In her recent decision on a motion to dismiss, Hon. Silvia Carreño-Coll did not agree with defendants’ argument that the government lacked jurisdiction under § 70502(d)(1)(C) of the Maritime Drug Law Enforcement Act (MDLEA) despite the decision in U.S. v. Dávila-Reyes, 23 F.4th 153 (1st Cir. 2022) still pending with the First Circuit.1The court notes in the beginning of the decision: “Dávila-Reyes held that Congress’s authority to define and punish felonies committed on the high seas is constrained by international law. Id. at 183. The panel determined that under international law, at least where there are no circumstances giving reason to doubt the vessel’s claim, a vessel that makes an oral claim of nationality is considered a vessel with nationality. Id. at 194–95. But the MDLEA considers a vessel whose master makes an oral claim of registry, which the claimed flag state does not confirm, a vessel without nationality. § 70502(d)(1)(C). Since registry and nationality mean the same thing, 23 F.4th at 169, § 70502(d)(1)(C) was inconsistent with international law. Thus, the panel held, Congress exceeded its authority under the Define and Punish Clause in enacting § 70502(d)(1)(C). Id. at 195. But Dávila-Reyes is no longer good law. The First Circuit withdrew it when it granted rehearing en banc. United States v. Reyes-Valdivia, 38 F.4th 288, 288 (1st Cir. 2022). The en banc opinion has not yet been issued. So although we write in the shadow of Dávila-Reyes, it has no weight here.”
The facts are typical. The U.S. Coast Guard interdicted the defendants’ vessel about 58 nautical miles southwest of Isla Saona, Dominican Republic. Prior to the interdiction, defendants jettisoned packages, which were later recovered, tested positive for cocaine, and weighed approximately 150 kilograms. The vessel displayed no indicia of nationality. During the right of visit, the vessel’s master claimed Colombian nationality for the vessel and the three people onboard. Colombia could neither confirm nor deny its registry or nationality.2A U.S. State Department Certification thereafter obtained provided conclusive proof this fact. So, the Coast Guard deemed the vessel without nationality under 46 U.S.C. § 70502(d)(1)(C) and enforced U.S. law.
During the prosecution the defendants made a similar argument to that in U.S. v. Dávila-Reyes. That is, Congress exceeded its authority in enacting § 70502(d)(1)(C) and thus, the government lacks jurisdiction to prosecute.
Judge Carreño-Coll starts her decision by stating that under international law and the MDLEA, the terms “registry” and “nationality” are used interchangeably and synonymous. She notes that “[r]egistry is how the nation keeps track of the vessels to which it has granted its nationality. But not all nations register small vessels. So, as a technical matter, nationality is broader than registry. As a practical matter, however, nationality and registry occur in tandem on the high seas.”
Relying on various international treaties and agreements related to narcotics trafficking and the Caribbean, the Court rejected defendants’ argument that a naked oral claim of nationality is prima facie proof of nationality. Instead, the Court stated that vessels seeking “[t]o take advantage of the benefits and protections of the flag-state system . . . must have evidence of its nationality. If it does not, it is properly deemed stateless.” The Court continues:
The flag-state system does not work unless there is a nation willing and able to step forward and take responsibility for the vessel’s conduct. When the vessel frustrates the claimed flag state’s ability to take responsibility for it by failing to carry evidence of nationality, it has flouted the flag-state system and is therefore properly deemed stateless.
In the case at hand, since the master of the vessel made a naked oral claim of Colombian nationality, there was no evidence of Colombian nationality onboard, and “Colombia, unsurprisingly, considering how little information it had to go on, could not confirm that claim[]” the defendants’ vessel was stateless and thus subject to U.S. jurisdiction pursuant to MDLEA and international law.
With regard to defendants’ second argument, after reviewing the cases cited, the Court stated that “nothing in any of [the cases cited] resemble[] a holding that Congress’s authority under the Define and Punish Clause is constrained by international law.” Therefore, the court did not address the merits of argument since, contrary to defendants’ contention, there is no binding precedent from the Supreme Court or the First Circuit.
The full decision can be found here.
U.S. v. Escalona-Reid, 2022 WL 17541746 (D.P.R. Dec. 8, 2022).
- 1The court notes in the beginning of the decision: “Dávila-Reyes held that Congress’s authority to define and punish felonies committed on the high seas is constrained by international law. Id. at 183. The panel determined that under international law, at least where there are no circumstances giving reason to doubt the vessel’s claim, a vessel that makes an oral claim of nationality is considered a vessel with nationality. Id. at 194–95. But the MDLEA considers a vessel whose master makes an oral claim of registry, which the claimed flag state does not confirm, a vessel without nationality. § 70502(d)(1)(C). Since registry and nationality mean the same thing, 23 F.4th at 169, § 70502(d)(1)(C) was inconsistent with international law. Thus, the panel held, Congress exceeded its authority under the Define and Punish Clause in enacting § 70502(d)(1)(C). Id. at 195. But Dávila-Reyes is no longer good law. The First Circuit withdrew it when it granted rehearing en banc. United States v. Reyes-Valdivia, 38 F.4th 288, 288 (1st Cir. 2022). The en banc opinion has not yet been issued. So although we write in the shadow of Dávila-Reyes, it has no weight here.”
- 2A U.S. State Department Certification thereafter obtained provided conclusive proof this fact.