat to the security and societal well-being of the 

United States," 46 U.S.C. § 70501, is particularly inapt when there 

is no evidence that the drugs at issue would reach the United 

States or U.S. citizens. As Judge Torruella has observed, "drugs 

not destined for United States markets do not fall into the 

'limited class of offenses . . . directed at the security of the 

State,' since that principle 'refers to the safety and integrity 

of the state apparatus itself (its "government functions" or "state 

interests"), not its overall physical and moral well-being.'" 

United States v. Angulo-Hernández, 576 F.3d 59, 61 (1st Cir. 2009) 

(Torruella, J., dissenting from the denial of en banc review) 

(quoting Kontorovich, supra, at 1229-31). Nor does it seem 

adequate, even if the protective principle can justify 

jurisdiction over foreign individuals involved in drug trafficking 

on foreign vessels, for Congress simply to invoke the principle 

with an unsubstantiated "blanket assertion" of a threat. AybarUlloa, 913 F.3d at 58 (Torruella, J., joining in part and 

dissenting in part) (discussing 46 U.S.C. § 70501). 

 Moreover, as Judge Torruella has emphasized, to accept 

the pronouncement in the MDLEA that all drug trafficking poses a 

security threat to the United States to justify reliance on the 

protective principle -- without a "substantial showing of a nexus" 
- 31 - 

-- "would render the protective principle coterminous with the 

doctrine of universal jurisdiction." Id. at 59. The universal 

jurisdiction doctrine permits "a nation [to] prosecute certain 

serious offenses even though they have no nexus to its territory 

or its nationals, and no impact on its territory or its citizens." 

United States v. Cardales-Luna, 632 F.3d 731, 740 (1st Cir. 2011) 

(Torruella, J., dissenting). However, few offenses qualify as 

universal jurisdiction crimes -- only those considered "so serious 

and on such a scale that they can justly be regarded as an attack 

on the international legal order." Kontorovich, supra, at 1224 

n.228 (quoting Anne-Marie Slaughter, "Defining the Limits: 

Universal Jurisdiction and National Courts," in Universal 

Jurisdiction: National Courts and the Prosecution of Serious 

Crimes under International Law 178-79 (Stephen Macedo ed., 2004)). 

 The Restatement of Foreign Relations Law identifies the 

crimes subject to universal jurisdiction as including "genocide, 

crimes against humanity, war crimes, certain acts of terrorism, 

piracy, the slave trade, and torture." Restatement (Fourth) of 

Foreign Relations Law § 413.12 According to the Restatement, this 

 12 In full, section 413, titled "Universal Jurisdiction," 

provides: 

International law recognizes a state's 

jurisdiction to prescribe law with respect to 

certain offenses of universal concern, such as 

genocide, crimes against humanity, war crimes, 

certain acts of terrorism, piracy, the slave 

trade, and torture, even if no specific 
- 32 - 

list is limited -- covering only "the most serious offenses about 

which a consensus has arisen for the existence of universal 

jurisdiction" -- because universal jurisdiction "departs from the 

more typical requirement of a specific connection between the state 

exercising jurisdiction and the person or conduct being 

regulated." Id. n.1; see also United States v. Bellaizac-Hurtado, 

700 F.3d 1245, 1259 (11th Cir. 2012) (Barkett, J., specially 

concurring) (noting that the theories of jurisdiction other than 

"universality" "permit nations to exercise jurisdiction over 

offenses that implicate domestic interests -- that is, offenses 

that occur within a nation's territory and those that occur outside 

the territory but have effects within it" (emphasis added)). Our 

precedent on the MDLEA has identified "[n]o source of customary 

international law [that] has designated drug trafficking as being 

subject to universal jurisdiction." Id. at 1260-61. 

 To be sure, "a global consensus about the negative 

effects of drug trafficking" has developed over time, Aybar-Ulloa, 

913 F.3d at 59 (Torruella, J., joining in part and dissenting in 

part), and a close examination of international law norms in 2019 

may suggest a different sensibility about the protective principle 

or universal jurisdiction than Judge Breyer intimated in Robinson 

 

connection exists between the state and the 

persons or conduct being regulated. 
- 33 - 

in 1988, see 843 F.2d at 3-4. Yet, it also may remain true that, 

"unlike genocide" -- or crimes against humanity, torture, etc. -- 

"the international community has addressed drug trafficking at the 

domestic, instead of international, level." Bellaizac-Hurtado, 

700 F.3d at 1256 (Barkett, J., specially concurring). 

Conclusion

 Although appellants' challenge to their prosecution 

under the MDLEA founders on the First Circuit's current approach 

to the protective principle, there is a compelling argument that 

our approach is neither deeply considered nor faithful to the 

international law foundation on which it must rest. The need for 

our country to respect the sovereignty of other nations is reason 

enough to warrant careful reexamination of our precedent. The 

individual interests of defendants such as Reyes-Valdivia and 

Dávila-Reyes -- citizens of Costa Rica plausibly claiming Costa 

Rican nationality for their vessel -- reinforce the importance of 

revisiting caselaw that may erroneously allow their lengthy 

imprisonment for violating U.S. law. Hence, if appellants submit 

a petition for en banc rehearing, I urge my colleagues to grant it 

without hesitation or delay.