UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-20626
_____________________
UNITED STATES OF AMERICA,
Plaintiff—Appellant,
versus
NESTOR SUERTE,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
May 14, 2002
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
At issue is whether, for extraterritorial application of the
Maritime Drug Law Enforcement Act, 46 U.S.C. App. § 1901 et seq.,
the Fifth Amendment’s Due Process Clause requires a nexus between
a foreign citizen and the United States, where the flag nation for
his vessel “has consented or waived objection to the enforcement of
United States law by the United States”. Id. § 1903(c)(1)(C).
Requiring such a nexus, the district court dismissed the indictment
for lack of jurisdiction. VACATED and REMANDED.
I.
Defendant Nestor Suerte, a Philippine national and resident of
Colombia, has apparently never entered the United States. The
Government alleges the following.
Suerte was captain of a freighter registered in Malta and
owned by a member of a Colombian/Venezuelan drug trafficking
organization (DTO); he met in Venezuela with DTO members in July
and August 2000 to coordinate loading the freighter, off the
northern coast of Venezuela, with 4900 kilograms of cocaine for
transport to, and distribution in, Europe; the freighter apparently
departed Venezuela on 11 August; the next day, an attempt was made,
using speed boats, to transport the cocaine to it; after Venezuelan
law enforcement detected the boats, they took evasive action; as a
result, approximately 2700 kilograms of the cocaine was lost; and
the remainder was stored for another attempt.
The DTO telexed Suerte plans for the second attempt, to occur
at designated coordinates on 18 August; on 16 and 17 August,
however, Venezuelan authorities arrested some of the DTO members,
thwarting the second attempt; but, nevertheless, on 17 August, the
freighter was at the vicinity of the designated rendezvous point,
in international waters.
The United States requested, and received, permission from
Malta (the flag nation) to board and search the freighter. (More
specifically, Malta waived objection to the search, and the Coast
2
Guard issued a Statement of No Objection to the boarding team.) A
search by the Coast Guard did not find cocaine.
Approximately a week later, Malta waived objection to the
enforcement of United States laws over the freighter and its crew.
The Government towed the vessel to the Port of Houston, Texas; on
2 September, it was searched by United States Customs Special
Agents; found in Suerte’s cabin was a torn copy of the above-
referenced telex giving the date, time, and coordinates for the
second attempt to load cocaine; and also found was an attache case
containing $3500 in $100 bills.
Suerte was arrested and indicted for conspiracy (as discussed
infra) to possess, with intent to distribute, more than five
kilograms of cocaine on board a vessel subject to United States
jurisdiction, in violation of the Maritime Drug Law Enforcement Act
(MDLEA), 46 U.S.C. App. § 1903. The Act provides, in pertinent
part:
(a) It is unlawful for any person ... on
board a vessel subject to the jurisdiction of
the United States ... to knowingly or
intentionally ... possess with intent to ...
distribute[] a controlled substance.
....
(c)(1) For purposes of this section, a
“vessel subject to the jurisdiction of the
United States” includes—
....
(C) a vessel registered in a
foreign nation where the flag nation has
3
consented or waived objection to the
enforcement of United States law by the United
States;
....
(j) Any person who attempts or conspires
to commit any offense defined in this chapter
shall be subject to the same penalties as
those prescribed for the offense, the
commission of which was the object of the
attempt or conspiracy.
Id. (emphasis added).
Suerte moved to dismiss the indictment for lack of
jurisdiction, claiming that, because he did not have a nexus to the
United States, the Constitution does not permit the MDLEA to have
extraterritorial effect over him. See United States v. Suerte, No.
H-00-CR-659-1, slip op. at 3 (S.D. Tex. 7 June 2001). Agreeing
with Suerte’s position, the district court reviewed international
law principles of extraterritorial jurisdiction, which
“represent[ed] the different types of nexuses recognized under
international law, and thus, inform[ed its] analysis”, id. at 5;
held no nexus existed between Suerte and the United States; and,
accordingly, dismissed the indictment.
II.
The Government contends: the Due Process Clause does not
require an individualized nexus for extraterritorial application of
the MDLEA; alternatively, one exists. Normally, we would first
address the Government’s alternative position. This is because, as
a general, prudential rule, we have a “strong duty to avoid
4
constitutional issues that need not be resolved in order to
determine the rights of the parties to the case under
consideration”. County Court of Ulster County, N.Y. v. Allen, 442
U.S. 140, 154 (1979).
