The Maritime Drug Law Enforcement Act, 46 U.S.C. 70501 et seq. (MDLEA), is a little-known statute with a potentially very broad reach. It allows the United States to prosecute drug crimes committed by foreign nationals on the high seas, even where the person has no demonstrable connection to the United States and regardless of whether the drugs are destined for any American territory. The statute uses a concept from international law known as Universal Jurisdiction (UJ), which allows a country to prosecute certain international crimes even without a connection to the prosecuting country.
Although some defendants have unsuccessfully challenged the MDLEA on due process grounds (the Fifth Amendment requires no nexus to the U.S.), there remains the question of whether the Congress has Article I power to reach a foreign national on the high seas with no meaningful U.S. connection. Congress has power to “define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” But it is not clear that international drug trafficking, without more, fits this grant of power. For an excellent overview and criticism of the reach of the statute, see Eugene Kontorovich, “Beyond the Article I Horizon: Congress’s Enumerated Powers and Universal Jurisdiction Over Drug Crimes,” 93 Minn. L. Rev. 1191 (2009).
Last week, the United States Court of Appeals for the First Circuit rejected a challenge to the MDLEA in United States v. Diaz-Doncel. Diaz-Doncel was on the crew of a cigarette boat traveling in the Caribbean. A United States Coast Guard cutter ordered it to heave to (to slow or stop), but the boat continued on its way and a chase ensued. The boat was eventually intercepted by a Dutch war ship with USCG personnel aboard. Diaz was indicted for conspiracy to possess, and aiding and abetting possession of, cocaine on a vessel subject to the jurisdiction of the United States. A third count included aiding and abetting failure to heave to (yes, that’s a federal crime, see 18 U.S.C. 2237). Diaz-Doncel challenged the constitutionality of MDLEA.
Problem is, Diaz-Doncel pleaded guilty but did not negotiate a conditional plea, which would have allowed him to raise certain issues on appeal. Instead, by entering a straight guilty plea, the First Circuit held, he forfeited the MDLEA claim. Diaz-Doncel said the claim is jurisdictional and can be raised at any time. The First Circuit said no, it cannot. Under circuit precedent, a constitutional challenge to MDLEA does not go to the subject matter jurisdiction of the court, and therefore cannot be raised for the first time on appeal from a straight guilty plea.
In dissent, Judge Torruella disagreed. He argued not only that the claim was an attack on the subject matter jurisdiction of the court, and therefore could be reviewed on appeal, but he also cited his dissenting opinion in United States v. Cardales-Luna, 632 F.3d 731 (1st Cir. 2011). In that case, he specifically argued that MDLEA was unconstitutional, exceeding the scope of Congress’s Article I powers. Drawing substantially on Professor Kontorovich’s work, Judge Torruella argued that piracy, slave trading, and stateless vessels were the only acts for which UJ existed.
Like Professor Kontorovich, Judge Torruella found two early Supreme Court cases significant: United States v. Palmer (1818) and United States v. Furlong (1820). Each case, he argued, limited Congress’s UJ powers to piracies, but forbid Congress from “attaching the jurisdictional consequences of UJ to run of the mill ‘felonies.'” Id. at 745. Drug trafficking is simply not the equivalent of piracy and is not universally condemned by international criminal law. Therefore, neither the Define and Punish Clause nor the Offenses Clause permit Congress to grant jurisdiction over a person with no nexus to the United States, unless his or her conducts falls into one of those narrow criminal categories that UJ covers.
A remaining question – and one that Judge Torruella addressed – is whether the MDLEA is justified as implementing an international agreement pursuant to the Necessary and Proper Clause. That is, is the law necessary and proper to carrying into execution a treaty to which the United States is a signatory? The Supreme Court has permitted this, see Missouri v. Holland, but Judge Torruella questioned whether MDLEA was actually meant as treaty implementation. And the Foreign Commerce Clause is a non-starter because it requires a U.S. nexus.
The lesson here for litigators: there is some potential in a constitutional challenge to MDLEA. Make sure you preserve your right to raise it on appeal. The lesson for Congress: take another look at MDLEA and the constitutional basis for it in cases where there is no nexus to this country.