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CRIMINAL PROCEDURE--High Seas Statute Results in High Stakes Global Prosecution.

CRIMINAL PROCEDURE--High Seas Statute Results in High Stakes Global Prosecution--United States v. Cruickshank, 837 F.3d 1182 (11th Cir. 2016).

In the prosecution of criminal activity, the U.S. government traditionally focused its efforts on prosecuting individuals who carry out crimes with a nexus to the United States. (1) The Maritime Drug Law Enforcement Act (MDLEA) creates a different standard for the prosecution of criminal activity on any vessel that has no country of origin. (2) In United States v. Cruickshank:, (3) the United States Court of Appeals for the Eleventh Circuit determined whether, under the Felonies Clause, the MDLEA still requires a link between a criminal act and the United States. (4) The Court considered whether a statute with extraterritorial reach was warranted in order to combat global narcotics trafficking, which is universally condemned. (5)

On February 11, 2014, Carlington Cruickshank and one other individual were aboard a vessel traveling to Jamaica from Colombia. (6) When the vessel was less than (200) miles off the coast of Jamaica, a helicopter operated by the United States Coast Guard (USCG) saw the ship and ordered Cruickshank, along with his fellow passenger, to stop. (7) Instead of doing as instructed by the USCG, the individuals on the vessel began to throw unidentified packages overboard. (8) Following warning shots aimed at the ship, the USCG boarded the vessel and requested identification from the individuals operating the vessel, as well as the vessel's nation of registry. (9) Cruickshank claimed Jamaican citizenship and registry of the vessel, however when USCG contacted Jamaican authorities, they were unable to confirm the vessel's registry. (10) Ultimately the USCG found 171 kilograms of cocaine aboard the vessel. (11)

Mr. Cruickshank was arrested, brought to the United States, and charged with one count of conspiracy and one count possession with intent to distribute. (12) At trial, which began on May 21, 2014, the defense moved for a judgment of acquittal based on the government's failure to satisfy the mens rea element of the crime, as well as a motion claiming the court lacked jurisdiction. (13) Ultimately, the trial concluded with a jury decision rendering guilty verdicts on both counts. (14) The District Court then sentenced him to 324 months imprisonment, which Mr. Cruickshank appealed. (15) Mr. Cruickshank appeals on the District Court's failure to grant the motion for judgment of acquittal and the jurisdictional issue. (16)

Article I of the Constitution provides a detailed description of the powers, duties, and restrictions of Congress. (17) Section 8 of this article specifically discusses the powers Congress has in regards to piracies and felonies on the sea. (18) The Define and Punish Clause states that Congress has the power "to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." (19) While there has been much debate over the actual meaning of this clause, the Supreme Court determined that the clause creates three powers. (20)

First, that Congress has the power to punish piracies. (21) Second, that Congress has the power to prosecute any felony committed on the high seas. (22) Finally, the clause grants Congress the power to punish any offense against the law of nations. (23)

Asserting the ability to do so under the powers delegated by the Define and Punish Clause, Congress enacted the MDLEA in 1903. (24) The enactment was based on findings by Congress which state that drug trafficking on ships, as well as the operation of unlicensed ships in general, is an international problem and a threat to the United States. (25) Based on this reasoning, the MDLEA states that any vessel "without nationality" is subject to the jurisdiction of the United States. (26) The statute defines a vessel lacking nationality as one which "the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed." (27) Since its enactment, the MDLEA has been the subject of confusion over the precise meaning of the language provided within it, as well as the scope of the act itself. (28)

There is a split in the circuits as courts attempt to determine if the MDLEA has provided the government with the power to charge individuals with no nexus to the United States. (29) For example, in United States v. Perlaza, (30) the Ninth Circuit found that even under the MDLEA, a nexus to the United States is always required. (31) Alternatively, the First Circuit determined in United States v. Cardales-Luna, (32) that no nexus requirement is necessary for United States officials to board a vessel in international waters if that ship cannot prove that it is registered to, and thereby controlled by, another nation. (33) There is also confusion within the Eleventh Circuit, where the Court first determined in 2012 that a nexus requirement was necessary, but then extinguished the need for a nexus in subsequent cases. (34)

In United States v. Cruickshank, (35) the United States Court of Appeals for the Ninth Circuit decided that there is no jurisdictional nexus requirement under the MDLEA. (36) The Court reasoned that a criminal act does not need to have any causal relationship to the United States under MDLEA because a global moral code, specifically, a global condemnation of drug trafficking, upholds any extraterritorial prosecution. (37) The Court concluded that, despite this extraterritorial reach, Congress did not exceed its powers when enacting the MDLEA because, under the Felonies Clause, Congress may punish crimes that occur "on the high seas." (38)

Further, the Court denied the Defendant's argument to reconsider prior Eleventh Circuit precedent regarding notice in favor of recent decisions in the Second and Ninth Circuits. (39) The Court reasoned that the language of the MDLEA provided "clear notice" to any possible offenders of both the substance and the scope of the statute. (40) This is unlike other circuits, which have found that the act does not provide adequate notice of the extraterritorial reach of the statute. (41)

