USA v. Lelia Vanessa Perdomo Zapata

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10385
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LELIA VANESSA PERDOMO ZAPATA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00132-SCB-AAS-2
____________________
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2 Opinion of the Court 20-10385
Before WILSON, J ILL PRYOR , and L UCK , Circuit Judges.
PER CURIAM:
Lelia Vanessa Perdomo Zapata appeals her convictions for
conspiracy to possess with intent to distribute cocaine while aboard
a vessel subject to United States jurisdiction and aiding and abetting
the possession with intent to distribute cocaine while aboard a ves-
sel subject to United States jurisdiction. Zapata argues that the dis-
trict court erred in concluding that it had subject matter jurisdic-
tion under the Maritime Drug Law Enforcement Act (MDLEA) be-
cause the United States did not have jurisdiction over the Panama-
nian vessel at issue, despite the waiver of jurisdiction by Panama.
Because the district court did not err in determining that it had ju-
risdiction under the MDLEA, we affirm.
I.
On March 13, 2019, the United States Coast Guard (USCG)
spotted a sailing vessel named
El Senor de los Vientos in interna-
tional waters off the coast of Colombia. The USCG reasonably sus-
pected the vessel of illicit drug trafficking, so the USCG approached
the vessel for questioning. After the USCG officers approached the
vessel, Zapata’s co-defendant, Luis Cruset Ballart, identified him-
self as master of the vessel and made a verbal claim of Panamanian
registry for the vessel. In addition to the verbal claim, the vessel
was flying a Panamanian flag.
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20-10385 Opinion of the Court 3
Because of Ballart’s claim of Panamanian registry and the
Panamanian flag, the USCG officers contacted the Republic of Pan-
ama to confirm or deny the vessel’s registry as required under the
Salas-Becker Agreement.1 After Panama confirmed the vessel’s
registry, the USCG requested authorization to board and search
the vessel. Initially, there was some back and forth between Pan-
ama and the USCG. But ten hours after the USCG’s request, Pan-
ama granted authorization. Once the USCG officers boarded the
vessel, they found over four hundred kilograms of cocaine.
Six days later, the United States requested that Panama
waive its primary right to jurisdiction over the vessel under the
Salas-Becker Agreement. Shortly after, Panama consented to the
exercise of jurisdiction by the United States. Based on these facts,
the U.S. Secretary of State certified that Panama consented to the
United States exercising jurisdiction over the vessel.
II.
We review questions of law de novo and findings of fact for
clear error.
United States v. Campbell, 743 F.3d 802, 805 (11th Cir.
2014). We will review de novo a district court’s interpretation and
application of statutory provisions in determining whether the
1 The formal name is the Supplementary Arrangement Between the Govern-
ment of the United States of America and the Government of the Republic of
Panama to the Arrangement Between the Government of the United States of
America and the Government of Panama for Support and Assistance from the
United States Coast Guard for the National Maritime Service of the Ministry
of Government and Justice.
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4 Opinion of the Court 20-10385
district court has subject matter jurisdiction.
Id. The issue of sub-
ject matter jurisdiction can be raised at any time.
Nicklaw v.
Citimortgage, Inc., 839 F.3d 998, 1001 (11th Cir. 2016).
III.
Under the Constitution, the Piracies and Felonies Clause
empowers Congress to “define and punish Piracies and Felonies
committed on the high Seas, and Offences against the Law of Na-
tions.” U.S. Const., art. I, § 8, cl. 10. Pursuant to that authority,
Congress enacted the MDLEA, which provides that an individual
may not knowingly or intentionally manufacture or distribute, or
possess with intent to manufacture or distribute, a controlled sub-
stance on board a vessel of the United States or a vessel subject to
the jurisdiction of the United States. 46 U.S.C. § 70503(a).
The MDLEA permits the United States to exercise jurisdic-
tion over “a vessel registered in a foreign nation if that nation has
consented or waived objection to the enforcement of United States
law by the United States.”
Id. § 70502(c)(1)(C);
United States v.
Wilchcombe, 838 F.3d 1179, 1186 (11th Cir. 2016). A foreign na-
tion can consent or waive objection “by radio, telephone, or similar
oral or electronic means.” 46 U.S.C. § 70502(c)(2)(A). Certification
by the U.S. Secretary of State or the Secretary’s designee conclu-
sively proves consent or waiver from a foreign nation.
Id. §
70502(c)(2)(B).
On appeal, Zapata attacks the Salas-Becker Agreement to
show the district court lacked jurisdiction. Specifically, Zapata ar-
gues the Salas-Becker Agreement is insufficient to confer
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20-10385 Opinion of the Court 5
jurisdiction over the vessel because it was only an “arrangement”
that is not authorized by Congress like a treaty.
We disagree. Because the MDLEA does not state how a for-
eign nation will give its consent or waive its objection,
see 42 U.S.C.
§ 70502(c)(1)(C), the United States can enter into an agreement
with a foreign nation, either by formal or informal means, that ad-
dresses how the foreign nation can consent and waive objections
to jurisdiction. Here, Panama and the United States reached an in-
formal binding agreement that allows Panama to consent and
waive its objections to jurisdiction. Therefore, the United States
properly exercised jurisdiction over the vessel by following the re-
quirements of the Salas-Becker Agreement.
Further supporting proper jurisdiction, under the Salas-
Becker Agreement, the United States requested consent from Pan-
ama because Ballart made a verbal claim for Panamanian registry
and the vessel was flying the Panamanian flag. After receiving con-
sent to board and search the vessel and then waiver of jurisdiction
by Panama, the U.S. Secretary of State issued its certification detail-
ing the process between the two nations. Thus, jurisdiction was
conclusively proven in this case when the State Department issued
that certification.
See 46 U.S.C. § 70502(c)(2)(B).
Next, Zapata argues that it is unclear whether the USCG
complied with the time constraints imposed by the Salas-Becker
Agreement. The Salas-Becker Agreement provides that if Panama
does not respond within two-hours of a request made by the
United States, the United States is deemed authorized to board the
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6 Opinion of the Court 20-10385
suspect vessel. Zapata argues that Panama did not immediately
respond to the United States’ request in this case, and that the Sec-
retary of State’s certification failed to state whether the USCG
waited the requisite two hours before boarding the vessel in this
case. As a result, Zapata says the USCG failed to comply with the
Salas-Becker Agreement.
Again, we disagree. We have held that the State Depart-
ment’s certification eliminates any timing arguments because, to
obtain jurisdiction over a MDLEA prosecution, the government
need only show that the MDLEA’s statutory requirements were
met.
See United States v. Hernandez, 864 F.3d 1292, 1303–04 (11th
Cir. 2017). In any event, the record does not support Zapata’s ar-
gument that the USCG boarded the vessel too early under the
Salas-Becker Agreement. The trial testimony from the USCG
boarding officer shows that the USCG did not board until Panama
authorized the USCG to board and search the vessel which was
over ten hours after the USCG sent the request for authorization
to Panama.
Therefore, Zapata has not shown that the district court
erred. The U.S. Secretary of State’s certification conclusively
proves that Panama consented to the United States exercising ju-
risdiction over the Panamanian vessel. 46 U.S.C. § 70502(c)(2)(B).
As such, the vessel was a “vessel subject to the jurisdiction of the
United States,” pursuant to the MDLEA.
Id. § 70502(c)(1)(C);
Wilchcombe, 838 F.3d at 1186. Accordingly, the district court
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20-10385 Opinion of the Court 7
properly exercised its subject matter jurisdiction under the
MDLEA.
See id.
AFFIRMED.
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