Whether the Due Process Clause requires such a nexus, however,
is a much more straightforward question than whether a Philippine
national and resident of Colombia, engaged in a large-scale
conspiracy to traffic drugs internationally, but whose voyage is
not proceeding to the United States, has a nexus with this Country.
Therefore, it is appropriate to first consider the constitutional
question. We review de novo the district court’s holding. See,
e.g., United States v. Brown, 250 F.3d 907, 913 (5th Cir. 2001).
A.
In addition to the Supreme Court’s not having addressed
whether there is such a nexus requirement for the extraterritorial
reach of the MDLEA, this issue is one of first impression for our
court.
1.
To date we have published only two opinions regarding the
MDLEA. See United States v. Bustos-Useche, 273 F.3d 622 (5th Cir.
2001); Coumou v. United States, 107 F.3d 290 (5th Cir.), withdrawn
in part and superseded in part, 114 F.3d 64 (5th Cir. 1997).
Neither case concerns the due process constraints vel non governing
the MDLEA’s extraterritorial reach.
5
Bustos-Useche, however, approaches resolving the issue at
hand. That case involved a (presumably) Colombian defendant,
aboard a Panamanian vessel bound for Portugal through international
waters between Hispaniola and Puerto Rico. Based on information
provided by the Greek government, the United States suspected the
vessel of drug trafficking. Panama waived objection to the United
States’ boarding and searching the vessel. The flag-nation’s
consent to enforcement of United States law was given before trial
but after the Government’s search for, and seizure of, drugs aboard
the vessel in international waters. Bustos-Useche, 273 F.3d at
624.
In addressing whether this belated consent satisfied § 1903’s
statutory jurisdictional requirements, we noted:
Because Panama consented to the enforcement of
United States law over the [vessel] prior to
... trial, the district court had jurisdiction
... so long as the criminal statute under
which [the defendant] was prosecuted meets the
subject matter jurisdiction requirements of
Article III of the United States Constitution
and 18 U.S.C. § 3231 [(conferring original
jurisdiction on district courts for “offenses
against the laws of the United States”)].
Section 1903(a) defines a “law of the United
States” sufficiently enough to satisfy Article
III and defines an “offense against the law of
the United States” sufficiently enough to
satisfy ... § 3231. Therefore, the district
court had the authority to act on this case.
6
Id. at 628 n.6. This implies that the only constitutional
constraint on jurisdiction under the MDLEA is to be found in
Article III, not the Due Process Clause.
2.
Of the three circuits that have addressed the issue at hand,
only the Ninth Circuit has held the Due Process Clause requires a
nexus.
a.
United States v. Davis, 905 F.2d 245 (9th Cir. 1990), cert.
denied, 498 U.S. 1047 (1991), involved a British vessel seized in
international waters off California. A search of the vessel,
pursuant to Great Britain’s consent, discovered over 7000 pounds of
marijuana. Id. at 247.
The vessel’s captain, Davis, who was not a United States
citizen, was prosecuted under the MDLEA and contested its
extraterritorial application. Because “[t]he Congress shall have
power ... [t]o define and punish Piracies and Felonies committed on
the high Seas, and Offenses against the Law of Nations” (Piracies
and Felonies Clause), U.S. CONST. art. I, sec. 8, cl. 10, the Ninth
Circuit first decided that the clause “authorize[s] Congress to
give extraterritorial effect to the [MDLEA]”. Davis, 905 F.2d at
248. The Ninth Circuit qualified this holding: “In order to apply
extraterritorially a federal criminal statute to a defendant
consistently with due process, there must be a sufficient nexus
7
between the defendant and the United States so that such
application would not be arbitrary or fundamentally unfair”. Id.
at 248-49 (emphasis added; internal citation omitted).
Further rationale for the Ninth Circuit’s nexus requirement
was provided by United States v. Klimavicius-Viloria, 144 F.3d 1249
(9th Cir. 1998), cert. denied, 528 U.S. 842 (1999).
The nexus requirement serves the same purpose
as the “minimum contacts” test in personal
jurisdiction. It ensures that a United States
court will assert jurisdiction only over a
defendant who “should reasonably anticipate
being haled into court” in this country.