The Eleventh Circuit erred in concluding that criminal prosecutions which occur under the MDLEA do not require a jurisdictional nexus. (42) The history of the Define and Punish Clause suggests that the intention of the clause was not to punish the criminal activity of foreign citizens in foreign water, but rather to prosecute acts committed "by or against U.S. citizens" aboard ships. (43) Therefore, in analyzing the need for a link between the criminal act and the United States under the statute, the Court incorrectly determined that the Define and Punish Clause gave Congress the power to enact an extraterritorial statute. (44) Moreover, both the Second and Ninth Circuits have rejected the proposition that the Define and Punish Clause eliminates the need for a causal relationship between the United States and any criminal act that is committed on a vessel. (45) If the Court had followed this same reasoning, there would have been no basis for concluding that Cruickshank, who is a foreign citizen arrested in foreign waters, was subject to the law of the United States. (46)

Further, the Court erred in determining that the language of the MDLEA provides clear notice as to the substance and scope of the statute. (47) Alternatively, the Court should have analyzed the language of statute under the void for vagueness doctrine. (48) A statute is unconstitutionally vague if there is no warning or notice of those who may be within the scope of the statute or the conduct that statute criminalizes. (49) Here, the Court has suggested that because of a universal condemnation of illegal drugs, any foreign citizen on any ship that cannot confirm nationality of the vessel may be subject to the law of the United States. (50) Due to the precedent set by the void for vagueness decisions, had the Court performed this analysis, the conclusion would have been that the statute lacked adequate notice to those within the scope of the statute. (51)

If the circuit split is ultimately decided in favor of the interpretation of the Eleventh Circuit, the result will be a series of complicated and expensive prosecutions. (52) The interpretation of the Court hypothetieally allows any individual around the globe to be prosecuted by any state in the country. (53) Not only is this confusing, but it would result in the expensive prosecutions of individuals who should not be part of the United States criminal justice system. (54) This type of prosecution takes the burden off of foreign countries to prosecute crimes committed by their own citizens, and instead places the burden on the United States to act as a global police force. (55) Ultimately, if this precedent stands, the United States will be involved in continuous arrests and prosecutions of individuals, like Cruickshank, who are not United States citizens and did not commit criminal activity within the country. (56)

In United States v. Cruickshank, (57) the Eleventh Circuit considered whether the MDLEA requires a jurisdictional nexus in order to prosecute foreign citizens. (58) The Court inaccurately relied on the Define and Punish Clause to conclude that, when prosecuting under the MDLEA, no connection between the act and the United States is necessary. (59) The Court should have analyzed the statute under the void for vagueness doctrine, and found the statute to be unduly vague, resulting in a Due Process violation due to lack of notice to all individuals who may be subject to the statute. (60) By allowing extraterritorial criminal proceedings under the MDLEA, without establishing any connection between the act and the United States, the Court has given the government prosecution powers that far exceed what was intended by the Framers of the Constitution in the Define and Punish Clause. (61)

(1.) See United States v. Cruickshank, 837 F.3d 1182, 1191 (11th Cir. 2016) (stating jurisdictional requirement traditionally triggers Due Process analysis).

(2.) See 46 U.S.C.A. [section] 70501--[section] 70508 (outlining the MDLEA). The statutes include findings and declarations, definitions, prohibited acts, jurisdiction and venue, failure to comply with international law as a defense, penalties, forfeitures, and finally operations of a submersible vessel or semi-submersible vessel without nationality. Id.

(3.) 837 F.3d 1182 (11th Cir. 2016).

(4.) See id. (determining whether crime without nexus to United States is punishable). See also U.S. Const. Art. I [section] 8, cl. 10 (outlining powers of Congress as they pertain to prosecution on high seas). "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Id. This section of the Constitution is the only specific grant of power to investigate and prosecute crimes that occur outside the United States. Id. See United States v. Smith, 18 U.S. 153 (1820) (analyzing language of Art. I [section] 8, cl. 10). The Court stated that the term "piracy" should have a universal meaning, "whether defined by common law, maritime law, or the law of nations." Id. at 161-162. The universal meaning of piracy is "robbery upon the sea." Id. at 162. See also Black's Law Dictionary (2d ed. 1995) (defining "piracy"). Piracy should be defined as "a robbery or forcible depredation on the high seas, without lawful authority, done animo fur-audi, in the spirit and intention of universal hostility." Id. See Eugene Kontorovich, The "Define and Punish" Clause and The Limits of Universal Jurisdiction, 103 Nw. U. L. Rev. 149, 151 (2009) (questioning intended meaning of define and punish clause). The define and punish clause can be interpreted in two ways: first, that "Congress can legislate universally only when international law has made punishment of the regulated conduct universally cognizable," and second "Congress's universal jurisdiction powers under the clause are restricted solely to piracy." Id.

(5.) See Cruickshank, 837 F.3d at 1188 (concluding MDLEA removes jurisdictional nexus requirement). Further, the Court concluded that despite no nexus requirement, the MDLEA does not violate the Due Process Clause. Id. See United States v. Campbell, 743 F.3d 802 (2014) (creating precedent Court followed in Cruik shank). In Campbell, the United States Coast Guard (USCG) observed a vessel on the coast of Jamaica with no nationality. Id. at 804. Individuals on the boat were seen throwing several large objects into the water as the USCG approached. Id. These objects were later confirmed to be almost 1,000 kilograms of marijuana. Id. The defendant in the case was arrested from the ship and indicted under the MDLEA for conspiracy and intent to distribute. Id. The defendant claimed that because his crimes had no nexus to the United States, there was no authority under MDLEA to prosecute. Id. at 810. The Court disagreed, and found that under the MDLEA, no nexus was required. Id.

