Appeals from the United States District Court for the District of Columbia (No. 02cr00293-01) (No. 02cr00293-02) (No. 02cr00293-03)
Before: Sentelle, Randolph and Rogers, Circuit Judges.
The opinion of the court was delivered by: Judge Sentelle
Concurring opinion filed by Circuit Judge RANDOLPH.
Dissenting opinion filed by Circuit Judge ROGERS.
Each of the appellants, Jose Delgado-Garcia, Jose Prado-Morales, and Cesar Bravo-Cene02dc no, pleaded guilty either to conspiring to induce aliens illegally to enter the United States, or to attempting to bring illegal aliens into the United States in violation of 8 U.S.C. § 1324(a). Despite those pleas, they took direct appeals and now attack their convictions on several grounds. We reject their claims and affirm the convictions.
In their plea proffers, appellants admitted to conspiring to transport 191 Ecuadorian nationals in order to facilitate their illegal entry into the United States. Appellants attempted to transport the passengers via a 54-foot fishing vessel, the Jose Alexander II. Delgado-Garcia was the captain and piloted the ship. Bravo-Cene02dc no was the ship's mechanic. Prado-Morales was a crew member.
The ship's voyage began May 27, 2002, from a position some distance off-shore from Santa Elena, Ecuador. The plan apparently was to transport the Ecuadorians on the ship to Mexico, and for the Ecuadorians to enter the United States by land from there. On or about June 6, 2002, a United States Navy helicopter sighted the vessel off the Guatemalan coast and recognized it as being overcrowded. Upon the approach of the helicopter, the vessel changed course. The vessel displayed no running lights, flew no flags, and had at least 70 passengers visible on the deck. Thereafter, the U.S.S. Fife, a United States Navy ship carrying a United States Coast Guard law enforcement detachment ("LEDET"), located the vessel, later identified as the Jose Alexander II, in international waters, 170 nautical miles south of Guatemala and Mexico. After monitoring the movements of the vessel, the LEDET hailed it to begin questioning, but received no response. The LEDET launched a boat from the U.S.S. Fife, approached the vessel, and attempted questioning from the boat. Migrants on board the Jose Alexander II responded to questioning that they had inadequate food, water, and fuel; that they had left Gayaquil, Equador, on May 27, 2002; and that the master and crew of the ship had left before the U.S.S. Fife's approach. After rendering assistance and verifying that one of the passengers could navigate the vessel to Guatemala, the LEDET advised the migrants to take the vessel to the port at Quetzal and escorted it there. Thereafter, LEDET personnel determined, based on interviews with the passengers and further investigation, that the ship had been attempting to facilitate the illegal immigration of the passengers to the United States.
A grand jury charged appellants with conspiracy to encourage and induce aliens illegally to enter the United States, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v), (a)(1)(A)(iv), and (a)(1)(B)(I), and attempted bringing of unauthorized aliens to the United States, in violation of 8 U.S.C. §§ 1324(a)(2) and (a)(2)(B)(ii). Appellants moved to dismiss the indictment on several grounds. They contended that the indictment did not charge an offense under § 1324(a), arguing that the statute does not apply extraterritorially. Appellants also asserted that their interdiction violated international law, as the Jose Alexander II, they claimed, was under the exclusive jurisdiction of Ecuador and the government of Ecuador did not consent to the U.S. government escorting that vessel to Ecuador. They argued, additionally, that the Fife's crew had exceeded the authority granted under 14 U.S.C. § 89(a).
That provision gives the Coast Guard authority, among other things, to "make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States." Appellants claimed that this provision did not authorize the interdiction of the Jose Alexander II because it was in international, not U.S., waters when the Fife approached it, and because the crew lacked reasonable suspicion to believe that the vessel's crew was engaged in illegal activity that would affect the United States. Lastly, appellants argued that prosecuting them under § 1324(a) violated the Fifth Amendment's due process clause, as there was no "nexus" between appellants' conduct and the territory of the United States.
On January 31, 2003, the district court denied appellants' motion. Shortly thereafter, in February 2003, Prado-Morales and Bravo-Cene02dc no unconditionally pleaded guilty to the conspiracy count in the indictment and Delgado-Garcia unconditionally pleaded guilty to the attempt count. This appeal followed.
This direct criminal appeal comes to us in a strange posture. Appellants moved to dismiss the indictment on the statutory, constitutional, and international-law grounds they now raise on appeal. Yet they unconditionally pleaded guilty to the crimes of which they were charged. The first issue we address, therefore, is whether their unconditional pleas waived the claims they now assert on appeal. For the reasons that follow, we hold that these pleas waived all of appellants' claims. However, the government does not advance the argument that the unconditional pleas waived appellants' claim that § 1324(a) applies extraterritorially. The government has thus waived its waiver argument on that point. Cf. United States v. Johnson, 216 F.3d 1162, 1166 (D.C. Cir. 2000) (discussing the government's waiving of a defendant's procedural default). We therefore reach the merits of appellants' claim that § 1324(a) does not apply extraterritorially.
