No nexus, no problem: no jurisdictional error related to defendant's conviction for drug trafficking overseas.
The Maritime Drug Law Enforcement Act (MDLEA) makes it unlawful for an individual to knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board a vessel of the United States or a vessel subject to the jurisdiction of the United States. (1) Congress enacted the MDLEA in 1986 to give more force to the Marijuana on the High Seas Act (MHSA), which provided federal authorities with means to prosecute foreigners on vessels carrying narcotics anywhere on the high seas with intent to distribute in the United States, and to expand the jurisdiction of the United States even further. (2) In United States v. Nueci-Pena (3), the United States Court of Appeals for the First Circuit considered whether there was congressional authority under the Piracies and Felonies Clause of the U.S. Constitution to criminalize drug trafficking on board a vessel in international waters under the MDLEA without requiring a nexus, or connection, between the conduct and the United States. (4) The First Circuit held that the MDLEA was a constitutional exercise of Congress's power under the Piracies and Felonies Clause of Article I, Section 8 and concluded that there was no jurisdictional error under the MDLEA related to Nueci's conviction, nor would any such error constitute plain error. (5)
On February 23, 2007, the Coast Guard stopped a suspicious go-fast vessel in Caribbean waters. (6) Upon boarding the ship, Francisco Nueci-Pena (Nueci) identified himself as the master of the ship and declared that the vessel was Colombian. (7) When the Coast Guard contacted Colombian authorities, however, the Colombian Navy could neither confirm nor deny that the vessel was registered in Colombia. (8) The Coast Guard discovered 390 kilograms of cocaine and 123 kilograms of heroin on board, and subsequently arrested all six passengers, including Nueci. (9) The federal government charged each defendant with aiding and abetting, along with conspiracy in the possession with intent to distribute narcotics on board a vessel subject to U.S. jurisdiction in violation of the MDLEA. (10) All six passengers pleaded not guilty. (11)
On October 23, 2007, on the eve of trial, Nueci and his codefendants moved to dismiss the charges for lack of jurisdiction over the vessel, arguing that it was registered in Venezuela, and that U.S. officials erroneously believed the ship to be Colombian. (12) They contended that although the Colombian authorities could neither confirm nor deny the vessel's registry, it meant nothing in the end because U.S. authorities requested a consent waiver from the wrong country. (13) As a result, the defendants argued that because no contact had been made with the Venezuelan authorities regarding their claim of registry, the United States never had jurisdiction over the defendants or the vessel, and thus, the United States could not establish jurisdiction under the MDLEA over the vessel. (14) The U.S. government acknowledged that Nueci at one point claimed that the vessel departed near the Venezuelan/Colombian border, and that the drug trafficking was organized in Venezuela. (15) However, the government argued the vessel flew no flag, had no markings or registration documentation, the defendants offered no proof that the ship was Venezuelan, and further claimed that subject matter jurisdiction was not an element of the offense under MDLEA. (16) After Venezuelan authorities later failed to confirm the nationality of the vessel, the United States, in its response to the motion to dismiss, asserted that regardless of Nueci's claim of registry, neither Colombia nor Venezuela claimed the vessel, making it "stateless," thus giving the United States jurisdiction under the MDLEA. (17)
The day before trial, Nueci moved for an order to preserve his jurisdictional challenges. (18) He moved to preserve three issues, one of which was whether it is constitutional to exercise jurisdiction over an individual under the MDLEA, which criminalizes activities on the high seas, without requiring that the acts be directed towards the United States. (19) Nueci argued that the statute's lack of a nexus requirement exceeded Congress's power to define and punish piracies and felonies on the high seas. (20) On June 24, 2010, the jury found Nueci guilty on both counts in the indictment. (21) The defendant appealed the decision, arguing that the MDLEA is unconstitutional because it exceeds congressional authority "to define and punish Piracies and Felonies committed on the high seas" under the Piracies and Felonies Clause of the Constitution. (22) Due to Nueci's failure to raise the argument at trial that Congress exceeded its authority under the Piracies and Felonies Clause in enacting the MDLEA without a nexus requirement, the proper standard of review was plain error, not de novo, contrary to the defendant's wishes. (23)
Article I of the U.S. Constitution grants Congress the power to "define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations." (24) Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970 to combat smuggling of illegal narcotics on the high seas and as a means to exercise its authority to regulate criminal activity in international waters. (25) Due to certain defects, however the Act was easily exploitable by smugglers, causing Congress to pass the Marijuana on the High Seas Act in 1980. (26) Though the MHSA did improve prosecution efforts, Congress amended the Act by passing the Maritime Drug Law Enforcement Act of 1986, which further expanded U.S. jurisdiction in drug trafficking crimes overseas, and contained a number of changes to the previous legislation, giving it more weight. (27) While the MDLEA and the acts preceding it served the United States' efforts in the drug war overseas, the application of the MDLEA has not been entirely consistent among the courts. (28) Even with its broad reach, the MDLEA faced jurisdictional obstacles because some courts imposed a nexus requirement whereas others did not, an issue of contention between the circuit courts going back years prior to the adoption of the MDLEA. (29)
Before the enactment of the MDLEA, several courts dealing with drug trafficking crimes overseas required the establishment of a nexus between the activities of foreigners on vessels carrying narcotics and the interests of the United States, relying on international principles of jurisdiction. (30) The First Circuit initially adopted the position of mandating a nexus between criminal conduct on a stateless ship and the United States in United States v. Smith, (31) a stance similarly espoused by the Third Circuit. (32) The Eleventh Circuit, however, handed down a decision in United States v. Marino-Garcia (33) that changed the majority view regarding the nexus requirement. (34) In holding that section 955(a) of the MHSA properly granted criminal jurisdiction to the United States over stateless vessels on international waters without a nexus requirement, the Eleventh Circuit effectuated a change in rationale that several other circuit courts embraced. (35) The Second Circuit followed the Marino-Garcia rationale in United States v. Pinto-Mejia, (36) holding that international law does not preclude assertion of jurisdiction over a stateless vessel by the U.S. government, even without a nexus. (37) Similarly, the Fourth and Fifth Circuits followed suit, with perhaps the boldest stance of any court established by the Fourth Circuit in rejecting the nexus requirement, going so far as to say that violating international principles in order to fulfill American objectives was permissible. (38)
Courts applying the MDLEA since its inception in 1986 agree that the Piracies and Felonies Clause provides constitutional authority for the legislation, but are split on whether courts have constitutional jurisdiction to apply the MDLEA without a nexus. (39) The Eleventh Circuit rejected the nexus requirement for foreign nationals prosecuted under the MDLEA in United States v. Mena (40) on a registered ship, and rebuffed the defendants' constitutional challenge that the act only proscribed conduct with a connection to the United States. (41) With respect to registered ships, the First Circuit determined that the MDLEA passed the constitutional due process test when the foreign nation claiming the vessel authorized the application of United States law to persons on board, leaving no need for a nexus requirement. (42) For situations dealing with stateless vessels, some courts addressed the due process constitutional defense to the MDLEA by asserting that the United States may exercise jurisdiction consistently with international law over drug offenders without establishing any nexus to the United States. (43) To determine whether due process required a nexus for extraterritorial application of the MDLEA, some courts looked to the Piracies and Felonies Clause and concluded that the Fifth Amendment imposed no nexus requirement on the reach of statutes criminalizing aberrant conduct by foreigners on the high seas. (44) Though the MDLEA does not itself demand a nexus, certain jurisdictions mandate a nexus between the conduct and the United States for registered vessels all the while dismissing the constraint for stateless vessels, creating a division among the courts on this issue that has yet to be resolved. (45)
