Friday, November 15th, 2019

Second Circuit Holds that a Foreign National in a Stateless Vessel Can Be Convicted Under the Maritime Drug Law Enforcement Act Where the Offense Has No Nexus to the United States.

In United States v. Van Der End, No. 17-2926 (Nov. 14, 2019) the Court of Appeals affirmed the drug trafficking conviction of a Netherlands national intercepted at sea with cocaine bound for Canada. The defendant challenged the court’s subject matter jurisdiction and the constitutionality of the Maritime Drug Law Enforcement Act (“MDLEA”), and the government moved to preclude the defense from arguing at trial that the vessel was not subject to U.S. jurisdiction. The district court ruled for the government on all three issues, holding that there was subject matter jurisdiction, that the MDLEA was constitutional, and that the jurisdiction issue could not be presented to the jury. With no defense, the defendant entered an unconditional guilty plea, but raised these claims on appeal.

The Court of Appeals held that the defendant’s guilty plea waived his right to challenge the government’s proof that the vessel was subject to U.S. jurisdiction so long as there was a sufficient factual basis for jurisdiction at the plea allocution. The Court concluded that the evidence that the vessel was registered to a nation that refuted its nationality was a sufficient factual basis to establish it was a “vessel without nationality,” 46 U.S.C. §70502, and subject to U.S. jurisdiction under the MDLEA. The Court distinguished its decision in United States v. Prado, 933 F.3d 121, 132 (2d Cir. 2019) on the ground that the government’s destruction of the ship in Prado made it impossible to establish a factual basis for the plea.

As for the district court’s denial of a jury trial on the question of jurisdiction, the Second Circuit repeated its admonition, made in Prado, that the MDLEA’s reservation of this issue for the judge may be unconstitutional and that district courts should submit the issue to the jury. However, the defendant here was out of luck because he had waived that issue with his plea. Although the district court had ruled that the defense could not present this issue to the jury, 2017 WL 2417016 at *4, the Court of Appeals stated that “the district court had no opportunity to submit the question to a jury because Van Der End pled guilty after the district court made the preliminary determination MDLEA requires.”

Finally, the Court of Appeals rejected on the merits the argument the lack of any nexus between the offense conduct and the United States violated Due Process. While this claim survives a guilty plea, the Court ruled that no nexus is required where the vessel is stateless because stateless vessels are “international pariahs” that subject themselves to the jurisdiction of all nations.


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Categories: jurisdiction, MDLEA
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