Drug prosecutions in the Trump Administration

At one of this week’s White House press briefings, Sean Spicer spent considerable time (clearly more than he wished) discussing the President’s approach to federal drug policy.  This is one of the areas that I had previously flagged as representing a potentially meaningful departure from Obama Administration policy at the Justice Department.  Spicer’s briefing appeared to signal that this Administration would take a more aggressive approach to drug crime than its predecessor.  But that remains unclear.

Indeed, Spicer’s briefing may have created more new questions than it answered, which has become a rather predictable consequence of his briefings.  Notably, Spicer discussed an obscure appropriations rider (which I previously discussed here) that defunds federal prosecutions for drug offenses in states with liberal medicinal marijuana laws.  He distinguished — on no fewer than three occasions — recreational use from medicinal use, saying, with respect to federal drug enforcement relating to recreational use, “I do think you’ll see greater enforcement of it.”  Presumably, in context, he means greater enforcement of the Controlled Substances Act where the use is recreational.  Strangely, he subsequently tried to walk that statement back, instead referring the issue to the DOJ.

But the question now arises: will the Sessions DOJ more aggressively prosecute CSA offenses?  Will the Sessions DOJ reverse the Holder Memo from August 2013 that directed federal prosecutors not to allege drug quantities that trigger mandatory minimums if certain criteria are met?  That was a major pronouncement from Main Justice, and will have a meaningful effect on the way federal prosecutors treat drug crimes.  Yet the Administration has thus far been silent, and Spicer’s briefing did not help to clarify that matter.

Moreover, the rider to which he alluded does not cover every jurisdiction, because not every jurisdiction has liberal medical marijuana laws.  And it only applies where the defendant is in compliance with all of the State’s marijuana use laws.  This means that, potentially, a defendant who is in violation of the CSA, but who is using the marijuana for medicinal purposes in a state that is not covered by the rider (say, for example, West Virginia), could still be subject to prosecution.  Spicer did not seem to appreciate this scenario, and it raises the question: will the Administration prosecute those defendants?  If so, does that not obliterate the distinction between medicinal use and recreational use that Spicer had drawn?  Also, the rider is of limited duration; Congress could change it at any time.  What will the Administration’s position be on continuing the policy adopted by the rider?  Spicer did not say, but his distinction between recreational use and medicinal use would suggest that the Administration wants the rider to exist indefinitely.  Does Jeff Sessions?

Finally, Spicer was asked repeatedly about the Administration’s decision to reverse the Obama Administration’s interpretation of Title IX with respect to transgender bathroom access.  Spicer referred to this as a “states’ rights” issue (it is not, though that is a subject for another day), and said “we are a state’s rights party.”  I have said before that the use of the term “states’ rights” is constitutionally unsound, in my view, and that conservatives should not use it (“federalism” is a far better term, and is more accurate).  But if Spicer is correct that the Administration is committed to federalism, what, then, does that mean for federal drug law generally?  Of course, the CSA was upheld against a Commerce Clause challenge in Gonzales v. Raich, but two notable conservatives – Chief Justice Rehnquist and Justice Thomas – dissented in that case, as did Justice O’Connor (a notable defender of federalism and of state interests).  Why is drug law not a “states’ rights issue,” too?  By making the transgender bathroom issue one of federalism, Spicer has opened the door to questions about whether the Trump Administration is committed to federalism across subject matter, or whether its approach to Title IX is a kind of fair-weather federalism.

Sure, the appropriations rider is a federalism-protection measure.  But reference to the rider alone tells us nothing about the Administration’s view more broadly concerning the role of the federal government in making and enforcing criminal drug laws.  Perhaps more notably, Spicer’s responses raised this question: if federalism demands respecting the states that have chosen to make medicinal use legal, why does federalism not demand respecting those states that have chosen to make recreational use legal?  In other words, even if we grant the difference between recreational and medicinal use, does a true commitment to federalism require respect for state decisions as to both?

I’m no fan of more liberal drug laws.  There must be a robust drug policy regime that takes a variety of approaches — including, but not limited to, prosecutorial ones — to the range of drug problems in this country.  Spicer, of course, cannot be expected to answer at one briefing every question regarding the President’s views on these various problems.  But this Administration needs a coherent approach to both drug policy and constitutional federalism. And right now it has neither.



