In United States v. Hurtado, No. 21-12702 (Dec. 20, 2023) (Grant, Tjoflat, and Ed Carnes), the Court affirmed the defendants’ MDLEA convictions. Judge Tjoflat wrote the opinion for the Court, with the exception of one point, which the other two panel members rejected in a concurrence.
First, the Court held that there was jurisdiction over the vessel because Cameroon properly consented to U.S. jurisdiction, which was proven conclusively by the certificate of the Secretary of State. In addition, Cameroon subsequently waived jurisdiction after the indictment, which was not too late. And even though Cameroon had deleted the vessel from its registry by the time it consented, that would render the vessel stateless and subject to U.S. jurisdiction anyway.
Second, the Court upheld the denial of a motion to suppress. As an initial matter, there was the question whether the Fourth Amendment applies to a foreign national in international waters. Although the Supreme Court’s decision in Verdugo-Urquidez and the Eleventh Circuit’s decision in Cabezas-Montano held that it did not, Judge Tjoflat interpreted the Eleventh Circuit’s decision in Tinoco to hold that it did, and he believed that holding was binding. Judge Carnes and Grant disagreed with that interpretation of Tinoco. Nonetheless, the panel agreed that there was no Fourth Amendment violation anyway because there was reasonable suspicion to believe that the vessel was engaged in illegal activity. Reasonable suspicion is based on the totality of the circumstances and can exist even if each circumstance is independently innocuous.
Finally, the Court rejected an unnecessary delay argument under due process, as well as Rules 5 and 48. There was no due process violation because the defendant could not show that any delay was a deliberate act by the government to obtain a tactical advantage. And there was no violation of the Rules either because all of the factors but one cut against him, and the delay had nothing to do with extracting a confession. Finally, the Court found no outrageous government conduct. (“Acosta Hurtado has not found Sasquatch, or—more appropriately here—the Kraken.”).
Judge Carnes, joined by Judge Grant, concurred to explain that, contrary to Judge Tjoflat’s opinion, the Eleventh Circuit’s decision in Tinoco had not held that the Fourth Amendment applies to foreign nations outside the U.S., a holding that would be contrary to Supreme Court precedent. At best, it assumed without deciding that the Fourth Amendment applied, and so that assumption was dicta. Judge Carnes catalogued many of the Court’s cases distinguishing between holding and dicta. (“Our circuit law is rock-solid and clear as a mountain stream that the only statements in, or parts of, an opinion that are holdings are those that are necessary to the result of the decision that the opinion accompanies.”)
