MDLEA in a Foreign EEZ Treated as “High Seas”; Rule 5 Delay Remedies Limited to Suppression (Not Dismissal)

1. Introduction

This appeal arises from a Maritime Drug Law Enforcement Act (“MDLEA”) prosecution after the U.S. Coast Guard interdicted a “go-fast” vessel about 140 nautical miles south of the Dominican Republic—within the Dominican Republic’s Exclusive Economic Zone (“EEZ”). The vessel bore no indicia of nationality; no one claimed to be master or asserted nationality, making it a “vessel without nationality” under 46 U.S.C. § 70502(d)(1)(B). A search yielded approximately 500 kilograms of cocaine.

Defendants Silverio Henriquez and Victor Pena-Abreu moved to dismiss the indictment on two principal grounds: (1) the MDLEA was unconstitutional as applied because the seizure occurred in a foreign EEZ, which they argued is not part of the “high Seas” under the Constitution’s Felonies Clause; and (2) dismissal should sanction violations of Federal Rule of Criminal Procedure 5(a) and 5(b) due to their prolonged detention at sea (22 days) before initial presentment and delay in filing a criminal complaint (about 13 days). Pena-Abreu also sought dismissal under the outrageous-government-conduct doctrine, alleging fundamentally unfair prolonged offshore detention.

2. Summary of the Opinion

• MDLEA / Felonies Clause: The court held the constitutional challenge is foreclosed by binding precedent— under United States v. Alfonso and United States v. Canario-Vilomar, a foreign EEZ is treated as part of the “high seas” for purposes of Congress’s power under the Felonies Clause.
• Rule 5(a): Even assuming an “unnecessary delay” occurred, dismissal of the indictment is not the remedy; suppression of statements obtained because of the delay is the appropriate relief (consistent with the McNabb-Mallory line of cases).
• Rule 5(b) / Fourth Amendment: Defendants—non-citizen, non-resident aliens seized in international waters— cannot invoke Fourth Amendment-based probable-cause timing protections; therefore, they cannot obtain Rule 5(b) relief.
• Outrageous government conduct: The doctrine (even assuming it exists) does not apply because the alleged misconduct occurred after completion of the charged criminal acts and did not intrude into the underlying criminal conduct.
• Clerical correction: The panel sua sponte ordered a limited remand to correct judgments incorrectly indicating guilty pleas, when the convictions followed a stipulated bench trial.

3. Analysis

3.1 Precedents Cited

A. MDLEA jurisdiction and the “high seas”

• United States v. Alfonso: Central controlling authority; held “the EEZ is part of the ‘high seas’ for purposes of the Felonies Clause.” The panel used Alfonso to reject the argument that customary international law’s modern EEZ concept narrows the Founding-era meaning of “high seas.”
• United States v. Canario-Vilomar: Reaffirmed Alfonso; emphasized that modern EEZ definitions do not “disturb” the original meaning of “high seas” informing the Felonies Clause. The panel treated Canario-Vilomar as an additional, binding reinforcement.
• United States v. Cabezas-Montano, United States v. Valois, United States v. Cruickshank: Cited as part of the Eleventh Circuit’s repeated holdings sustaining the MDLEA’s constitutionality under the Felonies Clause when conduct occurs on the high seas.
• United States v. Archer: Stated the prior-panel-precedent rule—later panels are bound unless overruled by the Supreme Court or en banc.
• United States v. Canario-Vilomar (again): Also cited for rejecting any “overlooked reason or argument” exception to the prior-panel-precedent rule.