Ninth Circuit: Feds cannot prosecute CSA violators in medical marijuana States, sort of, for now

The United States Court of Appeals for the Ninth Circuit issued a significant ruling on the criminal enforcement of federal drug law yesterday.  In United States v. McIntosh (here), the court held that, where a defendant is fully compliant with the laws of a designated medical marijuana state, the Justice Department cannot engage in a federal prosecution of that defendant under the Controlled Substances Act.  The key limitation on the ruling for marijuana growers and dispensers, however, is that they must be in compliance with state law.

The case involves the consolidation of multiple federal prosecutions under the CSA.  According to the Ninth Circuit, in one case (McIntosh), the co-defendants were accused of running businesses in Los Angeles that dispense marijuana.  The Government also accused them of managing indoor grow sites in L.A. and San Francisco.  In another California-based prosecution (Lovan), federal and county law enforcement agents allegedly found more than 30,000 marijuana plants while executing a federal search warrant.  In a third prosecution (Kynaston), the Government alleged that, in the course of executing a warrant under Washington state law, investigators found over 1,100 marijuana plants (some growing, some, the court observed, with “root structures of suspected harvested marijuana plants”).  In each case, the defendants were indicted on federal criminal charges under the CSA.  The Kynaston case also involved charges under federal gun laws.

Although many States have moved in the direction of liberalizing their own drug laws, the federal government has not.  It remains a federal crime to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance – among them, marijuana (still a Schedule I controlled substance).  See 21 U.S.C. 841(a).  But in 2014, and again during the appropriations battles in 2015, Congress passed an appropriations provision which says that in certain states (including California and Washington), the Justice Department may not spend any funds to prevent these states from implementing their own laws respecting medical marijuana.  See Section 542 of the Consolidated Appropriations Act of 2016.  So, the defendants in these cases sought to dismiss their indictments and obtain mandamus relief from the Ninth Circuit, alleging that the DOJ’s prosecution of them violated section 542 and that any effort by the DOJ to spend funds on such a federal prosecution would violate the separation of powers (by violating the Appropriations Clause, i.e., the executive spending money not appropriated by Congress).

The court agreed.  But the decision was not as sweeping as it might have been (or as some might think that it is).  This decision does not categorically forbid federal drug prosecutions involving marijuana.  Rather, the court interpreted section 542 to forbid DOJ from preventing the implementation of specific state law rules regarding the “use, distribution, possession, or cultivation of medical marijuana.”  But DOJ has the power to prosecute private individuals who violate the CSA and who are engaged in conduct not authorized by state law.

Moreover, as the court explained, not only is the text of the legislation subject to a limited interpretation, the rider itself has a temporal limit.  The court rightly noted that Congress could alter the existing rider by repealing it and appropriating funds to the DOJ.  Or, as the court said, Congress could enact a similar rider in future appropriations legislation (this legislation is good only for FY 2016, so it expires at the end of September – unless renewed, DOJ could then proceed with any prosecution not otherwise barred by law or the statute of limitations).  Moreover, the text of the rider applies only to States with respect to medical marijuana.  The legislation does nothing to prevent the DOJ from prosecuting those persons who violate the CSA in states that are not among those listed (say, West Virginia or North Carolina or South Dakota).

Still, there is an interesting separation of powers argument here that was not included in the court’s discussion, and perhaps was not even raised by DOJ: can Congress use its spending and appropriations powers in a way that interferes with the authority of the executive branch to carry out its constitutional function of taking care that the laws be faithfully executed?

To be sure, the spending power is among Congress’s most important weapons for setting national policy and forcing State compliance with Congress’s will.  But this law is different than a garden-variety conditional spending bill: it actually protects the states against another branch of the federal government, the executive.   One of the recognized limits on the spending power is that Congress cannot condition spending in way that compels states to violate some other constitutional provision (i.e., an independent constitutional bar, see South Dakota v. Dole).  But again, the instant legislation is different: the issue is whether the “independent constitutional bar” limitation includes the constitutional powers given exclusively to another branch of the federal government.