In United States v. Nueci-Pena, the First Circuit Court of Appeals considered whether the MDLEA exceeded its constitutional jurisdiction by not requiring a nexus between the criminal conduct and the United States. (46) The court began its analysis by first explaining that it would not adopt a de novo standard of review to examine the issue, contrary to the defendant's wishes, because he failed to properly preserve his argument at trial. (47) The First Circuit rejected Nueci's suggestion that a challenge to the constitutionality of the MDLEA inherently involved a challenge to the subject matter jurisdiction of the court. (48) As a result of the defendant's failure to argue at the outset that Congress exceeded its constitutional authority without requiring a nexus between the conduct and the United States, the First Circuit applied the plain error standard of review to resolve the issue. (49) Only upon the defendant's satisfaction of the elements of plain error would the court exercise its authority to recognize a fault in applying the MDLEA without a nexus requirement. (50)
The First Circuit examined the relevant sections of the MDLEA and upon analysis, elected not to inquire into the merits of Nueci's argument, concluding that even had there been any mistake in his conviction under the MDLEA, it would not constitute plain error. (51) The court noted, after scrutinizing the language of the U.S. Constitution, that the Piracies and Felonies Clause did not overtly say that the U.S. government could not prosecute criminal conduct on the high seas without a link between the conduct and the United States. (52) The First Circuit considered other circuit court cases which held that Congress obtained its authority to enact the MDLEA from the Piracies and Felonies Clause of the Constitution, some of which dealt with and rejected claims identical to that made by the defendant. (53) Nueci's failure to direct the court to any Supreme Court or other circuit court cases that espoused his view on the issue greatly influenced the First Circuit's decision on the matter. (54) The lack of Supreme Court precedent dealing with the issue, coupled with the other circuit courts' view that applying the MDLEA without a nexus requirement was an appropriate use of power under the Piracies and Felonies Clause, led the First Circuit to conclude that there was no jurisdictional error related to Nueci's conviction. (55)
Congress's sanctioning of the Maritime Drug Law Enforcement Act has bolstered America's commitment to the denunciation of drug trafficking overseas. (56) In upholding Nueci's conviction for drug smuggling on the high seas, the First Circuit correctly held that there was no error in applying the MDLEA without a nexus requirement, furthering America's public policy of thwarting narcotics trafficking in international waters. (57) Although the application of the MDLEA without a nexus requirement seems to give the U.S. government extensive power to enforce its laws, its appeal stems from the fact that the Act outlaws narcotics trafficking in international waters, an activity considered illegal by all international standards, and the First Circuit rightly noted this. (58) The international legal principles that courts in the United States used to substantiate jurisdiction outside the territory of the United States do not explicitly necessitate a nexus. (59) Having a nexus requirement is an inconvenience because it affords defendants charged with drug trafficking due process rights, making it difficult for the U.S. government to play its role in foiling the international drug trade. (60) In holding that there was no error in convicting Nueci under the MDLEA absent a nexus between his conduct and the government, the First Circuit reached a conclusion widely supported by the public policies and laws of both the United States and the international community. (61)
Courts can do away with a nexus requirement for stateless and registered vessels, while satisfying both international law principles and constitutional principles, and have done so for years prior to and since the passage of the Act. (62) The MDLEA represents a very limited exercise of Congress's power under the Piracies and Felonies Clause in that it only condemns narcotics trafficking on either a stateless vessel or a registered ship that has consented to the application of U.S. laws. (63) International law allows all nations to subject stateless ships to their jurisdiction without a nexus requirement, the rationale being that vessels without a nationality are seen as pariahs having no internationally recognized right to roam the seas. (64) Furthermore, when courts establish jurisdiction over a vessel by finding it to be a stateless ship, it usually leads to an assertion of jurisdiction over the individuals on board, and in doing so, the courts tacitly incorporate a domestic due process analysis. (65) There is also justification under international law for the United States' decision to prosecute foreign criminals seized on registered vessels without a nexus; the drug trafficking they engage in poses a serious threat to a nation's security, and as a consequence, international regulations make such activity illegal worldwide. (66) The MDLEA unequivocally forbids the possession of controlled sub stances with intent to distribute, therefore foreigners on flagged ships have notice and accept the risk that their nation may consent to the enforcement of U.S. laws, which is sufficient to satisfy due process requirements. (67)
The First Circuit's decision that a nexus between Nueci's conduct and the United States was not needed to satisfy constitutional jurisdictional principles rightly falls in sync with previous rulings made by the Third, Fifth, and Eleventh Circuits, though the same cannot be said for the Ninth Circuit, specifically regarding registered ships. (68) For uniformity's sake, any demand by the Ninth Circuit for a nexus should be done away with, irrespective of whether the vessel is stateless or registered. (69) Just as the Ninth Circuit asserts jurisdiction over stateless vessels without a nexus to avoid creating safe havens that subject criminals to no country's control, similar policy considerations apply to drug smugglers on flagged ships. (70) Criminals on stateless ships are different from those on flagged ships in terms of due process only in their treatment under international law and the notice they have that they could be prosecuted anywhere; conversely, when there is consent between the flagged ship and the United States, traffickers on registered and stateless vessels are essentially the same for due process purposes. (71) Drug traffickers on registered vessels are no less the outcasts than those on stateless ships; both take part in the same universally illicit venture, and criminals on flagged ships have no more assurance that they will evade trial in the United States than those on stateless vessels. (72) Scrutinizing the numerous justifications for prosecuting without a nexus provided by the other circuit courts will show that the MDLEA has within it sufficient due process protections afforded to defendants, and the Ninth Circuit would do well to incorporate the various rationalizations into its own decisions. (73)
In United States v. Nueci-Pena, the First Circuit Court of Appeals considered whether there was jurisdictional authority under the U.S. Constitution to convict a defendant for drug trafficking overseas under the MDLEA without requiring a nexus between the criminal conduct and the United States. (74) In correctly holding that there was no error in finding a defendant guilty for trafficking overseas without establishing a nexus, the First Circuit continued a long-standing tradition among a majority of the circuit courts in refusing to recognize any nexus constraint in order to establish jurisdiction. (75) The Piracies and Felonies Clause of the U.S. Constitution explicitly grants Congress authority to regulate criminal activity on the high seas, and does not say that there must be a direct link between the criminal conduct and the United States. (76) Despite the MDLEA not overtly requiring a nexus between the United States and the criminal defendants, the Act both complies with international laws regulating drug trafficking and satisfies domestic constitutional due process principles for both stateless and registered vessels. Utilizing a variety of legal principles to justify prosecuting defendants in the United States without a nexus, every circuit court except for the Ninth Circuit maintains that for either stateless or registered ships, constitutional and international law guidelines permit such prosecutions. The Ninth Circuit would be wise to follow the lead of its sister circuits, though it may be up to the Supreme Court, which has yet to comment on the matter, to deliver the final word.
(1.) Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. [section][section] 70501-70503(a)(1) (2011) (prohibiting drug trafficking aboard vessels overseas within jurisdiction of United States). Under [section] 70501, "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.
(2.) See Michael Tousley, Note, United State Seizure of Stateless Drug Smuggling Vessels on the High Seas: Is It Legal?, 22 Case W. Res. J. Int'l L. 375, 378 (1990) (explaining congressional intent behind enacting MDLEA); see also Kyle Salvador Sclafini, Comment, If the United States Doesn't Prosecute Them, Who Will? The Role of the United States as the World's Police and Its Jurisdiction over Stateless Vessels, 26 Tul. Mar. L.J. 373, 378-79 (2001) (discussing history behind MDLEA). In response to the shortcomings of the Drug Abuse and Prevention Act of 1970, Congress enacted the Marijuana on the High Seas Act (MHSA), which extended the jurisdiction of the United States to include stateless vessels. Id. at 379. Courts interpreting the Act held that an expansion of jurisdiction in such a manner did not violate international law because stateless vessels were not members of the international community, and that stateless vessels did not have the rights and privileges granted by international law. Id.
