Drug smuggling on the high seas: using international legal principles to establish jurisdiction over the illicit narcotics trade and the Ninth Circuit's unnecessary nexus requirement.

• Published date: 22 December 2009
• Author: Fritch, Charles R.
• Date: 22 December 2009

I. INTRODUCTION

International drug smuggling is probably the fastest-growing industry in the world and is unquestionably the most profitable. The global drug trade produces approximately $400 billion a year in annual revenue. (1) The U.S. market, the world's largest, produces revenues of at least $100 billion at retail--twice what U.S. consumers spend for oil. (2) Drug smugglers employ every conceivable means of transportation to move their illicit cargo, but maritime conveyance continues to be the predominant method for smuggling drugs into the United States. (3)

To combat maritime conveyance, the United States annually spends over $8 billion in federal resources (4) and has enacted a series of laws that attempt to extend U.S. authority into the high seas. Prosecutions under these laws have led to a series of challenges by foreign nationals who argue that the United States does not have jurisdiction over their actions. These jurisdictional challenges have been almost universally rejected by U.S. courts, which commonly find that international legal principles are sufficient for the extraterritorial extension of U.S. jurisdiction. The Ninth Circuit Court of Appeals, however, has rejected the sufficiency of these principles and determined that, as a precursor to jurisdiction, the government must establish a nexus between the defendant's conduct and the United States. (5) The Ninth Circuit argues that this nexus requirement, which is generally interpreted as knowledge that the illicit substances being smuggled are headed for the U.S. market, is necessary because of due process and fairness concerns. (6) The difficulties the nexus requirement creates for federal prosecutors attempting to bring cases in the Ninth Circuit are illustrated by the details of a recent decision in which the circuit overturned a conviction for failure to establish a nexus.

In the predawn hours of September 11, 2000, members of the Coast Guard Law Enforcement Detachment Team ("LEDET") attached to the USS De Wert (7) monitored via radar a suspicious rendezvous between the supposed fishing vessel Gran Tauro (8) and a yet-to-be-identified vessel. (9) The team members expected that they would soon witness an integral step in high seas drug smuggling--the resupplying of a "Go-Fast" boat from a "logistical support vessel." (10) Just before dawn, the team was alerted to a fast-moving vessel traveling directly toward the Gran Tauro's position and quickly launched the De Wert's helicopter. (11) As the team approached the location, they observed a Go-Fast heading away from the Gran Tauro and began tracking it. (12) After their presence was detected, the Go-Fast's crew jettisoned its illicit cargo (13) and circled back toward the Gran Tauro. (14) A few minutes later, the Go-Fast smashed into the stern of the Gran Tauro, causing the smaller boat to capsize. (15) The crew of the Gran Tauro never even went to the stern to survey the damage. (16)

Responding to the crash, the LEDET team rescued the crew of the now-capsized Go-Fast, boarded and searched the Gran Tauro, and arrested her crew. (17) On October 11, 2000, the crews of both vessels were indicted by a federal grand jury in the Southern District of California on violations of the Maritime Drug Law Enforcement Act ("MDLEA"). (18) Both crews were eventually tried and found guilty. (19) On appeal, the convictions were overturned by the Ninth Circuit. (20)

The trial of the crews of the Gran Tauro and the Go-Fast in U.S. federal court raises many issues of maritime and international law, chiefly, (1) whether the United States' claim of extraterritorial jurisdiction over a Colombian vessel and her crew traveling on the high seas is consistent with international legal principles and valid under United States law, and (2) whether due process under the U.S. Constitution requires that federal prosecutors prove that a nexus exists between the actions of a given defendant and the United States?

Part II of this Note describes the requirements for extending the jurisdiction of the MDLEA extraterritorially. This part also briefly describes the concept of jurisdiction, the expansion of modern extraterritorial jurisdiction, the inherent power of the Constitution for extending jurisdiction into the high seas, the legislative history of MDLEA, and its expression of the necessary congressional intent to extend jurisdiction extraterritorially. Part III introduces the unique nexus requirement of the Ninth Circuit Court of Appeals. This part also explains why the nexus requirement is an unnecessary burden and examines the international agreements that can be used as an alternative to international legal principles to justify extraterritorial application of the MDLEA. Lastly, Part IV describes the proper way for resolving the nexus dispute: for the Supreme Court to grant certiorari in a high seas smuggling case and find the nexus requirement superfluous because the combination of international legal principles and international treaties is sufficient to establish jurisdiction.