(6.) See Cruikshank, 837 F.3d at 1186 (describing circumstances surrounding arrest). See also Brief of Appellant Carlington Cruickshank at 3, United States v. Cruikshank, 837 F.3d 1182 (No. 14-13754-CC), 2015 WL 4064802 at *4 (providing detailed description of arrest). The other individual on board the vessel was Carlos Acosta, who was also charged with conspiracy and intent to distribute, but ultimately plead guilty to the charges rather than going to trial. Id. Mr. Acosta later testified against Mr. Cruickshank at his trial. Id.

(7.) See Brief for Petitioner-Appellant at 4, United States v. Cruikshank, 837 F.3d 1182 (2016) (No. 14-13754), 2015 WL 4064802 (outlining U.S. government's involvement). The vessel was also traveling at a high rate of speed, catching the attention of the USCG. Id. At trial, USCG Ian Groom testified that the vessel was between twenty-five and thirty-five feet long, and in his experience boats of that size were normally not registered. Id. at 6. Groom further testified that he believed the fact that the vessel was traveling without navigational lights on made it seem more suspicious. Id.

(8.) See id. at 4 (explaining why USCG suspected criminal activity). The items thrown overboard were never found, but USCG Groom suspected they included a jacket and a bucket. Id. at 6.

(9.) See id. at 4 (outlining steps taken by USCG upon entering vessel). When the USCG boarded the vessel, there were no obvious signs of nationality, such as flags or identifying names. Id.

(10.) See id. (showing steps taken by USCG to determine nationality of vessel). Once Jamaican authorities did not confirm nationality, the vessel was determined to be subject to U.S. law under MDLEA. Id. at 8

(11.) See Cruikshank, 837 F.3d at 1186 (identifying criminal activity resulting in arrest).

(12.) See id. at 1186 (providing sequence of events).

(13.) See Brief for Petitioner-Appellant at 17, United States v. Cruikshank, 837 F.3d 1182 (2016) (No. 14-13754), 2015 WL 4064802, at *5 (discussing defendant's trial). At trial, the Judge also made a finding on the issue of jurisdiction. Id. at 17. The Judge stated:
   [I]n consideration of the testimony that I have heard, and in
   consideration of the certificate from the United States Department
   of State ..., I conclude that the "go-fast" vessel Venus, about
   which testimony has been received in this action, was interdicted
   international water southeast of Jamaica, without any display
   identifying its nationality, without registration documentation
   aboard or available, and without either acknowledgment or denial of
   nationality by the Government of Jamaica upon inquiry by the United
   States. Therefore, the Venus was a vessel without nationality and
   in accord with 46 U.S.C. [section]70592(d)(l)(C), that Venus was
   subject to the jurisdiction of the United States.


Id.

(14.) See id. at 16-17 (describing strategy of defense at trial). In response to the motion filed by the defense, the court mad the following finding:
   [I]n consideration of the testimony that I have heard, and in
   consideration of the certificate from the United States Department
   of State ..., I conclude that the "go-fast" vessel Venus, about
   which testimony has been received in this action, was interdicted
   international water southeast of Jamaica, without any display
   identifying its nationality, without registration documentation
   aboard or available, and without either acknowledgment or denial of
   nationality by the Government of Jamaica upon inquiry by the United
   States.


Id. The effect of this finding was that because the Court agreed that the vessel was lacking nationality, the United Stated therefore had the basis for jurisdiction under the Define and Punish Clause and MDLEA. Id.

(15.) See id. at 18 (identifying defendant's final sentence). Prior to the final sentence, Mr. Cruickshank's sentencing guideline range was 324-405 months imprisonment, which reflected an increase due to prior convictions and his role as co-pilot of the vessel. Id.

(16.) See id. at 19 (outlining issues on appeal). While the motion for judgment of acquittal was contested, the main issue focused on during appeal was the jurisdictional issue. Id.

(17.) See U.S. Const. Art. I (providing overview of powers awarded to Congress in Constitution). Article I includes sections such as qualifications of members of Congress, vacancies, and composition of the house and the senate. Id.

(18.) See U.S. Const. Art. I, [section] 8, cl. 10 (providing powers of Define and Punish Clause).

(19.) See U.S. Const. Art. I, [section] 8, cl. 10 (providing Define and Punish Clause). See also Kontorovich, supra note 4 (arguing clause creates two possible meanings).

(20.) United States v. Smith, 18 U.S. 153, 158-159 (1820) (separating clause into three categories). See United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1248 (11th Cir. 2012) (reiterating Supreme Court three-part breakdown of clause 10). In Bellaizac-Hurtado, the USCG along with the Panamanian Navy boarded a vessel in Panamanian waters. Id. at 1247. A subsequent search of the vessel occurred, producing approximately 760 kilograms of cocaine aboard. Id. at 1248. The Court answered the question of "whether Congress has the power under the clause to proscribe drug trafficking in the territorial waters of another nation is an issue of first impression in our Court." Id. at 1249. The Court ultimately determined that because "drug trafficking is not a violation of customary international law," Congress had in fact exceeded its power. Id. at 1258. See also Keegan Hamilton, The Golden Age of Drug Trafficking: How Meth, Cocaine and Heroin Move Around the World, Vice News (Apr. 25, 2016), https://news.vice.com/article/drug-trafficking-meth-cocaine-heroin-global-drug-smuggling (finding that globalization has caused drug trafficking to sky rocket). The way in which drugs are moved around the globe is constantly changing. Id. When authorities enact laws to stop one way of trafficking, new routes are created. Id. See also Drug Trafficking, United Nations Office of Drugs and Crime, https://www .unodc.org/unodc/en/drug-trafficking/ (last visited Feb. 12, 2017) (defining drug trafficking). Drug Trafficking is a "global illicit trade involving the cultivation, manufacture, distribution and sale of substances which are subject to drug prohibition laws." Id.