B. Rule 5 presentment and remedies

• United States v. Purvis: Provided the multifactor framework for assessing whether presentment delay is “unnecessary.” The magistrate judge relied on Purvis, focusing on the latter portion of detention and weighing reasons for delay.
• Mallory v. United States, Upshaw v. United States, McNabb v. United States: Supreme Court foundation for Rule 5(a)’s purpose (preventing secret interrogation/“third-degree” tactics) and the established remedy—suppression of evidence obtained due to the delay.
• United States v. Esformes and United States v. Graham: Cited for the broader remedial principle that dismissal is generally inappropriate absent demonstrable prejudice, even where misconduct is serious; supports the panel’s refusal to elevate Rule 5(a) violations into an indictment-dismissal remedy.

C. Rule 5(b), the Fourth Amendment, and extraterritorial limits

• United States v. Cabezas-Montano: Stated that “the Fourth Amendment does not apply” to arrests of non-citizen/non-resident aliens in international waters, directing delay-in-presentment analysis to Rule 5(a), not Fourth Amendment/Rule 5(b) frameworks.
• United States v. Verdugo-Urquidez: Supreme Court basis for the extraterritorial limitation; used to foreclose defendants’ attempt to treat Rule 5(b) as independently applicable.

D. Outrageous government conduct limits

• United States v. Cannon: Defined the doctrine’s focus (law enforcement tactics “to obtain a conviction” that violate fundamental fairness) and noted its extreme rarity.
• United States v. Jayyousi: Critical constraint: alleged outrageous conduct “must relate to the . . . underlying or charged criminal acts.” Post-offense detention conditions or mistreatment, without intrusion into the criminal conduct itself, do not trigger dismissal.

E. Appellate procedure and clerical correction

• United States v. Alfonso, United States v. Hurtado, United States v. $70,670.00 in U.S. Currency, United States v. Noel: Provided standards of review (de novo for constitutional/statutory interpretation; abuse of discretion for Rule 5 dismissal claims; de novo for outrageous conduct doctrine).
• United States v. Reeves: Authority to sua sponte remand to correct clerical errors in judgments.
• United States v. Whitesell and United States v. Fiallo-Jacome: Used to reject an argument raised for the first time in a reply brief; also reinforced by a record concession that the vessel was stateless.

3.2 Legal Reasoning

A. EEZ as “high seas” under the Felonies Clause

The court treated the constitutional question as controlled by Eleventh Circuit precedent. The key move is interpretive: the panel accepted Alfonso’s original-meaning approach—at the Founding, “high seas” began where territorial waters ended, and the later-developed EEZ concept does not carve out constitutional limits on Congress’s power to define and punish felonies on the high seas. Because the interdiction occurred outside Dominican territorial waters and the vessel was stateless, the MDLEA could be constitutionally applied.

B. Rule 5(a): even if violated, the remedy is suppression, not dismissal

The opinion assumes arguendo that an “unnecessary delay” occurred but holds the remedy question is dispositive. Relying on Mallory, Upshaw, and McNabb, the court emphasized Rule 5(a)’s historical function: preventing secret, coercive interrogation before judicial oversight. That purpose maps to a suppression remedy (excluding statements or evidence obtained because of the improper delay), not to terminating the prosecution.

The defendants argued that suppression was “cumulative” and therefore not meaningful deterrence, urging dismissal. The panel rejected that remedial escalation, invoking broader Eleventh Circuit remedial norms from Esformes and Graham: dismissal is extraordinary and generally requires demonstrable prejudice. In short, Rule 5(a) violations are policed through evidentiary exclusion, not through erasing otherwise valid charges.

C. Rule 5(b): no Fourth Amendment hook for foreign nationals seized on the high seas

Rule 5(b)’s “promptly filed” complaint requirement was framed as stemming from Fourth Amendment probable-cause protections. The court held defendants could not invoke that framework because, under Verdugo-Urquidez and Cabezas-Montano, the Fourth Amendment does not apply to non-citizen, non-resident aliens seized in international waters. Thus, their “probable cause within 48 hours” theory could not be repackaged as a Rule 5(b) violation.

