CRIMINAL PROCEDURE--High Seas Statute Results in High Stakes Global Prosecution.

• Author: McCauley, Sarah
• Position: Case note

CRIMINAL PROCEDURE--High Seas Statute Results in High Stakes Global Prosecution--United States v. Cruickshank, 837 F.3d 1182 (11th Cir. 2016).

In the prosecution of criminal activity, the U.S. government traditionally focused its efforts on prosecuting individuals who carry out crimes with a nexus to the United States. (1) The Maritime Drug Law Enforcement Act (MDLEA) creates a different standard for the prosecution of criminal activity on any vessel that has no country of origin. (2) In United States v. Cruickshank:, (3) the United States Court of Appeals for the Eleventh Circuit determined whether, under the Felonies Clause, the MDLEA still requires a link between a criminal act and the United States. (4) The Court considered whether a statute with extraterritorial reach was warranted in order to combat global narcotics trafficking, which is universally condemned. (5)

On February 11, 2014, Carlington Cruickshank and one other individual were aboard a vessel traveling to Jamaica from Colombia. (6) When the vessel was less than (200) miles off the coast of Jamaica, a helicopter operated by the United States Coast Guard (USCG) saw the ship and ordered Cruickshank, along with his fellow passenger, to stop. (7) Instead of doing as instructed by the USCG, the individuals on the vessel began to throw unidentified packages overboard. (8) Following warning shots aimed at the ship, the USCG boarded the vessel and requested identification from the individuals operating the vessel, as well as the vessel's nation of registry. (9) Cruickshank claimed Jamaican citizenship and registry of the vessel, however when USCG contacted Jamaican authorities, they were unable to confirm the vessel's registry. (10) Ultimately the USCG found 171 kilograms of cocaine aboard the vessel. (11)

Mr. Cruickshank was arrested, brought to the United States, and charged with one count of conspiracy and one count possession with intent to distribute. (12) At trial, which began on May 21, 2014, the defense moved for a judgment of acquittal based on the government's failure to satisfy the mens rea element of the crime, as well as a motion claiming the court lacked jurisdiction. (13) Ultimately, the trial concluded with a jury decision rendering guilty verdicts on both counts. (14) The District Court then sentenced him to 324 months imprisonment, which Mr. Cruickshank appealed. (15) Mr. Cruickshank appeals on the District Court's failure to grant the motion for judgment of acquittal and the jurisdictional issue. (16)

Article I of the Constitution provides a detailed description of the powers, duties, and restrictions of Congress. (17) Section 8 of this article specifically discusses the powers Congress has in regards to piracies and felonies on the sea. (18) The Define and Punish Clause states that Congress has the power "to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." (19) While there has been much debate over the actual meaning of this clause, the Supreme Court determined that the clause creates three powers. (20)

First, that Congress has the power to punish piracies. (21) Second, that Congress has the power to prosecute any felony committed on the high seas. (22) Finally, the clause grants Congress the power to punish any offense against the law of nations. (23)

Asserting the ability to do so under the powers delegated by the Define and Punish Clause, Congress enacted the MDLEA in 1903. (24) The enactment was based on findings by Congress which state that drug trafficking on ships, as well as the operation of unlicensed ships in general, is an international problem and a threat to the United States. (25) Based on this reasoning, the MDLEA states that any vessel "without nationality" is subject to the jurisdiction of the United States. (26) The statute defines a vessel lacking nationality as one which "the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed." (27) Since its enactment, the MDLEA has been the subject of confusion over the precise meaning of the language provided within it, as well as the scope of the act itself. (28)

There is a split in the circuits as courts attempt to determine if the MDLEA has provided the government with the power to charge individuals with no nexus to the United States. (29) For example, in United States v. Perlaza, (30) the Ninth Circuit found that even under the MDLEA, a nexus to the United States is always required. (31) Alternatively, the First Circuit determined in United States v. Cardales-Luna, (32) that no nexus requirement is necessary for United States officials to board a vessel in international waters if that ship cannot prove that it is registered to, and thereby controlled by, another nation. (33) There is also confusion within the Eleventh Circuit, where the Court first determined in 2012 that a nexus requirement was necessary, but then extinguished the need for a nexus in subsequent cases. (34)