Id. at 1257 (quoting World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297 (1980)). (On the other hand, the Ninth Circuit does
not require a nexus for stateless vessels, also covered by the
MDLEA, § 1903(c)(1)(A). See United States v. Caicedo, 47 F.3d 370,
373 (9th Cir. 1995) (“Because stateless vessels do not fall within
the veil of another sovereign’s territorial protection, all nations
can treat them as their own territory and subject them to their
laws.”).)
b.
The First and Third Circuits have rejected a nexus
requirement. In United States v. Cardales, 168 F.3d 548 (1st
Cir.), cert. denied, 528 U.S. 838 (1999), the First Circuit
considered an MDLEA prosecution, pursuant to Venezuela’s consent,
of crew members of a Venezuelan vessel boarded and searched 150
8
miles south of Puerto Rico. Id. at 551-52. In addressing whether
the Due Process Clause required a nexus, Cardales noted, as had the
Ninth Circuit in Davis: “To satisfy due process, our application
of the MDLEA must not be arbitrary or fundamentally unfair”. Id.
at 553 (emphasis added).
“In determining whether due process [was] satisfied”, Cardales
consulted international law principles for “guid[ance]” and
concluded that the MDLEA satisfies both the “territorial
principle”, under which “a ‘state has jurisdiction to prescribe and
enforce a rule of law in the territory of another state to the
extent provided by international agreement with the other state’”,
id. (quoting United States v. Robinson, 843 F.2d 1, 4 (1st Cir.),
cert. denied, 488 U.S. 834 (1988)), and, especially, the
“protective principle”, under which a state may “‘assert
jurisdiction over a person whose conduct outside the [state’s]
territory threatens the [state’s] security’”, id. (quoting
Robinson, 843 F.2d at 3).
Concerning the protective principle, Cardales observed that
Congress had expressly found that “‘trafficking in controlled
substances aboard vessels is a serious international problem and is
universally condemned[, and] ... presents a specific threat to the
security ... of the United States’”. Id. (alteration in original;
quoting 46 U.S.C. App. § 1902). In that light, Cardales held due
process did not require the Government to prove a nexus.
9
When the foreign flag nation consents to the
application of United States law, jurisdiction
attaches under the statutory requirements of
the MDLEA without violation of due process or
the principles of international law because
the flag nation’s consent eliminates any
concern that the application of United States
law may be arbitrary or fundamentally unfair.
Id.
The court was careful, however, to note that it did not view
the MDLEA as a congressional override of international law. Id. at
553 n.2. “To the extent ... international law requires a nexus to
the United States, that nexus requirement ... is satisfied by the
foreign flag nation’s authorization to apply U.S. law to the
defendants [the territorial principle] and by the congressional
finding that drug trafficking aboard vessels threatens the security
of the United States [the protective principle].” Id.
The Third Circuit (which earlier rejected a nexus requirement
for MDLEA prosecutions involving stateless vessels, see United
States v. Martinez-Hidalgo, 993 F.2d 1052 (3d Cir. 1993), cert.
denied, 510 U.S. 1048 (1994)), follows a similar approach. United
States v. Perez-Oviedo, 281 F.3d 400 (3d Cir. 2002), involved the
MDLEA prosecution of a foreign captain of a Panamanian-registered
vessel, which was sailing from Colombia to Canada when intercepted
by the Coast Guard north of Trinidad and Tobago. Id. at 401.
After Panama waived objection, a search uncovered over two tons of
cocaine. Id.
10
After noting that “‘§ 1903(d) [(providing that “a failure to
comply with international law shall not divest a court of
jurisdiction or otherwise constitute a defense”)] expresses the
necessary congressional intent to override international law to the
extent that international law might require a nexus to the United
States’”, id. at 403 (quoting Martinez-Hidalgo, 993 F.2d at 1056),
the court held that no due process violation occurred from the
MDLEA’s extraterritorial application because “drug trafficking is
condemned universally by law-abiding nations”, id., and “[t]he
Panamanian government expressly consented to the application of the
MDLEA”, id. The court found the second fact particularly
compelling: “Such consent from the flag nation eliminates a
concern that the application of the MDLEA may be arbitrary or
fundamentally unfair”. Id.
c.
In addition, in United States v. Mena, 863 F.2d 1522 (11th
Cir.), cert. denied, 493 U.S. 834 (1989), while not expressly
ruling on a nexus requirement vel non, the Eleventh Circuit upheld
the MDLEA against a due process challenge for vagueness. Mena
involved the prosecution, with Honduran consent, of foreign
defendants arrested aboard a Honduran vessel in international
waters east of the Bahamas. The defendants claimed as
unconstitutionally vague § 1903’s term “vessel subject to the
jurisdiction of the United States”.