(3.) 711 F.3d 191 (1st Cir. 2013).
(4.) See U.S. Const., art. 1, [section] 8, cl.10 (granting Congress authority to define and punish piracies and felonies at sea); see also Nueci-Pena, 711 F.3d at 191 (articulating primary issue of case).
(5.) Id. at 199 (stating holding of First Circuit). To establish plain error, Nueci must show that: (1) an error occurred, (2) the error is plain, and (3) the error affects substantial rights. Id. at 197.
(6.) Id. at 192 (describing initial events leading to apprehension of Nueci). The ship attempted to avoid authorities on two occasions, but to no avail. Id.
(7.) See id. (portraying vessel as one of Colombian nationality).
(8.) Id. (detailing efforts by Coast Guard to confirm origin of ship).
(9.) See Nueci-Pena, 711 F.3d at 192 (finding copious amounts of narcotics on board vessel, subsequently leading to arrest).
(10.) See id. at 192-93 (listing criminal charges against all six defendants on board). The defendants were charged with two offenses each. Id. Count I consisted of aiding and abetting, and Count II consisted of conspiracy in the possession with intent to distribute five or more kilograms of cocaine and at least one or more kilograms of heroin. Id. at 193.
(11.) Id. at 193 (rejecting charges levied by federal government).
(12.) Id. at 193 (contesting assertion of jurisdiction by United States). As part of their motion, the suspects argued that the Coast Guard violated Article 12 of the Agreement Between the Government of the United States of America and the Government of the Republic of Colombia to Suppress Illicit Traffic by Sea, T.I.A.S. No. 12835 when it improperly opened fire on the criminal defendants. Id. In addition, the defendants also alleged that at the time of arrest, Nueci informed the government that his ship was Venezuelan, not Colombian. Id. The defendants alleged that FBI Special Agent Benjamin C. Walker stated in an affidavit that Nueci did in fact claim Venezuelan registry for the boat. Id.
(13.) Id. (treating United States' inquiry into Colombian government regarding nationality of ship as inconsequential).
(14.) See Nueci-Pena, 711 F.3d at 193 (suggesting failure to confirm registry with Venezuelan government precluded United States from claiming dominion over defendants).
(15.) Id. at 194 (examining response of United States government to defendants' motion to dismiss). To counter the claims made by defendants, the United States government revisited the events as they transpired. Id. at 193. The government alleged that Nueci, who presented himself as the person in charge of the vessel, told an officer of the Coast Guard that the boat was Colombian. Id. Directing attention to the "Certification for the Maritime Drug Law Enforcement Act Case Involving the Go-Fast Vessel (Without Nationality)," the government reported that the vessel had no markings or sign of nationality, did not display any registry numbers, a hailing port, or any national flag, nor did the boat have any documentation or registry papers at the time of the seizure. Id. The certification also showed that, in compliance with the "Operational Procedures for Boarding and Search of Vessel Suspected of Illicit Traffic by Sea Related to Narcotics and Psychotropic Substances," the Coast Guard appropriately contacted Colombia to verify the nationality of the boat, but got neither confirmation nor denial of Colombian nationality from its government. Id. As a result, the United States government regarded the vessel as one without nationality, or "stateless," and thus brought the ship under its jurisdiction. Id.
(16.) Id. at 194 (providing justification for seizure of vessel despite claims of defendants). To refute the allegation that the United States should have asked Venezuela and not Colombia whether the boat was registered there, the U.S. government said any confusion that arose regarding the nationality of the ship was the fault of the suspects. Id.
(17.) Id. (detailing United States' later communication with Venezuelan authorities to confirm vessel's lack of registry). The United States filed a supplemental response to the motion to dismiss supplied by the defendants. Id. It disclosed the Coast Guard's recent probe into the Venezuelan government to determine whether the ship was in fact of Venezuelan nationality. Id. Attached to its response, the government supplied the "Supplemental Certification For The Maritime Drug Law Enforcement Act Case Involving the Go-Fast Vessel (Without Nationality) Federal Drug Identification Number (FDIN)--2007987278," which was issued on January 15, 2008. Id. It not only described the contact made by the United States with Colombian authorities, but also detailed the fact that Nueci alleged the vessel to be of Venezuelan registry. Id. Following the guidelines set by Article 3 of the Agreement Between the Government of the United States of America and the Government of the Republic of Venezuela to Suppress Illicit Traffic in Narcotic Drugs and Psychotropic Substances by Sea, the U.S. Coast Guard checked with Venezuelan authorities to determine the origin of the boat, and Venezuelan officials could not confirm that it was not registered there. Id.
(18.) Id. at 195 (announcing intent to combat MDLEA violation charges on jurisdictional grounds). Days before the trial date set for September 17, 2008, four of Nueci's co-defendants pled guilty, after which the district judge accepted their pleas and sentenced them each. Id. However, co-defendant Mitchell-Hunter moved to supplement the previous motion to dismiss, arguing that the certifications regarding jurisdiction prepared by the Secretary of State's office, which said neither Colombia nor Venezuela objected to exercise of United States jurisdiction over the vessel, were testimonial hearsay. Id. He further alleged that their use in a pretrial jurisdiction determination without a chance for cross-examination was a violation of his Sixth Amendment rights. Id. A magistrate judge reviewed the motion and denied it, asserting that the right to confrontation was a trial right, and was not applicable to the pretrial jurisdiction determination. Id. Nueci later joined Mitchell-Hunter's filed objections to the magistrate's report and recommendation, which the district judge overruled, saying that the Confrontation Clause of the Sixth Amendment did not apply to pretrial proceedings. Id. Mitchell-Hunter subsequently changed his plea to guilty, leaving Nueci as the lone defendant to proceed to trial scheduled for June 11, 2010. Id.
(19.) See Nueci-Pena, 711 F.3d at 195 (declaring three jurisdictional challenges to indictment). The first issue was "the constitutionality of allowing certificates of proof of a statement of no objection," the second being "the constitutionality of having the jurisdictional issue decided by the court and of not having the jury decide an element of the crime." Id.
(20.) Id (arguing application of MDLEA without nexus requirement is constitutionally invalid). Nueci further argued that his contention with the MDLEA had to do with the provision that kept the government from having to show any nexus between the offense and the United States, due to the vessel being deemed stateless. Id.
(21.) Id. at 196 (concluding Nueci culpable of criminal activity overseas in contravention of MDLEA). Prior to the jury's verdict, the district court denied Nueci's motion for acquittal as well as his motion to dismiss. Id.
(22.) See id. (seeking reversal of conviction due to unconstitutionality of exercising MDLEA without nexus).
(23.) Id. at 197 (explaining approach utilized by First Circuit to assess defendant's claim). Nueci failed to preserve his constitutional challenge by failing to properly raise it in the district court. Id. Nueci's motion to dismiss for lack of jurisdiction before trial was not based on a challenge to Congress's authorities under the Piracies and Felonies clause to punish drug trafficking under the MDLEA. Id. Instead, it was based on Nueci's claim that he said the vessel was of Venezuelan, not Colombian registry, and since the United States had not (at the time) contacted Venezuela to confirm it, the United States never had jurisdiction over the vessel, and consequently, over the defendants. Id. The district court determined that Nueci never raised the constitutional argument to begin with. Id.
