Let’s start by limiting the scope of this post. This post is only going provide information for simple possession under the MDLEA, not under Title 21. See e.g., 21 U.S.C. § 844 (“It shall be unlawful for any person knowingly or intentionally to possess a controlled substance…”)1The punishment for first time offenders under 21 U.S.C. § 844 is “…a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both…”. In general, extraterritorial application of federal criminal law requires some nexus or connection between the United States and the defendant. Relying on this principle, most courts have held that, unlike in the “high seas” line of cases under the MDLEA where a nexus is not required, prosecutions for violations of 21 U.S.C. § 844 require a nexus to the United States, and that jurisdictional nexus is typically satisfied by defendants’ voluntary actions (i.e. choosing a flight that has a lay-over/stop in the United States).2In U.S. v. Cafiero, 242 F. Supp. 2d 49 (D. Mass. 2003), an Italian citizen boarded an Air Europe flight in Cancun, Mexico bound for Rome, Italy, which was a direct flight with no scheduled stops. However, the plane made an unscheduled landing at Logan Airport in Boston, Massachusetts. Upon arrival in the United States, the defendant was searched by Massachusetts State Police who found a large black taped package in his right front pocket. This package contained over 180 grams of cocaine, and the defendant was charged under Title 21. The defense moved to dismiss, arguing that the United States could not prosecute an Italian citizen whose presence in the United States at the time of his alleged offenses was involuntary (i.e. he was forced to come). The court agreed. Citing the territorial principle, the court held that extraterritorial jurisdiction could not be established because the Italian citizen did not intend to produce any effect in the United States.
In contrast, the First Circuit in U.S. v. McKenzie, 818 F.2d 115 (1st Cir.1987), held that even if an “in-transit” passenger did not intend to distribute narcotics in the United States and was merely “passing through” its borders, the passenger essentially waived their objections to extraterritorial jurisdiction when they knowingly boarded a flight scheduled to stop in the United States. There, the First Circuit affirmed the United States’ authority to prosecute a foreigner traveling from Jamaica to Antigua with a scheduled stop-over in U.S. territory, Puerto Rico.
Okay, so now that’s out of the way, let’s look at simple possession under the MDLEA. 46 U.S.C. § 70506(c) states the following:
(c) Simple possession.–
(1) In general.–Any individual on a vessel subject to the jurisdiction of the United States who is found by the Secretary, after notice and an opportunity for a hearing, to have knowingly or intentionally possessed a controlled substance within the meaning of the Controlled Substances Act (21 U.S.C. 812) shall be liable to the United States for a civil penalty of not to exceed $5,000 for each violation. The Secretary shall notify the individual in writing of the amount of the civil penalty.
What does this mean? Simple, any person on a vessel (stateless, U.S., or foreign with consent, etc.) who possesses a narcotic is liable to the United States for a civil penalty up to $5,000 for each violation. Despite possibly having to pay money to the U.S. government, any individual who receives a civil penalty for simple possession under the MDLEA does not receive a criminal “conviction for purposes of State or Federal law[.]” 46 U.S.C. § 70506(c)(3).
Enforcement of the civil penalty is handled by the Coast Guard’s Hearing Office (CGHO). According to the CGHO’s website, “[a]uthority to enforce [46 U.S.C. § 70506(c)] has been delegated by the DHS Secretary to the Coast Guard [in 2015]. Chapter 7 of the Maritime Law Enforcement Manual (MLEM), COMDTINST M16247.1 (series) provides policy guidance for all drug law enforcement matters pertaining to the Coast Guard.” The MLEM, however, is for official use only (FOUO) and not publicly available on the Coast Guard’s instruction directory.
The regulations for the CGHO are set forth in 33 C.F.R. § 1.07. In particular, the procedures followed during a hearing are governed 33 C.F.R. § 1.07-55. Hearings at the CGHO are administrative—not criminal—in nature, designed to “promote[] maritime safety, security and environmental protection.” Following a hearing, according to 33 C.F.R. § 1.07-65, the “Hearing Officer issues a written decision” based on the evidence heard at the hearing. In determining whether to assess a civil penalty for simple possession, the Hearing Officer “shall consider the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and other matters that justice requires.” 46 U.S.C. § 70506(c)(2).
I guess this brings up an interesting issue. We know that Coast Guard boarding officers (BO) generally do not have to read individuals on interdicted vessels on the high seas Miranda Rights for purposes of a right-to-visit (ROV) boarding. U.S. v. Rioseco, 845 F.2d 299 (11th Cir. 1988) (“Coast Guard’s routine stop, boarding and inspection of an American vessel on the high seas does not normally rise to the level of custodial detention thus requiring Miranda warnings.”); U.S. v. Li, 206 F.3d 78, 83 (1st Cir. 2000) (same); cf. U.S. v. Fox, 216 F. Supp. 3d 1225, 1231 (W.D. Wash. 2016) (relevant considerations for determining custody during boardings include: “(1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual.”). Assuming that simple possession under the MDLEA is not a crime on the high seas, if a BO suspects an individual onboard a vessel of having a controlled substance in an amount that would indicate simple possession, does the BO have to read that individual Miranda Rights before questioning?
- 1The punishment for first time offenders under 21 U.S.C. § 844 is “…a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both…”
- 2In U.S. v. Cafiero, 242 F. Supp. 2d 49 (D. Mass. 2003), an Italian citizen boarded an Air Europe flight in Cancun, Mexico bound for Rome, Italy, which was a direct flight with no scheduled stops. However, the plane made an unscheduled landing at Logan Airport in Boston, Massachusetts. Upon arrival in the United States, the defendant was searched by Massachusetts State Police who found a large black taped package in his right front pocket. This package contained over 180 grams of cocaine, and the defendant was charged under Title 21. The defense moved to dismiss, arguing that the United States could not prosecute an Italian citizen whose presence in the United States at the time of his alleged offenses was involuntary (i.e. he was forced to come). The court agreed. Citing the territorial principle, the court held that extraterritorial jurisdiction could not be established because the Italian citizen did not intend to produce any effect in the United States.
In contrast, the First Circuit in U.S. v. McKenzie, 818 F.2d 115 (1st Cir.1987), held that even if an “in-transit” passenger did not intend to distribute narcotics in the United States and was merely “passing through” its borders, the passenger essentially waived their objections to extraterritorial jurisdiction when they knowingly boarded a flight scheduled to stop in the United States. There, the First Circuit affirmed the United States’ authority to prosecute a foreigner traveling from Jamaica to Antigua with a scheduled stop-over in U.S. territory, Puerto Rico.