In United States v. Cruickshank, (35) the United States Court of Appeals for the Ninth Circuit decided that there is no jurisdictional nexus requirement under the MDLEA. (36) The Court reasoned that a criminal act does not need to have any causal relationship to the United States under MDLEA because a global moral code, specifically, a global condemnation of drug trafficking, upholds any extraterritorial prosecution. (37) The Court concluded that, despite this extraterritorial reach, Congress did not exceed its powers when enacting the MDLEA because, under the Felonies Clause, Congress may punish crimes that occur "on the high seas." (38)

Further, the Court denied the Defendant's argument to reconsider prior Eleventh Circuit precedent regarding notice in favor of recent decisions in the Second and Ninth Circuits. (39) The Court reasoned that the language of the MDLEA provided "clear notice" to any possible offenders of both the substance and the scope of the statute. (40) This is unlike other circuits, which have found that the act does not provide adequate notice of the extraterritorial reach of the statute. (41)

The Eleventh Circuit erred in concluding that criminal prosecutions which occur under the MDLEA do not require a jurisdictional nexus. (42) The history of the Define and Punish Clause suggests that the intention of the clause was not to punish the criminal activity of foreign citizens in foreign water, but rather to prosecute acts committed "by or against U.S. citizens" aboard ships. (43) Therefore, in analyzing the need for a link between the criminal act and the United States under the statute, the Court incorrectly determined that the Define and Punish Clause gave Congress the power to enact an extraterritorial statute. (44) Moreover, both the Second and Ninth Circuits have rejected the proposition that the Define and Punish Clause eliminates the need for a causal relationship between the United States and any criminal act that is committed on a vessel. (45) If the Court had followed this same reasoning, there would have been no basis for concluding that Cruickshank, who is a foreign citizen arrested in foreign waters, was subject to the law of the United States. (46)

Further, the Court erred in determining that the language of the MDLEA provides clear notice as to the substance and scope of the statute. (47) Alternatively, the Court should have analyzed the language of statute under the void for vagueness doctrine. (48) A statute is unconstitutionally vague if there is no warning or notice of those who may be within the scope of the statute or the conduct that statute criminalizes. (49) Here, the Court has suggested that because of a universal condemnation of illegal drugs, any foreign citizen on any ship that cannot confirm nationality of the vessel may be subject to the law of the United States. (50) Due to the precedent set by the void for vagueness decisions, had the Court performed this analysis, the conclusion would have been that the statute lacked adequate notice to those within the scope of the statute. (51)

If the circuit split is ultimately decided in favor of the interpretation of the Eleventh Circuit, the result will be a series of complicated and expensive prosecutions. (52) The interpretation of the Court hypothetieally allows any individual around the globe to be prosecuted by any state in the country. (53) Not only is this confusing, but it would result in the expensive prosecutions of individuals who should not be part of the United States criminal justice system. (54) This type of prosecution takes the burden off of foreign countries to prosecute crimes committed by their own citizens, and instead places the burden on the United States to act as a global police force. (55) Ultimately, if this precedent stands, the United States will be involved in continuous arrests and prosecutions of individuals, like Cruickshank, who are not United States citizens and did not commit criminal activity within the country. (56)

In United States v. Cruickshank, (57) the Eleventh Circuit considered whether the MDLEA requires a jurisdictional nexus in order to prosecute foreign citizens. (58) The Court inaccurately relied on the Define and Punish Clause to conclude that, when prosecuting under the MDLEA, no connection between the act and the United States is necessary. (59) The Court should have analyzed the statute under the void for vagueness doctrine, and found the statute to be unduly vague, resulting in a Due Process violation due to lack of notice to all individuals who may be subject to the statute. (60) By allowing extraterritorial criminal proceedings under the MDLEA, without establishing any connection between the act and the United States, the Court has given the government prosecution powers that far exceed what was intended by the Framers of the Constitution in the Define and Punish Clause. (61)

(1.) See United States v. Cruickshank, 837...