11
Noting that due process requires “[s]tatuory language [to]
convey ‘sufficiently definite warning as to the proscribed conduct
when measured by common understanding and practices[]’”, id. at
1527 (quoting Jordan v. DeGeorge, 341 U.S. 223, 231-32 (1951)), the
court concluded:
There is nothing vague about the statute.
Congress has provided clear notice of what
conduct is forbidden.... Those embarking on
voyages with holds laden with illicit
narcotics, conduct which is contrary to laws
of all reasonably developed legal systems, do
so with awareness of the risk that their
government may consent to enforcement of the
United States’ law against the vessel.
Id. (emphasis added; quoting United States v. Gonzalez, 776 F.2d
931, 940-41 (11th Cir. 1985)). As discussed infra, the same is
true for those who conspire to commit an offense proscribed by the
MDLEA.
B.
The opinions by these circuits do not discuss several sources
of law which, although not dispositive of the present issue,
provide us great assurance that, “where the flag nation has
consented or waived objection to the enforcement of United States
law by the United States”, § 1903(c)(1)(C), due process does not
require a nexus for the MDLEA’s extraterritorial application.
Those sources include: the Constitutional Convention debate
surrounding the Piracies and Felonies Clause (“The Congress shall
have Power ... [t]o define and punish Piracies and Felonies
12
committed on the high Seas, and Offenses against the Law of
Nations”); the earliest exercise of Congressional power under the
clause; and Supreme Court opinions reviewing that exercise.
1.
Concerning the Piracies and Felonies Clause, the Committee of
Detail’s draft Constitution, submitted to the Convention on 6
August 1787, would have empowered Congress “[t]o declare the law
and punishment of piracies and felonies committed on the high seas,
and the punishment of counterfeiting the coin of the United States,
and of offences against the law of nations”. 2 RECORDS OF THE FEDERAL
CONVENTION OF 1787 182 (Max Farrand ed., 1999) (emphasis added).
Subsequent debate over the clause primarily concerned the propriety
of granting the power to both punish and declare and whether the
latter power should read “declare”, “designate”, or “define”. See
id. at 315-16.
There was apparently no debate regarding constraints vel non
on the clause’s extraterritorial reach. It would seem that, had
they been of concern, the matter would have been discussed,
especially because the clause contains “the only specific grant of
power to be found in the Constitution for the punishment of
offenses outside the territorial limits of the United States”.
CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS, THE CONSTITUTION OF THE
UNITED STATES, ANALYSIS AND INTERPRETATION, S. DOC. NO. 103-6, at 304
13
(Johnny H. Killian & George A. Costello eds., 1992) (S. DOC. NO.
103-6).
The First Congress promptly enacted far-reaching legislation
under the Piracies and Felonies power. In April 1790,
approximately seven months after proposing the Bill of Rights to
the States (25 September 1789), Congress approved An Act for the
Punishment of Certain Crimes Against the United States (1790 Act).
It provides, in part: in § 8, “[t]hat if any person or persons
shall commit upon the high seas ... murder or robbery, ... every
such offender shall be ... adjudged ... a pirate and felon, and
being thereof convicted, shall suffer death”; and, in § 12, “[t]hat
if any ... person shall commit manslaughter upon the high seas, ...
such person ... so offending, and being thereof convicted, shall be
imprisoned not exceeding three years, and fined not exceeding one
thousand dollars”. Act of 30 Apr. 1790, ch. 9, 1 Stat. 112, 113-15
(emphasis added).
For purposes of this appeal, perhaps the most striking aspect
of the 1790 Act is that many of its provisions regarding crimes on
the high seas apply to “any person”. (Emphasis added.) It is
important to note, especially in a case in which at issue is the
constitutionality of another exercise of the Piracies and Felonies
power, that, at the time it passed the 1790 Act, the First Congress
had already drafted the Fifth Amendment and proposed it to the
States.
14
While that Amendment was not ratified until 15 December 1791,
during “[t]he debates [in August 1789 for] what became the Fifth
Amendment ... there was no hint ... of any intention, by the
adoption of that amendment, to deprive Congress of this [Piracies
and Felonies] power expressly and uncontroversially granted to it
by the Convention”. A. Mark Weisburd, Due Process Limits on
Federal Extraterritorial Legislation?, 35 COLUM. J. TRANSNAT’L L.