Appellants assert four claims on appeal; these claims are, more or less, the same arguments that were the basis of their motion to dismiss the indictment. First, appellants reassert their claim that the substantive statute which they by their pleas admitted violating, 8 U.S.C. § 1324(a), does not apply extraterritorially, and therefore not to them in this case. Second, appellants argue that the government failed to prove that they committed a crime with effects in the United States, and therefore did not prove a "nexus" between appellants' conduct and the United States, as they claim the Fifth Amendment's due process clause requires. Third, appellants assert that their prosecution violated 14 U.S.C. § 89(a), for the same reasons they asserted below. Finally, appellants claim that their apprehension violated customary international law and a treaty to which the United States is a party.
Appellants waived all of these claims by pleading guilty unconditionally. Unconditional guilty pleas that are knowing and intelligent - and there is no claim that appellants' pleas were otherwise - waive the pleading defendants' claims of error on appeal, even constitutional claims. See, e.g., United States v. Drew, 200 F.3d 871, 876 (D.C. Cir. 2000). There are two recognized exceptions to this rule. The first is the defendant's claimed right "not to be haled into court at all;" for example, a claim that the charged offense violates the double jeopardy clause. Blackledge v. Perry, 417 U.S. 21, 30-31 (1974); see also Menna v. New York, 423 U.S. 61, 62-63 & n.2 (1975) (per curiam). This is the so-called "Blackledge/Menna" exception. The second is that the court below lacked subject-matter jurisdiction over the case, as a claim of lack of subject-matter jurisdiction, "because it involves a court's power to hear a case, can never be forfeited or waived." United States v. Cotton, 535 U.S. 625, 630 (2002) (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998)).
None of appellants' claims falls into either of these exceptions. As to the subject-matter jurisdiction exception: there is no question that the district court had subject-matter jurisdiction over appellants' case. Appellants' best argument to the contrary rests on their claim that the indictment failed to state an offense, which they claim deprived the district court of subject-matter jurisdiction over them. The government apparently agrees with appellants that this purported defect in the indictment concerns the district court's subjectmatter jurisdiction over appellants' case, rather than the merits of the case.
We do not agree. Under Article III of the Constitution, "[t]he judicial power of the United States" is "vested ... in such inferior Courts as Congress may from time to time establish." U.S. Const. art. III, § 2. Congress conferred original jurisdiction on the district court over appellants' case by enacting 18 U.S.C. § 3231. That statute, passed originally in 1948, see 62 Stat. 826, provides that the "district courts of the United States shall have original jurisdiction ... of all offenses against the laws of the United States." The ordinary meaning of the term "jurisdiction" at the time that statute was passed referred to a court's power to "declar[e] and administer[ ] law or justice." 5 The Oxford English Dictionary 635 (1933); see also Webster's Third New International Dictionary 1227 (1961). Section 3231 identifies "offenses against the laws of the United States" as the relevant "law" over which the court has "power" (or "jurisdiction"). The power to declare that law includes the power to decide whether the offense charged is a true offense, for, as Justice Holmes noted long ago, that power remains whether the court's "decision" on the law (in this instance, the court's judgment as to the "offense") "is right or wrong." Lamar v. United States, 240 U.S. 60, 65 (1916) (noting that "[t]he objection that the indictment does not charge a crime against the United States goes only to the merits of the case" rather than the court's jurisdiction). The district court's subjectmatter jurisdiction in this case therefore included the power to decide whether the indictment charged a proper "offense."*fn1
None of the statutory or constitutional provisions appellants cite divested the district court of its original jurisdiction under § 3231. The substantive statute appellants pleaded guilty to violating, 8 U.S.C. § 1324(a), does not so much as mention the court's "jurisdiction." The treaty to which appellants point us - The Convention on the High Seas - does state that "ships that sail under the flag of one State only ... shall be subject to its exclusive jurisdiction on the high seas." Convention On the Law of the Sea, Sept. 30, 1962, art. 6, § 1, 13 U.S.T. 2312. "Jurisdiction" in this sense, however, refers to the general authority of the U.S. government over the ship at issue, including the executive branch's authority, not the power of the district court in particular over prosecutions arising out of the executive's assertion of such authority. The term "jurisdiction" is also used in this way in 14 U.S.C. § 89(a), and in the customary international law doctrines to which appellants point us. Finally, appellants' Fifth Amendment claim is irrelevant to the court's Article III subjectmatter jurisdiction. The Constitution by its terms leaves it solely to Congress to allocate that power by statute, and there is no claim in this case that this jurisdictional grant is somehow independently unconstitutional.
