United States Court of Appeals
For the First Circuit
No. 08-1028
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ DEL CARMEN CARDALES-LUNA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Selya, and Lipez, Circuit Judges.
José R. Olmo-Rodríguez for appellant.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,
for appellee.
January 20, 2011
LIPEZ, Circuit Judge. Our opinion in United States v.
Angulo-Hernández, 565 F.3d 2 (1st Cir. 2009), describes the facts
underlying this Maritime Drug Law Enforcement Act (MDLEA) appeal.
Appellant José del Carmen Cardales-Luna was one of eight crew
members serving on the Bolivian flag vessel Osiris II when it was
boarded by the United States Coast Guard in international waters on
February 4, 2007. In the course of a six-day search of the Osiris
II, Coast Guard officers discovered 400 kilograms of cocaine,
twenty-five kilograms of heroin, and a machine gun hidden in a
compartment near the rear of the vessel. Cardales-Luna and his
seven fellow crew members were subsequently charged in a three-
count superseding indictment with (1) conspiracy to possess with
intent to distribute the drugs found on the Osiris II, see 46
U.S.C. § 70506(b); (2) aiding and abetting the possession of those
drugs with intent to distribute, see 46 U.S.C. § 70503(a)(1), 18
U.S.C. § 2(a); and (3) aiding and abetting the possession of a
machine gun in furtherance of a drug trafficking crime, see 18
U.S.C. §§ 2(a), 924(c)(1)(B)(ii).
The other seven crew members were tried jointly. The
jury found four of them guilty on all counts and three not guilty
on all counts. We affirmed the four convictions in
Angulo-Hernández, a set of appeals that focused on whether the
government had presented sufficient evidence to prove that the
defendants knew the drugs were hidden on the vessel. See 565 F.3d
-2-
at 7-9. For reasons that are not clear from the record, Cardales-
Luna was tried separately from his co-defendants. After a one-day
trial, the second jury found Cardales-Luna guilty on all three
counts. At sentencing, the court dismissed the gun charge, as it
had at the sentencing of the defendants found guilty in the Angulo-
Hernández trial. This appeal followed.
I.
Cardales-Luna contends that the government proved only
that he was present on a vessel that happened to be carrying drugs,
not that he knowingly possessed those drugs with the intent to
distribute. We considered and rejected the same sufficiency of the
evidence argument in Angulo-Hernández, where we held that the
circumstantial evidence was sufficient for the jury to infer
knowledge. 565 F.3d at 9. In particular, we held that the route
of the vessel, the quantity and value of the drugs, the low value
and unprofessional handling of the other cargo, and evidence
suggesting that the compartment containing the drugs had recently
been sealed all supported a finding that the crew members knew
about the drug trafficking operation.1 Id. at 8-9.
1
The vessel was en route from Colombia to the Dominican
Republic. The drugs -- approximately 400 bricks of cocaine and 25
bricks of heroin -- were estimated to be worth $8 million. The
cargo of 28,011 rolls of toilet paper, 207 Styrofoam coolers, and
14 pieces of office furniture was estimated to be worth $25,000.
It was also stored haphazardly, suggesting that the legitimate
cargo was no more than a cover for the more valuable hidden cargo.
Finally, the screws securing the hatch on the hidden compartment
were not tarnished, which indicated that the hatch had been
-3-
At Cardales-Luna's trial, the government offered the same
circumstantial evidence that it had offered against two of the
other crew members, José Luis Casiano-Jiménez and Gustavo Rafael
Brito-Fernández, whose convictions we affirmed in
Angulo-Hernández.2 Cardales-Luna did not testify at trial, nor did
he offer any evidence that would favorably distinguish him from
Casiano-Jiménez and Brito-Fernández. Indeed, the one material fact
distinguishing Cardales-Luna from Brito-Fernández arguably cuts in
the government's favor: a Coast Guard officer testified that the
other crew members appeared to treat Cardales-Luna and Casiano-
Jiménez with deference, which the officer viewed as an indication
that they were higher on the crew's hierarchy than the others (that
is, closer to the status of the captain and engineer than the
ordinary crew members).3 The jury could have inferred from that
recently sealed and made it "more likely . . . that the crew
members either witnessed the loading or participated in it."
Angulo-Hernández, 565 F.3d at 8.
2
The evidence against the other two defendants -- the
ship's captain and the engineer -- was somewhat stronger. See
Angulo-Hernández, 565 F.3d at 8-9.
3
The officer testified:
Of the seven crew members, two of them [Cardales-Luna and
Casiano-Jiménez] stood out as being of a higher status
than the other five. They were afforded seats. They had
wooden chairs that those two individuals got to sit on.
The other five sat on the deck.
When they had meals, they were given food first. And the
general demeanor of the other five towards these seemed
almost of subservience. It seemed almost to me, from my
-4-
evidence that Cardales-Luna was more likely to know about the drug
smuggling operation than Brito-Fernández.
In short, the evidence against Cardales-Luna was at least
as strong as -- and materially identical to -- the evidence against
Casiano-Jiménez and Brito-Fernández, which we held to be sufficient
to prove knowledge in Angulo-Hernández. There is a question,
however, of what weight our decision in Angulo-Hernández should be
given in this appeal. In general, "accepted principles of stare
decisis militate strongly in favor of resolving identical points in
the same way for identically situated defendants." United States
v. Diaz-Bastardo, 929 F.2d 798, 799 (1st Cir. 1991). Those
principles suggest that we should follow our previous decision as
a matter of stare decisis.
There are two potential difficulties with that route,
however. The first is that the government conceded at oral
argument that our prior decision has no stare decisis effect here.
Yet that representation, though entitled to some weight, is not
binding on us. United States v. Bucci, 582 F.3d 108, 119 n.9 (1st
Cir. 2009). As the Supreme Court has pointed out, our "judgments
military experience, that they were officers to their
enlisted, if I could make that analogy.
Cardales-Luna presented evidence that Casiano-Jiménez had an
injured foot, which Cardales-Luna says was the reason Casiano-
Jiménez was given a seat at meals. If anything, that evidence
strengthens the inference that Cardales-Luna, who had no similar
excuse, was treated better because he ranked higher than the other
crew members.
-5-
are precedents, and the proper administration of the criminal law
cannot be left merely to the stipulation of parties." Young v.
United States, 315 U.S. 257, 259 (1942). A concession by the
government therefore "does not relieve [us] of the performance of
the judicial function." Id. at 258; see also Roberts v. Galen of
Va., Inc., 525 U.S. 249, 253 (1999) (per curiam) (noting that "the
concession of a point on appeal by respondent is by no means
dispositive of a legal issue"). If the law requires us to adhere
to Angulo-Hernández, we must adhere to it, the government's
concession to the contrary notwithstanding.
The second difficulty is that there is limited authority
directly addressing the role of stare decisis in the sufficiency of
the evidence context. It is possible that this limited authority
reflects a belief that sufficiency of the evidence rulings are
categorically exempt from the ordinary rules of stare decisis.
Sufficiency of the evidence rulings, after all, "generate[] no
precedential force upon the decisionmaking processes of fact
finders at criminal trials." United States v. Willoughby, 27 F.3d
263, 268 (7th Cir. 1994). Perhaps the same principle extends to
appellate review for evidentiary sufficiency as well.
We reject that proposition. The role of an appellate
court in judging the sufficiency of the evidence is fundamentally
different from the role of the jury in finding the facts and
determining guilt. Whereas the jury must determine whether, in its
-6-
subjective judgment, the government has overcome the presumption of
innocence and eliminated any reasonable doubt that the defendant
committed the charged offense, a court reviewing for sufficiency is
not permitted to "make its own subjective determination of guilt or
innocence." Jackson v. Virginia, 443 U.S. 307, 319 n.13 (1979).
Rather, appellate courts ask "whether the evidence introduced is
sufficient to convict as a matter of law (which is not to say the
jury must convict, but only that, as a matter of law, the case may
be submitted to the jury and the jury may convict)." Carmell v.
Texas, 529 U.S. 513, 547 (2000) (emphasis altered). The question
calls for a "binary response: Either the trier of fact has power as
a matter of law [to make a finding of guilt] or it does not."
