Metropolitan News-Enterprise


Thursday, June 26, 2003


Page 1


Drug Arrests on High Seas Upheld Under ‘Piracies’ Clause


By KENNETH OFGANG, Staff Writer/Appellate Courts


The U.S. government can arrest alleged drug traffickers in international waters, and may try them in federal courts without necessarily having to show that their crimes affected this country, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel rejected a constitutional challenge to the Maritime Drug Law Enforcement Act, which permits prosecution of any person who possesses a controlled substance “on board a vessel subject to the jurisdiction of the United States,” with intent to distribute.

The act also allows the U.S. to assert jurisdiction over any “stateless” vessel, that is, one which lacks any national registry.

Yesterday’s decision affirms the convictions of four Colombian nationals who entered guilty pleas in U.S. District Court in San Diego after Judge Judith N. Keep of the Southern District of California rejected their challenges to the act. In doing so, the panel cited Congress’ right to punish “piracies” and other crimes committed on the high seas.

Vessel Sighted

Carlos Moreno-Morillo, Alberto Gonzalez-Rivas, Jose Sabino-Caicedo, and Bernardo Pandeles-Valencia were arrested by a Coast Guard Law Enforcement Detachment Team patrolling with the crew of the U.S.S. Antietam three years ago. Their vessel, the government alleged, was sitting dead in the water about 200 miles southwest of Acapulco, Mexico when it was spotted by a Navy helicopter.

According to the government, the captain claimed the ship was of Colombian registry, but the Colombian government neither confirmed nor denied that claim in response to U.S. inquiries. The Coast Guard determined the vessel to be stateless, and after eight bundles containing more than 100 kilograms of cocaine were found on board, the four were arrested and taken to San Diego, where they were indicted for violating MDLEA.

They moved to dismiss on the grounds that MDLEA is unconstitutional, and that the court lacked personal jurisdiction. After their motions were denied, they entered guilty pleas while reserving the right to appeal.

Judge Diarmuid F. O’Scannlain rejected the defendants’ claim that they could not constitutionally be convicted of a crime that occurred in international waters and did not affect the United States in any way.

The judge cited Art. I, Sec. 8, Clause 10 of the Constitution, which allows Congress “to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”

No Nexus Needed

Past constitutional challenges to federal drug laws have generally invoked the Commerce Clause, usually unsuccessfully. But while the exercise of federal power to criminalize conduct under the Commerce Clause requires the government to show a nexus between the proscribed conduct and interstate or foreign commerce, no such nexus is required under the “piracies” clause, O’Scannlain wrote.

The judge rejected the contention that drug trafficking is not one of the piracies and felonies to which the Constitution refers. The Ninth Circuit ruled in a 1990 case that it was, he noted.

O’Scannlain also rejected the claim that the defendants’ vessel was not within “the jurisdiction of the United States” for purposes of MDLEA.

Under the act, the judge explained, any vessel that is “without nationality” or stateless is within the jurisdiction of the United States. The lack of written proof of the vessel’s registry, together with the lack of corroboration by Colombia of the defendants’ claim that the ship was registered there, supports the district judge’s finding of statelessness, O’Scannlain said.

The case is United States v. Moreno-Morillo, 01-50293.


Copyright 2003, Metropolitan News Company