(24.) U.S. Const, art. I, [section] 8, cl. 10 (defining power of U.S. to regulate criminal activity overseas). See United States v. Suerte, 291 F.3d 366, 372-73 (5th Cir. 2002) (explaining intent of Framers of Constitution behind passage of Piracies and Felonies clause of Constitution). An examination of an early draft of the Constitution and its legislative history showed that the Framers were concerned about whether they should designate or define laws governing the high seas, but never questioned if the clause should reach extraterritorially. Id. at 372. Any doubt that the Framers intended to extend jurisdiction over the high seas was dispelled by the First Congress's passage of "An Act for the Punishment of Certain Crimes Against the United States" [hereinafter 1790 Act], which made murder or robbery on the high seas or by any person or persons an act of piracy punishable by death. Id. This Act, passed seven months after the Bill of Rights was proposed to the States, provided the first substantive definition of piracy. Id:, see also Charles R. Fritch, Note: Drug Smuggling on the High Seas: Using International Legal Principles To Establish Jurisdiction Over the Illicit Narcotics Trade And the Ninth Circuit's Unnecessary Nexus Requirement, 8 Wash. U. Global Stud. L. Rev. 701, 705 (2009) (reviewing history and impact of Piracies and Felonies Clause of Constitution).
(25.) See Andrew W. Anderson, Jurisdiction over Stateless Vessels on the High Seas: An Appraisal Under Domestic and International Law, 13 J. Mar. L. & Com. 323, 324 (1982) (expounding on creation of Drug Abuse Prevention and Control Act of 1970 and its impact). The act reorganized federal law in the area, and repealed all prior drug laws. Id.; see also The Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (1970) (codified at 21 U.S.C. [section] 801-996) [hereinafter 1970 Act] (highlighting penalties for trafficking overseas). See generally Sclafini, supra note 2, at 377 (explaining history of MDLEA).
(26.) See Sclafini, supra note 2, at 377 (discussing Haws within 1970 Act). While the Act prohibited the possession of narcotics on U.S. waters, it had a major loophole that was easily exploitable. Id. Drafters of the Act failed to criminalize possession of narcotics on the high seas unless there was evidence of a conspiracy or attempt to sell the narcotic on American soil. Id. See S. Rep. No. 96-855, at 1 (1979) (providing information on senate report on Drug Abuse Prevention and Control Act of 1970). As a result, the most effective way to prosecute defendants under the Act was to charge them with conspiracy to import narcotics into the United States. Id. See United States v. Postal, 58 F.2d 862, 865 (5th Cir. 1979) (upholding defendants' conviction of conspiring to transport marijuana into United States); see also M. Lawrence Noyer, Note, High Seas Narcotics Smuggling and Section 955(a) of Title 21: Overextension of the Protective Principle of International Jurisdiction, 50 Fordham L. Rev. 688, 703-04 (1982) (noting difficulties with existing substantive narcotics statutes). Federal prosecutors had to meet the difficult burden of proving intended territorial effects. Id.; see also S. Rep. No. 96-855, supra at 1-2 (describing obstacle posed by Act when attempting to prosecute criminals seized on ships). The Coast Guard could seize the vessel and the narcotics, but would be unable to prosecute the crew, due to difficulties posed by the Act. 1970 Act, supra; see also Marijuana on the High Seas Act, Pub. L. No. 96-350, [section][section] 1-4, 94 Stat. 1159 (1980) (codified at 21 U.S.C. [section] 955a (1984)) (listing provisions of MHSA). Included in the MHSA was an important addition that extended the jurisdiction of the United States to include stateless vessels. [section] 955a (d)(1). The MHSA gave federal authorities a way to go after foreign crewmembers aboard stateless vessels carrying narcotics anywhere on the high seas, when they intended to distribute the cargo in the United States. [section] 955a(a).
(27.) See Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. [section][section] 70502-70503(a)(1) (2011) (defining elements of statute). The act expressly provided that a "vessel without nationality" is "subject to the jurisdiction of the United States." 870502(c)(1)(A). It defines a "vessel without nationality" as including: (1) "a vessel aboard which the master or person in charge makes a claim of registry, which claim is denied by the flag nation whose registry is claimed" and (2) "any vessel aboard which the master ... fails upon request of an officer of the United States ..., to make a claim of nationality or registry for that vessel." [section] 70502 (d)(1)(A)(B). Furthermore, the Act subjects any vessel of foreign registry on the high seas to U.S. jurisdiction upon the flag-state's consent or waiver of an objection to enforcement jurisdiction. [section] 70502 (c)(1)(C); see Tousley, supra note 2, at 378 (articulating changes in enforcement of narcotics trafficking laws overseas); see also Sclafini, supra note 2, at 373 (expounding on numerous changes maritime laws underwent with enactment of MDLEA). Before the MDLEA was established, the MHSA had no provision that permitted the United States to obtain the flag nation's consent to assert jurisdiction over its ship, which created some jurisdictional problems in the courts. Sclafini, supra note 2, at 373; see also United States v. Gonzales, 776 F.2d 931, 935-36 (11th Cir. 1985) (exposing perplexities regarding jurisdictional authority caused by MHSA); United States v. Henriquez, 731 F.2d 131,135 (2d. Cir. 1984) (pointing to problems caused by jurisdictional uncertainty in MHSA).
(28.) See Sclafini, supra note 2, at 380 (describing inconsistencies in application of MDLEA). Among the international community, there are still questions as to whether the MDLEA is in accord with international law, putting its legitimacy at issue. Id.
(29.) See United States v. Angulo-Hernandez, 565 F.3d 2, 11 (1st Cir. 2009) (determining U.S. government not required to prove nexus between defendant's conduct and United States under MDLEA); see also United States v. Rendon, 354 F.3d 1320, 1325 (11th Cir. 2003) (determining stateless vessel subject to U.S. jurisdiction without nexus); Suerte, 291 F.3d at 375-76 (holding nexus between conduct and United States not required); but see United States v. Perlaza, 439 F.3d 1149, 1178 (9th Cir. 2006) (reversing criminal conviction due to failure to establish nexus between vessel and United States). See generally Ann Marie Brodarick, Note, High Seas, High Stakes: Jurisdiction over Stateless Vessels and an Excess of Congressional Power Under the Drug Trafficking Vessel Interdiction Act, 67 U. Miami L. Rev. 255, 260 (2012) (describing circuit split regarding nexus requirement of MDLEA). The Supreme Court has yet to rule on the issue of whether there must be a nexus between a foreign vessel on the high seas and the United States under the MDLEA for the U.S. courts to obtain jurisdiction. Id. There is currently a split on this issue within the circuit courts. Id.
(30.) See United States v. Angola, 514 F. Supp. 933 (S.D. Fla. 1981) (concluding nexus to be important consideration in exercising jurisdiction over stateless vessel). After a stateless vessel bearing a cargo of marijuana was interdicted near the United States, federal prosecutors sought to apply the MHSA to convict the foreign crew members. Id. at 934. The defendants moved to dismiss the indictment on the grounds that the assertion of subject matter jurisdiction on a stateless vessel violated the U.S. Constitution due to their acts not having any effect on the United States. Id. In rejecting the motion to dismiss, the court, applying the protective principle of international law, acknowledged the close proximity of the vessel to the U.S., and concluded that because the activity of the stateless vessel had an "inherent and necessary" effect by harming the United States with drug trafficking, the nexus was established. Id. at 936. See also Mary B. Neumayr, Maritime Drug Law Enforcement Act: An Analysis, 11 Hastings Int'l & Comp. L. Rev., 487, 496 (1988) (listing five basic principles recognized by international law used by nations asserting jurisdiction outside its borders). The protective principle of international law allows a nation to enact laws over foreign nationals who commit criminal acts outside the nation's border. Id. The conduct must interfere with the functioning of the government or threaten national security. Id. The justification for this principle is that the illegal conduct committed abroad offends the sovereignty of the country. Id. See generally Sclafini, supra note 2, at 380 (examining nexus requirement under MHSA).
