Van Dar End v. United States

Background

Stefan Van Der End, proceeding without a lawyer, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his conviction and sentence. The motion arose from his guilty plea in the related criminal case, No. 16-cr-453 (RJS), to one count involving manufacturing, distributing, and possessing with intent to manufacture and distribute at least five kilograms of cocaine on a vessel subject to United States jurisdiction, and one count of conspiracy to commit those offenses.

The Coast Guard detained Van Der End and two other foreign nationals on May 24, 2016, aboard a sailboat carrying approximately 1,300 kilograms of cocaine from Grenada to Canada. The Coast Guard recovered approximately 648 kilograms before the sailboat sank. Van Der End pleaded guilty to both counts without a plea agreement on May 4, 2017. On September 8, 2017, the court sentenced him to 300 months in prison followed by five years of supervised release. The court calculated an advisory sentencing-guidelines range of 292 to 365 months, including increases based on the amount of cocaine, Van Der End’s role as a navigator, and obstruction of justice, along with a reduction for accepting responsibility. The court also considered a prior conviction in France involving cocaine trafficking. The appeals court later affirmed the conviction and sentence.

Van Der End’s Claims

Van Der End argued that the guilty-plea hearing violated Federal Rule of Criminal Procedure 11 because he was not adequately informed of the elements of the offenses and because there was no sufficient factual basis for finding that the sailboat was without nationality. He also argued that the court failed to inform him that a jury could determine the drug quantity and that the plea proceedings should have been conducted in Dutch rather than English.

He further claimed that his lawyers were ineffective for failing to seek dismissal of the indictment based on an unnecessary delay in bringing him before a court and alleged government misconduct during his transport to New York. Finally, he argued that counsel failed to challenge the sentencing increases for serving as a navigator and obstructing justice.

Court’s Analysis

The court held that Van Der End’s Rule 11 claims were procedurally barred because he did not raise them on direct appeal and did not explain that omission. The court also considered whether the claims could be treated as ineffective-assistance claims and concluded that they still failed.

The court explained that whether the United States had jurisdiction over the vessel was a preliminary legal question, not an element that the government had to prove as part of the offenses. The record also showed that Van Der End and his counsel understood the significance of the vessel’s alleged lack of nationality and planned to challenge that issue on appeal. The court therefore found no ineffective assistance concerning the explanation of the offenses.

The court also rejected the challenge to the factual basis for the plea. It relied in part on the appeals court’s earlier conclusion that the government had presented enough evidence of the sailboat’s lack of nationality to support the conviction. The court rejected the drug-quantity argument because the plea transcript showed that Van Der End was told the charges involved at least five kilograms of cocaine, was informed of his right to a jury trial, and admitted knowing there were more than five kilograms aboard. The court found no basis for an ineffective-assistance claim concerning the use of English because the transcript showed that Van Der End answered questions readily and intelligently and said he was comfortable proceeding in English.

The court rejected the claim concerning delay in presentment. Van Der End had been detained for approximately nine days while being transported from the high seas to the Southern District of New York. The court concluded that this was not an unnecessary delay and noted that the remedy for an unlawful delay would generally be exclusion of evidence obtained because of the delay, rather than dismissal of the indictment. Counsel therefore was not ineffective for failing to make a meritless dismissal motion.

The court also rejected the government-misconduct claim. It concluded that Van Der End’s account of exposure to the elements during transport did not amount to conduct so extreme that it would justify dismissing the indictment. The court further stated that bringing a defendant before a court generally does not eliminate the court’s authority to prosecute the defendant.

As to sentencing, the court found that Van Der End’s lawyers had in fact challenged the navigator increase in a sentencing submission. The record also showed that Van Der End took turns steering the sailboat with another crew member. Regarding the obstruction increase, the court found that the record supported the conclusion that Van Der End cut a large pipe to sink the vessel and prevent the Coast Guard from recovering additional cocaine as evidence. Because Van Der End offered no facts or arguments showing that counsel acted unreasonably by not challenging that increase, the ineffective-assistance claim failed.

Disposition

Judge Richard J. Sullivan denied Van Der End’s section 2255 petition. The court declined to issue a certificate of appealability because Van Der End had not made a substantial showing that a constitutional right was denied. The court also certified that any appeal would not be taken in good faith, meaning Van Der End could not proceed with an appeal without paying the required fees. The court directed the clerk to terminate the pending motions, close the civil case, and mail Van Der End a copy of the order.