D. Outrageous government conduct: must relate to the charged conduct

Pena-Abreu’s due-process argument failed on a doctrinal threshold: under Jayyousi, outrageous government conduct must relate to the underlying criminal acts. Here, the complained-of conduct (prolonged post-seizure detention and presentment delay) occurred after the drug-trafficking conduct was complete. Because there was no “intrusion into [the] underlying criminal conduct,” the doctrine could not bar prosecution. The court also noted (via Cannon and Jayyousi) the defense has never succeeded in the Eleventh Circuit or the Supreme Court.

E. Limited remand for scrivener’s error

Invoking Reeves, the panel sua sponte ordered a limited remand because the written judgments incorrectly stated that defendants pleaded guilty, when the record showed guilt after a stipulated bench trial. This reflects a practical appellate housekeeping function: ensuring the written judgment accurately matches the adjudicative history.

3.3 Impact

• MDLEA enforcement geography: Reinforces (through adherence to Alfonso and Canario-Vilomar) that MDLEA prosecutions may proceed for stateless vessels interdicted within a foreign EEZ—closing a recurring constitutional attack route based on modern international-law EEZ concepts.
• Presentment-delay litigation strategy: Signals that even where a district court finds tactical or avoidant delay, appellate relief is likely limited to suppression of statements obtained because of the delay; indictment dismissal remains exceptionally unlikely without concrete prejudice.
• Rule 5(b) limitations: Confirms that foreign-national interdictions on the high seas will generally not receive Fourth Amendment-based probable-cause timing protections, limiting defendants to Rule 5(a) arguments and corresponding suppression remedies.
• Outrageous conduct doctrine narrowed: Reemphasizes that post-offense detention or transport decisions—however troubling as a policy matter—are doctrinally ill-suited to trigger the extraordinary dismissal remedy absent a nexus to the charged criminal conduct.
• Administrative accuracy: Encourages vigilance regarding judgment accuracy; appellate courts may correct clerical errors even without party request.

4. Complex Concepts Simplified

• Exclusive Economic Zone (EEZ): A maritime area up to 200 nautical miles from a coastal state’s baseline where that state has certain resource rights. It is not the same as “territorial waters” (generally up to 12 nautical miles), where the coastal state’s sovereignty is strongest.
• “High seas” (constitutional sense): In the Eleventh Circuit’s Founding-era framework (via Alfonso), the “high seas” begin where territorial waters end, and later-created zones like the EEZ do not shrink that constitutional category.
• MDLEA “vessel without nationality”: If no one claims to be master or asserts nationality when asked, the vessel can be treated as stateless under 46 U.S.C. § 70502(d)(1)(B), bringing it within U.S. jurisdiction for MDLEA purposes.
• Rule 5(a) presentment: Requires taking an arrestee before a magistrate judge “without unnecessary delay.” The historical concern is secret interrogation before judicial oversight; the typical remedy is suppression of evidence obtained because of the delay.
• Rule 5(b) and probable cause: Relates to prompt filing of a complaint and is tied to Fourth Amendment probable-cause protections. But those Fourth Amendment protections generally do not extend to non-resident aliens seized outside the United States.
• Outrageous government conduct: A rarely viable due-process theory that would bar prosecution only when the government’s tactics tied to obtaining the conviction are so extreme they “shock the universal sense of justice”—and, in this circuit, must relate to the underlying charged conduct.

5. Conclusion

United States v. Silverio Henriquez (with Pena-Abreu) is a nonpublished but doctrinally clear Eleventh Circuit decision that (1) treats a foreign EEZ as part of the “high seas” for Felonies Clause purposes (via binding precedent), (2) confines Rule 5(a) violations to suppression remedies rather than indictment dismissal absent prejudice, (3) forecloses Rule 5(b)/Fourth Amendment probable-cause timing arguments for nonresident aliens seized in international waters, and (4) limits the outrageous-government-conduct doctrine to conduct tied to the underlying criminal acts. The sole remand underscores a separate but important point: judgments must accurately reflect the manner of conviction.