(31.) 680 F.2d 255 (1st Cir. 1982) (finding impact of harm to United States was obvious despite conduct occurring outside United States).
(32.) See Smith, 680 F.2d at 257-58 (highlighting principles whereby sovereign may exercise prescriptive jurisdiction). The defendant, a U.S. citizen, claimed that Congress lacked the power to extend its jurisdiction over acts committed outside the territorial waters of the United States, or over foreign vessels. Id. at 257. The First Circuit rejected Smith's argument and held that "although the cause of the harm is outside the territorial jurisdiction of the United States, its impact within is clear." Id. at 258. The First Circuit's initial response to the stateless vessel question implicitly recognized a nexus requirement, utilizing the territorial principle of international law. Id.; see also United States v. Wright-Barker 784 F.2d 161, 170 (3d Cir. 1986) (upholding conviction due to sufficient nexus between criminal defendants and United States). The Coast Guard intercepted and arrested the ship and its crew in the North Atlantic. Id. at 165. At first, the court recognized Congress's intent to extend extraterritorial jurisdiction over crimes committed outside the United States. Id. at 166. However, the Third Circuit concluded that jurisdiction was restricted to an exercise that did not abridge constitutional provisions or the United States' international agreements. Id. Therefore the Third Circuit, joining the First Circuit, acknowledged that there must be a nexus between the illegal activity and the United States for an exercise of jurisdiction over foreign crew members to be in synch with international legal principles. Id. at 168. the intended effect of distributing 23 tons of marijuana would most certainly be harmful, and would merit federal law enforcement attention, enough to establish a nexus. Id. at 168-69. See generally Sclafini, supra note 2, at 387 (analyzing interpretation of nexus requirement prior to MDLEA). Unlike the majority of other circuits at the time, the Third Circuit recognized a nexus requirement. Id.
(33.) 679 F.2d 1373 (11th Cir. 1982) (introducing novel perspective on nexus requirement eventually becoming majority view among circuit courts).
(34.) See id., 619 F.2d at 1378 (adopting new rationale for requirement of nexus between United States and illegal conduct). After the Coast Guard intercepted a vessel carrying marijuana off the coast of Cuba, federal authorities indicted the crew for conspiracy to possess with intent to distribute, in violation of the MHSA. Id. The defendants sought to dismiss for lack of jurisdiction for failing to prove a nexus between the stateless ship and the United States. Id. In analyzing the legislative history of the MHSA, the court found that Congress intended to extend jurisdiction only as far as international law would allow. Id. After analysis of the accepted principles of international criminal jurisdiction, the court held there were no restrictions to the exercise of U.S. jurisdiction over stateless vessels. Id. at 1383.
(35.) See id. at 1383 (evincing drastic change in viewpoints on nexus requirement). Characterizing stateless ships as "international pariahs," the Eleventh Circuit stated that such ships did not have a right under international law to roam the seas. Id. at 1382. The Marino-Garcia court concluded that international law permitted any country to subject stateless vessels in international waters to its jurisdiction; thus, there does not need to be proof of a nexus between the nation seeking to assert jurisdiction and the ship because jurisdiction existed as a consequence of the vessel's status as stateless. Id. at 1383.
(36.) 720 F.2d 248 (2d Cir. 1983) (employing similar reasoning as court in Marino-Garcia to reject nexus restraint).
(37.) See id. (finding no nexus between ship and U.S. government needed to prosecute criminals in high seas). Colombian nationals were apprehended by the Coast Guard on the high seas near Massachusetts, travelling on a Venezuelan vessel with twenty tons of marijuana. Id. at 251. The defendants argued that (1) the vessel was not stateless and therefore not subject to U.S. jurisdiction under the MHSA and (2) even if it was stateless, the prosecution did not find a nexus between the ship and the United States. Id. at 256. The Second Circuit held that a finding of statelessness would be enough to establish jurisdiction over the defendants. Id. at 261.
(38.) See United States v. Howard Arias, 679 F.2d 363, 371-72 (4th Cir. 1982) (asserting brashest position taken by any circuit court). The defendant was one of several crewmembers of a ship that became disabled off the Virginia Coast. Id. at 365. After the crew abandoned the ship, the Coast Guard arrived, finding a large amount of marijuana on the boat. Id. The defendant's primary argument was that the prosecution did not establish a nexus between the vessel and the United States. Id. at 369. The Fourth Circuit brusquely held that the United States may violate international law principles to carry out the nation's policies. Id. at 371-72. See also United States v. Alvarez Mena, 765 F.2d 1259, 1263-64 (5th Cir. 1985) (rejecting claim of defendants which contended nexus between their ship and United States was required). The Coast Guard monitored a suspicious vessel that was heading towards Texas. Id. at 1261. Endeavoring to communicate with the vessel, the Coast Guard grew suspicious after the ship gave inconsistent responses about its Honduran registry and its plotted course. Id. at 1261-62. After a chase which ended in a collision in the Gulf of Mexico, the Coast Guard uncovered twenty tons of marijuana on the ship. Id. at 1262-63. The United States deemed the vessel stateless after the Honduran government rejected the vessel's registry. Id. at 1264 n.7. The defendants challenged the jurisdiction of the United States under MHSA, but the Fifth Circuit stated that there was nothing in the act that imposed a nexus requirement. Id. at 1264.
(39.) See United States v. Davis, 905 F.2d 245, 248 (9th Cir. 1990) (articulating Congressional authority to define and punish piracies on high seas through MDLEA); see also James A. Tate, Comment Eliminating The Nexus Obstacle To The Prospect of International Drug Traffickers On The High Seas, 77 U. Cin. L. Rev. 267, 273 (2008) (describing circuit split as to constitutionality of exercising jurisdiction without nexus). Though the First, Third, Fifth, and Eleventh Circuits have held that there is no reason to add a nexus requirement to the MDLEA, the Ninth Circuit does in fact call for a nexus requirement. Id. at 275.
(40.) 863 F.2d 1522 (11th Cir. 1989) (suggesting defendants' risk facing jurisdiction when home nation consents to or waives objections to U.S. prosecution).
(41.) See Mena, 863 F.2d at 1527 (disagreeing with defendants' due process challenge to MDLEA). In 1986, a Coast Guard ship apprehended the defendants on the Don Yeyo vessel in international waters east of the Bahamas. Id. at 1526. After finding thirty-five thousand pounds of marijuana on the ship, Coast Guard officers arrested the crew of the vessel. Id. After contacting Honduras and determining that the vessel was not stateless because it was registered there, the U.S. government obtained permission to enforce U.S. law against the defendants and bring them to trial under U.S. jurisdiction. Id. The defendants challenged the constitutionality of the exercise of jurisdiction without a meaningful relationship, or nexus, with the United States. Id. at 1527. To support their challenge, the defendants had to show that that Act would be invalid in any circumstance, which they failed to do. Id. The Eleventh Circuit rebutted their contention, arguing that ships embarking on voyages carrying illicit narcotics do so with awareness that their government may consent to the enforcement of the United States' laws against the vessel. Id.; see also United States v. Estupinan, 453 F.3d 1336, 1338 (11th Cir. 2006) (rejecting defendant's notion of MDLEA's implementation as unconstitutional for seemingly stateless boat apprehended by authorities). The Eleventh Circuit reiterated the view that congressional authority to define and punish piracy on the high seas emanated from the Piracies and Felonies Clause of the Constitution. Id. at 1338. Neither the Eleventh Circuit nor any other circuit imposed a strict nexus requirement upon the MDLEA, the court went on to mention. Id. It further added that Estupinan pointed to no case in which a court ruled that applying the MDLEA without a nexus requirement was unconstitutional. Id. at 1339.; see also United States v. Garcia, 182 F.App'x 873, 876 (11th Cir. 2006) (providing authority for United States to assert jurisdiction absent a nexus for conduct threatening national security); see also Debra Oakes, Annotation, 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, 8 (2012) (describing Estupinan). The defendant never contested the fact that the ship at issue, which had no indication of nationality, was subject to the jurisdiction to the United States as a stateless vessel. Id.
