No nexus, no problem: no jurisdictional error related to defendant's conviction for drug trafficking overseas.

• Author: Manigat, Alain

United States v. Nueci-Pena, 711 F.3d 191 (1st Cir. 2013).

The Maritime Drug Law Enforcement Act (MDLEA) makes it unlawful for an individual to knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board a vessel of the United States or a vessel subject to the jurisdiction of the United States. (1) Congress enacted the MDLEA in 1986 to give more force to the Marijuana on the High Seas Act (MHSA), which provided federal authorities with means to prosecute foreigners on vessels carrying narcotics anywhere on the high seas with intent to distribute in the United States, and to expand the jurisdiction of the United States even further. (2) In United States v. Nueci-Pena (3), the United States Court of Appeals for the First Circuit considered whether there was congressional authority under the Piracies and Felonies Clause of the U.S. Constitution to criminalize drug trafficking on board a vessel in international waters under the MDLEA without requiring a nexus, or connection, between the conduct and the United States. (4) The First Circuit held that the MDLEA was a constitutional exercise of Congress's power under the Piracies and Felonies Clause of Article I, Section 8 and concluded that there was no jurisdictional error under the MDLEA related to Nueci's conviction, nor would any such error constitute plain error. (5)

On February 23, 2007, the Coast Guard stopped a suspicious go-fast vessel in Caribbean waters. (6) Upon boarding the ship, Francisco Nueci-Pena (Nueci) identified himself as the master of the ship and declared that the vessel was Colombian. (7) When the Coast Guard contacted Colombian authorities, however, the Colombian Navy could neither confirm nor deny that the vessel was registered in Colombia. (8) The Coast Guard discovered 390 kilograms of cocaine and 123 kilograms of heroin on board, and subsequently arrested all six passengers, including Nueci. (9) The federal government charged each defendant with aiding and abetting, along with conspiracy in the possession with intent to distribute narcotics on board a vessel subject to U.S. jurisdiction in violation of the MDLEA. (10) All six passengers pleaded not guilty. (11)

On October 23, 2007, on the eve of trial, Nueci and his codefendants moved to dismiss the charges for lack of jurisdiction over the vessel, arguing that it was registered in Venezuela, and that U.S. officials erroneously believed the ship to be Colombian. (12) They contended that although the Colombian authorities could neither confirm nor deny the vessel's registry, it meant nothing in the end because U.S. authorities requested a consent waiver from the wrong country. (13) As a result, the defendants argued that because no contact had been made with the Venezuelan authorities regarding their claim of registry, the United States never had jurisdiction over the defendants or the vessel, and thus, the United States could not establish jurisdiction under the MDLEA over the vessel. (14) The U.S. government acknowledged that Nueci at one point claimed that the vessel departed near the Venezuelan/Colombian border, and that the drug trafficking was organized in Venezuela. (15) However, the government argued the vessel flew no flag, had no markings or registration documentation, the defendants offered no proof that the ship was Venezuelan, and further claimed that subject matter jurisdiction was not an element of the offense under MDLEA. (16) After Venezuelan authorities later failed to confirm the nationality of the vessel, the United States, in its response to the motion to dismiss, asserted that regardless of Nueci's claim of registry, neither Colombia nor Venezuela claimed the vessel, making it "stateless," thus giving the United States jurisdiction under the MDLEA. (17)

The day before trial, Nueci moved for an order to preserve his jurisdictional challenges. (18) He moved to preserve three issues, one of which was whether it is constitutional to exercise jurisdiction over an individual under the MDLEA, which criminalizes activities on the high seas, without requiring that the acts be directed towards the United States. (19) Nueci argued that the statute's lack of a nexus requirement exceeded Congress's power to define and punish piracies and felonies on the high seas. (20) On June 24, 2010, the jury found Nueci guilty on both counts in the indictment. (21) The defendant appealed the decision, arguing that the MDLEA is unconstitutional because it exceeds congressional authority "to define and punish Piracies and Felonies committed on the high seas" under the Piracies and Felonies Clause of the Constitution. (22) Due to Nueci's failure to raise the argument at trial that Congress exceeded its authority under the Piracies and Felonies Clause in enacting the MDLEA without a nexus requirement, the proper standard of review was plain error, not de novo, contrary to the defendant's wishes. (23)