Schlup v. Delo, 513 U.S. 298, 330 (1995).
The distinction between fact-finding and sufficiency
review is important because stare decisis "deals only with law."
United States v. Reveron Martinez, 836 F.2d 684, 691 (1st Cir.
1988) (internal citations and quotation marks omitted). The trier
of fact is thus free to make an independent assessment of the
evidence because "the facts of each successive case must be
determined by the evidence adduced at trial." Id. By contrast,
even the narrowest conception of stare decisis demands that two
panels faced with the same legal question and identical facts reach
the same outcome. See 18 James Wm. Moore et al., Moore's Federal
Practice § 134.03[1] (3d ed. 2010) ("At a minimum, stare decisis
-7-
extends to the result reached by the prior authoritative
decisions."); Drive Fin. Servs., L.P. v. Jordan, 521 F.3d 343, 349
(5th Cir. 2008) ("[W]hen a future case presents the same facts as
a past case decided by a higher court[,] stare decisis requires
that we decide those cases in a similar manner."); Tate v. Showboat
Marina Casino P'ship, 431 F.3d 580, 582 (7th Cir. 2005) (noting
that the holding of a case includes "the facts and the outcome").
The proposition that courts policing the legal boundaries
of the fact-finder's authority must act in conformity with binding
legal precedent is confirmed explicitly in a few cases. E.g.,
Willoughby, 27 F.3d at 268 (noting that the stare decisis effect of
a prior panel decision extends to "other appellate tribunals in the
same jurisdiction faced with comparable challenges to the
sufficiency of the evidence"); United States v. Gillis, 942 F.2d
707, 711 (10th Cir. 1991) (holding that a previous panel decision
"is stare decisis on the issue of sufficiency of the evidence to
support this conviction"). It is also implicit in many others.
E.g., United States v. Johnson, 519 F.3d 478, 485-86 (D.C. Cir.
2008) (affirming conviction on the ground that "[t]he evidence
introduced in this case is indistinguishable from evidence we have
previously held sufficient"); United States v. Hernandez, 141 F.3d
1042, 1055-56 (11th Cir. 1998) (reversing conviction on the ground
that the evidence was indistinguishable from evidence previously
held insufficient).
-8-
There are of course limits to stare decisis, which we
have catalogued in numerous cases. See, e.g., United States v.
Rodríguez, 527 F.3d 221, 224-25 (1st Cir. 2008); EEOC v. Trabucco,
791 F.2d 1, 4 (1st Cir. 1986).4 Most relevantly for our purposes,
"a decision dependent upon its underlying facts is not necessarily
controlling precedent as to a subsequent analysis of the same
question on different facts and a different record." Gately v.
Massachusetts, 2 F.3d 1221, 1227 (1st Cir. 1993). That rule is no
more than a restatement of the familiar idea that prior cases are
often distinguishable on their facts. It also likely explains why
stare decisis is so infrequently invoked by name in sufficiency of
the evidence cases. As a practical matter, the evidence in one
case is rarely duplicated in a subsequent case, and so precedents
in the sufficiency of the evidence arena tend to serve primarily as
rough guides that can be likened or distinguished according to the
accepted norms of legal reasoning. Yet even accepting that there
are legitimate grounds for distinguishing cases on the basis of
materially different facts, cf. Trabucco, 791 F.2d at 2 (noting
that stare decisis "leaves some room for judgment as to its
4
Particularly vexing problems arise when two binding
precedents are in conflict. See, e.g., Reveron Martinez, 836 F.2d
at 693 (Torruella, J., concurring in part and dissenting in part).
Some other circuits have held that "where two previous holdings or
lines of precedent conflict[,] the earlier opinion controls and is
the binding precedent." Rios v. City of Del Rio, 444 F.3d 417, 425
n.8 (5th Cir. 2006). We need not address that issue here.
Angulo-Hernández is the only precedent at issue.
-9-
preclusive power"), it remains true that a panel may not disregard
binding precedent simply out of disagreement. See Lacy v. Gardino,
791 F.2d 980, 984-85 (1st Cir. 1986).
Therefore, it would be no small matter to find that an
area of the law was categorically exempt from the constraining
force of precedent. Stare decisis is always "the preferred course
because it promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived integrity of
the judicial process." Payne v. Tennessee, 501 U.S. 808, 827
(1991). Indeed, the Supreme Court has described stare decisis as
"a basic self-governing principle within the Judicial Branch, which
is entrusted with the sensitive and difficult task of fashioning
and preserving a jurisprudential system that is not based upon 'an
arbitrary discretion.'" Patterson v. McLean Credit Union, 491 U.S.
164, 172 (1989) (quoting The Federalist No. 78), superseded on
other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105
Stat. 1071. If courts of appeals rendering legal decisions do not
feel obligated to treat materially identical cases alike, the law
will largely depend upon who happens to be making the decision, and
our adherence to the rule of law will be diminished. Cf. James B.
Beam Distilling Co. v. Georgia, 501 U.S. 529, 537 (1991) (opinion
of Souter, J.) (the principle "that litigants in similar situations
-10-
should be treated the same" is "a fundamental component of stare
decisis and the rule of law generally").
We are thus drawn to an inescapable conclusion: although
Angulo-Hernández has no res judicata effect here, "we nonetheless
are bound to follow it, under principles of stare decisis, insofar
as the record now before us does no more than replicate the same
facts that were before us" in the previous appeal. Perez v. Volvo
Car Corp., 247 F.3d 303, 313 (1st Cir. 2001). As we have already
said, Cardales-Luna has not pointed to any fact or circumstance
that favorably distinguishes his case from that of Casiano-Jiménez
and Brito-Fernández. The exact same evidence that we held to be
sufficient to prove knowledge in Angulo-Hernández was offered
against Cardales-Luna in his separate trial, and nothing in the
record of this case suggests that the four circumstantial
considerations we considered dispositive in Angulo-Hernández apply
with any less force here. We therefore follow Angulo-Hernández in
concluding that the evidence against Cardales-Luna was sufficient
to sustain his conviction.
II.
Cardales-Luna raises a second issue that we did not
squarely decide in Angulo-Hernández, apparently because the other
defendants did not raise it on appeal. The MDLEA prohibits drug
trafficking aboard "a vessel subject to the jurisdiction of the
United States," 46 U.S.C. § 70503(a)(1), which includes "a vessel
-11-
registered in a foreign nation if that nation has consented or
waived objection to the enforcement of United States law by the
United States," id. § 70502(c)(1)(C). To prove that the Osiris II
was subject to the jurisdiction of the United States, the
government presented the certification of G. Philip Welzant, U.S.
Coast Guard Liaison Officer to the Bureau of International
Narcotics and Law Enforcement Affairs, U.S. Department of State,
who declared: "On February 5th, 2007, Bolivian authorities notified
the United States that the Government of Bolivia waived objection
to the enforcement of U.S. laws by the United States with respect
to the vessel Osiris II, including its cargo and all persons
onboard."
Cardales-Luna contends that Commander Welzant's
certification is deficient because it does not state the name of
the Bolivian official involved or the exact time and means of the
communication between the two governments. In support of his
position, he cites United States v. Leuro-Rosas, a decision in
which we quoted from the legislative history of the MDLEA:
In instances where the United States is
required to prove a foreign nation's consent
or waiver of objection to U.S. enforcement, or
such a nation's denial of claim of registry,
this section permits proof by certification of
the Secretary of State or the Secretary's
designee. Such a certification should spell
out the circumstances in which the consent,
waiver, or denial was obtained, including the
name and title of the foreign official acting
on behalf of his government, the precise time
-12-
of the communication, and the means by which
the communication was conveyed.
952 F.2d 616, 620 (1st Cir. 1991) (quoting S. Rep. No. 99-530, at
14 (1986), reprinted in 1986 U.S.C.C.A.N. 5986, 6000-01). We
implied in Leuro-Rosas that a certification that did not
substantially comply with the "requirements articulated by
Congress" might be rejected as insufficient to prove the foreign
nation's consent. See id. at 620-21.