(21.) See Smith, 18 U.S. 153, 158-59 (1820) (identifying first meaning). See also Kontorovich, supra note 4 (explaining alternate definition of one meaning of clause). One reading of the "Define and Punish Clause" suggests that the purpose of the clause is to give Congress the power to punish any internal law that is "universally cognizable." Id. See also Restatement (Third) of Foreign Relations Law: Sources of International Law [section] 102 (Am. Law. Inst. 1987) (outlining definition of international law). "A rule of international law is one that has been accepted as such by the international community of states (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the major legal systems of the world." Id. Further, international laws are often derived from a general sense of moral or legal obligation. Id.

(22.) See Smith, 18 U.S. 153 (1820) (identifying second meaning). See Kontorovich, supra note 4 (explaining second alternative meaning). A second reading of the "Define and Punish Clause" suggests that the meaning of the clause was to grant the exclusive power to regulate and prosecute piracy. Id.

(23.) See Smith, 18 U.S. 153, 158-159 (1820) (identifying third meaning).

(24.) See 46 U.S.C.A. [section] 70501--[section] 70508 (outlining MDLEA).

(25.) See 46 U.S.C.A. [section] 70501 (explaining Congress's reasoning for the MDLEA). In full, the statue reads:
   Congress finds and declares that (1) trafficking in controlled
   substances aboard vessel[s] is a serious international problem, is
   universally condemned, and presents a specific threat to the
   security and societal well-being of the United States and (2)
   operating or embarking in a submersible vessel or semi-submersible
   vessel without nationality and on an international voyage is a
   serious international problem, facilitates transnational crime,
   including drug trafficking, and terrorism, and presents a specific
   threat to the safety of maritime navigation and the security of the
   United States.


Id. Within the statute, Congress states that drug trafficking via unlicensed vessels is not only an international problem, but a direct security issue for the United States. Id.

(26.) Id. (providing definition for vessel without nationality). "Vessel without nationality" is not specifically defined in the statute, but rather the definition is expanded through subsequent case law. Id. See also William Tetley, Vessel Forfeitures for Drug and Criminal Offenses: A Comparative Study, 27 J. Mar. L. & Com. 243, 252 (1996) (categorizing vessel without nationality). The term "vessel without nationality" is included within the broader category of "vessels subject to the jurisdiction of the United States." Id. at 252-253.

(27.) See 46 U.S.C. [section] 70502 (d)(1)(B) (providing definition of nationality under statute); see also Debra Oakes, What Constitutes "Vessel Without Nationality," so as to Be Subject to Jurisdiction of United States Under Maritime Drug Law Enforcement Act, 46 U.S.C.A. [section] 70502(d)(1), and Predecessor Statutes, 63 A.L.R. Fed. 2d 411, [section] 4 (2012) (explaining term "without nationality" within MDLEA).

(28.) See 46 U.S.C.A. [section] 70501-[section] 70508 (outlining MDLEA in entirety). The disputed language mainly revolves around "vessel without nationality" and how those vessels fall within the jurisdiction of the United States. See also Annette M. Sansone, Federal Government Liability For Loss of, or Damage to, Vessels or Vehicles Seized In Course of Drug Enforcement Activity, 93 A.L.R. Fed. 886 (1989) (describing vessels subject to forfeiture by United States). Under the Comprehensive Drug Abuse Prevention and Control Act of 1970, vessels which were subject to forfeiture by the United States were described as "all conveyances, including . . . vessels, which are used, or intended forused, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property." Id. (quoting Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C.A. [section] 811(a)(4) (1970)).

(29.) United States v. Perlaza, 439 F.3d 1149,1168 (9th Cir. 2006) (stating nexus to United States always required). In Perlaza, U.S. officials boarded a vessel off the coast of Ecuador and seized 2,000 kilograms of cocaine that the crew had attempted to throw overboard. Id. at 1152. Following the seizure, 12 individuals were arrested and charged under the MDLEA. Id. at 1153. The Court overturned all convictions, ruling that the government had no jurisdictional nexus, stating that this is required even under MDLEA. Id. at 1153, 1160-61. See also United States v. Yousef, 327 F.3d 56, 111 (2d Cir. 2003) (agreeing with 9th Circuit regarding nexus requirement for extraterritorial application of statutes). While Yousef did not address the MDLEA specifically, the Court followed the reasoning displayed by the 9th Circuit and determined that any statute extraterritorially applied requires a nexus between the accused and the United States. Id. at 111. But see United States v. Cardales-Luna, 632 F.3d 731 (1st Cir. 2011) (finding nexus not required). This decision was a 2-1 split, with Judge Torruella providing a strong dissent to the majority opinion. Id. at 738-51.

(30.) 439 F.3d 1149 (9th Cir. 2006).