II. THE EXTENSION OF EXTRATERRITORIAL JURISDICTION OVER ACTS ON THE HIGH SEAS

Federal courts require the government to establish statutory and constitutional adjudicative jurisdiction over a defendant before they will find that the United States has validly exerted extraterritorial jurisdiction over drug smugglers apprehended beyond U.S. territorial waters. (21) Part II of this Note briefly describes the basic concept of jurisdiction, the inherent power of the Constitution to extend jurisdiction into the high seas, the legislative history of MDLEA and its expression of the necessary congressional intent for extending jurisdiction extraterritorially, and the use of international legal principles to establish prescriptive jurisdiction.

A. Jurisdiction Generally

Effective analysis of extraterritorial application of the MDLEA requires a precise definition of jurisdiction so that a clear distinction can be drawn between the right to make rules and the right to enforce them. (22) The term "jurisdiction" is derived from the Latin roots juris (meaning law) and dictio (meaning saying), "the implication being an authoritative legal pronouncement." (23) This pronouncement plays a crucial role in the relationship between a sovereign state and its people as it defines their legal relationship and establishes a clear statement of the state's power over the individual. (24) The importance of this pronouncement cannot be overstated; "if a state has no jurisdiction over a particular individual, it has no legal authority to subject that individual to its laws and legal process." (25) This concept is not limited to defining the relationship between sovereign and subject as jurisdiction also defines the legal relationship between a state and other sovereign powers. (26) In this context, jurisdiction is referred to as "national jurisdiction, domestic jurisdiction, or ... 'sovereignty."' (27) This claim of authority does not have the indicia of strength associated with jurisdiction over an individual, as the sovereign is attempting to exercise control over actions that occur outside its territorial boundaries. These two forms of jurisdiction "may also overlap; in such cases there is 'concurrent' jurisdiction." (28)

To allow for greater consideration and understanding, jurisdiction is often divided into three subcategories: prescriptive, (29) adjudicative, (30) and statutory or enforcement. (31)

B. Statutory Jurisdiction of the MDLEA: Constitutional Authority and Congressional Intent to Act

In order for the MDLEA to satisfy prescriptive jurisdiction, the Constitution of the United States must grant Congress the authority to enact a statute governing the proscribed behavior and Congress must express the necessary intent to regulate the conduct. (32)

1. Constitutional Authority for the MDLEA

Article I of the United States Constitution grants Congress the power to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." (33) An examination of an early draft (34) and the legislative history (35) of this powerful document shows that the Framers were concerned about whether they should "declare," "designate," or "define" laws governing the high seas, but never questioned if the clause should reach extraterritorially. (36) Any doubt that the Framers intended to extend jurisdiction over the high seas was quickly dispelled by the First Congress's passage of "An Act for the Punishment of certain Crimes against the United States" ("1790 Act"), (37) which made murder or robbery on the high seas by any person or persons an act of piracy punishable by death. (38)

United States Supreme Court decisions interpreting the Constitution and the 1790 Act have also found congressional intent to act extraterritorially while still considering international law when extending jurisdiction into the high seas. One of the earliest and most revered cases, Charming Betsy, (39) limited the reach of congressional action, noting that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." (40) This theory does not mean that the United States cannot enforce laws against foreigners, only that the intent to do so must be clearly stated. This is illustrated in a subsequent case, United States v. Palmer, (41) in which Chief Justice Marshall stated that "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." (42)

The Supreme Court has often struggled with balancing the intent to subject foreigners to American law with Charming Betsy's "long heeded admonition" to avoid construing a statute as violative of international law, but has determined that international law "is not ... any impairment of our own sovereignty." (43)

2. Congressional Intent and the...