Any argument under Leuro-Rosas is unavailing to Cardales-
Luna because the MDLEA has been materially amended since we decided
that case. When we heard Leuro-Rosas, the statute provided that
the foreign nation's consent "may be proved" by certification of
the Secretary of State or her designee. Id. at 619 (quoting former
46 U.S.C. app. § 1903(c)(1)). That left open the possibility that
a defendant could "look behind the State Department's certification
to challenge its representations and factual underpinnings."
United States v. Guerrero, 114 F.3d 332, 341 (1st Cir. 1997)
(reserving the issue).
Congress effectively foreclosed that possibility in 1996,
when it amended the MDLEA to provide that "[c]onsent or waiver of
objection by a foreign nation to the enforcement of United States
law by the United States . . . is proved conclusively by
certification of the Secretary of State or the Secretary's
-13-
designee."5 46 U.S.C. § 70502(c)(2) (emphasis added). Under the
current statute, the Secretary of State (or her designee) need only
certify that the "foreign nation" where the vessel is registered
"has consented or waived objection to the enforcement of United
States law by the United States." Id. § 70502(c)(1)(C). Such a
certification is "conclusive[]," and any further question about its
legitimacy is "a question of international law that can be raised
only by the foreign nation." United States v. Bustos-Useche, 273
F.3d 622, 627 & n.5 (5th Cir. 2001). Commander Welzant's terse
certification, though not in the preferred form, was therefore
sufficient to establish that the Osiris II was "subject to the
jurisdiction of the United States."
III.
Finally, we must address one other matter. We
acknowledge the forceful dissent by Judge Torruella concluding that
Congress exceeded its authority under Article I of the Constitution
by enacting 46 U.S.C. §§ 70502(c)(1)(C) and 70503(a)(1) and thereby
authorizing the enforcement of United States criminal law against
people and activities lacking any nexus with this country. Judge
Torruella asserts that this constitutional challenge implicates the
subject matter jurisdiction of the court and must be addressed by
5
There are minor differences in wording between the 1996
amendment and the version in force today, but they have no
substantive significance. See United States v. Betancourth, 554
F.3d 1329, 1334 & n.4 (11th Cir. 2009).
-14-
us even though the constitutional challenge was never raised below
or on appeal. We respectfully disagree with the assertion that
this constitutional challenge posed by Judge Torruella involves the
subject matter jurisdiction of the court. Instead, we agree with
the position of the D.C. Circuit in United States v. Baucum, 80
F.3d 539, 541 (D.C. Cir. 1996): "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 questions sua sponte, would
have to assure themselves of a statute's validity as a threshold
matter in any case. This requirement would run afoul of
established Supreme Court precedent declining to address
constitutional questions not put in issue by the parties."
Affirmed.
- Dissenting Opinion Follows -
-15-
TORRUELLA, Circuit Judge (Dissenting). For the reasons
laid out below, I respectfully dissent.
A. Stare decisis, the insufficiency of the evidence and
the failure of the government to meet its constitutional
burden
The application of the doctrine of stare decisis to
Appellant, under the circumstances of this case, effectively
results in the denial, or at least the unconstitutional diminution,
of his right to a full and independent assessment of his
particularized guilt or innocence. Such a consideration is
mandated by the due process clause of the Fifth Amendment. This
failing is readily reflected in the majority's tractable conclusion
that there is sufficient evidence on the record from which a jury
can conclude that Appellant is guilty beyond a reasonable doubt of
the crimes for which he is charged. This outcome against Appellant
is principally based on the fact that this same evidence was
presented in the earlier case, United States v. Angulo-Hernández,
565 F.3d 2 (1st Cir. 2009), see Maj. Op. at 4, in which three of
the crew members were found guilty, while four were acquitted. But
two of the guilty crew members were in substantially different
factual and legal postures than the Appellant in this case, for
they were the captain and engineer of the Osiris II. Id. at n.4.
This crucial difference to Appellant's case is called by the
majority a "somewhat stronger" case against those other defendants.
-16-
Id. at n.2. No explanation is given for third crew member found
guilty on the same evidence on which the other four were acquitted.
At the government's urging, the deficiencies in the
government's present case (e.g., Appellant not being an officer of
the Osiris II), are made up by resorting to speculation ("[the]
Coast Guard officer testified that the other crew members appeared
to treat [Appellant] . . . with deference." Id. at 4), and by the
piling of inference upon inference (e.g., Appellant was given a
wood chair to sit on; Appellant was fed first; and such similar
banalities). The smoking gun that is relied upon in both the first
case and in this one is the discovery of "new-looking" screws
securing the secret compartment in which the contraband was found
near the vessel's aft lube oil tank. The top to this compartment,
which the "shining screws" were securing, was under a layer of
rubber matting and two layers of plywood. It took the Coast Guard
six days of intensive search to find and uncover this compartment.
There is not an iota of evidence connecting Appellant to this
compartment or to its contents except outright speculation. Cf.,
United States v. Pérez-Meléndez, 599 F.3d 31 (1st Cir. 2010). Why
do the "shining screws" doom Appellant in particular any more (or
less) than all the other crew members found not guilty? Can his
sitting on a wooden chair, and his eating first, make for the
quantum leap that is being asked of this court to establish his
knowledge beyond a reasonable doubt? I think not. Based on this
-17-
record, if the evidence against Appellant is independently
considered apart from the outcome of the case of the defendants
found guilty in the prior case, I fail to see how it can possibly
be concluded that the government has established the element of
"knowledge" that is essential to the establishment of the charges
against Appellant.
The outcome that results from this case is one more step
on the slippery slope down which we have been sliding for some
time. See United States v. Azubike, 564 F.3d 59 (1st Cir. 2009).
This conclusion unquestionably constitutes a further lowering of
the bar which the government must constitutionally meet to prove
guilt beyond a reasonable doubt. Id. at 71.
B. The unconstitutional application of U.S. criminal law
to persons and activity without any nexus to, or impact
in, the United States
The matters previously discussed are almost irrelevant to
the outcome of this appeal when compared to the more basic
jurisdictional issue that arises from the government's reliance on
the Maritime Drug Enforcement Act (MDLEA), codified as amended at
46 U.S.C. §§ 70501-70507, as the basis for the extraterritorial
application of the criminal laws of the United States to Appellant.
The invalidity of the application of MDLEA to Appellant
results from Congress's ultra vires extension of its Article I
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legislative powers6 to foreign territory,7 as applied to persons
and/or activities that have no nexus with the United States. See,
Eugene Kontorovich, Beyond the Article I Horizon: Congress's
Enumerated Powers and Universal Jurisdiction over Drug Crimes, 93
Minn. L. Rev. 1191 (2009); cf. José A. Cabranes, Our Imperial
Criminal Procedure: Problems in Extraterritorial Application of
U.S. Constitutional Law, 118 Yale L. J. 1660, 1671-1680 (2009). By
the enactment of 46 U.S.C. §§ 70503(a) (1) and 70502(c) (1) (C) of
the MDLEA, allowing the enforcement of the criminal laws of the
United States against persons and/or activities in non-U.S.
territory in which there is a lack of any nexus or impact in, or
on, the United States, Congress has exceeded its powers under
Article I of the Constitution. Any prosecution based on such
legislation constitutes an invalid exercise of jurisdiction by the
United States, and is void ab initio. See United States v. Walker,
59 F.3d 1196, 1198 (11th Cir. 1995). Cf. United States v. Lopez,
514 U.S. 549 (1995) (holding that Congress exceeded its commerce
clause authority when it enacted the Gun-Free School Zone Act and
concluding that the conviction must be vacated.). This is a
6
Article I, § 8, cl. 10 grants Congress power "[t]o define and
punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations."
7
A vessel is considered territory of the nation whose flag it
flies. United Nations Convention on the Law of the Sea art. 91,
Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]. Available
at http://www.un.org/Depts/los/index.htm.
-19-
fundamental structural problem that goes to Congress's power to
legislate under Article I of the Constitution which cannot be
waived by any individual or foreign nation.