379, 421 (1997) (citing 1 ANNALS OF CONG. 753 (Joseph Gales ed.,
1789)). In this regard, the First Congress, which drafted the 1790
Act and the Amendment, “included 20 Members who had been delegates
to the [Constitutional] Convention”. Bowsher v. Synar, 478 U.S.
714, 724 n.3 (1986).
2.
Early Supreme Court opinions addressing extraterritorial
applications of the 1790 Act intimate that the Fifth Amendment
imposes no nexus requirement on the reach of statutes criminalizing
felonious conduct by foreign citizens on the high seas. In United
States v. Palmer, 16 U.S. 610 (1818), the Court considered, inter
alia, whether the United States had jurisdiction, pursuant to § 8
of the 1790 Act, to try, and punish, foreign citizens who had, on
the high seas, boarded and robbed a foreign-owned vessel manned by
a Spanish crew.
In answering “whether th[e] act extends farther than to
American citizens, or to persons on board American vessels, or to
15
offences committed against citizens of the United States”, id. at
630, Chief Justice Marshall stated for the Court:
The constitution having conferred on congress
the power of defining and punishing piracy,
there can be no doubt of the right of the
legislature to enact laws punishing pirates,
although they may be foreigners, and may have
committed no particular offence against the
United States. The only question is, has the
legislature enacted such a law? Do the words
of the act authorize the courts of the Union
to inflict its penalties on persons who are
not citizens of the United States, nor sailing
under their flag, nor offending particularly
against them?
Id. at 630-31 (emphasis added).
The Court answered in the negative. After emphasizing the
generality of the language employed by the 1790 Act in setting its
reach (e.g., “any captain, or mariner of any ship or vessel”; “any
seaman”; “any person or persons”), the Court stated: “Every nation
provides for such offense[s] the punishment its own policy may
dictate, and no general words of a statute ought to be construed to
embrace them when committed by foreigners against a foreign
government”. Id. at 632-33 (emphasis added). Therefore, the Court
concluded that, as a statutory matter, “the crime of robbery,
committed by a person on the high seas, on board of any ship or
vessel belonging exclusively to subjects of a foreign state, on
persons within a vessel belonging exclusively to subjects of a
foreign state, is not a piracy within the true intent and meaning
of the act”. Id. at 633-34 (emphasis added).
16
Palmer is an illustration of the well-established canon of
construction espoused by Chief Justice Marshall in Murray v. The
Schooner Charming Betsy, 6 U.S. 64 (1804): “[A]n act of Congress
ought never to be construed to violate the law of nations if any
other possible construction remains....” Id. at 118. Later, the
Court emphasized in Lauritzen v. Larsen, 345 U.S. 571 (1953),
however, that this canon “is not, as sometimes is implied, any
impairment of our own sovereignty, or limitation of the power of
Congress”. Id. at 578.
While the constraints vel non imposed by the Fifth Amendment
on extraterritorial application of laws enacted pursuant to the
Piracies and Felonies Clause may not have been directly at issue in
Palmer, Chief Justice Marshall’s assessment of the relevant inquiry
regarding extraterritorial applications — “The constitution having
conferred on congress the power of defining and punishing piracy,
... [t]he only question is, has the legislature enacted such a
law?” — arguably removes any doubt that such enactments comport
with the Fifth Amendment. And while at issue was Congress’ power
to define and punish piracies, Chief Justice Marshall’s assessment
should apply with equal weight to felonies such as at issue here,
a parallel provision within the same constitutional clause.
Other case law interpreting the 1790 Act suggests
international law principles are in some way inherent in the
Piracies and Felonies Clause. In United States v. Furlong, 18 U.S.
17
184 (1820), the Court considered, in dictum, whether Congress could
punish a murder, committed upon the high seas, by one foreign crew
member against another aboard a foreign vessel. Id. at 193-98.
Justice Johnson opined for the Court: “I am led to the conclusion,
that [§ 8 of the 1790 Act] does not extend the punishment for
murder to the case of that offence committed by a foreigner upon a
foreigner in a foreign ship. But otherwise as to piracy, for that
is a crime within the acknowledged reach of the punishing power of
Congress”. Id. at 197 (emphasis added).
