In United States v. Antonius, No. 21-1083 (2d Cir. July 10, 2023) (Calabresi, Lynch, and Robinson), the Second Circuit affirmed the convictions of three land-based foreign nationals for conspiracy to traffic drugs on the high seas using a stateless vessel where neither the defendants nor the conspiracy had any connection to the United States. The defendants had never been on the high seas but conspired from land to send drugs from Guyana to the Netherlands on the high seas in a stateless vessel. The Circuit had previously held that MDLEA reached foreign land-based conspirators whose plan involved no travel through United States waters but who had minor contact with the United States in furtherance of the conspiracy. United States v. Alarcon-Sanchez, 972 F.3d 156 (2d Cir. 2022).The Antonius defendants argued that their prosecution under the MDLEA statute violated due process because their conduct had no nexus to the United States. They also argued that Congress exceeded its Article I powers in enacting MDLEA to reach such a case.
The Second Circuit rejected both arguments. On the Due Process lack of nexus to the United States, the Court essentially held that no such nexus must be specifically established. The Circuit extended the reasoning of United States v. Epskamp, 832 F.3d 154, 168 (2d Cir. 2016) that a crime committed on foreign soil has a nexus to the United States “where the aim of the activity is to cause harm inside the United States or to U.S. citizens or interests,” to hold that it “need not decide whether proof of nexus is required” under MDLEA because “the harm caused by drug trafficking on the high seas” – in general – “threatens the societal well-being of the United States.” Acknowledging the unlikelihood that the defendants ever expected to be subject to prosecution for a drug trafficking scheme that had no connection to the United States, the Court found it sufficient they were on notice that their actions “would subject them to criminal liability in some jurisdiction.”
The Circuit further held that application of the MDLEA to the defendants does not exceed Congress’s power under Article I to punish felonies committed on the high seas. It rejected the defendants’ argument that Congressional power to “punish felonies on the high seas” did not extend to them because they were never on the high seas. The Court held that this was already settled by its prior decision in Alarcon-Sanchez that the MDLEA reached land-based conspirators to a felony on the high seas. As it reasoned in that case, the Necessary and Proper Clause also empowered Congress to punish land-based conspirators because it is “rationally related” to prosecuting those who are on the high seas.