Article I of the U.S. Constitution grants Congress the power to "define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations." (24) Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970 to combat smuggling of illegal narcotics on the high seas and as a means to exercise its authority to regulate criminal activity in international waters. (25) Due to certain defects, however the Act was easily exploitable by smugglers, causing Congress to pass the Marijuana on the High Seas Act in 1980. (26) Though the MHSA did improve prosecution efforts, Congress amended the Act by passing the Maritime Drug Law Enforcement Act of 1986, which further expanded U.S. jurisdiction in drug trafficking crimes overseas, and contained a number of changes to the previous legislation, giving it more weight. (27) While the MDLEA and the acts preceding it served the United States' efforts in the drug war overseas, the application of the MDLEA has not been entirely consistent among the courts. (28) Even with its broad reach, the MDLEA faced jurisdictional obstacles because some courts imposed a nexus requirement whereas others did not, an issue of contention between the circuit courts going back years prior to the adoption of the MDLEA. (29)

Before the enactment of the MDLEA, several courts dealing with drug trafficking crimes overseas required the establishment of a nexus between the activities of foreigners on vessels carrying narcotics and the interests of the United States, relying on international principles of jurisdiction. (30) The First Circuit initially adopted the position of mandating a nexus between criminal conduct on a stateless ship and the United States in United States v. Smith, (31) a stance similarly espoused by the Third Circuit. (32) The Eleventh Circuit, however, handed down a decision in United States v. Marino-Garcia (33) that changed the majority view regarding the nexus requirement. (34) In holding that section 955(a) of the MHSA properly granted criminal jurisdiction to the United States over stateless vessels on international waters without a nexus requirement, the Eleventh Circuit effectuated a change in rationale that several other circuit courts embraced. (35) The Second Circuit followed the Marino-Garcia rationale in United States v. Pinto-Mejia, (36) holding that international law does not preclude assertion of jurisdiction over a stateless vessel by the U.S. government, even without a nexus. (37) Similarly, the Fourth and Fifth Circuits followed suit, with perhaps the boldest stance of any court established by the Fourth Circuit in rejecting the nexus requirement, going so far as to say that violating international principles in order to fulfill American objectives was permissible. (38)

Courts applying the MDLEA since its inception in 1986 agree that the Piracies and Felonies Clause provides constitutional authority for the legislation, but are split on whether courts have constitutional jurisdiction to apply the MDLEA without a nexus. (39) The Eleventh Circuit rejected the nexus requirement for foreign nationals prosecuted under the MDLEA in United States v. Mena (40) on a registered ship, and rebuffed the defendants' constitutional challenge that the act only proscribed conduct with a connection to the United States. (41) With respect to registered ships, the First Circuit determined that the MDLEA passed the constitutional due process test when the foreign nation claiming the vessel authorized the application of United States law to persons on board, leaving no need for a nexus requirement. (42) For situations dealing with stateless vessels, some courts addressed the due process constitutional defense to the MDLEA by asserting that the United States may exercise jurisdiction consistently with international law over drug offenders without establishing any nexus to the United States. (43) To determine whether due process required a nexus for extraterritorial application of the MDLEA, some courts looked to the Piracies and Felonies Clause and concluded that the Fifth Amendment imposed no nexus requirement on the reach of statutes criminalizing aberrant conduct by foreigners on the high seas. (44) Though the MDLEA does not itself demand a nexus, certain jurisdictions mandate a nexus between the conduct and the United States for registered vessels all the while dismissing the constraint for stateless vessels, creating a division among the courts on this issue that has yet to be resolved. (45)

In United States v. Nueci-Pena, the First Circuit Court of Appeals considered whether the MDLEA exceeded its constitutional jurisdiction by not requiring a nexus between the criminal conduct and the United States. (46) The court began its analysis by first explaining that it would not adopt a de novo standard of review to examine the issue, contrary to the defendant's wishes, because he failed to properly preserve his argument at trial. (47)...