Presentation Transcript

1. International LawClass 19: Drug Trade Law POLS 363 Spring 2011
2. Part I: The Drug Trade
3. Drug Trade Sources Asia (e.g. Heroin) US (e.g. meth, hash) S. America (Columbia, Peru, Ecuador) E.g. cocaine, heroin Mexico & Canada big suppliers for Marijuana Process: Land: Source  Gateway Country  US (gangs) as distributor  user Sea: Source  Vessel  US OR Gateway Country  Gangs  User Process and Sources
4. Mexico Drugs 90% of all Cocaine going into the United States passes through Mexico Mexican Cartels have leveraged themselves on top after US closes Caribbean corridor in 1990’s 2,000 guns flow south from US to Mexico every day according to Mexican Gov.
5. Cartels in US According to an NDIC Report Mexican cartels are present in over 195 US cities, including Charleston
6. Three years ago, border agents seized 2,038 pounds of illegal drugs at the port. Two years ago, the figure dropped to 629 pounds. Last year, it was down to 1 pound, according to the S.C. office of U.S. Customs and Border Protection.
7. Vids American Gangs and Drugs Mexican Inroads Glenn Beck Show USCG tracking Go Fast Boats USCG intercepting drug transport vessels Interdiction near Nicaragua
8. Part II: Law of Sea Cases
9. US v. Garcia182 Fed Appx 873 (11th Cir 2006) F: Torres and Garcia, Guatemala citizens, were aboard the “El Almirante”, registered in Guatemala. The USCG intercepted and boarded in the high seas, discovering 2500k of coke. I: Did Congress exceed its authority (Under MDLEA) by punishing offenses committed in int’l waters by foreigners aboard foreign vessels? H: No, juris is valid R: Constitutional authority for the MDLEA (Maritime Drug Law Enforcement Act) is the High Seas Clause, which grants Congress “authority to define and punish piracy, felonies, and offenses against the law of nations committed on the high seas”. MDLEA makes it unlawful “for any person on board a vessel…subject to US juris…to knowingly or intentionally manufacture or distribute, or to possess with intent to manuf or distrib, a controlled substance.” US juris over a vessel is defined as: “a vessel registered in a foreign country where the flag nation consents or waived objection to US enforcement. In addition, protective principle permits valid SMJ “where conduct outside the nation’s territory threatens the nation’s security.”
10. The Saiga Case (St. V/Grenadines v. Guinea)1999 IL Tribunal 2 F: In Oct 1997, an oil tanker, Saiga, was refueling vessels (Senegal and Greece registrations), and drifted into Guinea’s EEZ. The fishing vessels were all legally within the Guinea’s EEZ. Saiga was provisionally registered in Saint Vincent & Grenadines (SVG) in March 1997. Crewmembers were Ukrainian or Senegalese nationals. When in the southernmost pt of Guinea’s EEZ, Guinea patrol boat attacked, seized and searched the Saiga, leading to arrests of all crewmembers. I1: Does provisional registration provide a valid standing? H1: Yes, provisional registration continues until revoked R1: Merchant Shipping Act: 1. St V and Grenadines can make their own conditions for nationality (art 91). 2. provisional registration is guaranteed until registration is deleted from the registry. 3. SV&G looked to section 36(2), which states that a provisional certificate “shall have the same effect as the ordinary certificate of registration until the expiry of one year from the date of issue.” I2: Is a genuine link to the registering country required for standing? H2: yes, but tribunal found that there was indeed such a link R2: Court accepts Guinea’s argument that there needs to be a “genuine link” to the registering country, but was satisfied that there indeed was such a link. They looked at the logs and documents of the vessel.
11. The Saiga Case (St. V/Grenadines v. Guinea)1999 IL Tribunal 2 I3: Was the seizure of Saiga in Guinea’s EEZ legal under IL? H3: No, customs laws cannot be enforced in the EEZ unless pursuant to “hot pursuit”. R3: Convention (art 2 and 21) preclude application of customs laws in the EEZ. Second, hot pursuit can only be applied if transgression occurred in internal waters or territorial waters—not in the EEZ. The key is that in applying hot pursuit the crime must be a transgression committed for that zone. Here, enforcing customs is not a transgression against Guinea’s economic interests, so not applicable. Finally, Guinean’s used excessive force on the Saiga and its crew (violating art 293, authorizing “reasonable force”).