(42.) See United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999) (determining due process was satisfied). After seizing a Venezuelan vessel south of Puerto Rico filled with marijuana, the United States gained permission from the Venezuelan government to board the vessel. Id. at 551-52. The defendants argued that due process required the government to prove some connection between the alleged drug trafficking and U.S. territory. Id. at 552. The First Circuit decided a nexus was not needed to satisfy due process. Id. at 552-53. The court found that the consent of the flag nation got rid of international law concerns, and therefore due process did not require proof of a nexus between a defendant's criminal conduct and the United States in MDLEA prosecutions. Id. at 553. See also United States v. Cardales-Luna, 632 F.3d 731, 736 (1st Cir. 2011) (asserting jurisdiction over ship when Bolivian government waived objection enforcement of U.S. laws); Tate, supra note 39, at 278-79 (discussing First Circuit application of MDLEA).
(43.) See United States v. Victoria, 876 F.2d 1009, 1011 (1st Cir. 1989) (declaring stateless vessels on high seas risk subjection to jurisdiction of any nation). After intercepting a stateless boat filled with marijuana off the coast of Columbia, the Coast Guard indicted the crew and vessel for violating the MDLEA. Id. at 1010. The defendant argued that international law would not allow the United States to prosecute him for possessing marijuana so far from the United States and so close to Colombia. Id. The First Circuit promptly rejected their claim, saying the vessel's statelessness was enough to warrant U.S. jurisdiction, and proclaimed that as a matter of international law, the United States, or any nation, may prosecute drug offenders on stateless ships. Id. at 1010-11; see also United States v. Martinez-Hidalgo, 993 F.2d 1052,1056 (3rd Cir. 1993) (rejecting idea of nexus requirement for stateless vessels on high seas trafficking in narcotics). The Coast Guard discovered a stateless ship in Caribbean international waters whose crew was transporting cocaine to an unknown location. Id. at 1053-54. Martinez argued that the government failed to show that he intended for the drugs to reach the United States. Id. at 1055. The court held that because Colombia had disclaimed the registry of the vessel, it along with the drugs was subject to the jurisdiction of the United States as a vessel without nationality. Id. The court in Martinez-Hidalgo relied on the Victoria holding, which allowed the United States to prosecute drug offenders on stateless ships as a matter of international law. Id. at 1055-56. The Third Circuit rejected Martinez's claim, holding that the MDLEA could be applied to a vessel on the high seas without the establishment of a nexus between the defendant's actions and the United States. Id. at 1057; see also Oakes, supra note 41, at 4 (describing holding of Martinez-Hidalgo court). The court felt that, regardless of whether the final destination of the drugs was the United States, because Colombia failed to recognize the boat as its own, the vessel along with the narcotics found on it were deemed stateless and thus subject to United States jurisdiction. Id.
(44.) See Suerte, 291 F.3d at 372 (finding no need for individualized nexus for extraterritorial application of MDLEA). The captain of a freighter registered in Malta, a Philippine national was arrested by the Coast Guard off the northern coast of Venezuela. Id. at 367-68. Suerte was charged with conspiracy to possess cocaine with intent to distribute in violation of the MDLEA. Id. at 368. Suerte moved to dismiss for lack of jurisdiction, arguing that because his actions lacked a nexus with the United States, the Constitution did not allow the MDLEA to have extraterritorial effect over him. Id. The government argued that the Due Process Clause did not require a nexus for extraterritorial application of the MDLEA. Id. After analyzing the Piracies and Felonies clause, the Fifth Circuit agreed and concluded that the Fifth Amendment imposed no nexus requirement on the reach of statutes proscribing illegal conduct in international waters. Id. at 372-73; see also United States v. Matos-Luchi, 627 F.3d 1, 3 (1st Cir. 2010) (noting Congress's constitutional power under Piracies and Felonies clause to punish felonies on high seas); Michael E. Costa III, Extraterritorial Application of the Maritime Drug Law Enforcement Act in United States v. Suerte, 18 Temp. Int'l & Comp. L.J. 131, 137 (2004) (discussing due process analysis with respect to MDLEA application); Tate, supra note 39, at 279 (examining Fifth Circuit's analysis of MDLEA and nexus requirement).
(45.) See Tate., supra note 39, at 273 (examining division amount circuit courts pertaining to MDLEA and nexus condition). Though the First, Third, Fifth, and Eleventh circuits have not added a nexus requirement to the MDLEA, the Ninth Circuit has. Id.; see also Davis, 905 F.2d at 248-49 (9th Cir. 1990) (finding nexus constraint necessary for flagged ship). The Coast Guard encountered the British sailing vessel thirty-five miles from the coast of California. Id. at 247. After receiving permission to board the ship from the United Kingdom, the Coast Guard entered the boat and found bales of marijuana. Id. at 248. The court considered whether the application of the MDLEA to Davis's conduct violated due process. Id. It determined that in order to apply a federal criminal statute extraterritorially to a defendant and comply with due process, there must be an adequate nexus between the defendant and the United States. Id. at 248-49. Finding that a sufficient nexus existed between Davis's conduct and the United States, the Ninth Circuit held that applying the MDLEA did not violate the Constitution, and thus, the United States had jurisdiction. Id. at 249; see also United States v. Juda, 797 F.Supp. 774, 111 (N.D. Cal. 1992) (relying on Ninth Circuit precedent to require sufficient nexus between criminal conduct and United States); but see United States v. Juda, 46 F.3d 961, 967 (9th Cir. 1995) (holding application of MDLEA with no nexus not unfair or arbitrary for stateless ship); see also United States v. Caicedo, 47 F.3d 370, 372-73 (9th Cir. 1995) (deciding nexus requirement not needed for stateless ship). The Coast Guard captured six foreigners on a ship two hundred miles off the Nicaraguan coast. Id. at 371. Before getting on the boat, the defendants threw over two thousand pounds of cocaine into the ocean. Id. After recovering the drugs and boarding the ship, the United States discovered that it was not registered to any country or flying any flag. Id. The defendants, relying on the Davis ruling, argued that there needed to be a sufficient nexus between the conduct and the United States. Id. The Ninth Circuit rejected the argument, distinguishing Davis on the grounds that the vessel in that instance was registered, whereas in the current situation, Caicedo's vessel was stateless. Id. at 372. The court reasoned that as the nexus requirement from Davis was based on international principles applicable to foreign flagged vessels, the defendants' due process argument was baseless, and refused to extend the nexus requirement to a stateless vessel. Id. at 373. See also Jennifer J. Berthiaume, Comment, United States v. Juda: Fifth Amendment Due Process and Stateless Vessels on the High Seas, 73 B.U. L. Rev. 477, 497-98 (1993) (criticizing Northern District of California for performing strict Fifth Amendment due process analysis); Sclafini, supra note 2, at 391 (summarizing Ninth Circuit cases dealing with stateless and flagged vessels).
(46.) See Nueci-Pena, 711 F.3d at 196 (articulating issue of case).
(47.) See id. (explaining defendant's failure to raise constitutional argument at trial). The day before the trial, the defendant filed a motion for an "order deeming jurisdictional issues preserved." Id. One of the issues listed was "the constitutionality of being tried under [MDLEA] which criminalizes activities on the high seas with no requirement that the acts be directed towards the United States, and in particular, whether it is constitutional to exercise jurisdiction over a person in this manner." Id. When ordered to indicate when he had previously brought up this argument, the defendant instead filed an explanation that the Act is an unconstitutional exercise under the Piracies and Felonies Clause of the Constitution. Id. The district court judge concluded from this that Nueci had not raised this argument before. Id.
