Monday, July 18, 2022

U.S. v. Dominguez-Caicedo (9th Cir. - July 18, 2022)

I know that the law in this area is very pro-prosecution. But it still always strikes me as unusual when, as here, we're prosecuting drug mules (and sentence them to 20 years in prison) who possess cocaine on tiny little "panga" boats floating off the coast of . . . the Galapogos Islands.

Yeah, yeah, yeah, I know: the extraterritoriality doctrine in this area is super broad. But still. We're talking about islands that are three thousand miles from San Diego. Talk about the "long reach of the law," eh?

But, again, I know the relevant precedents here. That's just fine with the Supreme Court. So much so that it's not even challenged here.

What I hadn't fully realized until today, however, is that after you seize these people so far away, you've got to eventually get them back to the United States. What I had always assumed was that they put 'em on a plane (or helicopter, or whatever) and sent 'em here expeditiously.

Apparently not.

Instead, it's a long and arduous process. Not for the actual workers on the ships, who get their usual meals and bunks and the like. The experience for the detainees, by contrast, is apparently fairly dire:

"Three officers from the Coast Guard then boarded the panga. Dominguez-Caicedo told the officers who boarded the panga that they had been out fishing. . . .  The Coast Guard then detained the three defendants and transferred them to the Stratton. Several days later, on January 2, 2018, they were transferred to the Northland, another Coast Guard vessel, where they were detained until January 3. . . .

On board the Stratton, according to Officer Welzant of the Coast Guard, the standard protocol dictates that [] detainee[s] . . . . are not told where they are headed, they do not get an opportunity to contact their families, and they do not know how long they will be on board. Detainees are chained to a cable that runs the length of the deck inside the helicopter hangar (emptied of helicopters). Each detainee is chained to the cable using an eighteen-inch ankle shackle. The detainees remain chained at all times of the day and night, except for trips to the bathroom and approximately one hour per day of exercise time, during which the detainees are permitted to walk freely on the deck. . . . Welzant testified that detainees are escorted to use the restroom upon request, unless the crew is launching a helicopter or a small boat, which would take approximately ten minutes. However, the Stratton’s detainee logbook showed that the three defendants were rarely taken to the restroom between 6:30 p.m. and 7:00 a.m. the next morning. When the three defendants in this case were detained, there were thirty-seven total detainees on board the Stratton.

Welzant testified that Defendants were provided with mats approximately half an inch thick on which to sleep. The Coast Guard confiscated the clothes that the defendants were wearing and gave them disposable Tyvek painters’ coveralls to wear instead. These coveralls often ripped and exposed detainees. Each person also routinely receives a blanket. Detainees are fed three meals per day, primarily consisting of rice and beans, supplemented with fruit approximately every other day. . . .

On January 3, 2018, the defendants were transferred to another Coast Guard cutter, the Mohawk. . . . On the Mohawk, the detainees were kept on the top deck, exposed to the elements. According to Coast Guard officer Kristopher Meyer, the crew erects a tent on that deck while detainees are on-board to provide some shelter from the elements. The Mohawk crew does not provide any sleeping mats, though they do give each detainee a blanket and a towel.

While the defendants were on the Mohawk, there were numerous rain squalls, which caused the deck to become wet. When it rained during the night, the detainees would either have to stand up or try to sleep while laying on the wet deck. On the Mohawk, detainees were served rice and beans for every meal. The defendants testified that the rice and beans were very undercooked, and that these meals resulted in them suffering gastrointestinal distress. The Mohawk’s detainee log shows that Gaspar Chichande refused five meals in a row, and that Cortez-Quinonez and DominguezCaicedo refused three meals in a row. Cortez-Quinonez testified that he was denied medical care on board the Mohawk, despite complaining of pain. . . .

On January 16, 2018, the defendants were transferred from the Stratton to their final cutter, the Active. The conditions of confinement on the Active were similar to those on the Stratton, except that the area where the defendants were shackled was protected from the elements only by a canvas tarp, and the sleeping mats provided were an inch-and-a-half thick. In addition, the temperature dropped as low as 50 degrees during the time the defendants were onboard the Active."

These are the conditions that prevailed for the nearly full month that it took to move these detainees by slow boat to the United States. As a reminder, all of these individuals were presumed innocent at this point.

The Ninth Circuit concludes that this is just fine. Sure, it's no fun, but oh well. No relief.

(Why can't we treat these people any better, you might ask? "One officer testified that feeding rice and beans [to the detainees] was the only affordable way for the Coast Guard to accomplish its mission. Another testified that the excessive restraint of defendants resulted from too few watchmen and too many detainees. Coast Guard testified that it couldn’t get detainees to shore because its helicopters were old and didn’t have long range. They claimed they couldn’t wait for diplomatic clearance to get people off the cutters because it would upset the ability to patrol the ocean.")

Obviously, life is a series of tradeoffs. After reading this opinion, I'm more fully aware of the various consequences that are engendered by the manner in which we conduct drug interdiction efforts on the high seas thousands of miles away from the United States.

And knowledge is almost always a good thing.