(31.) See Perlaza, 439 F.3d 1149, 1168 (9th Cir. 2006) (finding nexus to United States always required). The majority of all other Ninth Circuit decisions follow this same reasoning. Id. See, e.g., United States v. Medjuck, 156 F.3d 916, 919 (9th Cir. 1998) (requiring Government to show nexus). In Medjuck, the Ninth Circuit remanded the case to the district court, concluding that even if the prosecution is under the MDLEA, the government must show a nexus between conduct and the United States. Id. at 917; United States v. Zakharov, 468 F.3d 1171, 1176 (9th Cir. 2006) (following same reasoning for nexus requirement).

(32.) 623 F.3d 731 (1st Circuit 2011).

(33.) See Cardales-Luna, 623 F.3d at 731 (1st Cir. 2011) (finding nexus was not required). While the majority of the First Circuit found that a nexus requirement was not necessary under the MDLEA, Judge Torruella dissented. Id. at 737-738. In Judge Torruella's dissent, he stated:
   Although under the international law doctrine of universal
   jurisdiction (UJ), a nation may prosecute certain serious offenses
   even though they have no nexus to its territory or its nationals,
   and no impact on its territory or its citizens the crimes charged
   in this case are not within the categories for which the
   application of UJ is permitted. In enacting the MDLEA, Congress has
   purportedly attempted to come within the umbrella of UJ doctrine by
   looking to Article I, [section] 8, cl. 10 of the Constitution as
   the source of its authority. This provision, however, does not
   authorize the regulation of purely foreign conduct except as
   regards to piracy on the high seas.


Id. at 740. See also United States v. Matos-Luchi, 627 F.3d 1 (1st Cir. 2010) (determining nexus not required for vessels without nationality). Matos-Luchi followed the precedent of the First Circuit, despite several dissenting opinions. Id.

(34.) See United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012) (determining Congress exceeded authority by enacting MDLEA). Here, the Court stated that "[p]rivate criminal activity will rarely be considered a violation of customary international law because private conduct is unlikely to be a matter of mutual legal concern." Id. at 1252. Therefore, Congress lacked the power to include drug trafficking under the "offences clause" of the Define and Punish clause. Id. at 1253. Thus, since the government did not show any other jurisdictional nexus, simply upholding the prosecution under the MDLEA was not enough. Id. at 1258. The Court stated:
   Drug trafficking was not a matter of international concern in 1789,
   let alone a violation of customary international law. Vattel's Law
   of Nations contains no references to narcotics, opium, or drug
   trafficking. And the international community did not even begin its
   efforts to limit the drug trade until the turn of the twentieth
   century ... Because violations of customary international law
   during the Founding Period were so limited, and narcotics then were
   not even a subject of international concern, we cannot conclude
   that drug trafficking was an offense against the law of nations
   when the Constitution was ratified.


Id. at 1254. But see Campbell, 743 F.3d 802 (11th Cir. 2014) (stating jurisdictional nexus not required under MDLEA). While the Eleventh Circuit did not specifically overrule its decision in Bellaizac-Hurtado, the Court found that the MDLEA can be upheld under the felonies clause. Id. at 809; see also United States v. Wilchombe, 838 F.3d 1179 (11th Cir. 2016) (agreeing with Court's decision in Campbell).

(35.) 837 F.3d 1182 (11th Cir. 2016).

(36.) See Cruickshank. 837 F.3d at 1187 (providing Court's first rejection of Defendant's argument). See also Oakes, supra note 27 (describing when, under MDLEA, vessels under U.S. jurisdiction). The article breaks vessels under the MDLEA into 5 different categories or circumstances; vessels where there was an unequivocal claim of nationality which was ultimately denied by that nation, an unequivocal claim of nationality which was not denied by that nation, an unequivocal claim of nationality where the nation did not confirm, claims of nationality that were ambiguous and finally where no claim of nationality was made at all. Id.

(37.) See Cruickshank, 837 F.3d at 1187-88 (citing Campbell, 743 F.3d at 810) (explaining basis of decision). The Court followed the reasoning laid out in Campbell, a prior Eleventh Circuit case. Id. The Court also stated that under the prior precedent rule of the Eleventh Circuit, they would not overrule a case until the Court overruled during an en banc panel, or it was overruled by the United States Supreme Court. Id. The Court then explained why the MDLEA allows extraterritorial reach while most statutes do not. Id. But see Bellaizac-IIurtado, 700 F.3d at 1254-56 (discussing drug trafficking in international law context). In this prior Eleventh Circuit decision, the Court stated that drug trafficking is not an international issue. Id. "Drug trafficking is also not a violation of contemporary customary international law." Id.
   Although a number of specially affected States--States that benefit
   financially from the drug trade--have ratified treaties that
   address drug trafficking, they have failed to comply with the
   requirements of those treaties, and the international community has
   not treated drug trafficking as a violation of contemporary
   customary international law. Scholars also agree that drug
   trafficking is not a violation of contemporary customary
   international law.


Id. at 1254; see generally Brian L. Porto, Extraterritorial Criminal Jurisdiction of Federal Courts, 1 A.L.R. Fed 2d 415 (2005) (discussing history and progression of U.S. extraterritorial criminal prosecution). There is a standard belief that criminal laws are intended to only carry weight within the boundaries of the law-making nation. Id. If the United States, however, allows for extraterritorial jurisdiction, it must first determine if extraterritorial use was the intent of Congress, and whether this is acceptable within the confines of international law. Id. See Eugene Kontorovich, Beyond the Article I Horizon: Congress's Enumerated Powers and Universal Jurisdiction Over Drug Crimes, 93 Minn. L. Rev. 1191, 1226 (2009) [hereinafter Beyond] (finding difference between international crimes and mutually criminalized conduct). "[T]here is a vast difference between conduct that all nations criminalize and international crimes. Uniform condemnation and criminalization does not make something an international crime. Murder and rape, and indeed, most malum in se offenses, are also universally condemned, and all fall outside of international law." Id.