Addressing the fact that, in § 8 of the 1790 Act, Congress had
declared murder committed upon the high seas to be piracy, Justice
Johnson further concluded: “[Murder and piracy] are things so
essentially different in their nature, that not even the
omnipotence of legislative power can confound or identify them”.
Id. at 198. He continued:
If, by calling murder piracy, it might assert
a jurisdiction over that offence committed by
a foreigner in a foreign vessel, what offence
might not be brought within their power by the
same device? The most offensive interference
with the governments of other nations might be
defended on the precedent. Upon the whole, I
am satisfied that Congress [did not] intend[]
to punish murder in cases with which they had
no right to interfere....
Id. at 198 (first emphasis in original).
In short, it appears Justice Johnson thought Congress’
Piracies and Felonies power extends only so far as permitted by
18
international law. That position may be at loggerheads, however,
with more recent pronouncements by the Court. See, e.g.,
Lauritzen, 345 U.S. at 578 (as discussed supra, noting that the
canon of construction announced in The Charming Betsy “is not, as
sometimes is implied, any impairment of our own sovereignty, or
limitation of the power of Congress”); Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 815 (1993) (Scalia, J., dissenting in
part) (“Though it clearly has constitutional authority to do so,
Congress is generally presumed not to have exceeded those customary
international-law limits on jurisdiction to prescribe.” (Emphasis
added.)).
The opinions addressing the reach of the 1790 Act are of
significance to our consideration of the MDLEA’s reach. Those
opinions concern an exercise of power, pursuant to the Piracies and
Felonies Clause, by a Congress which, as noted, had some members
who had drafted that clause, the 1790 Act, and the Fifth Amendment.
While none of these cases addresses whether the Fifth Amendment has
any applicability to exercises of power under the Piracies and
Felonies Clause, neither the Fifth Amendment generally, nor its Due
Process Clause specifically, was flagged as an issue in any of
them. In fact, in addressing an 1819 law providing for the
punishment of piracy on the high seas, the Court noted that,
“notwithstanding a series of contested adjudications on [§ 8 of the
1790 Act], no doubt has hitherto been breathed of its conformity to
19
the constitution”. United States v. Smith, 18 U.S. 153, 158 (1820)
(emphasis added).
3.
In the light of this rich history, and for the issue at hand,
it is not necessary to decide whether the Due Process Clause
imposes no constraints on the extraterritorial application of the
MDLEA. For example, in previously considering whether a
predecessor to the MDLEA required a nexus for stateless vessels,
our court noted:
[G]iven the clear authority of Congress in the
premises, [citing the Piracies and Felonies
Clause], the relevance of international law to
the problem at hand is as a reflection of
Congressional intent rather than as a
limitation on the power of Congress, at least
where, as here, there is no basis for any
claim of due process violation.
United States v. Alvarez-Mena, 765 F.2d 1259, 1266 (5th Cir. 1985)
(emphasis added).
Accordingly, we hold that, for the MDLEA issue at hand, and to
the extent the Due Process Clause may constrain the MDLEA’s
extraterritorial reach, that clause does not impose a nexus
requirement, in that Congress has acted pursuant to the Piracies
and Felonies Clause. Again, that clause is “the only specific
grant of power to be found in the Constitution for the punishment
of offenses outside the territorial limits of the United States”.
S. DOC. NO. 103-6, at 304.
C.
20
Assuming, arguendo, that resolution of this issue does require
consulting international law, the MDLEA’s application to Suerte
still passes constitutional muster because, on these facts,
international law does not require a nexus.
1.
Malta, under whose flag Suerte’s vessel was registered,
consented to the boarding and search of his vessel, as well as to
the application of United States law. A flag nation’s consent to
a seizure on the high seas constitutes a waiver of that nation’s
rights under international law. See United States v. Williams, 617
F.2d 1063, 1090 (5th Cir. 1980) (en banc). “[I]nterference with a
ship that would otherwise be unlawful under international law is
permissible if the flag state has consented”. RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW OF THE UNITED STATES § 522 cmt. e (1987); see also
Robinson, 843 F.2d at 4.
Along this line, and as noted, the MDLEA provides: “[A]
‘vessel subject to the jurisdiction of the United States’ includes
... a vessel registered in a foreign nation where the flag nation
has consented or waived objection to the enforcement of United
States law by the United States”. 46 U.S.C. App. § 1903(c)(1)(C).
