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United States v. Marcillo-Mera

United States District Court, S.D. Florida

February 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ALFONSO MARCILLO-MERA, Defendant.

          REPORT AND RECOMMENDATION

          JOHN J. O' SULLIVAN UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on Alfonso Marcillo-Mera's Motion for Pretrial Determination of Jurisdiction (DE# 20, 2/2/17). This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b) for a report and recommendation. See Order of Reference to Magistrate (DE# 25, 2/8/17). Having reviewed the applicable filings and the law and having held a hearing on February 16, 2017, the undersigned respectfully RECOMMENDS that Alfonso Marcillo-Mera's Motion for Pretrial Determination of Jurisdiction (DE# 20, 2/2/17) be DENIED for the reasons stated herein.

         BACKGROUND

         The defendant is charged by indictment in the Southern District of Florida, with conspiracy to possess with intent to distribute cocaine on board a vessel subject to the jurisdiction of the United States in violation of Title 46, United States Code, Section 70506(b) and possession with intent to distribute cocaine on board a vessel subject to the jurisdiction of the United States in violation of Title 18, United States Code, Section 70503(a).

         On February 2, 2017, the defendant filed Alfonso Marcillo-Mera's Motion for Pretrial Determination of Jurisdiction (DE# 20, 2/2/17). The government filed its response in opposition on February 3, 2017. See Government's Response in Opposition to the Defendant's Motion to Dismiss Based on Jurisdiction (DE# 21, 2/3/17). The defendant filed his reply on February 15, 2017. See Alfonso Marcillo-Mera's Reply to Government's Opposition to Motion for Pretrial Determination of Jurisdiction (DE# 29, 2/15/17). The parties stipulated to the facts on the same day. See Stipulation (DE# 31, 2/15/17).

         On February 16, 2017, the Court held a hearing on the instant motion. At the hearing, the Court admitted into evidence Defendant's Exhibit 1, the Statement of United States Coast Guard Officer Andrew Gathy.

         This matter is ripe for adjudication.

         STIPULATED FACTS

         The parties stipulate to the following facts:

1. On November 17, 2017, the United States Coast Guard (USCG) Cutter Edmonton interdicted the go-fast vessel named SIEMPRE MALGARITA in international waters approximately 208 nautical miles southwest of the Guatemala/El Salvador border.
2. The USCG Edmonton launched a Rigid Hulled Inflatable Boat (RHIB) to interdict the SIEMPRE MALGARITA in international waters. The boarding team for the USCG Edmonton's RHIB consisted of Boarding Officer Roberto Llamas, Assistant Boarding Officer David Holland, Officer Kennedy Eilerman, and Officer Michael Fesser.
3. Once the USCG Edmonton's RHIB came alongside the SIEMPRE MALGARITA, the boarding team identified the crew as Alfonso Bitaliano Marcillo-Mera, Laureano Roberto Quiroz-Mendoza, and Alexander Obando. The boarding team also identified the defendant Alfonso Bitaliano Marcillo-Mera as the master of the vessel. Marcillo-Mera, Quiroz-Mendoza, and Obando are citizens of Ecuador.
4. Neither the defendant Marcillo-Mera, as the master of the vessel, nor the co-defendants, Quiroz-Mendoza and Obando, as the crew members, made a claim of nationality or registry for the vessel.
5. The master did not have any documentation and he did not provide the homeport of the vessel or a last port of call. When the boarding team asked about the vessel's nationality, the defendant Marcillo-Mera stated that he did not know; however, the defendant identified the painted flag as an Ecuadorian flag. The boarding team saw the painted flag, and they believed it was a Colombian flag. See Exhibit A, pictures of the SIEMPRE MALGARITA, including the painted flag. ...

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