(38.) See Cruickshank, 837 F.3d at 1188 (using Felonies Clause to provide extraterritorial reach); Porto, supra note 37, at [section] 3-5 (discussing history behind extraterritorial prosecution on ships). While extraterritorial prosecution aboard ships can be traced back to the start of the nation, many of these early cases involved criminal offenses "committed aboard American ships or by or against Americans" rather than by international citizens aboard international ships. Id.

(39.) See Cruickshank, 837 F.3d at 1188 (refusing to follow reasoning of other Circuits). Additionally, the Court found that enforcement of the MDLEA does not result in a due process violation. Id. But see Bellaizac-Hurtado, 700 F.3d at 1245 (11th Cir. 2012) (finding Congress exceeded authority enacting MDLEA). In BellaizacHurtado, the Court found that prosecution under MDLEA, where the crime had no relationship to the United States, is a due process violation. Id. See also Perlaza, 439 F.3d at 1168 (finding nexus to United States always required for criminal prosecution). But see Cardales--Luna, 632 F.3d at 740 (arguing MDLEA violates due process in dissent). Judge Toruella stated that prosecution under MDLEA requiring no nexus to the United States results in prosecution of criminal activity that is completely foreign. Cardales-Luna, 632 F.3d at 740; see also Kevin Krause, North Texas Federal Prosecutor Uses Long-Arm Law To Go After Drug Smugglers, Dallas News (Mar. 31, 2016), http://www.dallasnews.com/news/news/2016/03/31/north-texas-federal-prosecutor-uses-long-arm-law-to-go-after- drug-smugglers (detailing prosecutors use of MDLEA). Here, a Texas prosecutor charged Columbian citizens under the MDLEA. See Krause, supra.

(40.) See Cruickshank, 837 F.3d at 1188 (explaining reasoning of Court). The Court also concluded that because of the language of the statute, there is no due process violation. Id. But see Ava Miller, How Vague Is Too Vague?: Resurrecting the Void For Vagueness Doctrine In The Context Of The Armed Career Criminal Act, 89 S. Cal. L. Rev. 1139, 1162 (2016) (discussing correlation between vagueness and due process).
   The void-for-vagueness doctrine is rooted in the Due Process
   Clauses of the Fifth and Fourteenth Amendments, which protect
   against the deprivation of "life, liberty, or property, without due
   process of law" at the federal and state levels, respectively. The
   doctrine prescribes that courts should invalidate a state or
   federal statute in which the "general words and phrases are so
   vague and indefinite that any penalty prescribed for their
   violation constitutes a denial of due process of law" because "men
   of common intelligence must necessarily guess at its meaning and
   differ as to its application."


Id. at 1163.

(41.) See Cruickshank, 837 F.3d at 1188 (providing explanation for holding of Court); 30 Mass. Prac., Criminal Practice & Procedure [section]1:8 Challenging The Criminal Statutes--Vagueness (2016) (finding Massachusetts vagueness challenges mimic federal challenges). In order for a law to pass a vagueness challenge, it must provide adequate notice of the conduct that it prohibits. Id. A law is vague if "a person of common intelligence" cannot understand the meaning or scope. Id. See Wayne R. LaFave, Unconstitutional Uncertainty--The Void For Vagueness Doctrine, 1 Subst. Crim. L. [section]2.3 (2016) (discussing when statute results in finding of undue vagueness). "Undue vagueness in the statute will result in it being held unconstitutional, whether the uncertainty goes to the persons within the scope of the statute, the conduct which is forbidden, or the punishment which may be imposed." Id. A statute is also unduly vague if it does not provide an appropriate way for a jury to determine guilt or innocence. Id. The "fair warning" rationale is one way of analyzing the void for vagueness doctrine, stating that any individual who may be subject to the statute has warning of the law and consequences. Id. See Andrew Goldsmith, The Void-For-Vagueness Doctrine In The Supreme Court Revisited, 30 Am. J. Crim. L. 279 (2003) (arguing Supreme Court has issued contradictory rulings on vagueness). Two of the most important factors of the "vagueness test" are notice and arbitrary enforcement. Id. at 283-86; see United States v. Reese, 92 U.S. 214 (1875) (producing early test for vagueness). After the arrest and conviction of two officials under an election statute, the Supreme Court determined that the language of the statute was too broad. Id. at 219. See United States v. Johnson, 135 S.Ct. 2551, 2557 (2015) (finding due process violation where statute was too vague). In Johnson, the defendant qualified for sentencing under the Armed Career Criminal Act (ACCA) because his prior criminal offenses were "crimes of violence" under ACCA, including unlawful possession of a short-barreled shotgun. Id. at 2553-54. The residual clause of the ACCA included within the category of violent felonies "any felony that otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. at 2555. The Court in Johnson ultimately concluded that the residual clause of the ACCA was unconstitutionally vague. Id. at 2563. The Court stated, "[t]he Government violates the Due Process Clause when it takes away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Id. at 2556 (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). The Court also noted that the fact that there was a significant split among the Federal Circuits draws attention to the fact that the statute was unclear. Id. at 2560-61; see also Beckles v. United States, 616 Fed. Appx. 415 (11th Cir. 2015) (determining Johnson decision means sentencing guidelines also too vague). In Beckles, the 11th Circuit concluded that the Supreme Court's ruling in Johnson, finding the residual clause of the ACCA unconstitutionally vague, did not have an impact on the residual clause of the Sentencing Guidelines. Id. at 416. Beckles has been granted cert by the Supreme Court. Id.

