UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                             No. 00-20356



UNITED STATES OF AMERICA,

          Plaintiff-Appellee

VERSUS

SERGIY KURDYUKOV; OLEG KHMYZNIKOV; SERGIY KRUGLYAK,

          Defendants-Appellants




          Appeal from the United States District Court
               for the Southern District of Texas
                        No. H-99-CR-371-1

                            August 15, 2002


Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:*

     The Defendants-Appellants Sergiy Kurdyukov (“Kurdyukov”), Oleg

Khmyznikov (“Khmyznikov”), and Sergiy Kruglyak (“Kruglyak”) appeal

from their convictions for possession with intent to distribute

five kilograms or more of cocaine and conspiracy to possess with

intent to distribute five kilograms or more of cocaine in violation


     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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of the Maritime Drug Law Enforcement Act (“MDLEA”).          See 46 U.S.C.

App. § 1903.        The convictions of the appellants arose from the

United States Coast Guard’s discovery of approximately 8500 pounds

of cocaine aboard the M/V China Breeze (“China Breeze”) on May 27,

1999.1     We previously addressed an appeal of another defendant

concerning the discovery of cocaine on the China Breeze in United

States v. Bustos-Useche, 

(5th Cir. 2001), cert.

denied, 122 S. Ct 1947 (2002).

     The      Defendants-appellants     raise   seven   issues   on   appeal.

First, Kruglyak and Khmyznikov contend the evidence at trial was

insufficient to support the jury’s finding that they knew the cargo

on the China Breeze that was on-loaded at sea was a controlled

substance. Second, Kruglyak and Khmyznikov claim that the district

court erred in finding that the jurisdictional requirements of 46

U.S.C. App. § 1903(c)(1)(C) were satisfied.               Third, Kurdyukov

contends that the application of § 1903 to foreign nationals

outside the United States territorial jurisdiction is beyond the

reach    of   the   United   States   Constitution.     Fourth,   Kurdyukov

contends that the United States does not have authority to act

under § 1903(c)(1)(C) unless there is a showing of a nexus between



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        Kurdyukov was the Captain or “master” of the vessel.
Kruglyak was the second officer and navigator. Khmyznikov was the
third officer and navigator. Kruglyak’s responsibilities included
the   position   and  courses   of   the  ship.      Khmyznikov’s
responsibilities included writing entries in the logbook and
preparing security papers for the ship.

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the crew members and the United States.                    Fifth, Kurdyukov contends

that the warrantless search of the China Breeze violated the Fourth

Amendment, necessitating exclusion at trial of evidence seized from

the vessel.       Sixth, Kurdyukov contends that the district court’s

instruction that the China Breeze was subject to the jurisdiction

of   the    United      States      constituted       an    impermissible       mandatory

presumption.           Finally, Kurdyukov contends that his 304 month

sentence violates Apprendi v. New Jersey, 

(2000).

      We find each of Defendant-appellants’ arguments to be without

merit      for   the     following         reasons    and     therefore       AFFIRM   the

convictions.          We address each argument in turn.

I.    ANALYSIS

A.    Sufficiency of the Evidence

      Kruglyak        and    Khmyznikov      concede       that   sufficient     evidence

exists to prove that they knew the cargo onboard the China Breeze

to be something illegal, but contend that insufficient evidence

exists     to    prove      that    they    knew     the    cargo   was   a    controlled

substance.       In    reviewing      this    “sufficiency”         challenge,    we   ask

whether, viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could properly find that

appellants       knew       the    China    Breeze    was    carrying     a    controlled

substance.       See U.S. v. Williams, 

, 576-77 (5th Cir.

2001). After reviewing the record evidence, we conclude that there

is sufficient evidence from which a rational jury could properly


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conclude that Kruglyak and Khmyznikov knew the China Breeze was

carrying a controlled substance.

     At the outset, we note there was no evidence produced at trial

which indicated that cocaine itself was ever visible to Kruglyak

and Khmyznikov.       However,   substantial      circumstantial    evidence

existed to prove that Kruglyak and Khmyznikov knew the cargo being

carried by the China Breeze was a controlled substance.

     First, the confidential informant testified that Kurdyukov

told him that the crew knew they were transporting drugs during the

first    two   voyages.   In   addition,    the   confidential     informant

testified that Kurdyukov told him that the crew on the final voyage

was “just as safe and sure like it was on the last one.”               This

testimony indicated that the crew knew they were transporting drugs

during the final voyage as well.        Second, the evidence showed that

Kruglyak and Khmyznikov participated in the actual on-loading and

off-loading of large quantities of cocaine at sea on seven separate

occasions from June 1998 to May 1999.        Third, the evidence showed

that the bales were loaded on the high sea off the coast of

Colombia and packaged in waterproof containers.2           An experienced

DEA officer testified that this procedure was typical of loading


     2
      It is telling that during the first two voyages the China
Breeze carried no legitimate cargo but still journeyed great
distances to points off the coast of Colombia where the cargo was
on-loaded.   Kruglyak and Khmyznikov argue that as Ukrainians they
did not know, as do almost all Americans, that Colombia is one of
the world’s largest producers of cocaine. However, the veracity of
their testimony could surely be questioned by the jury.

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illegal controlled substances.