Precedent bolsters our conclusion that the substantive sufficiency of the indictment is a question that goes to the merits of the case, rather than the district court's subject-matter jurisdiction. The Supreme Court's decision in United States v. Cotton, 535 U.S. 625 (2002), supports this conclusion. There, the Court held that the failure of an indictment to state a sentencing element required to be submitted to the jury and proven beyond a reasonable doubt was not a jurisdictional defect that required automatic reversal of the conviction. Id. at 630-31. "Defects in an indictment do not deprive a court of its power to adjudicate a case," the Court explained; the issue of the indictment's substantive sufficiency instead goes to the merits. Id. We also note that at least two circuits have held that the question of an indictment's failure to state an offense is an issue that goes to the merits of a case, not the district court's subject-matter jurisdiction. See United States v. Gonzalez, 311 F.3d 440, 442 (1st Cir. 2002), cert. denied, 124 S. Ct. 47 (2003); United States v. Brown, 164 F.3d 518, 520-22 (10th Cir. 1998).
Nor do appellants' claims fall into the second, Blackledge/Menna exception. That exception concerns the right of defendants "not to be haled into court at all" as that phrase was used in Blackledge v. Perry, 417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61 (1975) (per curiam). Perry, the case in which the Court first applied this exception, involved a defendant whom the state of North Carolina had convicted of misdemeanor assault and given a six-month sentence. After the defendant filed his notice of appeal from that conviction, the state prosecutor obtained an indictment against him on a felony assault charge based on the same conduct that gave rise to the misdemeanor charge. 417 U.S. at 22-23. Perry pleaded guilty to that charge, but later claimed that the second charge violated his due-process rights because the charge penalized him for exercising his statutory right to appeal. Id. at 25-26. The Supreme Court held that Perry's guilty plea did not waive his due-process claim, because Perry's constitutional claim of prosecutorial vindictiveness "went to the very power of the state to bring [Perry] into court to answer the charge brought against him." Id. at 30. The right, the Court reasoned, was the "right not to be haled into court at all upon the felony charge," and therefore implicated the "distinctive" procedural injury against which a right "to prevent a trial from taking place at all" protects. Id. at 30-31. The Court later clarified that the Blackledge exception applies to double jeopardy claims. Menna, 423 U.S. at 62-63.
The injury associated with appellants' claims is not comparable to the injury the Supreme Court identified in Blackledge and Menna. Appellants' only constitutional claim is that their prosecution violates the Fifth Amendment's due process clause because "none of the specific actions attributed to appellants were aimed at causing criminal acts within the United States." Br. for Appellants at 20. That assertion is a claim that the due process clause limits the substantive reach of the conduct elements of 8 U.S.C. § 1324(a), not a claim that the court lacks the power to bring them to court at all. Even if the prosecution of appellants violated the Fifth Amendment for this reason, appellants would still need to come to "court to answer the charge brought against" them. Blackledge, 417 U.S. at 30.
In any event, even assuming that appellants' Fifth Amendment claim concerns the power of the court to force them to appear, that claim still is waived. The indictments clearly alleged that appellants intended to smuggle aliens into the United States, thereby causing effects there. While appellants would have us look beyond the indictment to the underlying facts surrounding the interdiction of the Jose Alexander II to show the absence of a nexus, there was no arguable facial constitutional infirmity in the indictment, and the Blackledge/Menna waiver exception does not apply. See United States v. Brace, 488 U.S. 563, 575 (1989).
For these reasons, as a matter of pure legal principle, appellants' guilty pleas waived all of their claims. That conclusion is sufficient to dispose of all of appellants' claims on appeal, save for their claim that 8 U.S.C. § 1324(a) does not apply extraterritorially. However, the government's brief strangely "assumes for present purposes" that appellants have not waived their claim as to the extraterritorial application of § 1324(a). The government has therefore waived its waiver argument on that point. See United States v. Johnson, supra.
The government's concession impels us to decide whether § 1324(a) criminalizes appellants' extraterritorial conduct. We hold that it does.
Appellants pleaded guilty to two distinct crimes. Prado-Morales and Bravo-Cene02dc no pleaded guilty to conspiracy to encourage and induce aliens illegally to enter the United States. The statute that defines that crime prohibits conspiring to encourage[ ] or induce[ ] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.
8 U.S.C. § 1324(a)(1)(A)(iv), (a)(1)(A)(v)(I). The second crime, to which Delgado-Garcia pleaded guilty, is the attempted bringing of unauthorized aliens to the United States. The statute that defines that crime provides:
Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien, for each alien in ...