Congress was not saying here that the CSA was no longer a “law” that the executive has a duty to enforce.  Nor did Congress say that the CSA was unconstitutional, and we know that the Supreme Court has upheld Congress’s power to enact the CSA and permit its enforcement even in states with more liberal state drug laws.  See Gonzales v. Raich.  Congress simply said that, in these states, the executive cannot spend funds in a way that prevents these States from implementing their laws (which, practically, forbids federal prosecution).  And Congress has appropriated money for criminal prosecutions generally, just not for these.  So is the executive’s power to enforce the law a constitutional bar to Congress’s use of the spending power to prevent the use of federal funds for a particular kind of prosecution?  In other words, can Congress use the spending power to limit prosecutorial discretion?

I suspect most would say that the spending power extends to this kind of limit on executive power; in other words, this kind of law is a valid exercise of Article I power.  But I detect a separation of powers issue here that might be worth exploring further.



From Ocasio to McDonnell: Is the existing Hobbs Act more trouble than it is worth?

Samuel Ocasio and other members of the Baltimore Police Department had an agreement with two brothers who owned a local repair shop.  In exchange for money, Ocasio and the officers would persuade people with damaged cars to take their vehicles to the shop.  This, of course, was designed to increase the brothers’ business – and it did.  By 2011, about 90% of the shop’s business resulted from the kickback scheme.  Ocasio was convicted in federal court of violating, and conspiracy to violate, the Hobbs Act, based on the theory that he conspired to obtain money from the brothers under color of official right.  But who were the victims of Ocasio’s extortion?  The brothers.  With whom did he conspire?  The brothers (there is no evidence that he conspired with anyone else).  Can the co-conspirators also be the victims?  Can you conspire with someone to extort them?

Ocasio took his case to the Supreme Court, and said the Government’s theory is contrary to the statute.  According to Ocasio, when the Hobbs Act speaks of obtaining property “from another,” it is referring to someone outside of the conspiracy.  The Supreme Court today disagreed, upholding the Hobbs Act convictions in Ocasio v. United States.

Hobbs Act extortion conspiracy (and, after today, general federal conspiracy using official-right extortion as the target offense) requires that someone conspire to obtain property from another with the other’s consent and under color of official right.  The Court held that the Government does not have to show that every co-conspirator would personally commit the underlying target offense.  Rather, it is enough if there is agreement that someone in the conspiracy commit the target offense.  The brothers could not possibly commit the underlying offense – they are not public officials, and thus do not act under color of official right.  But they certainly agreed that Ocasio would obtain property from them.  So because Ocasio had a common objective with the brothers, and he acted under color of official right, the conspiracy conviction was appropriate.

Another issue that arose in Ocasio was the meaning of a 1992 case, Evans v. United States, and the scope of the Hobbs Act’s extortion provision.  Justice Breyer wrote a concurring opinion to say that he possibly disagreed with the holding in Evans – which said that Hobbs Act extortion is the “rough equivalent” of bribery – but would not vote to reexamine Evans here because that argument had not been made.

Justice Thomas was not so restrained.  In his dissent in Ocasio, Thomas reiterated a point that he made in his Evans dissent: that extortion is not the equivalent of bribery.  Thomas also explained in detail his views about the differences between official-right extortion and bribery, and argued that the Court’s opinion has now compounded Evans’ mistake by importing the Evans misunderstanding into federal conspiracy law.  Moreover, the effort to conflate extortion and bribery has serious ramifications for federalism and for the patchwork of public corruption laws that exist at the federal and state level.  The practical effect is this, and it is noticeable by anyone who follows federal public corruption prosecutions: expanding the reach of the Hobbs Act has made it easier to prosecute state and local elected officials for corruption.  The federal bribery statute only reaches federal officials, so another mechanism is necessary, and the Hobbs Act has filled that void (as has the honest services fraud statute).  This, Thomas argued, interferes with the power of state governments to police the conduct of their own officials (think Bob McDonnell, and the differences between how Virginia law viewed his conduct and how it was viewed by federal prosecutors).