The facts relevant to this question are crystal clear and
undisputed: Appellant, a Colombian national, was apprehended in
international waters near the northern coast of South America,
aboard a Bolivian-registered vessel, the Osiris II, which was
crewed by an all non-United States citizen compliment. The Osiris
II was en route from Colombia to the Dominican Republic with a
cargo of toilet paper and diverse other items. Initially, the
Coast Guard boarded the vessel allegedly8 to help the crew repair
the broken-down engine of the Osiris II. However, while rummaging
aboard the vessel inspecting for safety matters, the boarding party
found some powder residue which originally field-tested positive
for heroin. Although this eventually turned out not to be the
case, this "discovery" provided the excuse for the arrest of the
Osiris II and its crew after the Bolivian Government "waived
objection to the enforcement of U.S. laws by the United States with
respect to the Osiris II, including its cargo, and all persons
onboard." Thereafter, the Osiris II was towed by the Coast Guard to
San Juan, Puerto Rico where for the next six days the vessel was
thoroughly searched for contraband. As previously indicated,
8
The Osiris II was on a Coast Guard watch list as a suspected
smuggler of contraband.
-20-
contraband was eventually found in a secret stern compartment
hidden below a rubber matting and two sheets of plywood. There is
no evidence that any of the contraband found aboard the vessel was
destined for U.S. territory, or that there was any connection with
persons or activities in U.S. territory, or with persons who were
U.S. nationals. The only injection of the United States into this
case comes about from the fact that the vessel that intercepted the
Osiris II was a U.S. Coast Guard vessel, and the further fact, that
upon the erroneous discovery of what was believed to be contraband
by the Coast Guard, the United States sought and received from the
Government of Bolivia a waiver to the enforcement of U.S. laws in
Bolivian territory.
Appellant was charged, tried, convicted and sentenced
pursuant to the MDLEA, which prohibits drug trafficking aboard "a
vessel subject to the jurisdiction of the United States," 46 U.S.C.
§ 70503(a) (1), which definition includes "a vessel registered in
a foreign nation if that nation has consented or waived objection
to the enforcement of United States law by the United States." 46
U.S.C. § 70502(c) (1) (C). The question is thus squarely presented
whether Congress has the power to extend the criminal jurisdiction
of the United States extraterritorially irrespective of the lack of
a nexus of the activity or persons to the United States, merely
because there is consent to the exercise of such jurisdiction by
the nation whose citizens or territory are the subject of said
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application of U.S. law. This issue is, of course, jurisdictional
in nature and thus can be raised at any stage of a case, United
States v. Madera-López, 190 F. App'x 832, 834 (11th Cir. 2006),
including by the court motu proprio, as I am presently doing.
In my opinion, Congress does not have the power to extend
the criminal jurisdiction of the United States for the crimes
charged on the facts of the case before us.9
Although under the international law doctrine of
universal jurisdiction (UJ), a nation may prosecute certain serious
offenses even though they have no nexus to its territory or its
nationals, and no impact on its territory or its citizens, see
Restatement (Third) of Foreign Relations Law of the United States,
§ 404 cmt. a (1987), the crimes charged in this case are not within
the categories for which the application of UJ is permitted. In
enacting the MDLEA, Congress has purportedly attempted to come
within the umbrella of UJ doctrine by looking to Article I, § 8,
cl. 10 of the Constitution as the source of its authority. This
provision, however, does not authorize the regulation of purely
9
An additional issue presented by the MDLEA and the facts in
this case is the validity of the retroactive application of U.S.
criminal law to Appellant, that is, the application of U.S. law to
Appellant for actions that were not violations of that law until
after the consent was given by the Bolivian government to subject
Appellant to said law. This in turn presents an issue of the
extent to which the Constitution is applicable in international
waters. Cf. Boumediene v. Bush, 553 U.S. 723 (2008). Because these
matters were not raised below, and are not jurisdictional in
nature, I will not attempt to decipher their complexity at this
time.
-22-
foreign conduct except as regards to piracy on the high seas, and
two other situations to be presently discussed. See Eugene
Kontorovich, The "Define and Punish" Clause and the Limits of
Universal Jurisdiction, 103 Nw. U. L. Rev. 149 (2009) (examining
the scope of these powers). In this respect it should be noted that
Article I, § 8, cl. 10 -- which gives Congress the power to "define
and punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations" -- enumerates three distinct,
although related, groupings but only authorizes UJ over crimes that
are universally cognizable under international law. The term
"universally cognizable," as will be presently explained, is not
equivalent to "generally" cognizable but refers to those crimes
conferring universal jurisdiction as that term is used in
international law. Other than in the case of those limited crimes,
there is no general authority to regulate purely foreign criminal
conduct that does not have a demonstrable connection with the
United States.
As a learned scholar on this subject sardonically
comments, "Congress cannot punish dog-fighting by Indonesians in
Java because Congress has not been authorized by the Constitution
to make such laws." Kontorovich, Beyond the Article I Horizon,
supra, at 1194 (emphasis in original). Perhaps an even more
relevant example would be if Congress passed legislation attempting
to apply the criminal laws of the United States, with the Bolivian
-23-
government's consent, to the conduct of Colombian nationals in
Bolivia traveling over its mountain roads carrying a load of coca
leaves destined for Peru. The power of Congress to legislate in
such a case cannot be countenanced even with the consent of
Bolivia, whose consent is ultimately irrelevant, for Bolivia cannot
grant Congress powers beyond those allotted to it by the
Constitution.
Until recently, piracy was the only crime which was
punishable by all nations, and which could be prosecuted by
whatever nation acquired personal jurisdiction over the alleged
pirate. Thus it was the only crime to which the doctrine of UJ
could be applied. Kontorovich, Beyond the Article I Horizon, supra,
at 1194; see also United States v. Yousef, 327 F.3d 56, 104 (2d
Cir. 2003) ("The class of crimes subject to universal jurisdiction
traditionally included only piracy."). This point is of more than
passing academic relevance, for the constitutional power of
Congress to legislate is thus considerably different depending on
whether it is dealing with "Piracy," "Felonies committed on the
high Seas," or "Offences against the Law of Nations" (piracy also
falls within this category). See United States v. Shi, 525 F.3d
709, 721 (9th Cir. 2008) (citing United States v. Smith, 18 U.S. (5
Wheat.) 153, 158-59 (1820), and noting that Smith treats these
three crimes "as three separate offenses.").
-24-
During the legislative process leading to the enactment
of the MDLEA's predecessor, the Marijuana on the High Seas Act of
1980 (MHSA), Pub. L. No. 96-350, 94 Stat. 1159 (1980), an attempt
was made to enact a provision that would have allowed the
application of U.S. drug laws to foreign vessels, irrespective of
a U.S. nexus, provided that the U.S. received prior approval of its
exercise of extraterritorial jurisdiction from the flag nation of
the vessel in question. See Kontorovich, Beyond the Article I
Horizon, supra, at 1198 (citing H.R. Rep. No. 96-323 (1979), at 7).
This proposal, however, was rejected by the Committee on Merchant
Marine and Fisheries of the House based on "'[v]arious
jurisdictional and constitutional' objections to using a state's
'prior consent as a basis for . . . domestic criminal
jurisdiction.'" Id. (quoting H.R. Rep. No. 96-323, at 7).
Additionally, the proponents of that provision expressed the view
that "as a matter of international law, flag state consent would
still be an inadequate basis [for jurisdiction to attach] given
that drug trafficking is not generally accepted as an international
crime." Id. (citing H.R. Rep. No. 96-323, at 20).
These concerns were swept aside in the intervening years
until the MDLEA was enacted because of the abysmal failure of the
so-called War on Drugs to stem the inflow of illegal drugs into the
-25-
United States,10 and the perceived difficulties of "international
jurisdictional questions as legal technicalities to escape
conviction." S. Rep. No. 95-797, at 15 (1986), reprinted in 1986
U.S.C.C.A.N. 5986, 5993. The MDLEA was thus enacted, expanding
U.S. drug laws to any foreign vessel on the high seas, or even in
foreign territorial waters, so long as the relevant foreign nation
consented. See 46 U.S.C. § 70502(c)(1)(C). The MDLEA allows this
consent to be given in any form, including "by radio, telephone, or
similar oral or electronic means," id. § 70502(c) (2) (A), and
provides that it "is proved conclusively by certification of the
Secretary of State or the Secretary's designee," id. § 70502(c) (2)
(B). Furthermore, the MDLEA brushes aside any presumption against
extraterritoriality, id. § 70503(b), barring any challenge based on
jurisdictional or substantive defenses that the United States has
failed to comply with international law. Id. § 70505. "[A] 1996
amendment sought to keep all questions of statelessness away from
the jury by providing that '[j]urisdiction of the United States
with respect to vessels of the United States subject to [the drug
laws] is not an element of any crime . . . [and instead] are
preliminary questions of law to be determined solely by the trial
judge." Kontorovich, Beyond the Article I Horizon, supra, at 1201
10
A congressional report noted that the Coast Guard was "able
to seize 'at best, 8 to 10 percent' of the drugs" smuggled by sea
into the United States. See Kontorovich, Beyond the Article I
Horizon, supra, at 1197 (quoting H.R. Rep. No. 96-323, at 4).
