Criminal Law--Stateless Vessel Analysis Incorporated into Federal Maritime Drug Trafficking Statute Ignored Bilateral Treaty--United States v. Matos-Luchi.

• Author: Bouzid, Hedi

CRIMINAL LAW--STATELESS VESSEL ANALYSIS INCORPORATED INTO FEDERAL MARITIME DRUG TRAFFICKING STATUTE IGNORED BILATERAL TREATY--United States v. Matos-Luchi, 627 F.3d 1 (1st Cir. 2010).

Stateless vessels upon the high seas do not enjoy the legal protection accorded to flagged ships under international law. (1) As such, they are subject to the extraterritorial jurisdiction of any authority on the scene. (2) Following a history of legislative attempts to create an effective drug trafficking maritime enforcement power for U.S. authorities, Congress enacted the Maritime Drug Law Enforcement Act (MDLEA). (3) In United States v. Matos-Luchi, (4) the United States Court of Appeals for the First Circuit decided whether a vessel suspected of drug trafficking and failing to assert vessel nationality qualified as a stateless vessel under MDLEA enforcement jurisdiction. (5) The court held that because the vessel failed to meet any of the criteria that would classify it as possessing nationality under the MDLEA, the U.S. Coast Guard (USCG) had authority to seize the vessel and subject the suspected traffickers to criminal prosecution in the United States. (6)

While on routine helicopter exercises over the Caribbean Sea, USCG officers spotted a low-flying plane dropping packages thirty-five miles off the coast of the Dominican Republic. (7) Suspecting drug trafficking, the USCG helicopter gave chase to a small boat observed retrieving and then jettisoning the packages. (8) The helicopter recovered the packages, which contained cocaine, and a U.S. Customs plane continued the chase until the boat broke down twenty-five miles from the Dominican coast. (9) At the request of the USCG, the Dominican Coast Guard detained the three men found on the small boat and tied the boat to the stern of their cutter. (10) Later that evening, a USCG officer questioned

the suspected men being held aboard the Dominican Coast Guard cutter. (11) The officer inquired as to the nationality of the apprehended boat and who was in command, but received negative and incomplete responses. (12) However, the defendants did state they had come from and were nationals of the Dominican Republic. (13) While the interrogation proceeded, USCG officers boarded the small boat in tow and found no indications of nationality. (14)

The USCG detained the defendants and brought them to Puerto Rico to be prosecuted in the territory's federal district court. (15) The defendants were charged with possession of cocaine with intent to distribute and aiding and abetting those crimes while on a "vessel without nationality," all violations of the MDLEA, placing them within the jurisdiction of U.S. enforcement. (16) The defendants' motion to dismiss for a lack of proof that they were aboard a "vessel without nationality" was held in abeyance while the district court judge proceeded with the trial. (17) The defendants' motion was renewed during trial and denied, as were repeated attempts to have the jury instructed on the stateless vessel issue. (18) The district court judge ruled the criminal conduct occurred aboard a "vessel without nationality" and therefore fell within the scope of the MDLEA. (19)

The jury in the federal district court trial found the defendants guilty of the charges of possession and intent to distribute drugs. (20) On appeal, the defendants challenged the sufficiency of evidence, the finding of MDLEA jurisdiction under the stateless vessel analysis, and the trial judge's employment of the preponderance standard to make that determination. (21) The First Circuit held that the MDLEA explicitly grants the jurisdictional determination to a judge, and that a preponderance standard usually accompanies questions of law handled by a judge. (22) Further, the court determined that a boat suspected of illicit activity, which fails to bear any indications of nationality and whose occupants fail to assert nationality for the vessel, are precisely within the MDLEA's scope and purpose. (23)

In international law, there are developed customs of maritime operation and enforcement contingent on seaway and vessel classifications, which arise out of an amalgam of statutes, treaties and common law precedent. (24) A stateless vessel on the high seas is subject to the jurisdiction of any sovereign state on the scene for illicit conduct, and loses state jurisdictional insulation that typically arises from an association with a particular sovereign. (25) Three customary manners by which a vessel can establish nationality are: (1) flying a flag or national emblem, (2) producing registry papers, or (3) an oral claim by the head of the vessel that the asserted state does not deny. (26) Where indications of nationality are insufficient, a vessel is deemed stateless, which in turn empowers any state warship with a "right of approach," and possibly a "right of visit," onto a vessel to inquire further. (27) The statelessness of a vessel is the threshold determination for a sovereign's exclusive jurisdiction over a vessel to transform into the common jurisdiction of any state, and it is within this custom that the MDLEA authorizes extraterritorial enforcement. (28)

The MDLEA was enacted to expand U.S. maritime drug enforcement capabilities by granting jurisdiction over mere "possession on the high seas," rather than the preceding more restrictive "intent to import" standard. (29) In addition, the MDLEA expanded jurisdiction to foreign nationals where consent or waiver was present and enumerated a broader definition of a "vessel without nationality." (30) Where a vessel fails to use unequivocal nationality indications, such as flying a flag or en sign, or fails to possess registration papers, the third custom of oral claim is ambiguous, especially in regards to who is claiming nationality and whether such a claim is for self or vessel. (31) Additionally, the oral claim standard receives inconsistent interpretation given the factual sensitivity of each case and the varying domestic registration approaches of different states. (32)

In 1996, Congress amended the MDLEA, expanding prosecutorial power by weakening foreign nation consent qualifiers, explicitly removing violation of international law as a defense, removing jurisdiction from classification as an element of the offense, and granting judges sole authority over jurisdiction. (33) No universal rule exists regarding what burden of proof applies to questions of law versus fact or whether the arbiter is the judge or jury. (34) In U.S. criminal proceedings, however, there is the requirement that all elements of an offense be proven beyond a reasonable doubt. (35) Notwithstanding the MDLEA's explicit jurisdiction provisions, the Act remains silent as to the burden of proof required to establish such jurisdiction. (36)

In United States v. Matos-Luchi, the First Circuit held that seizure and prosecution of foreign nationals on the high seas for suspicion of drug smuggling was proper under the MDLEA because the vessel qualified as stateless. (37) The court first established that congressional power to regulate extraterritorially emanated from the U.S. Constitution, and then moved to statutory interpretation, which was the fundamental issue in dispute. (38) The majority stated that the MDLEA's six explicit grants of jurisdiction over boats suspected of drug smuggling on waterways evinced a broad statutory reach. (39) Looking to the MDLEA language, the court opined the use of the term "includes," when reading the six enumerated ways to U.S. jurisdiction, versus the term "includes only," when reading the enumerated list of how a vessel establishes nationality, demonstrated congressional intent to avoid having the former factors operate exclusively, but rather "sweep broadly." (40) Additionally, the court found Congressional intent to expand the reach of U.S. law in the amending of the MDLEA with the CGAA, which both explicitly removed jurisdiction as an element of the offense, and also granted trial judges sole authority over the question of jurisdiction. (41) The court supplemented its advocacy for expansive authority by positing that the express impetus behind the statutory revisions, also recognized in international law, is a need for effective enforcement powers on the high seas. (42)

Moving to a factual analysis of this purported stateless vessel, the court acknowledged that the boat was occupied by Dominican nationals likely returning to the Dominican Republic, but found, however, that the three possible methods (flag, papers, or oral claim) of affirmatively asserting nationality were never met...