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Jurisdiction.

FIRST CIRCUIT AFFIRMS JURISDICTION OF MARITIME DRUG LAW ENFORCEMENT ACT OVER ALLEGED DRUG TRAFFICKER, HOLDING TERSE CERTIFICATION BY BOLIVIA'S SECRETARY OF STATE CONSTITUTED VALID CONSENT OR WAIVER OF OBJECTION TO U.S. LAW ENFORCEMENT

Cardales-Luna served with seven other crew members on the Bolivian flag vessel Osiris II when the U.S. Coast Guard boarded the ship in international waters on February 4, 2007. During a six-day search of the Osiris II, Coast Guard officers discovered 400 kilograms of cocaine, 25 kilograms of heroin, and a machine gun hidden in a compartment near the rear of the vessel.

The U.S. tried Cardales-Luna, the court ultimately sentencing him on two counts: (1) conspiracy to possess with intent to distribute the drugs found on the Osiris II and (2) aiding and abetting the possession of those drugs with intent to distribute. To prove that the Osiris II was subject to U.S. jurisdiction, the government presented the certification of G. Philip Welzant of the Bureau of International Narcotics and Law Enforcement Affairs, U.S. Department of State, who declared, "On February 5th, 2007, Bolivian authorities notified the United States that the Government of Bolivia waived objection to the enforcement of U.S. laws by the United States with respect to the vessel Osiris II, including its cargo and all persons onboard." [736] Cardales-Luna appealed on the grounds the certification was insufficient to confer jurisdiction over the vessel. The U.S. Court of Appeals for the First Circuit affirms.

The Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. [section] 70503(a)(1), prohibits drug trafficking aboard a vessel subject to the jurisdiction of the United States, which includes vessels registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States. Cardales-Luna contended that Commander Welzant's certification failed to state the name of the Bolivian official involved or the exact time and means of the communication between the two governments. In support of his position, he cited United States v. Leuro Rosas, a decision by this Court that quoted from the legislative history of the MDLEA to imply that a certification that failed to substantially comply with the requirements articulated by Congress might be rejected as insufficient to prove the foreign nation's consent. The Court quotes its decision in Leuro Rosas:

"'In instances where the United States is required to prove a foreign nation's consent or waiver of objection to U.S. enforcement, or such a nation's denial of claim of registry, this section permits proof by certification of the Secretary of State or the Secretary's designee. Such a certification should spell out the circumstances in which the consent, waiver, or denial was obtained, including the name and title of the foreign official acting on behalf of his government, the precise time of the communication, and the means by which the communication was conveyed'" (citations omitted). [736-737]

The holding that Welzant's abbreviated certification was valid, as the Court states, rests on the fact that Congress materially amended the MDLEA subsequent to Leuro Rosas because that decision "left open the possibility that a defendant could look behind the State Department's certification to challenge its representations and factual underpinnings. United States v. Guerrero, 114 F.3d 332, 341 (1st Cir. 1997) (reserving the issue)." [737] The Court notes:

"Congress effectively foreclosed that possibility in 1996, when it amended the MDLEA ... Under the current statute, the Secretary of State (or her designee) need only certify that the foreign nation where the vessel is registered has consented or waived objection to the enforcement of United States law by the United States. Such a certification is conclusive [ ], and any further question about its legitimacy is a question of international law that can be raised only by the foreign nation. United States v. Bustos Useche, 273 F.3d 622, 627 & n. 5 (5th Cir. 2001)." [737]

The First Circuit holds that Welzant's certification--"though not in the preferred form"--sufficiently established the Osiris II's subjection to U.S jurisdiction. [737]

CITATION: United States v. Cardales-Luna, 632 F.3d 731 (1st Cir. 2011).
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Publication:International Law Update
Article Type:Report
Geographic Code:1USA
Date:Jan 1, 2011
Words:688
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