The overlap with McDonnell is striking, particularly in the Thomas dissent.  I would be surprised, based on Ocasio, if Thomas did not vote to overturn Governor McDonnell’s convictions, at least under the Hobbs Act.  I also expect that Justice Breyer can now be counted among those who are likely to vote for Governor McDonnell’s side – I already suspected that in listening to Justice Breyer’s concerns during the McDonnell oral argument, but now after Ocasio, I am even more clearly persuaded that Justice Breyer harbors very serious concerns about the scope of federal prosecutorial power in public corruption cases.  The harder question, in my mind now, is whether Justice Alito’s and Justice Kagan’s pro-prosecution positions in Ocasio foreshadows a pro-prosecution position in McDonnell.  If so, a 4-4 split is not out of the question.

Another issue that Ocasio implicates is whether the Hobbs Act is, like other federal statutes that have occupied the Court’s time in recent years (see, e.g., ACCA), becoming too problematic to leave untouched.  This is not to say that it is unconstitutional on its face, though I have expressed some concerns about the jurisdictional element in robbery cases (still, Taylor may gives us some guidance on that matter).  Nor is this to say that this is a problem exclusively for the Court to resolve.  It is, rather, to say that this has become a problem for Congress.  And in the contemporary criminal justice reform environment, if Congress were looking to a specific statute as an example of a federal law that gives massive power to federal prosecutors and has potentially been extended beyond its proper reach, Congress could do far worse than to take a close look at the Hobbs Act.


Today’s argument in McDonnell

This morning the Court heard arguments in McDonnell v. United States, one of the most anticipated cases of the Supreme Court’s Term and its last to be argued this spring.  I have posted on McDonnell previously (here) in anticipation of the argument.  The argument transcript is here, and it is well worth a read, particularly for those out there who are involved in, or have an interest in, white collar/public corruption prosecution and defense.

I will have more to say about this very important case in the coming days and weeks.  SCOTUSBlog’s argument recap is here.  It is written by Mark Walsh, who notes several fun facts from the courtroom today.

First, Governor McDonnell was actually in the courtroom today.  How many criminal defendants actually attend the Supreme Court oral argument in their case?

Second, Solicitor General Verrilli introduced his wife today for admission to the Bar of the Court.  It is customary when being admitted to the Supreme Court Bar that the person moving your admission assures the Court that you possess the necessary qualifications.  Walsh notes the laughter in the courtroom as Verrilli gives those assurances about his wife.

Finally, this was the 100th oral argument for Deputy Solicitor General Michael Dreeben (with whom I had the privilege of interacting a couple of times on appellate issues while I was at Justice).  Walsh notes that Dreeben’s first argument before the Court was in 1989 in United States v. Halper.  His opposing counsel in that case: John Roberts.

UPDATE:  SCOTUSBlog has collected a variety of news accounts concerning the McDonnell argument (here) and has a new argument recap up by Lyle Denniston (here).  There seems to be a consensus emerging that McDonnell has a real shot at a new trial, at the very least.

Taylor v. United States and the Commerce Clause

On Tuesday, the Supreme Court hears oral argument in the case of David Anthony Taylor, who was part of the “Southwest Goonz,” a Roanoke-Virginia based robbery ring that targeted drug dealers.  On August 27, 2009, Taylor and the gang’s leader (George Fitzgerald) robbed the home of Josh Whorley, who was known to sell high-grade marijuana.  During the crime, Taylor struck Whorley’s girlfriend with his gun and took rings from her fingers.  Taylor and Fitzgerald took the jewelry, $40 in cash from the woman’s purse, two cell phones, and a marijuana cigarette.  On October 29, 2009, Taylor, Fitzgerald, and another member of The Goonz robbed the home of William Lynch, also known as a marijuana dealer.   While holding at gunpoint Lynch, two of his children, and his wife (one of the robbers attempted to remove her pants, then dragged her into the living room by her hair), the robbers demanded Lynch’s marijuana stash.  He said he did not have it, and after their search of the house came up empty, The Goonz took Lynch’s cell phone and left.

