It’s been about four months since we’ve seen a circuit court decision concerning the MDLEA. Well, the wait is over. The Second Circuit recently had to address the Constitutionality of prosecuting co-conspirators for their land-based activities under the Maritime Drug Law Enforcement Act (MDLEA) in United States v. Antonius, No. 21-1083, 2023 WL 4410951 (2d Cir. July 10, 2023). In this recent ruling, the Court tackled a due process argument and delved into the Constitution’s Define and Punish Clause. So, let’s dive into the details of this case and explore the implications, if any, of the Second Circuit’s decision.
Defendants Steven Antonius, Shervington Lovell, and Argemiro Zapata-Castro appealed their convictions for conspiring to violate the MDLEA. They, along with other co-conspirators and undercover DEA informants, planned to ship cocaine from Guyana to the Netherlands in a complex operation involving multiple boats and at-sea transfers. None of the drugs were intended to be delivered to the United States or travel in U.S. waters. Each Appellant played a leadership role in the drug-trafficking conspiracy and attended multiple meetings where they “discussed the logistics, route, and cost of the cocaine shipment, as well as the supplies, financing, and amount of cocaine they would each contribute…”. During the drug-trafficking venture, the first boat was intercepted by the Coast Guard hundreds of miles off the coast of Barbados, resulting in the arrest of its crew members. The Appellants, who were not on the stateless vessel, not U.S. citizens, and had no prior connection to the United States, were later arrested in Jamaica and subsequently charged with conspiracy to violate the MDLEA.
On appeal, the Second Circuit tackled two issues: (1) whether the defendants’ prosecution under the MDLEA denied them due process because their conduct lacked a nexus to the United States; and (2) whether, as applied to their case, Congress exceeded its authority under Article I of the Constitution in enacting the MDLEA.
Concerning the first issue, the Second Circuit determined that it is not a due process violation to prosecute conspirators in drug-trafficking schemes under the MDLEA who are not citizens of the United States, who act exclusively on foreign soil, who do not utilize contacts or resources in the United States, and who were not on board the seized vessel. Relying on Second Circuit precedent, including U.S. v. Alarcon Sanchez1See U.S. v. Alarcon Sanchez, 972 F.3d 156 (2d Cir. 2020) (an opinion decided while this case was pending and held that foreign, land-based conspirators who planned to transport drugs from Colombia to Australia without traveling through United States waters—but who had minor contact with the United States as part of their efforts to further the conspiracy—could be prosecuted under the MDLEA.) and U.S. v. Van Der End, the Court stated that:
…in the context of the MDLEA, we have held that no showing of nexus is required for the prosecution of individuals accused of trafficking drugs who are actually on board a stateless vessel. This is so “because such prosecutions are not arbitrary, since any nation may exercise jurisdiction over stateless vessels, and they are not unfair, since persons who traffic drugs may be charged with knowledge that such activity is illegal and may be prosecuted somewhere.”
U.S. v. Antonius, 2023 WL 4410951, at *4 (quoting U.S. v. Van Der End, 943 F.3d 98, 106 (2d Cir. 2019)). In other words, the Second Court ruled that when dealing with an interdiction involving a stateless vessel, there is no need for a nexus requirement due to the United States’ interest in curbing drug trafficking on the high seas. The Court also noted, even if a nexus was required, the harm caused by drug trafficking on the high seas is enough to establish a nexus with the United States’ societal well-being and security. As such, defendants’ due process rights were not violated.
The Appellants next argued that applying the MDLEA to their foreign, land-based activities exceeds Congress’s power under the Constitution’s Define and Punish Clause. Specifically, relying—and, in this writer’s opinion, misinterpreting—Eleventh Circuit case law in U.S. v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), they contend that since they were not physically on the high seas at the time of the interdiction, Congress’s power to punish “felonies on the high seas” should not subject them to prosecution under the MDLEA.
MDLEA Blog Note: Many of the recent arguments challenging the Constitutionality of Art I § 8, cl. 10 rely on U.S. v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), so a quick detour may be helpful. My summary/take-away is below.
Facts: In Bellaizac-Hurtado, the Coast Guard observed a fishing vessel operating without lights and without a flag. The Coast Guard informed the Panamanian National Aero-Naval Service of the suspicious vessel. The Panamanian Navy pursued the vessel until its occupants abandoned the vessel and fled into a jungle. The defendants were then apprehended by Panamanian authorities, and in a diplomatic exchange, handed over to US for prosecution under the MDLEA.
Issue: Defendants challenged the Constitutionality of the MDLEA (as applied to defendants’ conduct) and the Court had to determine “whether Congress has the power under the Offences Clause to proscribe drug trafficking in the territorial waters of another nation[.]
Rule: Supreme Court has interpreted Art I § 8, cl. 10 to contain three distinct grants of power: (1) the power to define and punish piracies, (2) the power to define and punish felonies committed on the high seas, and (3) the power to define and punish offenses against the law of nations. At issue in Bellaizac-Hurtado is the offences clause of Art. I since the conduct did not occur on the high seas.
Take-away: The court had to look at international law to determine if drug trafficking is an offense against the law of nations, and concluded that MDLEA application to conduct on high seas is constitutional (under the Felonies Clause), but “Congress does not have power, under the Offences Clause, to apply our drug trafficking laws to conduct in the territorial waters of another State.”
The Second Circuit did not agree with appellants’ argument, which was the same assertion made in U.S. v. Alarcon Sanchez. Rather, the Court ruled that punishing drug trafficking on the high seas “falls squarely within [Congress’s] constitutional power to punish felonies on the high seas,” including the punishment of conspirators on land. The Second Court noted that, “[t]o hold otherwise, moreover, would be to encourage a sentencing scheme that punishes only the lowest-level members of the conspiracy—those who physically transport the drugs on the high seas—while the masterminds on land—usually with more power, money, and resources—operate free from the MDLEA’s reach.”
Finally, the Second Circuit addressed Appellants’ claim that Congress exceeded its Article I powers by broadening the definition of “stateless vessel” in the MDLEA. However, the Court found no authority to support this claim and pointed to previous cases holding that a vessel “which does not sail under the flag of one state to whose jurisdiction it has submitted” is “a stateless vessel” and “may not claim the protection of international law and does not have the right to travel the high seas with impunity.” U.S v. Antonius, 2023 WL 4410951, at *7 (quoting U.S. v. Pinto-Mejia, 720 F.2d 248, 260 (2d Cir. 1983)).
Take-away: As long as the interdiction of the stateless vessel occurred on the high seas, the Felonies Clause of Article I, Section 8 supports a prosecution under MDLEA, even for conspirators who act exclusively on foreign soil and regardless of whether the drugs were intended to be brought to the United States.
The full decision can be found here.
- 1See U.S. v. Alarcon Sanchez, 972 F.3d 156 (2d Cir. 2020) (an opinion decided while this case was pending and held that foreign, land-based conspirators who planned to transport drugs from Colombia to Australia without traveling through United States waters—but who had minor contact with the United States as part of their efforts to further the conspiracy—could be prosecuted under the MDLEA.)