The United States has no Constitutional authority to prosecute a drug violation under the Maritime Drug Law Enforcement Act for acts occurring in the territorial waters of another state

In U.S. v. Bellaizac-Hertado, the Eleventh Circuit held the Maritime Drug Law Enforcement Act was unconstitutional as applied to a boat found in Panamanian waters. While patrolling in waters of Panama, a Coast Guard boat observed a fishing vessel operating without lights a without a flag. It informed the Panamanian Navy, which pursued the vessel until the occupants abandoned the vessel and fled into the jungle. The abandoned boat had 760 kilograms of cocaine. Eventually the occupants were found and arrested by the Panamanian authorities. They were turned over to the U.S. by the Panamanian government, which consented to their prosecution in the United States. A grand jury in Miami, Florida, indicted the four defendants with conspiracy to possess with intent to distribute cocaine on board a vessel subject to the jurisdiction of the United States under 46 U.S.C. §70503(a). The defendants challenged the Miami federal court’s jurisdiction on the ground that the district court lacked jurisdiction and argued the Maritime Drug Law Enforcement Act was unconstitutional as applied to their conduct. The district court denied the motion because it found the defendants were operating a stateless vessel, and it found the Act was constitutional as applied as Congress and several courts had determined that drug trafficking was universally condemned by various nations.

The Maritime Drug Law Enforcement Act is an exercise of constitutional power by Congress under Article 1, section 8, clause 10 “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” The United States relies on the grant of power under the “Offense” clause as the source of power to proscribe the defendant’s drug trafficking in the territorial waters of Panama. The issue the Court faced was whether Congress has the power under the Offense Clause to proscribe drug trafficking in the territorial waters of another nation.

The Eleventh Circuit found that drug trafficking was not a violation of customary international law in 1789 at the time of the Constitution was written and is not a violation of customary international law today. Drug trafficking was not a matter of international concern in 1789 and was not a violation of customary international law. It found that it is not a violation of contemporary customary international law. Despite the widespread ratification of the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, there are states that are parties to this agreement that have been designated by the President as “major drug transit or major illicit drug producing countries.” Therefore the failure of these states to enforce drug activity shows that drug trafficking is not yet considered a violation of customary international law. The failure of these countries to comply with their treaty obligations “suggests they view the curtailment of drug trafficking as an aspirational goal, not a matter of mutual legal obligation under customary international law.” Drug trafficking is also treated differently in the international law arena than violations of other customary international laws such as international efforts to prevent or punish genocide. Drug trafficking is not considered a crime under customary international law.

The Eleventh Circuit distinguished earlier precedent determining the constitutionality of extraterritorial application of drug trafficking laws. These have involved conduct on the high seas. This case involves applying drug trafficking laws to conduct in the territorial waters of another state, and Congress does not have that power under the Offences Clause. Because drug trafficking is not a violation of customary international law, the Court held that Congress exceeded its power under the Offence clause when it proscribed the defendant’s conduct in the territorial waters of Panama.

In case you missed it, kindly read my previous post:
Questioning the defendant during a Terry stop about a matter unrelated to the Terry stop did not violate the Fourth Amendment, October 5, 2012