Taylor was convicted of, among other things, violating the Hobbs Act, 18 U.S.C. 1951(a).  The Hobbs Act makes it a crime to, “in any way,” obstruct, delay, or affect commerce or the movement of any article or commodity in commerce, by robbery or extortion, or to conspire or attempt to do so, or to “threaten physical violence to any person or property in furtherance of a plan” to violate the statute.  At Taylor’s trial (his second; his first one resulted in a hung jury) the District Court granted the Government’s motion to preclude Taylor from offering any evidence that robbing a drug dealer who sells marijuana wholly within Virginia does not affect commerce.  In other words, the District Court determined as a matter of law that such a robbery per se affects interstate commerce.  The Fourth Circuit upheld the conviction, saying, among other things, that when robbing a drug dealer, the depletion of the drug dealer’s assets will necessarily affect the commercial market for that drug.

Taylor says it was unlawful to preclude him from offering evidence that would have negated the jurisdictional element of the Hobbs Act.  This, he says, relieves the Government of its burden of proving each element of the crime beyond a reasonable doubt.  Rory Little has an excellent primer on the case over at SCOTUSBlog here.  As Rory notes, this is certainly a case where Justice Scalia’s voice could have been helpful to the petitioner.

Effectively, as Taylor presents the case, it is a due process problem, as well as one of statutory interpretation (and, incidentally, the Sixth Amendment).  One of the issues here is whether the “depletion of assets” theory is enough to satisfy the jurisdictional element – i.e., that there is the requisite effect on commerce if the robbery depletes assets that would otherwise have been used in interstate commerce.  But why is that not always the case with a robbery, especially of cash?  Some courts have said there is a difference between depleting the assets of an individual and depleting the assets of a business – the latter satisfies the Hobbs Act but the former does not.  See, e.g., United States v. Wilkerson, 361 F.3d 717 (2nd Cir. 2004) (Hobbs Act satisfied where defendants robbed two brothers at their home, but where the assets taken were derived from landscaping business).  But why is that a relevant distinction under the Hobbs Act?

In the spirit of possibly finding more here than meets the eye, I would ask the following: is there a subtle Commerce Clause problem here, based on the breadth of the jurisdictional element in the Hobbs Act?

If we assume that, as courts have said, the Hobbs Act employs the full scope of Congress’s commerce power, then presumably not just any effect on commerce will do.  Congress would only be able to prosecute robbery or extortion that involved, per United States v. Lopez, the channels or instrumentalities of interstate commerce, or activities that substantially affect interstate commerce.  At a minimum, then, it seems that the Court’s Commerce Clause cases compel proof of something more than just a de minimis effect on commerce.  How can the Court say that Congress can only reach activities that substantially affect interstate commerce and at the same time say that the Hobbs Act can reach activities with any effect on commerce, even a de minimis one?  Of course, courts need not reach the constitutional question in order to protect the defendant in these cases.  They can always read the statute to say, as some have, that the particular facts do not satisfy the jurisdictional element.  But for those courts, like the Fourth Circuit here, that have read the jurisdictional element in a more sweeping fashion, the Commerce Clause problem seems inescapable.

Several judges on the Fifth Circuit acknowledged this problem years ago in United States v. McFarland, 311 F.3d 376 (5th Cir. 2002), a Hobbs Act case involving robberies of several convenience stores in the Fort Worth area.  They spoke in dissent, however (but only because the en banc court was equally divided 8-8).  Moreover, lower courts have consistently found that robberies of even small local convenience stores were enough to satisfy the Hobbs Act because the stores sold items that once traveled in interstate commerce.  (I am reminded of Judge Becker’s separate opinion in United States v. Bishop, 66 F.3d 569 (3rd Cir. 1995) in which he hypothesizes the absurdity of federal jurisdiction over a juvenile who steals a Hershey kiss from a corner store in Youngstown, Ohio, based on the theory that the candy traveled there from Pennsylvania, where it was manufactured).  And of course in 2005, the Supreme Court decided Gonzales v. Raich, which significantly limited the impact of cases like Lopez and United States v. Morrison, both of which arguably cast doubt on the prevailing approach to the jurisdictional element in the Hobbs Act.  Even Raich, though, left intact Lopez’s understanding of the scope of the commerce power – it only reaches channels, instrumentalities, and activities with a substantial effect on commerce.