12. Part III Drug Trade Cases
13. US v. Caicedo F: Boat found dead in the ocean, 2k miles from US, not headed for US and light load of narcotics. No US crew and No evidence that it was coming to US. Not registered (stateless). H: Pinto-Mejia applies: unregistered boats are stateless and subject to US jurisdiction. Import: “All nations can treat as own territory, subject to their own laws” (if vessel is unregistered) In Cunnard Steamship Co. v. Mellon (1922), the U.S. Supreme Court maintained that flag-state jurisdiction "arises out of the nationality of the ship, as established by her domicile, registry, and use of the flag and partakes more of the characteristics of personal than of territorial sovereignty." 47 F.3d 1111 (1995)
14. US vJuda F: Dutch captain of unregistered boat, “Malekula” was being tracked by CG, as part of a larger customs op. A tiny transmitter was planted on boat in Australia. The Malekula met with a supply vessel or "mother ship" on the high seas, and loaded sixteen tons of hashish. Agents tracked the Malekula through the transmitter. Coast Guard cutter Acushnet intercepted the Malekula on the high seas, approximately 530 miles west of Vancouver, British Columbia. The defendants set the boat afire, and after rescuing the defendants, authorities retrieved some of the hashish. I1: use of transmitter legal? H1: 1) Only Juda, as owner and captain of the ship had reasonable expectation of privacy. 4th A’s reasonableness standard applies to United States officials conducting a search affecting a United States citizen in a foreign country. See Verdugo-Urquidez. In Peterson, we held that a foreign search is reasonable if it conforms to the requirements of foreign law. R1:the transmitter was not used to determine whether contraband was on the Malekula. It was used only to determine the location of the Malekula on the high seas. There is no privacy right in one's location on the high seas. See United States v. Knotts. 46 F.3d 961 (1995)
15. US v. Juda II I2: Illegal stop and seizure on the high seas? H/R: CG had right to stop and search boat suspected of narcotics traffic. The CG is authorized by statute to "make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States." MDLEA 14 U.S.C. § 89. Moreover, the Coast Guard was not required to believe Juda's statement that the Malekula was registered, but was entitled to "proceed to verify a foreign ship's right to fly its flag by examining its documents and, if necessary, by an examination on board the ship.” ** Clearly, the Coast Guard is entitled to detain a foreign vessel while awaiting consent of the flag nation to the exercise of United States jurisdiction. See Kahn, 35 F.3d at 430 ("If the Coast Guard could not hold a suspected ship while waiting, the ship would have an opportunity to escape or to destroy evidence."). Issue 2
16. 3 requirements for jurisdiction 1. Constitutional Jurisdiction (personal)  Need minimum contacts or nexus 2. Statutory Jurisdiction (subject)  getting authority over ship itself 3. Due Process: Act of seizure and arrest  FAIR? On High Seas
17. US vMedjuck F: Medjuck, a Canadian citizen, and Sotirkys, an American citizen secure the ‘Lucky Star,’ a vessel registered in St. Vincent. They arranged to have the Lucky Star loaded with the 28 tons of hashish from the Saratoga Success and an additional 42 tons of hashish from Pakistan. In a ‘controlled delivery’ US agents rendezvous with the Lucky Star approximately 800 miles northwest of Midway Island, in order to offload and transport the hashish to Canada. The two ships met, but due to inclement weather and rough seas, only 2.4 tons of hashish were offloaded. The captain of the Lucky Star proceeded back to Asia. After tracking the Lucky Star for several days toward Asia, two United States Navy destroyers intercepted the vessel. A Coast Guard officer assigned to one of the destroyers sought permission to board the Lucky Star. The captain of the Lucky Star consented, and the vessel was boarded, secured, and directed to proceed to Hawaii while the Coast Guard awaited the flag nation's consent to the assertion of United States jurisdiction. Ten days later, as the Lucky Star neared Hawaii, St. Vincent, the flag nation, gave its consent. When the ship arrived in Honolulu, the cargo was seized and the crew incarcerated. 48 F.3d 1107 (1995)
18. Medjuck 1) 5 ways to find statutory jurisdiction from MDLEA (e.g. stateless, flag nation consents, territory, etc) 2) Constitutional juris (5 principles)  Need minimum contacts or some form of nexus with the US to assert juris. The extraterritorial activity must have a "substantial, direct, and foreseeable effect upon or in the territory.” To meet the nexus requirement, the government must show that “an attempted transaction is aimed at causing criminal acts within the United States” OR “the plan for shipping drugs was likely to have effects in the United States." Kahn, 35 F.3d at 429. Factors to consider: Distance from US Direction Port of Destination—conducive to distribution in US -- there is sufficient nexus where the plan for shipping the drugs was “likely to have effects in the United States." Citizenship Holding
19. US v. Perlaza F: USS De Wert, a Navy frigate, and other United States Navy and Coast Guard ships were engaged in maritime surveillance of vessels suspected of drug trafficking in the Eastern waters of the Pacific off the coasts of Ecuador, Colombia, and Peru. Radar showed suspicious activity by a speedboat and a Colombian-registered fishing vessel, the Gran Tauro, twenty miles away (all persons were Columbian). The De Wert’s helicopter was dispatched to the site of the suspicious activity. Speedboat’s crew realized that they are detected and jettison cargo (2k kilos cocaine) and ram the Gran Tauro attempting to destroy illegal contents. Navy suspects that the Gran Tauroserved as a logistical support vessel for the speedboat. The five speedboat crew members and seven crew members of the Gran Taurowere prosecuted under the Maritime Drug Law Enforcement Act. Two members of the speedboat crew pled guilty, and the remaining ten Defendants opted for a jury trial and were convicted on all charges. H: Reverse convictions on Gran Tauro. No jurisdiction b/c registered and found no nexus to US. As we noted above, the nexus requirement turns on the status of the vessel: “With respect to those apprehended aboard foreign-flagged vessels, there must be some nexus to the United States before jurisdiction can be established . . . .” Id. 439 F.3d 1149 (2006)
20. Perlaza The fact that the Government received Colombia’s consent to seize the members of the Gran Tauro, remove them to the United States, and prosecute them under United States law in federal court does not eliminate the nexus requirement. The consent permitted the United States to prosecute defendants under United States law — nothing more. the Government conceded at oral argument before us that it did not present any evidence indicating that the cocaine jettisoned from the Go-Fast had any nexus to the United States. Thus, the district court erred in exercising jurisdiction over the Gran TauroDefendants, who were members of an indisputably foreign-flagged vessel. Because nexus is an essential part of the jurisdictional analysis that our case law requires, we reverse the Gran TauroDefendants’ convictions and direct the district court to dismiss the indictment against them. Reasoning