D.A.R.E. TO CUT BACK: THE COURTS HAVE EXPANDED UNITED STATES' JURISDICTION TOO FAR.

• Author: Scott, Jackson

1. Introduction 127 II. Background 127 III. Circuit Split 129 A. The Second Circuit in United States v. Prado 129 B. The Eleventh Circuit in United States v. Nunez 130 C. The Petition for Certiorari 131 IV. Canons of Statutory Interpretation 132 V. An Alternative Approach to Challenge a Broad Interpretation of [section] 70502(d)(1) 134 A. Vessel without Nationality Pursuant to Customary International Law 135 B. The First Circuit in United States v. Davila-Reyes 136 VI. MDLEA Strict Interpretation 138 VII. MDLEA When There is no Master or Individual in Charge 142 VIII. Conclusion 144 I. Introduction

   The Maritime Drug Law Enforcement Act (hereinafter "MDLEA") has recently been the subject of controversy due to the ambiguity of the act in defining a vessel without nationality. (2) As the principal mechanism for the government to combat the trafficking of illicit narcotics on the high seas, the MDLEA allows for the domestic prosecution of foreign nationals apprehended on extraterritorial seas. (3) Such application has led the United States to convict and house foreign nationals domestically in the federal penal system.

   Apprehending and housing these foreigners year after year is costing the United States taxpayers an astronomical amount of money. According to a report issued by the Department of Justice Bureau of Prisons in September of 2021, the average cost of incarcerating a single prisoner in the year 2020 was between $35,000 and $40,000. (4) Additionally, the United States Coast Guard is requesting 13.1 million dollars from Congress for its 2022 budget in part to enforce the MDLEA. (5) Considering the amount of money involved and the severity of consequences for violating the MDLEA, the scope of its application should be thoroughly understood--after all, the MDLEA has been in effect for nearly forty years. (6) Unfortunately, the widespread implications of the MDLEA and its enforcement are not widely understood.

   This comment will focus on the recent difficulties surrounding the application of the MDLEA and present information relevant to the MDLEA's extraterritorial reach. It will start by providing background as to what the MDLEA is and what the MDLEA implies. The comment will then proceed to address the current federal circuit split involving vessels without nationality. Further, it will present two bases to support a stricter interpretation of the MDLEA.

2. Background

   Congress enacted the MDLEA in 1986, officially making it unlawful for any individual on board a covered vessel to "knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance." (7) The MDLEA was passed pursuant to Congress's constitutional authority "to define and punish Piracies and Felonies committed on the high Seas." (8) In enacting the MDLEA, Congress effectively expanded United States' jurisdiction extraterritorially by criminalizing certain acts committed outside the territorial jurisdiction of the United States. (9)

   In its current form, the MDLEA applies to individuals on board any vessel of the United States and any vessel subject to the jurisdiction of the United States--which includes any vessel "without nationality." (10) However, whether or not a vessel is subject to the jurisdiction of the United States, i.e., "without nationality," is not a prerequisite for an offense under the MDLEA; instead, it is a preliminary question of law for the determination of a trial judge. (11) The MDLEA enumerates three instances in which a vessel can be deemed to be without nationality (stateless) and thus subject to the jurisdiction of the United States. (12) First, a vessel is considered stateless when the master or individual in charge asserts a claim of registry that is subsequently denied by the nation whose registry is claimed. (13) Second, a vessel is stateless when the master or individual in charge of the vessel fails to make a claim of nationality or registry on behalf of the vessel after being requested to do so by an officer of the United States. (14) Third, a vessel can be deemed properly to be "without nationality" when the master or individual in charge asserts a claim of registry or nationality that the claimed nation fails to affirmatively and unequivocally assert that the vessel is in fact of that nation's nationality. (15)

   The MDLEA acknowledges three ways for the master or individual in charge of a vessel to assert a claim of nationality or registry. (16) An individual can manifest a claim of registry or nationality only by (1) flying a nation's flag or ensign upon the vessel, (17) (2) producing documentation evidencing the vessel's nationality or registry, (18) or (3) by verbally asserting a claim of nationality or registry if the individual is the master of or in charge of the vessel. (19) The scope of the MDLEA's application and subsequent jurisdiction seems straightforward--it applies to unlawful acts committed on vessels subject to the jurisdiction of the United States. (20) However, as the rest of this comment will explore, the exact scope of the MDLEA's jurisdiction is riddled with controversy.