(42.) See Cruickshank, 837 F.3d at 1187 (explaining holding of court). The Court's decision focused mainly on prior Eleventh Circuit precedent, which stated that no nexus was required because all nations across the globe do not believe in narcotics trafficking. Id.

(43.) See Porto, supra note 37 (explaining history behind use of Define and Punish clause). One example of the historical use of the Define and Punish Clause on the "high seas" is during the prosecution of pirates during the prohibition era. Id. Then, federal courts allowed the prosecution of smugglers outside U.S. waters who were attempting to bring alcohol into the United States. Id. Conspiracy offenses have also historically warranted extraterritorial prosecution. Id. In analyzing extraterritorial conspiracy cases, courts determine if "at least a single overt act within the United States; begun in the United States; and with intended effects in the United States." Id.

(44.) See Cruickshank, 837 F.3d at 1187 (explaining reasoning for decision). The Court found that Congress had the power to enact an extraterritorial statute, while some circuits have found that the statute is not extraterritorial at all. Id. See Porto, supra note 37 (explaining steps courts must take to determine if statute has extraterritorial impact). Courts must look to congressional intent and international law. Id. Additionally, Porto suggests that there are five main principles associated with extraterritoriality: the territorial principle; the nationality principle; the protective principle; the passive personality principle; and the universality principle. Id. The universality principle describes cases in which courts found that federal jurisdiction was valid when crimes committed outside the United States were also condemned by international law, much like the majority opinion in Cruickshank. Id. But see Beyond, supra note 37 (finding difference between international crimes and mutually criminalized activity). By using the universal jurisdiction doctrine in the MDLEA, Congress erred in using their power to police piracies more broadly than was intended. Id. at 1194-1195.
   Piracy's unique status as a UJ offense suggests that its
   enumeration as a separate power specifically allows Congress to
   exercise UJ only over piracy, but not over other high seas felonies
   or international law offenses. To allow non-UJ crimes to be
   punished on a UJ basis would be to erase the distinction that was
   made in the Constitution between "Piracies" and "Felonies."


Id. at 1195.

(45.) See supra notes 28-29 and accompanying text (stating other Circuits' different conclusions). See also Perlaza, 439 F.3d at 1160-61 (stating without nexus application statute unfair to defendants). In Perlaza, the Ninth Circuit found that under the Define and Punish Clause, Congress had the power to enact the MDLEA, but did not extend this reading of the Define and Punish Clause to mean that no nexus was required. Id. at 1158-59, 1161. In order for the MDLEA to be valid it must require a relationship between the United States and the criminal prosecution being pursued by the government. Id. See Cardales-Luna, 623 F.3d at 739 (distinguishing Judge Torruella's dissent from majority opinion). In his dissent, Judge Torruella states:
   By the enactment of 46 U.S.C. [section][section] 70503(a)(1) and
   70502(c)(1)(C) of the MDLEA, allowing the enforcement of the
   criminal laws of the United States against persons and/or
   activities in non-U.S. territory in which there is a lack of any
   nexus or impact in, or on, the United States, Congress has exceeded
   its powers under Article I of the Constitution. Any prosecution
   based on such legislation constitutes an invalid exercise of
   jurisdiction by the United States, and is void.


Id.

(46.) See Cruickshank, 837 F.3d at 1195 (stating opinion of Court). Despite the fact that Cruikshank was a not a citizen and was arrested outside the country, the Court found that the criminal activity he was involved in was subject to the MDLEA and therefore subject to extraterritorial prosecution. Id.

(47.) See id. at 1187 (stating MDLEA provides adequate notice). This was based on the finding that because all countries condemn drug trafficking, adequate notice was provided by the United States. Id. See Goldsmith, supra note 41, at 283 (discussing the notice requirement). There are two different rationales underlying the notice requirement. Id. at 284. The first being that individuals should be made aware of criminalized activity so that they can make their own decision to follow the law or not, and the second being that if laws are unclear, they may result in more criminal activity than if the law was clearly written. Id.

(48.) See LaFave, supra note 41 (explaining void for vagueness doctrine); Goldsmith, supra note 41, at 283 (explaining vagueness test). The vagueness test focuses on five important ideas; notice, the separation of powers, prevention of arbitrary enforcement, the creation of standard for appeal and the creation of a record for appeal. Id. See Miller, supra note 40, at 1162 (discussing how vagueness doctrine used in ACCA cases). In the context of the ACCA, courts used the void-for-vagueness doctrine to determine that a clause within the act did not adequately provide notice for, or define, a violent felony. Id. In general, the doctrine "is rooted in the Due Process Clauses of the Fifth and Fourteenth Amendments" and is meant to deter legislatures from drafting statutes that are not easily understood by the average person. Id. at 1163-64.