-26-
(quoting Coast Guard Authorization Act of 1996, Pub. L. No. 104-
324, § 1138 (a) (5), 110 Stat. 3901 (currently at 46 U.S.C. §§
70501-70707)).
Although under "international law, the Coast Guard cannot
stop or board foreign vessels on the high seas or in foreign
waters," id. at 1201 (citing United Nations Convention on the Law
of the Sea, Nov. 16, 1994, 1833 U.N.T.S. 438, signed by 161 nations
(not including the United States) [hereinafter "UNCLOS"] art. 110),
since the enactment of the MDLEA the United States has negotiated
twenty-six bilateral agreements with Caribbean and Latin American
countries which implement this statute in various degrees and forms
allowing the enforcement of American criminal laws aboard foreign
vessels, with the prior approval of the national government in
question. Id. (citing U.S. Dep't. of State, Bureau of Int'l
Narcotics and Law Enforcement Affairs, Narcotics Control Strategy
Report , M a r c h 2 0 0 7 , a v a i l a b l e at
http://www.state.gov/p/inl/rls/nrcpt/2007/vol1/html/80853.htm).11
The bottom line is that the MDLEA is the only statute under which
the United States asserts universal criminal jurisdiction.
11
Obviously Congress has the power to override international
law by either passing legislation to said effect, or entering into
treaties that modify or reject international law. See United States
v. Martínez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993) ("Congress
may override international law by clearly expressing its intent to
do so.").
-27-
As indicated, the question of Congress exceeding its
Article I power under the facts of this case is structural in
nature and cannot be waived by either the individual concerned or
the nation of which he is a citizen or on whose vessel he is
apprehended. As regards Article I, this is a question of first
impression which has not been dealt with by either the Supreme
Court or this court.12 Although these questions have been summarily
12
The Ninth and Eleventh Circuits have considered, and
rejected, challenges to the MDLEA based on Article I. United
States v. Perlaza, 439 F.3d 1149, 1158-60 (9th Cir. 2006); United
States v. Humphries-Brant, 190 F. App'x. 837 (11th Cir. 2006);
United States v. Madera-López, 190 F. App'x. 832 (11th Cir. 2006);
and United States v. Moreno-Morillo, 334 F.3d 819, 824 (9th Cir.
2003).
However, it is important to note, that the Ninth Circuit's
constitutional holdings in Perlaza and Moreno-Morillo were dictated
by binding circuit precedent -- in particular, two prior Ninth
Circuit cases, United States v. Davis, 905 F.2d 245 (9th Cir.
1990), and United States v. Aikins, 946 F.2d 608 (9th Cir. 1990).
We are not similarly bound.
Moreover, as with the Eleventh Circuit Madera-López and
Humphries-Brant cases (decided the same day), Davis and Aikins
addressed the Article I challenge in the most cursory fashion,
without the benefit of any developed analysis. Davis merely cited
the define and punish clause as a constitutional basis for the
MDLEA, 905 F.2d at 248, and Aikins added only that the MDLEA was
"intended by Congress to apply to conduct on the high seas," but
did not consider the question of what construction of the define
and punish clause would allow it to do so. 946 F.2d at 613.
Finally, and perhaps most tellingly, the Ninth Circuit has
consistently held -- even in Davis itself -- that the MDLEA cannot
apply extraterritorially unless there is proof of some kind of
nexus to the United States. Davis, 905 F.2d at 248-49 ("In order
to apply extraterritorially a federal criminal statute to a
defendant consistently with due process, there must be a sufficient
nexus between the defendant and the United States, so that such
application would not be arbitrary or fundamentally unfair.")
-28-
considered under the Fifth Amendment's due process clause, those
resolutions rest on different criteria because those challenges
have been based on Fifth Amendment claims of individual rights
(i.e., due process), which can thus be waived by individuals (and
probably the nation of which they are citizens), while the
challenge under Article I concerns the structural power of Congress
under the Constitution. The issue of whether Congress has the
authority to enact the MDLEA cannot be waived, and Congress' power
cannot be augmented by the consent of a foreign entity or even by
treaty, but only by amending the Constitution.
At the time of the Framing (and until recently), piracy
was the only UJ offense. See United States v. Robins, 27 F. Cas.
825, 862 (D.S.C. 1799) (No. 16,175) ("Piracy under the law of
nations . . . alone is punishable by all nations . . . .")
(emphasis added). Referred to as hostis humani generis (enemy of
all mankind), it was subject to prosecution by any nation,
irrespective of territorial jurisdiction or national nexus. "The
definition of UJ piracy [under] international law [is] narrow,
(citation omitted); Perlaza, 439 F.3d at 1160 (finding that
district court's claim of jurisdiction over defendants, when
government had not produced any evidence of nexus, was reversible
error).
In short, although the Ninth Circuit has rejected the Article I
challenge considered here, it did so on the basis of its own case
law, did not give sustained analysis to the merits of the claim,
and came to very nearly the same conclusion that the Article I
challenge suggests, albeit under the rubric of due process rather
than Article I.
-29-
specific, and undisputed: it is robbery on the high seas."
Kontorovich, Beyond the Article I Horizon, supra, at 1209 (citing
Smith, 18 U.S. (5 Wheat.) at 158). However, in addition to UJ
piracy, each nation can make diverse offenses "municipal" or
"statutory" piracies, which can be punished within the particular
state's municipal jurisdiction. But such crimes can only be
punished by that state within its territorial jurisdiction, or when
committed against its vessels, which includes its own vessels while
on the high seas. The distinction of the power of Congress between
cases involving "Piracy" (the UJ variety), and "Felonies committed
on the high seas" (the "municipal" piracies variety and other
statutory crimes), was recognized from the beginning of our
constitutional history. Justice James Wilson, a member of the
first Supreme Court and a member of the Constitutional Convention,
argued that if it was Congress's intention to apply a murder
provision in a statute then being considered, to foreigners on a
foreign vessel, it would be an unconstitutional exercise of power
by Congress. Kontorovich, Beyond the Article I Horizon, supra, at
1211 (citing 2 The Works of James Wilson 803, 813 (Robert Green
McCloskey ed., 1967)). This view was confirmed by Chief Justice
John Marshall while he was a member of Congress, who rhetorically
asked in a speech challenging the validity of this proposal, "could
the United States punish desertion by British seamen from a British
vessel to a French one, or pick-pocketing among British sailors
-30-
[aboard a British ship]? If the text [of the Constitution] does not
expressly forbid [universal jurisdiction in such circumstances] it
is only because it was too silly for the Framers to have
contemplated it." Id. at 1211-12 (citing 4 The Papers of the John
Marshall, Charles T. Cullen & Leslie Tobias eds., 1984, at 102).
These views were judicially confirmed in two Supreme
Court cases that considered these issues early in the 19th Century.
In United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818), in which
a Spanish vessel was robbed by a foreign defendant on the high
seas, a classic case of UJ piracy, the Court held that while
Congress could constitutionally extend UJ to genuine piracies, the
1790 act in question had not done so. Kontorovich, Beyond the
Article I Horizon, supra, at 1212-13 (citing Palmer, 16 U.S. (3
Wheat.) at 633-34.) It should be noted that in that case, the U.S.
Attorney arguing for a broad scope of the law conceded that the
statute in question could not be constitutionally applied
universally to non-piratical offenses. Palmer, 16 U.S. (3 Wheat.)
at 618. In dissent, Justice Johnson wrote, "[C]ongress cannot make
[something]... piracy which is not piracy by the law of nations, in
order to give jurisdiction to its own courts over such offenses."
