Criminal Law

• Author: International Law Group

According to the charges in this case, Nestor Suerte, a Philippine citizen and resident of Colombia, was the captain of a freighter registered in Malta and owned by a member of the Colombian/Venezuelan drug trafficking organization (DTO). The ship sailed from Venezuela on August 11, 2000, with 4900 kilograms of cocaine on board intended for distribution in Europe. Venezuelan authorities intercepted the shipment and about 2700 kilograms of cocaine were lost. The DTO then telexed Suerte to make a second attempt to deliver the cocaine in international waters.

Meanwhile, the U.S. asked for and received permission from Maltese authorities to board and search the freighter. The U.S. Coast Guard search, however, did not turn up any cocaine. After receiving Malta's waiver of objection to the enforcement of U.S. laws over the freighter and its crew, the U.S. Coast Guard towed the freighter to Houston, Texas, for a more thorough search. Customs Agents eventually found in Suerte's cabin the DTO telex with the instructions for the second delivery attempt, as well as an attache case with $3,500 in $100 bills.

The U.S. government indicted Suerte for conspiracy to possess, with intent to distribute, more than five kilograms of cocaine on board a vessel subject to U.S. jurisdiction, in violation of the MDLEA. The relevant section of the Maritime Drug Law Enforcement Act (MDLEA) provides that "(a) It is unlawful for any person ... on board a vessel subject to the jurisdiction of the United States ... to knowingly or intentionally ... possess with intent to ... distribute [] a controlled substance ... (c)(1) For purposes of this section, a 'vessel subject to the jurisdiction of the United States' includes - ...(C) a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States." (46 U.S.C. App. Section 1903)

Suerte moved to dismiss the indictment for lack of jurisdiction because he had no nexus to the U.S., and thus the Constitution does not permit MDLEA to have extraterritorial effect over him. After reviewing the principles of extraterritorial jurisdiction under international law, the district court decided that U. S. law does require such a nexus and dismissed the indictment. The Government appealed, arguing that a nexus did exist and, alternatively, that the Constitution does not require such a nexus.

The U.S. Court of Appeals for the Fifth Circuit vacates and...