(49.) See LaFave, supra note 41 (defining void for vagueness doctrine). The vagueness doctrine may be used by any defendant, but Court's may look into the defendant's intent behind the criminal activity. Id. For example, the Court may ask whether the defendant knew the intended meaning of the statute, abut committed the criminal act anyway because he or she knew a vagueness defense could be subsequently used, or whether the defendant truthfully did not understand the described criminal act within the statute. Id.

(50.) See Cruickshank, 837 F.3d at 1187 (finding universal condemnation of drug trafficking allows for extraterritorial jurisdiction). See Kontorovich, supra note 4 (explaining different countries give separate meanings to term "piracy"). "[T]hus piracy had a uniform technical meaning as an international law offense. At the same time, nations could and did attach the term 'piracy' to a variety of different maritime crimes.... Universal jurisdiction did not attach to a crime merely by calling it piracy." Id. at 166.

(51.) See Goldsmith, supra note 41 (discussing previous Supreme Court rulings on vagueness). The notice requirement when analyzing criminalized conduct is important because "uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than [they would] if the boundaries of the forbidden areas were clearly marked." Id. at 284. Additionally, if a vague statute does not provide the requisite amount of notice, the statute may "trap" citizens who otherwise would have abided by the law. Id. See Reese, 92 U.S. at 219-220 (creating an early test for vagueness). In Reese, the Supreme Court stated:
   Laws which prohibit the doing of things, and provide a punishment
   for their violation, should have no double meaning. A citizen
   should not unnecessarily be placed where, by an honest error in the
   construction of a penal statute, he may be subjected to a
   prosecution ... Every man should be able to know with certainty
   when he is committing a crime.


Id. See Johnson, 576 U.S. at 2560 (providing more current analysis of vagueness test). In Johnson, the court specified two features of the clause that made it unconstitutionally vague. Id. at 2557. The first being that the clause "leaves grave uncertainty about how to estimate the risk posed by a crime." Id. This, the Court stated, allows "unpredictability and arbitrariness" which is not allowed under the Due Process Clause. Id.

(52.) See Miller, supra note 40 (discussing how vague statute impacted sentences). The Armed Career Criminal Act was unconstitutionally vague, with one of the main issues being the confusion surrounding the appropriate sentences that should follow prosecution under the Act. Id. at 1163. Rather than assisting judges in sentencing, the Act, which included a series of sentencing enhancements, "only led to further confusion by giving meaning to an overly vague statute." Id. See Krause, supra note 37 (detailing wide ranging use of MDLEA in Texas). Here, an attorney for an international defendant stated the case against his client "opens up the floodgates to the federalization of all narcotics trafficking," and further, that "[t[his is about spending vast public resources to have them in an American prison rather than a Colombian prison." Id. Additionally, Krause states:
   The cases are expensive. In the original trafficking prosecution,
   the government had to fly Colombian military and police officials
   to Sherman to testify at the 2012 trial of the men and pay to
   translate numerous wiretaps. And the U.S. prosecutor had to travel
   back and forth to Colombia to prepare for the trial.


Id.

(53.) See Tetley, supra note 26, at 252 (describing type of criminal activity governed by MDLEA). The MDLEA subjects all United States ships to United States drugs laws, and also subjects "vessel subject to the jurisdiction of the United States" to criminal drug laws. Id. This results in the MDLEA being capable of subjecting any ship "on the high seas" to United States drug laws. Id.

(54.) See Krause, supra note 39 (explaining cost of prosecutions under MDLEA). Here, an Assistant United States Attorney in the Eastern District of Texas, prosecuted more than twenty-four Columbian drug smugglers under the MDLEA. Id. The defendants, all of whom are now serving time in United States prisons, were originally being held and awaiting prosecution in Columbia. Id. The rationale behind the prosecutions in Texas is that Columbian drug dealers bring cocaine to Mexico, and from there that cocaine oftentimes is brought to Texas. Id. However, these individuals charged under than MDLEA were charged outside of the United Stated, with no direct evidence that they were headed for the United States. Id.

(55.) See Krause, supra note 39 (describing the prosecution of foreign citizens). In Texas, the United States Attorney's Office was prosecuting Columbian, Ecuadorean, and Mexican citizens, all of whom were arrested in international waters. Id. See Kontorovich, supra note 37, at 1200 (explaining role of other countries in prosecution of their citizens). If an individual aboard a "vessel without nationality" states that they are a citizen of a foreign country, they can still be charged and prosecuted under the MDLEA so long as their home country gives consent to the prosecution. Id. Under classic international law doctrine, the USCG would not have the ability to board any vessel in international waters, but the MDLEA has expanded their abilities by allowing USCG to board any vessel they suspect to be involved in drug trafficking. Id. Many countries in the Caribbean and South American have agreed to this increased policing power by the United States. Id.

(56.) See Krause, supra note 39 (explaining how MDLEA extraterritorial reach changes U.S. prosecution). While U.S. officials worked with foreign officials to transport and extradite defendants to the United States, the prosecution of foreign citizens ultimately took place in the United States. Id.

(57.) 837 F.3d 1182 (11th Cir. 2016).

(58.) See supra note 4 and accompanying text (positing issue in case).

(59.) See supra notes 40-41, 43-45 and accompanying text (explaining why Define and Punish Clause does not provide this power to MDLEA). The statute lacks notice and is unconstitutionally vague. Id.

(60.) See supra notes 46-49 and accompanying text (considering void for vagueness analysis).

(61.) See supra notes 41, 45-49 (concluding Court erred in deciding case).
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Author:McCauley, Sarah
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Date:Jun 22, 2017
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