Id. at 641-42 (Johnson, J. dissenting).
Just two years later, a unanimous Court reaffirmed that
principle when it held that Congress could not punish the murder of
a foreigner by a foreigner on a foreign vessel in international
-31-
waters. Kontorovich, Beyond the Article I Horizon, supra, at 1214.
The holding in United States v. Furlong, 18 U.S. (5 Wheat.) 184,
196 (1820), again made a distinction between UJ piracy and other
crimes, stating that the later were "beyond the punishing power of
the body that enacted" the law, i.e., Congress. Thus, Furlong
makes clear that Congress lacks the power to define the
"constituents" of an offense without regard to the definition of
that crime under international law, and furthermore, that it cannot
apply the "incidents" of piracy to something that does not have
that status under international law, i.e., Congress cannot expand
its UJ jurisdiction by calling crimes "piracies" when they do not
have that status under international law. Kontorovich, Beyond the
Article I Horizon, supra, at 1215. Piracy and murder, the Court
held in Furlong, "are things so essentially different in nature,
that not even the omnipotence of legislative power can confound or
identify them." 18 U.S. (5 Wheat.) at 198.
The first major incursion by Congress at expansion of UJ
occurred in the early 19th Century as a result of the changing
international views on slavery, and the international efforts to
eradicate the transcontinental slave trade. The first federal
statute in this area, enacted in 1820, declared the slave trade a
form of piracy punishable by death, but stopped short of extending
UJ to cover this crime, punishing only this conduct where there was
a demonstrable U.S. nexus. Kontorovich, Beyond the Article I
-32-
Horizon, supra, at 1216 (citing "An Act to protect the commerce of
the United States," ch. 113, §§ 4-5, 3 Stat. 600, 600-01 (1820)).
The report of the House Committee on the Slave trade explained that
"the Constitutional power of the Government had already been
exercised . . . in defining the crime of piracy," but as to the
slave trade, it had yet to become a crime that was universally
cognizable. "The definition and punishment [of the slave trade] can
bind only the United States." Id. (citing 36 Annals of Cong. 2210
(1820)).
We thus come to the central question affecting the UJ
that MDLEA attempts to create: are the drug offenses established
under MDLEA, "Piracy" or are they "Felon[ies]" within the meaning
of Article I, § 8, cl. 10? As we have seen, the definition of UJ
piracy is "robbery when committed upon the sea." Smith, 18 U.S. (5
Wheat.) at 162. The MDLEA drug offenses are clearly outside this
definition of "piracy." Equally pellucid is the proposition that
Furlong prohibits Congress from attaching the jurisdictional
consequences of UJ to run of the mill "felonies." Furlong, 18 U.S.
(5 Wheat.) at 196-97 (stating that universal criminal jurisdiction
over piracy does not extend to murder.). As stated by the Court in
Furlong "[i]f by calling murder piracy, [the United States] might
assert jurisdiction over that offense committed by a foreigner in
a foreign vessel, what offense might not be brought within [its]
power by the same device?" Id. at 198. The short answer is no
-33-
offense, for certainly if murder, which often follows acts of
piracy on the high seas, cannot be independently brought within UJ,
drug trafficking, which is a distinctly different and separate type
of offense than UJ piracy, cannot be so treated by Congress, among
other reasons because drug trafficking is not a universally
cognizable offense in international law, the point of reference on
this issue under the Constitution. See U.S. Const. art. I, § 8,
cl. 10 (referring to "Offences against the Law of Nations.").
The "Law of Nations" is generally understood to be the
eighteenth and nineteenth-century term for "customary international
law." Kontorovich, Beyond the Article I Horizon, supra, at 1224
n.225 (citing Flores v. S. Peru Copper Corp., 414 F.3d 233, 237 n.2
(2d Cir. 2003) ("[W]e have consistently used the term 'customary
international law 'as a synonym for the term the "law of
nations.'")). The major sources of international law in the United
States pursuant to the Supremacy Clause, U.S. Const. art. VI, § 2,
are treaties and customary international law (which is somewhat the
common law of international law, but is nevertheless part of our
municipal law under the Supremacy Clause.
Drug trafficking is not recognized in customary
international law as a universally cognizable offense, and all U.S.
courts to have considered this issue have so ruled. Kontorovich,
Beyond the Article I Horizon, supra, at 1224 n.229 (citing United
States v. Perlaza, 439 F.3d 1149, 1162-63 (9th Cir. 2006)
-34-
(rejecting UJ as a jurisdictional basis for the MDLEA) and 1224
n.226 (citing Antonio Cassese, International Law, 426 (2d ed. 2005)
(noting that illicit drug traffic in narcotics is not a crime under
customary international law); United States v. Wright-Baker, 784
F.2d 161, 168 n.5 (3d Cir. 1986) ("[I]nternational agreements have
yet to recognize drug smuggling as a threat to a nation's 'security
as a state or the operation of its governmental functions'
warranting protective jurisdiction or as a heinous crime subject to
universal jurisdiction.") (superseded by statute, 46 U.S.C. § 70505
(2007)). Although the exact contours of what crimes come within UJ
are not established with precision, there is a general consensus
that to qualify for UJ the crime involve egregious, violent human
rights abuses. See Kontorovich, Beyond the Article I Horizon,
supra, at 1224 n.228 (citing Restatement (Third) of Foreign
Relations Law § 404 (1987) (providing a list of UJ offenses);
Universal Jurisdiction: National Courts and the Prosecution of
Serious Crimes Under International Law, 178-79 (Stephen Macedo ed.
2004) (stating that for a crime to qualify as a UJ offense it must
be "contrary to a peremptory norm of international law" and "be so
serious and on such a scale that [it] can justly be regarded as an
attack on the international legal order.")). Clearly drug
trafficking, although unquestionably a serious crime, is hardly an
"attack on the international legal order." Other than the United
States under the MDLEA, there is no other state practice
-35-
establishing UJ over drug trafficking. Kontorovich, Beyond the
Article I Horizon, supra, at 1225.
The UNCLOS is regarded as expressing customary
international law on the subject. Id. (citing Statement on United
States Ocean Policy, 1 Pub. Papers 378 (March 10, 1983) ("[T]he
convention . . . contains provisions with respect to traditional
uses of the oceans which generally confirm existing maritime law
and practice . . .")). Only piracy and the slave trade are defined
as within UJ jurisdiction, and in those cases, by explicit
provision in Articles 99 and 105 of the Convention. Id. at 1226.13
As to drug trafficking, Article 108 makes it clear that this
activity is not considered an international law crime.14 To be
13
Article 99 of the UNCLOS provides, "[e]very State shall take
effective measures to prevent and punish the transport of slaves in
ships authorized to fly its flag and to prevent the unlawful use of
its flag for that purpose. Any slave taking refuge on board any
ship, whatever its flag, shall ipso facto be free."
Article 105 provides, "[o]n the high seas, or in any other place
outside the jurisdiction of any State, every State may seize a
pirate ship or aircraft, or a ship or aircraft taken by piracy and
under the control of pirates, and arrest the persons and seize the
property on board. The courts of the State which carried out the
seizure may decide upon the penalties to be imposed, and may also
determine the action to be taken with regard to the ships, aircraft
or property, subject to the rights of third parties acting in good
faith."
Piracy is defined in Article 101.
14
Article 108 is as follows:
1. All States shall cooperate in the suppression of
illicit traffic in narcotic drugs and psychotropic
substances engaged in by ships on the high seas contrary
-36-
classified as such, the crime must be "so inhumane, so shocking to
the conscience, that it makes all jurisdictional" considerations
irrelevant. Id. In fact, U.S. courts have ruled that not even
"terrorism has attained the status of a UJ offense, and thus cannot
be placed on the same jurisdictional footing as piracy." Id.
(citing Yousef, 327 F.3d at 107-08).