   Congress passed the MDLEA as part of the Anti-Drug Abuse Act of 1986, which was fast-tracked through the enactment process and received substantial bipartisan support seeking to create a drug-free America. (21) Upon enactment Congress found the legislation "necessary to 'facilitate enforcement by the Coast Guard of laws relating to the importation of illegal drugs.'" (22) The MDLEA embodies an outward manifestation of Congressional intent to enable aggressive prosecution of maritime drug trafficking. (23) Due to its broad scope and aggressive application, the MDLEA has been the subject of numerous constitutional challenges and scrutiny from non-citizen defendants being prosecuted, resulting in discord between the federal appellate courts. Unfortunately, the Supreme Court of the United States (SCOTUS) has yet to grant any writs of certiorari to resolve issues involving the MDLEA since its enactment in 1986.

3. Circuit Split

   As previously noted, section 70502(d)(1) of the United States Code enumerates three ways in which a vessel can be deemed to be "without nationality" and thus subject to the jurisdiction of the United States. (24) Currently, a split exists among the circuits. The Eleventh Circuit, in United States v. Nunez, (25) as well as the First (26) and Third Circuits, (27) treat the enumerated list as mere suggestions that leave room for other determinations of stateless vessels in congruence with customary international law. The Second Circuit, on the other hand, in United States v. Prado, treats the enumerated list as exhaustive and does not rely on customary international law in determining what constitutes a "vessel without nationality." (28)

   Recently, in June 2021, the Eleventh Circuit handed down Nunez, in which the court disagreed with the Second Circuit's holding in Prado. (29) As a result of the Eleventh Circuit's decision, a Petition for Writ of Certiorari has been filed with the Supreme Court of the United States. (30) The Petition for Writ of Certiorari seeks to resolve the question of "whether the three ways to identify nationless vessels enumerated in [section] 70502(d)(1) are exhaustive." (31) Essentially the Petition is seeking clarification regarding the scope of a "vessel subject to the jurisdiction of the United States"--or, what constitutes a vessel without nationality. (32)

   1. The Second Circuit in United States v. Prado

      In Prado, the Second Circuit held that when there is no identified master, or individual, in charge of the vessel, the Coast Guard must request a claim of nationality, or registry, from the individuals on board the vessel. (33) If the Coast Guard does not then the vessel cannot properly be deemed to be without nationality. (34) This decision arose from the Coast Guard receiving a tip about a "go-fast" boat carrying drugs between Nicaragua and Costa Rica. (35) The Coast Guard spotted a "go-fast" boat traveling at a high speed in international waters, intercepted the vessel, and recovered 680 kilograms of cocaine. (36) Manning the vessel were three individuals who claimed to be of Ecuadorian nationality; however, none of the individuals claimed to be in charge of the vessel or to be the master of the vessel. (37) Subsequently the individuals were detained and pleaded guilty to conspiracy and possession in violation of the MDLEA in the United States District Court for the Southern District of New York. (38)

      The pertinent issue on appeal was whether or not the trial court erred in determining that the vessel was properly qualified as a vessel without nationality and, thus, subject to the jurisdiction of the United States. (39) According to the MDLEA, a vessel is considered to be without nationality and, consequently, subject to the United States' jurisdiction when the master, or individual in charge, fails to respond to a request made by a U.S. officer for the master to assert a claim of nationality for the vessel. (40) In reaching its decision, the Second Circuit noted that "the absence of a master's claim of registration does not, by itself, establish absence of registration." (41) Instead, the failure to assert a claim of nationality or registry upon request by an authorized officer constitutes the vessel's qualification as a vessel without nationality. (42)

      The Second Circuit ultimately determined the vessel was not "without nationality" and thus not subject to the jurisdiction of the United States. (43) With sound reasoning, the court explained that if the master, or individual in charge of the vessel, fails to state the vessel's nationality when asked, it creates a dispositive inference that the vessel is, in fact, stateless. (44) On the other hand, the court reasoned that the mere failure to volunteer such information without being asked by proper authority does not create the same dispositive...