(48.) See id. at 196-97 (disagreeing with defendant's suggestion to call into question subject matter jurisdiction of court in analyzing MDLEA). Ignoring his failure to preserve his constitutional argument, Nueci appeared to suggest that if the MDLEA's lack of nexus requirement exceeds congressional authority under the Piracies and Felonies Clause of the Constitution, then the district court also lacked subject matter jurisdiction. Id. The First Circuit previously rejected the assertion that a constitutional challenge to the MLDEA necessarily involves the court's subject matter jurisdiction. Id. at 197; see also Cardales-Luna, 632 F.3d at 737 (refusing to consider issue of subject matter jurisdiction of court). "If a challenge to the constitutionality of an underlying criminal statute always implicated subject matter jurisdiction, then federal courts, having an obligation to address jurisdictional question sua sponte, would have to assure themselves of a statute's validity as a threshold matter in any case." Id. (quoting United States v. Baucum, 80 F.3d 539, 541 (D.C. Cir. 1996)).
(49.) See Nueci-Pena, 711 F.3d at 197 (describing plain error standard of review); see also supra note 5 (listing elements necessary to establish plain error).
(50.) See id. at 197 (illustrating discretion of court to notice forfeited error upon satisfaction of elements of review). If all three elements are satisfied, an appellate can use its authority to recognize a mistake, but only on the condition that the error significantly alters the veracity and evenhandedness of the trial. Id.
(51.) See id. (rejecting defendant's argument declaring Congress not allowed to enact MDLEA without requiring nexus). The MDLEA does not mandate a nexus between the criminal conduct and the United States, according to the Act. Id. The defendant argued that the Piracies and Felonies Clause did not authorize Congress to punish drug trafficking on the high seas under the MDLEA without requiring a nexus between the illegal activity and the United States. Id. The First Circuit decided not to give this claim any weight because even assuming that there was an error in Nueci's conviction under the MDLEA, the error did not rise to the level of plain error. Id. at 197-98.
(52.) See id. at 198 (reviewing language of Piracies and Felonies Clause of Constitution). After looking to the language of the Piracies and Felonies Clause of the Constitution, the court determined that the clause did not explicitly require that there be a connection between the criminal conduct and the United States before the U.S. government could punish the offender. Id. Furthermore, the First Circuit noted that in more than one instance, Congress has used "its constitutional power '[t]o define and punish Piracies and Felonies committed on the high seas'" by making illegal narcotics smuggling under the MDLEA. Id.; see also Matos-Luchi, 627 F.3d at 3 (recognizing congressional authority to regulate crimes on seas by way of Piracies and Felonies Clause).
(53.) See id. at 198 (noting similar conclusions reached by other circuit courts with regard to nexus requirement issue). The Third and Fifth Circuits have similarly observed that Congress derived its authority to enact the MDLEA from the Piracies and Felonies Clause. Id. While cases in those circuits did not inspect in great depth the extent of Congress's authority to enact the MDLEA, the Eleventh Circuit has addressed the specific argument raised by Nueci, namely that the Constitution does not authorize an enactment of the MDLEA without a nexus requirement, and rejected it. Id.
(54.) See id. (pointing to defendant's inability to direct court to any precedent cases sharing his view). Additionally, the First Circuit was likewise unaware of any such case. Id.
(55.) See id. (concluding no jurisdictional error under MDLEA related to defendant's conviction). Given the view of the other circuit courts that the MDLEA is a constitutional exercise of Congress's power under the Piracies and Felonies Clause of the Constitution, combined with the absence of any Supreme Court precedent addressing the scope of that power, the First Circuit found that there was no jurisdictional error related to Nueci's conviction. Id. Even if there had been a mistake related to his conviction, it would not have signified plain error. Id.
(56.) See Berthiaume, supra note 45, at 497 (describing effect of congress's enactment of MDLEA). The statute says, in essence, that Congress has the authority to declare that narcotics trafficking overseas is an international problem of immense proportions, and one that is denounced worldwide. Id.
(57.) See Nueci-Pena, 711 F.3d at 198 (finding no error in upholding conviction without nexus requirement); Costa, supra note 44, at 153 (justifying court decisions abandoning nexus requirement). The distribution of illegal narcotics is an international endemic; individuals who engage in such activities are taking part in an endeavor that is condemned worldwide, so decisions doing away with a nexus requirement promote good public policy. See Costa, supra note 44.
(58.) See Nueci-Pena, 711 F.3d at 198 (noting MDLEA in relation to language of Piracies and Felonies Clause of Constitution). The Constitution gave Congress sole discretion to delineate any and all types of activities that constituted piracies and felonies in international water, and the power to punish such acts as seen fit. Id. In making drug trafficking unlawful on the high seas under the MDLEA without a nexus requirement, Congress exercised its constitutional authority according to the language of the Clause. Id.; see also Costa, supra note 44, at 152 (articulating practical result of rejecting nexus requirement when prosecuting crimes overseas).
(59.) See Fritch, supra note 24, at 716 (explaining rationale behind not requiring nexus); see also Berthiaume, supra note 45, at 479-80 (listing jurisdictional principles of international law). Courts usually rely on five general jurisdictional principles of international law to guide their analysis regarding defendants arrested on ships captured in international waters. See Berthiaume, supra note 45, at 479-80 These principles include: the protective principle, the nationality principle, the territoriality principle, the passive personality principle, and universal jurisdiction. Id. at 479. The protective principle gives a country permission to prosecute certain crimes that occur outside its territory on the condition that the criminal activity either severely hinders governmental functions or threatens national security. Id. at 480. Courts in the United States can invoke this principle as a jurisdictional basis. Crimes such as espionage, counterfeiting, falsifying official documents, or drug trafficking are subject to jurisdiction under the protective principle. Id. The territoriality principle of international law gives a country jurisdiction over crimes that happen within its borders, and over the status of defendants that are present within its territory. Id. The effects principle is a subcategory of the territorial principle; this gives a nation the power to assert jurisdiction over conduct that happens outside of the country's borders, but has a significant impact within its territory. Id. The territorial principle is used the most by countries looking to assert extraterritorial jurisdiction. Id. An act becomes subject to universal jurisdiction due to the universal condemnation of the activity and the common interest in attempting to stifle it. Id. at 481.
(60.) See Fritch, supra note 24, at 716 (highlighting hardships associated with having nexus requirement). Demanding a nexus requirement between criminal defendants and the United States also makes it hard for the government to satisfy its obligations under the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Id. at 717.
(61.) See Costa, supra note 44, at 153 (detailing effects of international law principles on cases dealing with nexus requirement); Tate, supra note 39, at 290 (illustrating how international law supports abandoning nexus restraint). Conventional jurisdictional principles, along with the treatment of drug trafficking under international law greatly support the prosecution of defendants without a nexus under the MDLEA in U.S. courts. Tate, supra note 39, at 290. Congressional intent in passing the MDLEA, along with international agreements evinces considerable interest in trying to put an end to narcotics smuggling worldwide, providing further reason to abandon the nexus mandate. Id.
(62.) See Berthiaume, supra note 45, at 491 (denouncing Juda court's rationale and its rejection of consensus of other circuits regarding nexus requirement). The Juda court determined that cases which found that no nexus was required for stateless ships only considered international law implications, while disregarding constitutional principles. Id at 491-92. See generally Juda, 797 F.Supp. at 778 (dismissing notion of exercise of jurisdiction without nexus for defendants on nationless ship). The court in Juda stated that "even if stateless vessels are ones as to which the United States owes no obligations to another country, that does not mean that persons on those vessels do not have the protection of the constitution in a prosecution by the United States." Id. However, precedent case law tends to indicate that international law considerations alone were not the sole basis of such findings; courts took constitutional principles into consideration as well when determining that no nexus was needed. Berthiaume, supra at 491-92.