      Fourth, the evidence showed that Kruglyak and Khmyznikov

falsified the vessel’s log books and erased navigation charts in an

attempt to cover up the illegal activity.                 Fifth, the evidence

showed that Kruglyak and Khmyznikov received significant monetary

bonuses for their participation in the illegal activity.                  Sixth,

the length of the voyages, the large amount of drugs on board

(approximately 8500 pounds of cocaine), and the close relationship

between Kurdyukov, Kruglyak, and Khmyznikov lead to a finding of

guilty knowledge on the part of Kruglyak and Khmyznikov.3               See U.S.

v. Loalza-Vasquez, 

, 158-59 (5th Cir. 1984).                 In sum,

the   aforementioned    facts    taken     in   combination      are   more   than

sufficient    to   support     the   jury’s     finding   that    Kruglyak     and

Khmyznikov knew the cargo being carried by the China Breeze was a

controlled substance.        See U.S. v. Guerrero, 

, 343 (1st

Cir. 1997).

B.    Jurisdictional Requirements of section 1903(c)(1)(C)

      Kruglyak and Khmyznikov argue that the district court failed

to satisfy the jurisdictional requirements of 46 U.S.C. app. §

1903(c)(1)(C)      because    Panama     did    not   give   consent     to   the


      3
      We also note that the district court properly instructed the
jury that evidence of deliberate ignorance can constitute evidence
of guilty knowledge. Here, the likelihood of criminal wrongdoing
was so high and the circumstances on the China Breeze were so
suspicious that a rational jury could properly find that
appellants’ failure to conduct further inquiry or inspection into
the cargo being carried amounted to deliberate ignorance.

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enforcement of United States law until after the cocaine was seized

on May 27, 1999.           We addressed this exact argument in Bustos-

Useche.      In 

, we held that “the only

statutory prerequisite to the district court’s jurisdiction under

section 1903(c)(1)(C) is that the flag nation consent to the

enforcement of United States law before trial.”                      Accordingly,

because Panama consented to the enforcement of United States law

prior   to    Kruglyak     and   Khmyznikov’s     trial,    the    jurisdictional

requirements of section 1903 were satisfied.

C.   Application of § 1903 under the United States Constitution

     Kurdyukov contends that application of the provisions of 46

App. U.S.C. § 1903 to foreign nationals outside the United States

territorial jurisdiction is beyond the reach of the United States

Constitution.         We disagree.   Article I, Section 8, clause 10 of the

Constitution provides Congress with the power “[t]o define and

punish Piracies and Felonies committed on the high seas, and

Offenses against the Law of Nations.”             See also U.S. v. Martinez-

Hidalgo, 

, 1056 (3rd Cir. 1993), cert. denied, 

(1994).

D.   Nexus Requirement

     Kurdyukov contends that the United States does not have

authority to act under section 1903(c)(1)(C) unless there is a

showing      of   a   nexus   between   himself    and     the    United   States.

Kurdyukov further contends that no such nexus exists in this case.


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     In United States v. Suerte, 

(5th Cir. 2002), we

addressed this “nexus” argument on virtually identical facts.                  In

Suerte, we held that, for extraterritorial application of the

MDLEA, the Due Process Clause of the Fifth Amendment does not

require a nexus between the foreign citizen and the United States,

where the flag nation of the vessel has consented or waived

objection to the enforcement of United States law by the United

States. 

Consequently, Kurdyukov’s “nexus” argument is

foreclosed by our Suerte decision.             A nexus between Kurdyukov’s

conduct and the United States is not required.

E.   Fourth Amendment

     Kurdyukov contends that the warrantless search of the China

Breeze violated the Fourth Amendment.               The Supreme Court has

clearly   stated   that    the     Fourth    Amendment   does   not    apply   to

activities   of    the    United    States    directed   against      aliens   in

international waters.       See United States v. Verdugo-Urquidez, 

, 264-75 (1990). Kurdyukov is a Ukrainian national and the

search of the China Breeze occurred in international waters.

Therefore, Kurdyukov cannot receive the protections of the Fourth

Amendment.

F.   District Court’s Jury Instruction

     The district court’s instruction to the jury that the China

Breeze was subject to the jurisdiction of the Unites States did not

constitute an impermissible mandatory presumption.                    In Bustos-


                                       7


, we recognized that the addition of

subsection(f)to section 1903 eliminates jurisdiction as an element

of the offense and that all jurisdictional issues are preliminary

questions of law to be determined by the trial judge.                 Thus,

because the issue of jurisdiction was not an element of the

offense,   the      court’s   instruction    did    not     constitute   an

impermissible mandatory presumption.

G.    Alleged Aprendi error

      Finally,   Kurdyukov’s   argument     that   the    district   court’s

imposition of a 304 month sentence violates Apprendi is without

merit. The indictment charged Kurdyukov with conspiracy to possess

with intent to distribute more than five kilograms of cocaine. The

jury convicted him of this offense.       46 App. § 1903(g)(1) provides

that any person who commits an offense in violation of the MDLEA

shall be punished in accordance with the penalties set forth in 21

U.S.C. § 960.      According to 21 U.S.C. § 960(b)(1)(B), the penalty

range for an offense involving five kilograms or more of a mixture

or substance containing cocaine is ten years to life imprisonment.

Because the 304 month sentence does not exceed the statutory

maximum, there is no Apprendi error.        See United States v. Keith,

, 787 (5th Cir. 2000), cert. denied, 

(2001).

II.   CONCLUSION

      For the preceding reasons, the judgments of the district court


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concerning Kurdyukov, Kruglyak, and Khmyznikov are AFFIRMED in all

respects.




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