There are crucial differences between conduct that all
nations criminalize, and what is considered an international crime,
particularly one subject to UJ. Id. (citing M. Cherif Bassiouni,
Universal Jurisdiction for International Crimes: Historical
Perspectives and Contemporary Practice, 42 Va. J. Int'l. L. 81, 152
(2001) (distinguishing "universality of condemnation" from
"universal reach of national jurisdiction.")). Indeed
international views about murder are almost unanimous in their
condemnation of such conduct, as compared to drug laws and
attitudes, as to which there are considerable variations. Id. at
1226-27. See also Susana Ferreira, At 10, Portugal's Drug Law
Draws New Scrutiny, Wall St. J., July 20, 2010, at A13; Associated
Press, Mexico Legalizes Drug Possession, N. Y. Times, Aug. 21,
2 0 0 9 , a v a i l a b l e a t
to international conventions.
2. Any State which has reasonable grounds for believing
that a ship flying its flag is engaged in illicit traffic
in narcotic drugs or psychotropic substances may request
the cooperation of other States to suppress such traffic.
-37-
http://www.nytimes.com/2009/08/21/world/americas/21mexico.html;
Christian Moraff, Latin America's Legalization Push, A. M.
Prospect, July 6, 2009, available at http:/www.prospect.org/cs/
articles?article=latin _americas_legalization_push). Yet as we
know from Furlong, murder is not a UJ offense. 18 U.S. (5 Wheat.)
at 196-97.
These principles regarding UJ jurisdiction have been
relaxed to include, in addition to piracy and the slave trade, the
case of stateless vessels and situations in which the protective
principle of jurisdiction is implicated. Kontorovich, Beyond the
Article I Horizon, supra, at 1227. In the case of stateless
vessels we again go back to early constitutional history, not
totally unrelated to the UJ piracy. In 1820, the Supreme Court in
essence decided that stateless vessels, that is, vessels that were
not registered or did not fly the flag of any nation, were
considered to have "turned pirate," i.e., were engaged in piracy
and the crew were pirates, and thus lost their status under
international law of having the protection of any nation and were
subject to the jurisdiction of whatever nation first acquired
physical jurisdiction over the vessel and its crew. See id. at
1228 (citing United States v. Holmes, 18 U.S. (5 Wheat.) 412, 417-
18 (1820); United States v. Klintock, 18 U.S. (5 Wheat.) 144, 150
(1820)). Although the MDLEA includes some jurisdictional
provisions that fall within these criteria of stateless vessels,
-38-
and which are consistent with today's customary international law,
the MDLEA's definition of "statelessness" goes far beyond what is
recognized by international customs or convention. See id. (citing
46 U.S.C. §§ 70502(c)(1)(A), 70502(c)(2)(A)-(B), 70502(c)(2)).
This, however, is an issue for another day, as these provisions are
not directly before us.
Under the principle of protective jurisdiction a state
may "punish extraterritorially 'a limited number of offenses . . .
directed against the security of the State or other offenses
threatening the integrity of governmental functions.'" Id. at 1229
(citing Restatement (Third) of Foreign Relations Law § 402 cmt. f
(1987)). However, "the conduct must be 'directed against the
security of the [forum] state . . . .'" Id. at 1230 (citing
Restatement (Third) of Foreign Relations Law § 403 (3)). Although
"the legislative findings of the MDLEA conclude that trafficking
'presents a specific threat to the security and societal well-being
of the United States,'" id. at 1229-30 (citing 46 U.S.C. § 70501),
it is difficult to surmise how the conduct in this case was either
directed at or constitutes a threat to, specific or otherwise, the
security or societal well-being of the United States considering
that the Osiris II was not headed to U.S. territory or even that
the contraband aboard was destined for trans-shipment to the United
States. Treating drug crimes as generally within the protective
-39-
jurisdiction theory would effectively eliminate the distinction
with UJ, which would be unacceptable under Article I. Id. at 1231.
There are several other theories which could be argued as
the basis for supporting the validity of the UJ created by MDLEA.
The first is the power conceded to Congress by the Constitution
over admiralty and maritime matters. See id. at 1234-37; U.S.
Const. Art III, § 2. In United States v. Flores, 289 U.S. 137
(1933), the Court ruled that the Constitution granted to the
federal government all powers within the admiralty jurisdiction.
Kontorovich, Beyond the Article I Horizon, supra, at 1234 (citing
Flores, 289 U.S. at 149-50). The Court thus concluded that within
its admiralty powers, the United States had jurisdiction over a
murder committed by a U.S. citizen aboard a U.S. flagged vessel,
even though the vessel was in Belgian territorial waters, in fact
several hundred miles up the Congo River. Flores, 289 U.S. at 153-
54, 159. The defendant had contended that Article I, § 8, cl. 10
power could not reach conduct in foreign waters, id. at 146-47, an
argument with which the Court agreed because the crime charged did
not take place in the high seas and was thus was outside of the
powers conceded to Congress under that provision. Id. However,
the Court ruled that the matter was otherwise within the admiralty
jurisdiction of the United States, because admiralty law follows
the flag, irrespective of the fact that the ship in question was up
a river in Africa. Id. at 159 ("[I]t is the duty of courts of the
-40-
United States to apply to offenses committed by its citizens on
vessels flying its flag, its own statutes, interpreted in the light
of recognized principles of international law."). But crucial to
this conclusion is the fact that it involved a U.S. vessel, which
is considered U.S. territory irrespective of where found. See
Kontorovich, Beyond the Article I Horizon, supra, at 1234-35;
UNCLOS, supra, art. 91. The Court stated, however, that the
situation would have presented "a different question" had the case
involved a foreign vessel. Flores, 289 U.S. at 157.
In point of fact Flores had been preceded almost one
hundred years earlier by United States v. Wiltberger, which
involved the killing of an American crew member aboard a U.S.
vessel on a river thirty-five miles inside China. 18 U.S. (5
Wheat.) 77 (1820). That case was argued, however, on the
international law principle that the law of the flag follows the
vessel wherever it is located, rather than on the Court's admiralty
jurisdiction. Kontorovich, Beyond the Article I Horizon, supra, at
1235-36 ("'There is no civilized nation, with which we are
acquainted, where jurisdiction over offenses committed on board its
own vessels, in foreign waters, would not be exercised[.]'")
(citing United States v. Wiltberger, 28 F. Cas. 727, 728 (E.D. Pa.
1819) (No. 16, 738)). Chief Justice Marshall, in dictum, opined
that foreign vessels would have stood on a different footing, and
the U.S. Attorney who argued the case saw the constitutionality of
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U.S. jurisdiction as depending entirely on the fact that the vessel
was American. Id. at 126 (citing Wiltberger, 18 U.S. (5 Wheat.) at
82-84, 113-15).
Another possible source of Congressional power which it
could be argued, sustains the validity of MDLEA is the Treaty
Power. See U.S. Const. art II, § 2, cl. 2. Pursuant to Missouri v.
Holland, 252 U.S. 416 (1920), it is claimed that Congress can act
outside its enumerated powers under Article I when implementing a
treaty. Kontorovich, Beyond the Article I Horizon, supra, at 1238
(citing Holland, 252 U.S. at 433). Thus, under current Supreme
Court doctrine, legislation enacted pursuant to treaty obligations
entered into by the United States, can allegedly trump structural
constitutional constraints, but not express limitations of
congressional power, such as individual rights guaranteed in the
Bill of Rights. Id. at 1239 (citing Boos v. Barry, 485 U.S. 312,
324-29 (1988) and Reid v. Covert, 354 U.S. 1, 16-19 (1957)). Since
the MDLEA does not raise any questions of federalism or separation
of powers, and assuming it does not violate express individual
rights (due process in particular15), under Missouri it could be
argued that the MDLEA is a valid exercise of Congress's treaty
15
Most of the challenges to the MDLEA brought under the due
process clause have been rejected. Kontorovich, Beyond the Article
I Horizon, supra, at 1239 n.318; see, e.g., United States v.
Cardales, 168 F.3d 548, 552-53 (1st Cir. 1999); United States v.
Martínez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993); United States
v. Suerte, 291 F.3d 366, 372 (5th Cir. 2002); United States v.
Rendon, 354 F.3d 1320, 1326-27 (11th Cir. 2003).
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making authority, if "Necessary and Proper" to effectuate the
obligations assumed by the United States which have become the law
of the land. See U.S. Const. art I, § 8, cl. 18; Kontorovich,
Beyond the Article I Horizon, supra, at 1239.