(63.) See Costa, supra note 44, at 146 (illustrating policy reasons behind applying MDLEA without nexus mandate); see also Suerte, 291 F.3d at 376-77 (describing Act as constrained application of Congress's constitutional authority). Because of its limited application, rejection of any nexus requirement under the MDLEA will not culminate in the "unrestrained, global law enforcement by the United States." Id. at 376. Administering the MDLEA in this way is neither arbitrary nor unfair. Id. at 377.
(64.) See Marino-Garcia, 679 F.2d at 1382 (providing jurisdictional analysis for stateless vessels).
(65.) See Berthiaume, supra note 45, at 492 (discussing stateless vessels and jurisdictional analysis); see also United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d. Cir. 1983) (analyzing Second Circuit's consideration of due process relative to defendants on stateless vessels). The Second Circuit in Pinto-Mejia acknowledged the Fifth Amendment's limitation on jurisdictional exercise, saying in essence that courts had to follow congressional direction, unless such a move would violate due process. Id. at 259. When the court determined that the ship the defendants were on had no nationality, it concluded that it was sufficient enough to establish jurisdiction over the criminals, thereby indirectly incorporating constitutional due process analysis in coming to its conclusion. Id. at 261.
(66.) See Garcia, 182 F.App'x at 876 (11th Cir. 2006) (reaffirming international condemnation of drug smuggling overseas). Exercising jurisdiction under the protective principle of international law needs no proof of an intended effect on U.S. soil, as long as the conduct is capable of causing harm, and is recognized as a crime among developed countries. Id. Congress passed the Act because drug trafficking overseas posed a threat to the security and well being of the United States. Id. at 877; see also Tate, supra note 39, at 276 (analyzing court's decision in Mena). Narcotics trafficking is illegal worldwide; as such it is an important factor to consider in figuring out whether a nexus should be required under international law and due process. Id.
(67.) See Mena, 863 F.2d at 1528 (recognizing prospect of prosecution in United States criminals face when trafficking in drugs overseas). The prohibited activity was unequivocally expressed in the statute, and the defendants bore the risk that Honduras may consent to U.S. law, satisfying due process. Id.; see also Suerte, 291 F.3d at 377 (addressing due process reservations regarding MDLEA application). Individuals trafficking in narcotics are subject to the MDLEA's reach and are thus on notice. Id. Due to the illicitness of narcotics trafficking worldwide, those who decide to engage in drug smuggling in international waters must be prepared to face punishment under U.S. law if their flag nation consents. Id. In running the risk of their home nation submitting to the application of American law, the MDLEA meets due process requirements. Id. See generally Costa, supra note 44, at 152-53 (reviewing court's MDLEA due process analysis in Suerte).
(68.) See Fritch, supra note 24, at 716 (noting Ninth Circuit's failure to adopt majority view). Every other circuit court dealing with the nexus mandate issue has abandoned it. Id. The Third Circuit believes that when flag nation accedes to U.S. law, the defendants have notice, satisfying due process requirements and thus deeming jurisdiction appropriate. Id at 716-17. The Fifth Circuit has applied the same rationale, but has also determined that Congress's explicit power under the Piracies and Felonies Clause provides enough constitutional authority for the application of the MDLEA without a nexus. Id at 717; see also supra notes 41, 67 and accompanying text (finding exercise of MDLEA without nexus satisfies due process in 11th Circuit).
(69.) See Tate, supra note 39, at 288-89 (arguing for elimination of nexus requirement in Ninth Circuit); see also Berthiaume, supra note 45, at 499 (suggesting Ninth Circuit's nexus requirement impairs United States' ability to combat drug trafficking overseas). Courts that apply a nexus requisite to narcotics trafficking crimes on the high seas reject well-established federal extraterritoriality jurisdictional analysis. Berthiaume, supra note 45, at 499. The historical, consistent acceptance of traditional jurisdictional analysis coupled with the explicit language of the Constitution supports the eradication of any nexus obligation. Id. A nexus mandate would reduce the efficacy of international law principles in extraterritoriality cases. Id.
(70.) See Juda, 46 F.3d at 966-67 (pointing to Ninth Circuit's abandonment of nexus constraint for stateless ships). The Ninth Circuit Court of Appeals does not believe a nexus is constitutionally required in order to assert jurisdiction over a stateless ship, nor has it ever held as such. Id. Following international law principles, it maintains that all countries have the right to assert jurisdiction against unmarked, unregistered ships, and that jurisdiction extends to the individuals on board. Id. at 967; see also Tate, supra note 39, at 294 (advocating for abandonment of nexus for registered ships). Flagged vessels pose as much of a threat to a nation's security as do stateless boats, and the United States is best prepared to impose international prohibitions against drug smuggling on the western hemisphere; if the United States does not take an active role in combating this nemesis, drug smugglers will occupy floating sanctuaries, regardless of whether they are on stateless or registered boats. See Tate, supra note 39, at 294.
(71.) See id. (analyzing distinction between stateless and registered vessels in Ninth Circuit).
(72.) See Caicedo, 47 F.3d at 373 (comparing drug smugglers on stateless ships to those on registered boats). Drug dealers on flagged boats are very much the international pariahs that criminals on stateless boats are. Id. at 372; see also Tate, supra note 39, at 296 (suggesting Ninth Circuit take analogous approach to treating registered vessels as it takes with stateless ships). Because traffickers on registered boats take part in an international criminal enterprise, knowing that they run the risk of their home nation waiving any objection to U.S. laws, they have no better prospect of avoiding prosecution by the American government than do criminals on ships with no nationality. See Tate, supra note 39, at 296.
(73.) See id., at 292 (considering ways for Ninth Circuit to apply rationalizations of other courts to eliminate nexus requirement). The Fifth and First Circuits both apply the territorial principle to support an application of the MDLEA without a nexus between the criminal conduct and the United States. Id.; see also Cardales, 168 F.3d at 553 (reviewing First Circuit's interpretation of nexus requirement); supra note 67 (expanding on justification used by Fifth Circuit to get rid of nexus requirement). The MDLEA's congruity with international law is enough to satisfy due process when dealing with registered ships. Id. In the First Circuit, international law jurisdictional limitations are resolved when the flag nation gives the United States the green light to prosecute its criminals. Id. The Third Circuit concludes that it would be unfair to prosecute certain conduct without a nexus if such conduct was not universally condemned. See Martinez-Hidalgo, 993 F.2d at 1056 (discussing justification used by Third Circuit to eradicate nexus constraint). But given that drug trafficking is denounced worldwide, that is not an issue. Id.; see also Tate, supra at 293 (examining reasoning of 11th Circuit in circumventing nexus mandate). The Eleventh Circuit uses the notion of universality, but also incorporates the protective principle to prosecute criminals without a nexus. Id. Its rationale is that universal condemnation of drug trafficking gives defendants notice of the illegal conduct, and the possibility of the flag nation consenting gives notice of potential prosecution in the United States. Id.
(74.) See supra note 4 and accompanying text (reiterating issue of case).
(75.) See supra note 5 and accompanying text (providing First Circuit's holding); see supra note 68 and accompanying text (recognizing majority of courts reject nexus except for Ninth Circuit).
(76.) See supra note 52 and accompanying text (pointing to language of Piracies and Felonies Clause in support of eliminating nexus).
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|Publication:||Suffolk Transnational Law Review|
|Date:||Jan 1, 2014|
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