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Maritime criminal jurisdiction.


A U.S. Coast Guard helicopter observed a low-flying airplane dropping bales into the sea (later found to contain cocaine) about 30 to 35 miles off the coast of the Dominican Republic (DR). Three men in a fishing boat arrived on scene, but fled as the helicopter descended.

Upon the request of U.S. Customs officials, the DR Coast Guard later arrested Epifanio Matos-Luchi and two others (Defendants) 25 miles off the coast of the DR. U.S. Coast Guard personnel questioned Defendants aboard the Dominican vessel. Defendants admitted that they held Dominican nationality and that their boat has set sail from the Dominican Republic. Their boat, however, bore no marks of its nationality. The U.S. took Defendants to Puerto Rico to be tried by the federal district court. The Court convicted Defendants of committing drug offenses while on board a "vessel without nationality" and thus within U.S. enforcement authority (see 46 Sections 70502(c)(1)(A), 70503(a)(1)).

This appeal ensued but the U.S. Court of Appeals for the First Circuit affirms. This appeal requires the Court to interpret the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. Section 70501 (2006). The Act provides for federal law enforcement authority over maritime drug crimes committed outside U.S. territorial limits.

"The most abstruse issue in the case, with which we begin, is whether the Defendants' possession of the cocaine with intent to distribute occurred on board 'a vessel subject to the jurisdiction of the United States,' 46 U.S.C. [section] 70503(a)(1).... [...] Underscoring its aim to reach broadly, Congress defined 'a vessel subject to the jurisdiction of the United States' to include six categories of boats (listed in full in an appendix to this decision)--first among them 'a vessel without nationality,' 46 U.S.C. [section] 70502(c)(1)(A)."

"... '[A] vessel without nationality' is defined to 'include[]' the following: '(1) a vessel aboard which the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed; (2) a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and (3) a vessel aboard which the master or individual in charge makes a claim of registry for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality. 46 U.S.C. [section] 70502(d)(1).'"

"That the listed examples do not exhaust the scope of section 70502(d) ... At the very least, Congress intended to include in section 70502(d), in addition to the specific examples given, those vessels that could be considered stateless under customary international law.... Congress' intent to reach broadly was reconfirmed in the Coast Guard Authorization Act of 1996, Pub. L. No. 104-324, [section] 1138, 110 Stat. 3901, 3988-89, which amended the MDLEA by providing that the 'jurisdiction' of the United States over a vessel under the MDLEA was 'not an element of the offense' but a matter to be determined 'solely by the trial judge,' id. [section] 1138(a)(5) (now codified at 46 U.S.C. [section] 70504(a)), and that a defendant had no standing to claim that enforcement violated 'international law'--reserving such objections only to foreign nations, id. [section] 1138(a)(4) (now codified at 46 U.S.C. [section] 70505)...."

"Against this background, the district court's determination that the Defendants' [boat] was 'a vessel without nationality' within the meaning of the MDLEA was correct. This is so regardless of whether that finding is to be made by a preponderance of the evidence--as one of our earlier decisions implies, ...--or beyond a reasonable doubt. Indeed, virtually none of the raw facts bearing on the reach of the statute is disputed; the problem is primarily one of interpreting the statute." [3-5].

"... [T]he boat had various links to the DR. The crew members were Dominicans and the small vessel was likely headed there before its engine troubles and subsequent interception by the Dominican Coast Guard. At trial one Defendant said that the vessel was registered there in some fashion. But neither the MDLEA nor international law limits U.S. enforcement authority merely because the vessel has associations with another state."

"Under international law, every vessel must sail under the flag of one and only one state; those that sail under no flag or more than one flag enjoy no legal protection. 1 L. Oppenheim, International Law [section] 261, at 595-96 (H. Lauterpacht ed., 8th ed. 1955) ... By custom, a vessel claims nationality by flying the flag of the nation with which it is affiliated or carrying papers showing it to be registered with that nation.... Without a flag or papers, a vessel may also traditionally make an oral claim of nationality when a proper demand is made--a pattern the MDLEA follows." [5-6]

"Although enforcement jurisdiction presumptively lies with the flag state, ...'[i]t is not enough that a vessel have a nationality; she must claim it and be in a position to provide evidence of it.' ... [...] The MDLEA follows this approach, one might say, energetically. Section 70502(d) 'includes' in the phrase 'vessel without nationality' those ships for which a claim of nationality is made but rejected or not backed up by the nation invoked, 46 U.S.C. [section] 70502(d)(1)(A), (C), or those 'aboard which the master of individual in charge' fails on request 'to make a claim of nationality or registration' for the vessel, id. [section] 70502(d)(1)(B). In our case, the Defendants when questioned by the U.S. Coast Guard refused to make a claim of nationality for the [boat]." [...]

"Practically every vessel--including the legendary Flying Dutchman--has links with some country; but the stateless vessel concept in the MDLEA and in international law is designed prudentially. The controlling question is whether at the point at which the authorities confront the vessel, it bears the insignia or papers of a national vessel or its master is prepared to make an affirmative and sustainable claim of nationality. To read the MDLEA more restrictively would mean that the master and crew need only carry no papers and jump overboard to avoid having their vessel classed as stateless...."

"... [T]he MDLEA does not conflict with international law. For international law too treats the 'stateless vessel' concept as informed by the need for effective enforcement. Thus, a vessel may be deemed 'stateless,' and subject to the enforcement jurisdiction of any nation on the scene, if it fails to display or carry insignia of nationality and seeks to avoid national identification. This occurs 'if a 'ship' repeatedly refuses, without reasonable excuse, to reveal its allocation [of nationality]."

"If no registration number is visible and no other indicator [of nationality] can be discerned, the cognoscibility is already demonstrably insufficient, and interference will then often be justifiable ... From the basic design of [the law of sea] and from the place the institution here called allocation occupies in it already it may be concluded that a 'ship' which obscures the cognoscibility of its allocation repeatedly, deliberately, and successfully may be treated as stateless.' H. Meyers, The Nationality of Ships 322 (1967)."

"In sum, the instances specified by Congress--pertinently, the refusal 'aboard' the vessel to claim nationality, 46 U.S.C. [section] 70502(d)(1)(B)--are not departures from international law but merely part of a pattern consistent with it; and when Congress used the word 'includes' in listing specific instances, it allowed for reasonable extrapolation to functionally similar instances--including a refusal by the crew to claim nationality that happens to occur aboard a cutter which has the subject 'vessel' in tow." [6-7] The Court thus affirms.

The dissenter disagrees with the findings that the boat at issue was a "vessel without nationality" and that the Government met its burden of proof in that regard. It was the Government's burden to show that the boat had no nationality, but it failed to properly investigate the issue. The Court now unduly emphasizes Congress' aim to facilitate enforcement, and disregards the considerations of fairness and international law that suggest restraint in interpreting the MDLEA. The Court now extends U.S. drug laws to circumstances that Congress did not contemplate and that likely exceed the bounds of international law.

CITATION: United States v. Matos-Luchi, 627 F.3d 1 (1st Cir. 2010).
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Publication:International Law Update
Geographic Code:1USA
Date:Dec 1, 2010
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