No Nexus, No Problem: No Jurisdictional Error Related to Defendant's Conviction for Drug Trafficking Overseas

Article excerpt

United States v. Nueci-Pena, 711 F.3d 191 (1st Cir. 2013).

The Maritime Drug Law Enforcement Act (MDLEA) makes it unlawful for an individual to knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board a vessel of the United States or a vessel subject to the jurisdiction of the United States. (1) Congress enacted the MDLEA in 1986 to give more force to the Marijuana on the High Seas Act (MHSA), which provided federal authorities with means to prosecute foreigners on vessels carrying narcotics anywhere on the high seas with intent to distribute in the United States, and to expand the jurisdiction of the United States even further. (2) In United States v. Nueci-Pena (3), the United States Court of Appeals for the First Circuit considered whether there was congressional authority under the Piracies and Felonies Clause of the U.S. Constitution to criminalize drug trafficking on board a vessel in international waters under the MDLEA without requiring a nexus, or connection, between the conduct and the United States. (4) The First Circuit held that the MDLEA was a constitutional exercise of Congress's power under the Piracies and Felonies Clause of Article I, Section 8 and concluded that there was no jurisdictional error under the MDLEA related to Nueci's conviction, nor would any such error constitute plain error. (5)

On February 23, 2007, the Coast Guard stopped a suspicious go-fast vessel in Caribbean waters. (6) Upon boarding the ship, Francisco Nueci-Pena (Nueci) identified himself as the master of the ship and declared that the vessel was Colombian. (7) When the Coast Guard contacted Colombian authorities, however, the Colombian Navy could neither confirm nor deny that the vessel was registered in Colombia. (8) The Coast Guard discovered 390 kilograms of cocaine and 123 kilograms of heroin on board, and subsequently arrested all six passengers, including Nueci. (9) The federal government charged each defendant with aiding and abetting, along with conspiracy in the possession with intent to distribute narcotics on board a vessel subject to U.S. jurisdiction in violation of the MDLEA. (10) All six passengers pleaded not guilty. (11)

On October 23, 2007, on the eve of trial, Nueci and his codefendants moved to dismiss the charges for lack of jurisdiction over the vessel, arguing that it was registered in Venezuela, and that U.S. officials erroneously believed the ship to be Colombian. (12) They contended that although the Colombian authorities could neither confirm nor deny the vessel's registry, it meant nothing in the end because U.S. authorities requested a consent waiver from the wrong country. (13) As a result, the defendants argued that because no contact had been made with the Venezuelan authorities regarding their claim of registry, the United States never had jurisdiction over the defendants or the vessel, and thus, the United States could not establish jurisdiction under the MDLEA over the vessel. (14) The U.S. government acknowledged that Nueci at one point claimed that the vessel departed near the Venezuelan/Colombian border, and that the drug trafficking was organized in Venezuela. (15) However, the government argued the vessel flew no flag, had no markings or registration documentation, the defendants offered no proof that the ship was Venezuelan, and further claimed that subject matter jurisdiction was not an element of the offense under MDLEA. (16) After Venezuelan authorities later failed to confirm the nationality of the vessel, the United States, in its response to the motion to dismiss, asserted that regardless of Nueci's claim of registry, neither Colombia nor Venezuela claimed the vessel, making it "stateless," thus giving the United States jurisdiction under the MDLEA. (17)

The day before trial, Nueci moved for an order to preserve his jurisdictional challenges. (18) He moved to preserve three issues, one of which was whether it is constitutional to exercise jurisdiction over an individual under the MDLEA, which criminalizes activities on the high seas, without requiring that the acts be directed towards the United States. …