If you’re a self-proclaimed MDLEA enthusiast—and I’m assuming you are, given your interest in this blog—then you’ll appreciate Judge Besosa’s recent decision in U.S. v. Barbosa-Rodriguez, — F.Supp.3d —-, 2023 WL 4230143 (D.P.R. June 28, 2023) where he concludes that Congress did not exceed its authority in enacting the MDLEA and denies defendants’ motion to dismiss asserting that the MDLEA is unconstitutional. Specifically, Judge Besosa had to tackle the question of whether the MDLEA can reach individuals associated with a drug trafficking organization who are not physically present on the intercepted vessel. Put simply, does the Constitution permit the government to pursue co-conspirators and individuals who facilitate (i.e. aid and abet) MDLEA offenses if their involvement solely occurred on foreign soil?
The underlying offense in this case occurred almost nine years ago, beginning in June 2014. During that time, the defendants purportedly planned and financed a shipment of cocaine from Colombia to Portugal. A few months later, on 23 October 2014, Her Majesty’s Ship (“HMS”) Argyll, with a deployed Coast Guard Enforcement Detachment (“USCG LEDET”), interdicted the Odyssee II 130 miles southwest of Bermuda. The Odyssee II was flying a United Kingdom flag, and the United States contacted the U.K. to confirm or deny the vessel’s registry. Prior to receiving a response from the U.K., the Coast Guard boarded the Odyssee II, found contraband, and arrested the two crew members. The next day, on 24 October 2014, the U.K. confirmed the vessel’s registry and waived jurisdiction.
On 8 January 2021, a grand jury returned a two-count second-superseding indictment charging defendants—even though they were not physically on the Odyssee II—of offenses under the MDLEA, including conspiracy and aiding and abetting a violation of 46 U.S.C. § 70503(a)(1). The defendants were extradited to the U.S. in 2022 and thereafter moved to dismiss the second-superseding indictment, arguing that MDLEA violates the Constitution on its face, and is unconstitutional as applied to them.
At the outset, Judge Besosa notes that the theory of jurisdiction asserted by the government is pursuant to 46 U.S.C. § 70502(c)(1)(C) (“. . . the term ‘vessel subject to the jurisdiction of the United States’ includes . . . a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States[]”) – unlike the stateless vessel in Davila-Reyes, 23 F.4th at 176, reh’g en banc granted, opinion withdrawn, 38 F.4th 288 (1st Cir. 2022), which is still pending in the First Circuit and argues the Constitutionality of 46 U.S.C. § 70502(d)(1)(C).
Judge Besosa’s analysis of the Felonies clause in Article I, Section 8, Clause 10 of the U.S. Constitution concludes that the term “felony” has an “undefined and flexible meaning[,]” and it is not limited to what constituted a “felony at common law in the 18th century.” Furthermore, Judge Besosa addresses the relationship between international law and the Felonies clause, stating that, “[r]egardless of the extent of international law as a cabin on the power of Congress pursuant to the Felonies clause, the MDLEA only asserts power over foreign defendants on foreign vessels with the consent of their flag state, a valid means of establishing jurisdiction pursuant to international law as understood at the time of the founding.” Consequently, Judge Besosa concludes that Congress acted constitutionally under the Felonies clause when enacting the MDLEA.
Judge Besosa then turns to address the crucial question of whether Congress has the authority to regulate conduct that did not occur on the high seas. The defendants contend that neither the conspiracy count nor the aiding and abetting count were authorized by the Constitution, arguing that the defendants “never left solid ground in Columbia” and they are only accused of “facilitate[ing,] financing and establish[ing] the contacts necessary for [a co-conspirator] to repair the boat, and to obtain the cargo[.]” Essentially, they question whether the MDLEA could be applied extraterritorially to a foreign land-based conspiracy. Judge Besosa believes it can, citing the “territorial principle of international law.” In his analysis, he states:
“The territorial principle provides that ‘a state may exercise jurisdiction with respect to all persons or things within its territory.’ Pursuant to the territorial principle, ‘ships on the high seas are regarded as [the] territory of their flag state and placed under the exclusive jurisdiction of the latter by customary international law.’ Pursuant to First Circuit Court of Appeals precedent, territorial jurisdiction attaches to a foreign vessel if the flag country provides consent.”
Drawing from this analysis, Judge Besosa reaches the conclusion that since defendants’ co-conspirators committed “overt acts … on the vessel, which [became] subject to United States territorial jurisdiction through consent,” the territorial principle extends “jurisdiction to the conspirators [(i.e. the defendants)] on land.”
Next, Judge Besosa looks at whether the prohibited conduct under the MDLEA has to be on the “high seas” under the Felonies clause. To make his ruling, Judge Besosa simply looks at a case with similar facts, U.S. v. Ballestas, 795 F.3d 138 (D.C. Cir. 2015). “In United States v. Ballestas, the District of Columbia Circuit Court of Appeals found that a conspirator who had never been on ‘the high seas’ could still be reached by the Felonies clause because the acts of the crew, his admitted co-conspirators, were committed on the high seas and therefore could be attributed to him through ‘the established principles of conspiracy law.’” As a result, “the Felonies clause, in operation with conspiracy law, provides Congress the power to criminalize conspiracies to violate the MDLEA.”
Lastly, regarding whether the aider and abettor must be “on board a covered vessel” under the MDLEA, Judge Besosa states that it is not necessary for the government to establish the defendant’s direct involvement in every aspect of the underlying offense, including jurisdictional elements. Rather, to prove liability as an aider and abettor, the government must that “1) the substantive offense was actually committed [by someone]; 2) the defendant assisted in the commission of that crime or caused it to be committed; and 3) the defendant intended to assist in the commission of that crime or to cause it to be committed.’ Therefore, there is no requirement that an aider and abettor also be ‘on board a covered vessel.’”
Take-away: In the District of Puerto Rico, co-conspirators can be charged under the MDLEA, even if their involvement in the conspiracy took place entirely on land.
The full decision is worth a read and can be found here.