United States v. Anthony Garfield Cox

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 9, 2018
• Docket: 17-15237
• Status: Unpublished

Opinion

Case: 17-15237 Date Filed: 08/09/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15237 Non-Argument Calendar ________________________

D.C. Docket No. 0:17-cr-60127-BB-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY GARFIELD COX,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(August 9, 2018)

Before WILSON, JORDAN and BLACK, Circuit Judges.

PER CURIAM: Case: 17-15237 Date Filed: 08/09/2018 Page: 2 of 5

Anthony Garfield Cox appeals his conviction, entered after a guilty plea, for

conspiracy to possess, with intent to distribute, a controlled substance while on

board a vessel subject to the jurisdiction of the United States, in violation of the

Maritime Drug Law Enforcement Act (MDLEA) 46 U.S.C. §§ 70503(a)(1),

70506(b). Cox brings two issues on appeal, which we address in turn. After

review, 1 we affirm the district court.

I. DISCUSSION

A. Constitutionality of the MDLEA

Cox first asserts the MDLEA is unconstitutional because his prosecution for

drug trafficking on the high seas without any connection to the United States

exceeds Congress’s enumerated powers under the Felonies Clause and violates his

due process rights. Cox also contends the MDLEA is unconstitutional because it

prevents the jury from considering the court’s jurisdiction and is therefore a

violation of his Fifth and Sixth Amendment rights to a jury trial. However, Cox

concedes his arguments are foreclosed by binding precedent. See United States v.

Vega–Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (stating under the prior

precedent rule, we are bound by our prior decisions unless and until they are

overruled by the Supreme Court or this Court en banc). 1 We review de novo whether a statute is constitutional. United States v. Campbell, 743 F.3d 802, 805 (11th Cir. 2014). We also review de novo a district court’s interpretation and application of statutory provisions with respect to whether it has subject matter jurisdiction. United States v. Tinoco, 304 F.3d 1088, 1114 (11th Cir. 2002).

2 Case: 17-15237 Date Filed: 08/09/2018 Page: 3 of 5

The district court did not err in denying Cox’s motion to dismiss the

indictment because the MDLEA is facially constitutional, see, e.g., United States v.

Campbell, 743 F.3d 802, 809–12 (11th Cir. 2014) (upholding the MDLEA as a

valid exercise of Congress’s authority), and it is constitutional as applied to Cox

because prosecution under the MDLEA without a jurisdictional nexus does not

violate due process, see, e.g., United States v. Wilchcombe, 838 F.3d 1179, 1186

(11th Cir. 2016) (explaining the MDLEA does not have a nexus requirement and

this does not violate due process). The district court also did not err by making a

pretrial jurisdictional determination under the MDLEA because Congress

specifically removed it as an element to be proven to a jury and jurisdictional

issues under the MDLEA may be resolved by the district court without violating

the defendant’s Fifth and Sixth Amendment rights to due process and a jury trial.

See United States v. Tinoco, 304 F.3d 1088, 1111-12 (11th Cir. 2002) (holding

Congress was entitled to remove the particular jurisdictional question from the jury

and therefore, neither the Fifth Amendment’s due process clause, nor the Sixth

Amendment right to a jury require the MDLEA’s jurisdictional requirement be an

element of the offense).

B. Vessel without Nationality

Cox contends the Government failed to conclusively prove an element of his

conviction—that the vessel qualifies as a “vessel without nationality” to make it

3 Case: 17-15237 Date Filed: 08/09/2018 Page: 4 of 5

subject to the jurisdiction of the United States under the MDLEA. He asserts the

certificate of the Secretary of State’s designee for registry of the vessel was only

conclusive proof of Jamaica’s response, not of the statelessness of the vessel, and

was therefore insufficient to establish the vessel was without nationality and to

establish jurisdiction. However, Cox concedes once again this argument is

precluded under binding precedent.

A vessel without nationality is subject to the United States’ jurisdiction

under the MDLEA. 46 U.S.C. § 70502(c)(1)(A). A vessel is without nationality

when “the master or individual in charge makes a claim of registry and for which

the claimed nation of registry” either denies the claim or “does not affirmatively

and unequivocally assert that the vessel is of its nationality.” Id. § 70502(d)(1).

The response of the claimed nation of registration “is prove[n] conclusively by

certification of the Secretary of State or the Secretary’s designee.” Id.

§ 70502(d)(2).

The district court did not err in finding that the vessel was within the

jurisdiction of the United States and denying Cox’s motion to dismiss the

indictment. Cox and his codefendants claimed that the vessel was of Jamaican

registry. The United States submitted a certificate of Commander DelRosso of the

Coast Guard certifying that the Government of Jamaica responded it did not have

records of the vessel in its registry. Commander DelRosso was a designee of the

4 Case: 17-15237 Date Filed: 08/09/2018 Page: 5 of 5

Secretary of State, and his certification was conclusive proof of jurisdiction and

sufficient to stand alone. 46 U.S.C. § 70502(d)(2); see also Campbell, 743 F.3d at

809 (holding the certification—there, a statement by a United States Coast Guard

Commander explaining his exchange with the country of alleged registration—was

sufficient and conclusive proof that the vessel was within the jurisdiction of the

United States, under the MDLEA).

II. CONCLUSION

Accordingly, we affirm Cox’s conviction.

AFFIRMED.