Taylor, though, does not raise this Commerce Clause problem, though his merits brief certainly dances around it.  In fact, Taylor’s merits brief says that he “does not contest the long-established rule that the connection to interstate commerce may be de minimis under the Hobbs Act.”  But why not?  Once he argues that the effect need only be de minimis, then, even assuming that the Government must affirmatively prove the element, it almost surely will do so in most cases – including this one.  Leaving that “de minimis effects” standard in place seems incongruous with the Supreme Court cases limiting the scope of the Commerce Clause that were decided after the de minimis effect standard had been adopted.

Notably, this argument has been pursued with little success in the lower courts.  But Taylor’s case looks like an opportunity to have the Supreme Court’s eyes directly on the issue, even though the Court will do so without Justice Scalia (who, it should be noted, voted to uphold the federal law in Raich, though not directly on Commerce Clause grounds, but rather on Necessary and Proper Clause grounds).  Moreover, limiting the reach of the Hobbs Act would serve as an important development at time when criminal justice reform is politically popular and the scope of federal prosecutorial power is of grave concern across the political spectrum.  Now, that could be achieved without reaching the constitutional question.  But, again, the constitutional problem would remain.

Of course, after Raich, any Commerce Clause challenge is an uphill battle.  But I’m wondering whether, in light of the unique nature of the Hobbs Act’s sweeping language, this will be a missed opportunity if at least some members of the Court do not focus on the scope of the Commerce Clause, at least during the argument.  If ever there was an argument in which Justice Thomas – the Court’s most vocal critic of expansive commerce power – might want to actively participate, this could be it.  I look forward to seeing his opinion later.  But maybe he, or another Justice, could at least ask a question about stealing a Hershey kiss from a Youngstown convenience store.


Rethinking SRCA

I posted last year on the Sentencing Reform and Corrections Act, now pending in the Senate.  I have expressed some reservations about the bill, some of which are now the subject of a move to amend the bill to address the concerns that I and other much more prominent critics of the bill have noted.  Politico’s reporting is here.  I don’t typically post on a subject when I think it has been adequately covered by others already, but I made an exception here because I thought this subject was worth mentioning in a fresh post, and because I thought it was also worth directing readers to other useful commentary on the matter.  Doug Berman at SL&P has a new post up, as does Bill Otis at C&C here.   Notably, they both focus on Arkansas Senator Tom Cotton’s recent floor speech concerning SRCA.  Senator Cotton’s remarks are here.  They are worth a read.

In addition to agreeing with some of the concerns expressed by Senator Cotton and others, I continue to believe that reducing sentences for major drug trafficking crimes and violent crimes, especially those involving firearms, would be a grave mistake.  I acknowledge that with drug crime especially, it is tricky.  Fine distinctions are in order, and a better approach might be to rewrite the substantive drug offense law rather than tinker with sentencing.  But this is a time when we should be strengthening, not softening, gun crime sentences and sentences for offenses that will help us fight dangerous criminal organizations (which tend to traffic in drugs and guns).  Of course, I hope that we can enact some sensible legislation to deter or prevent much of the day-to-day gun crime that we experience in this country, a substantial amount of which is connected to criminal organizations.  But where we cannot do so (and we cannot prevent it all), we should be prepared to aggressively prosecute and punish it.

I also continue to believe that the push to curb “mass incarceration” cannot be sustained if its focus is solely upon “low-level” drug offenders.  And for those who are simultaneously pushing the mass incarceration/sentencing reform narrative as well as the narrative about strengthening gun laws, those narratives may well be on a collision course – unless we are prepared to properly make, and commit ourselves to, some critical distinctions among offenses.

Unfortunately, sentencing reform – rhetorically, at least – has become a one-way ratchet.  I say again what I have said before: reducing some sentences, or eliminating some mandatories, is probably appropriate; but sentencing reform does not have to be exclusively about reducing sentences.  For some offenses, reform can move in the other direction, too.


Constitutionality of the MDLEA in question

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.