This codifies the above-described generally accepted principle of
international law: a flag nation may consent to another’s
jurisdiction. See RESTATEMENT (THIRD) § 522 reporters note 8 (the
MDLEA “confirmed the practice” of relying on informal grants of
21
consent by flag nations (emphasis added)); THOMAS J. SCHOENBAUM,
ADMIRALTY AND MARITIME LAW § 3-12 n.41 (3d ed. 2001) (the principle that
flag-nation consent satisfies international law requirements “is
confirmed by the MDLEA” (emphasis added)). Such an agreement
between the United States and a flag nation to apply United States
law on a flag-nation vessel may be made informally. Robinson, 843
F.2d at 4; see also RESTATEMENT (THIRD) § 301 & cmt. b. (international
agreements need not be formalized, nor need they be in writing).
2.
Maintaining that Malta’s consent is irrelevant, Suerte asserts
that, because no drugs were found on his vessel, he was not in
violation of United States law when his vessel “was converted in
effect to American territory” by Malta’s consent.
a.
This claim has no merit. As noted earlier, we held recently:
“The only statutory prerequisite to the district court’s
jurisdiction under section 1903(c)(1)(C) is that the flag nation
consent to the enforcement of United States law before trial”.
Bustos-Useche, 273 F.3d at 627 (emphasis added).
b.
Even accepting Suerte’s contention, we note he was not charged
with drug possession; instead, he was charged with conspiracy to
possess with intent to distribute. “A conspiracy is ‘an agreement
by two or more persons to commit one or more unlawful acts and an
22
overt act by one of the conspirators in furtherance of the
conspiracy.’” United States v. Thomas, 12 F.3d 1350, 1356 (5th
Cir.) (quoting United States v. Romeros, 600 F.2d 1104, 1106 (5th
Cir. 1979), cert. denied, 444 U.S. 1077 (1980)), cert. denied, 511
U.S. 1114 (1994). “If the totality ... of evidence is adequate to
show a concert of action, all the parties working together
understandingly, with a single design for the accomplishment of a
common purpose[,] then the conspiracy may be found.” United States
v. Perez, 489 F.2d 51, 61 (5th Cir. 1973), cert. denied, 417 U.S.
945 (1974).
As alleged by the Government: meetings during which Suerte
agreed to receive and transport the cocaine occurred in Venezuela;
he was working with others with a single design for a common
purpose at the time the United States requested and received
permission from Malta to board and search his vessel; and, he was
then acting in furtherance of that common purpose — he was
assisting and awaiting the second attempt to load cocaine by
positioning his vessel in the vicinity of the coordinates provided
by the telex (found in the search of his cabin) designating the
location for that attempt.
In this light, application of the MDLEA to Suerte is
permissible; a nexus between his conduct and the United States is
not required. Rejecting a nexus requirement will not result in the
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unrestrained, global law enforcement by the United States decried
by Suerte.
Again, the power “to define and punish Piracies and Felonies
committed on the high seas, and Offenses against the Law of
Nations” is “the only specific grant of power to be found in the
Constitution for the punishment of offenses outside the territorial
limits of the United States”. S. DOC. NO. 103-6, at 304 (emphasis
added). The MDLEA represents an extremely limited exercise of that
power. For certain persons not aboard United States vessels or in
United States customs waters, it proscribes drug trafficking only
aboard a stateless vessel or, as in the case at hand, a vessel
whose flag nation consents to enforcement of United States law.
Enforcement of the MDLEA in these circumstances is neither
arbitrary nor fundamentally unfair (the due process standard agreed
upon by Suerte and the Government). Those subject to its reach are
on notice. In addition to finding “that trafficking in controlled
substances aboard vessels ... presents a specific threat to the
security and societal well-being of the United States”, Congress
has also found that such activity “is a serious international
problem and is universally condemned”. 46 U.S.C. App. § 1902
(emphasis added). Along this line, the United Nations Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, opened for signature 20 Dec. 1988, 28 I.L.M. 493, to
which Malta and the United States are signatories, provides as its
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purpose: “to promote cooperation among the Parties so that they
may address more effectively the various aspects of illicit traffic
in narcotic drugs and psychotropic substances having an
international dimension”. Id. art.2.
III.
For the foregoing reasons, we VACATE the dismissal of the
indictment in this case and REMAND for further proceedings.
VACATED and REMANDED
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