The question is, what treaty is being implemented?
Kontorovich, Beyond the Article I Horizon, supra, at 1239. Nothing
in the legislative history of MDLEA mentions a treaty or intimates
that the legislation is in compliance with treaty obligations. Id.
No court decision dealing with MDLEA refers to any treaty
obligation as the source of Congress's Article I authority. Id. In
fact, if anything, as previously stated, the UNCLOS does not
authorize UJ over drug trafficking. See id. at 1239 & n.322.
Nor is the U.N.'s Convention Against Illicit Traffic in
Narcotics and Psychotropic Substances, which has more than 150
state parties, the basis for UJ under the MDLEA, as its
jurisdictional provisions first require the parties to take
jurisdiction of offenses committed within their own respective
territorial or flag jurisdiction. Id. at 1239-40 (citing United
Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psyotropic Substances art. 4 (1) (a), adopted Dec. 19, 1988, S.
Treaty Doc. No. 101-4 (1989), 1582 U. N. T. S. 165 [hereinafter
UNCAITNPS]). This Convention does encourage, but does not require,
states to enter into bilateral agreements with each other,
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authorizing interdiction of drug trafficking by each other's
vessels. Id. at 1240 (citing UNCAPTNPS, supra, art. 17 (4) (c)).
The record does not reveal, and the Government has not
pointed to the existence of a treaty between Bolivia and the United
States establishing an MDLEA arrangement. We are unaware whether
it is a treaty, or an executive agreement which does not receive
Senate approval, and would be altogether on a different footing
than a treaty under the Missouri v. Holland doctrine, or even an
informal arrangement with Bolivia. See id. at 1240-41 (noting that
mere executive agreements cannot be substitutes for treaties for
purposes of Missouri v. Holland doctrine). I have searched all the
usual sources and have failed to unearth any treaty or executive
arrangement authorizing the exercise of U.S. jurisdiction over
Bolivian territory (including vessels). But even if such a treaty
exists, the UNCAITNPS only speaks of the possibility of these
arrangements. It creates no rights or obligations, wherefore it
cannot, in any event, be considered a source of legislative power
under Missouri v. Holland doctrine, which speaks to the enactment
of legislation which is required by treaty obligations of the
United States. Id. at 1238-40. In fact, during the drafting of
this Convention, a proposal by Canada specifically extending UJ to
drug trafficking vessels, was specifically rejected. Id. at 1243
(citing Natalie Klein, The Right of Visit and the 2005 Protocol on
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the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation, 35 Denv. J. Int'l. L. & Pol'y 287, 304 (2007)).
This conclusion is reinforced when the UNCLOS and the
Convention Against Illicit Traffic of Drugs are compared: the first
specifically authorizes UJ over piracy and slave trading, while the
second, which explicitly points to the first in its Article 17 (1)
(referring to the "international law of the sea"), merely calls for
"cooperat[ion]." Id. at 1244; compare UNCLOS, supra, art. 108 (1)
with UNCAITNPS, supra, art. 17 (1). The UNCLOS establishes a
general rule of freedom of the Seas, a principle to which the
United States has adhered since the early days of the Republic, see
James Kraska and Brian Wilson, The Pirates of the Gulf of Aden: The
Coalition is the Strategy, 45 Stan. J. Int'l. L. 243, 258 (2009)
(noting that freedom of the seas is a core U.S. maritime interest
and that throughout history, the U.S. has worked to resist
disruptions to freedom of the seas), and does not make any
exception for drug trafficking, but rather reflects a deliberate
judgement to not allow UJ in only those cases. Kontorovich, Beyond
the Article I Horizon, supra, at 1244; see UNCLOS, supra, art. 108.
One last argument favoring the authority of Congress to
legislate the MDLEA is the Foreign Commerce Clause. See U.S. Const.
art I, § 8, cl. 3 (granting Congress power to "[t]o regulate
Commerce with foreign Nations."). Notwithstanding the breadth of
this power, it is unavailing in the present case, for it only
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authorizes Congress to legislate conduct with a demonstrable and
direct nexus to the United States, and in the present situation, no
such nexus is extant. Kontorovich, Beyond the Article I Horizon,
supra, at 1249 ("[Congress] is not empowered to regulate foreign
commerce which has no connection with the United States.") (citing
United States v. Yunis, 681 F. Supp. 896, 907 n.24 (D.D.C. 1988)).
The majority is of the view that it is inappropriate for
me to raise, motu propio and on appeal for the first time, the lack
of Article I power by Congress to enact legislation exercising
criminal jurisdiction under the circumstances of this case. In
support of its contention it cites United States v. Baucum, 80 F.3d
539, 541 (D.C. Cir. 1996), to the effect that "[i}f a challenge to
the constitutionality of an underlying statute always implicated
subject-matter jurisdiction, then federal courts, having an
obligation to address jurisdictional questions sua sponte, would
have to assure themselves of a statute's validity as a threshold
matter in any case." Maj. Op. at 15. I respectfully disagree that
this general proposition is applicable in the present
circumstances.
The issues raised by Congress's ultra vires action in the
present case do not involve just a run-of-the-mill constitutional
challenge to the invalid exercise of an otherwise valid Article I
power. What we have here is a question involving a structural lack
of Article I power to legislate, whose very exercise is invalid.
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This is a lack of power that has existed and been recognized as
such since the beginnings of our Nation. See, supra, at 15-19.
Furthermore, even the very Baucum court cited by the majority
recognized that "there may well be appropriate circumstances when,
in the exercise of its discretion, the appellate court may choose
to hear constitutional claims not raised at trial." Baucum, 80 F.3d
at 544. I can think of no better case in which to exercise such
discretion than in a case involving this unprecedented action by
Congress,16 involving a situation of absolute lack of Article I
power, and one which can have serious long-range implications
against United States citizens in the context of other
international scenarios.17
16
There is no such other criminal or civil statute on the
books. Congress has not attempted to exercise universal
jurisdiction for any crime (except piracy, slavery and flagless
vessels, all crimes recognized as coming within the universal
jurisdiction exception), since its last attempt to do so in 1820,
when its actions in this respect were declared unconstitutional.
See Furlong, 18 U.S. (5 Wheat.) 184 (1820).
17
The United States has resisted attempts to exercise extra-
territorial jurisdiction over its citizens by other nations. See,
Press Statement, Richard Boucher, U.S. Dep't of State,
International Criminal Court: Letter to UN Secretary General Kofi
Annan (May 6, 2002) at http//www.state.gov/r/paprs/2002/9968.htm.
See also, Marise Simons, Spanish Court Weighs Inquiry on Torture
for 6 Bush-Era Officials, N. Y. Times, Mar. 28, 2009, at A6,
available at http://www.nytimes.com/2009/03/29/world/europe/29
spain.html?+baltazargarzon (describing complaint under Judge
Baltazar Garzón's review asserting that Spain has jurisdiction over
U.S. officials under, inter alia, the 1984 Convention Against
Torture, which is binding on the United States); David Bosco, The
Inquisition, Part II?, Washington Post, May 24, 2009, at BO2
(discussing Spain's judicial activism in the context of U.S.
detention policies at Guantanamo Bay); cf. Rachel Donadio, Italy
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Additionally, the majority's assertion that subject-
matter jurisdiction is not implicated by this issue is far from a
forgone conclusion. Allowing a conviction to stand under a statute
which Congress was without power to enact is unacceptable, for
"[i]n essence, the statute was void ab initio, and consequently,
the district court below lacked subject matter jurisdiction with
respect to that charge." United States v. Walker, 59 F.3d 1196,
1198 (11th Cir. 1995).
C. Conclusion
This court lacks jurisdiction over Appellant because the
law under which he was prosecuted, the MDLEA, is an
unconstitutional exercise of the power beyond the authority granted
to Congress under Article I of the Constitution. Except for
piracy, slave trading, and stateless vessels, the United States
lacks UJ to apprehend and try foreigners for conduct on foreign
vessels on the high seas for violation of United States criminal
laws where there is no nexus to the United States. I dissent.
Convicts 23 Americans for C.I.A.Renditions, N. Y. Times, Nov. 2009,
at A15, available at http://www.nytimes.com/2009/11/05world/
europe/05/italy.html.
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