United States Court of Appeals

For the First Circuit

No. 08-1028

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ DEL CARMEN CARDALES-LUNA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Selya, and Lipez, Circuit Judges.

José R. Olmo-Rodríguez for appellant.

Germán A. Rieckehoff, Assistant United States Attorney, with

whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and

Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,

for appellee.

January 20, 2011
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LIPEZ, Circuit Judge. Our opinion in United States v.

Angulo-Hernández, 565 F.3d 2 (1st Cir. 2009), describes the facts

underlying this Maritime Drug Law Enforcement Act (MDLEA) appeal.

Appellant José del Carmen Cardales-Luna was one of eight crew

members serving on the Bolivian flag vessel Osiris II when it was

boarded by the United States Coast Guard in international waters on

February 4, 2007. In the course of a six-day search of the Osiris

II, Coast Guard officers discovered 400 kilograms of cocaine,

twenty-five kilograms of heroin, and a machine gun hidden in a

compartment near the rear of the vessel. Cardales-Luna and his

seven fellow crew members were subsequently charged in a threecount superseding indictment with (1) conspiracy to possess with

intent to distribute the drugs found on the Osiris II, see 46

U.S.C. § 70506(b); (2) aiding and abetting the possession of those

drugs with intent to distribute, see 46 U.S.C. § 70503(a)(1), 18

U.S.C. § 2(a); and (3) aiding and abetting the possession of a

machine gun in furtherance of a drug trafficking crime, see 18

U.S.C. §§ 2(a), 924(c)(1)(B)(ii). 

The other seven crew members were tried jointly. The

jury found four of them guilty on all counts and three not guilty

on all counts. We affirmed the four convictions in

Angulo-Hernández, a set of appeals that focused on whether the

government had presented sufficient evidence to prove that the

defendants knew the drugs were hidden on the vessel. See 565 F.3d
The vessel was en route from Colombia to the Dominican 1

Republic. The drugs -- approximately 400 bricks of cocaine and 25

bricks of heroin -- were estimated to be worth $8 million. The

cargo of 28,011 rolls of toilet paper, 207 Styrofoam coolers, and

14 pieces of office furniture was estimated to be worth $25,000.

It was also stored haphazardly, suggesting that the legitimate

cargo was no more than a cover for the more valuable hidden cargo.

Finally, the screws securing the hatch on the hidden compartment

were not tarnished, which indicated that the hatch had been

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at 7-9. For reasons that are not clear from the record, CardalesLuna was tried separately from his co-defendants. After a one-day

trial, the second jury found Cardales-Luna guilty on all three

counts. At sentencing, the court dismissed the gun charge, as it

had at the sentencing of the defendants found guilty in the AnguloHernández trial. This appeal followed.

I.

Cardales-Luna contends that the government proved only

that he was present on a vessel that happened to be carrying drugs,

not that he knowingly possessed those drugs with the intent to

distribute. We considered and rejected the same sufficiency of the

evidence argument in Angulo-Hernández, where we held that the

circumstantial evidence was sufficient for the jury to infer

knowledge. 565 F.3d at 9. In particular, we held that the route

of the vessel, the quantity and value of the drugs, the low value

and unprofessional handling of the other cargo, and evidence

suggesting that the compartment containing the drugs had recently

been sealed all supported a finding that the crew members knew

about the drug trafficking operation. Id. at 8-9. 1
recently sealed and made it "more likely . . . that the crew

members either witnessed the loading or participated in it."

Angulo-Hernández, 565 F.3d at 8.

The evidence against the other two defendants -- the 2

ship's captain and the engineer -- was somewhat stronger. See

Angulo-Hernández, 565 F.3d at 8-9.

The officer testified: 3

Of the seven crew members, two of them [Cardales-Luna and

Casiano-Jiménez] stood out as being of a higher status

than the other five. They were afforded seats. They had

wooden chairs that those two individuals got to sit on.

The other five sat on the deck.

When they had meals, they were given food first. And the

general demeanor of the other five towards these seemed

almost of subservience. It seemed almost to me, from my

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At Cardales-Luna's trial, the government offered the same

circumstantial evidence that it had offered against two of the

other crew members, José Luis Casiano-Jiménez and Gustavo Rafael

Brito-Fernández, whose convictions we affirmed in

Angulo-Hernández. Cardales-Luna did not testify at trial, nor did 2

he offer any evidence that would favorably distinguish him from

Casiano-Jiménez and Brito-Fernández. Indeed, the one material fact

distinguishing Cardales-Luna from Brito-Fernández arguably cuts in

the government's favor: a Coast Guard officer testified that the

other crew members appeared to treat Cardales-Luna and CasianoJiménez with deference, which the officer viewed as an indication

that they were higher on the crew's hierarchy than the others (that

is, closer to the status of the captain and engineer than the

ordinary crew members). The jury could have inferred from that 3
military experience, that they were officers to their

enlisted, if I could make that analogy.

Cardales-Luna presented evidence that Casiano-Jiménez had an

injured foot, which Cardales-Luna says was the reason CasianoJiménez was given a seat at meals. If anything, that evidence

strengthens the inference that Cardales-Luna, who had no similar

excuse, was treated better because he ranked higher than the other

crew members.

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evidence that Cardales-Luna was more likely to know about the drug

smuggling operation than Brito-Fernández.

In short, the evidence against Cardales-Luna was at least

as strong as -- and materially identical to -- the evidence against

Casiano-Jiménez and Brito-Fernández, which we held to be sufficient

to prove knowledge in Angulo-Hernández. There is a question,

however, of what weight our decision in Angulo-Hernández should be

given in this appeal. In general, "accepted principles of stare

decisis militate strongly in favor of resolving identical points in

the same way for identically situated defendants." United States

v. Diaz-Bastardo, 929 F.2d 798, 799 (1st Cir. 1991). Those

principles suggest that we should follow our previous decision as

a matter of stare decisis.

There are two potential difficulties with that route,

however. The first is that the government conceded at oral

argument that our prior decision has no stare decisis effect here.

Yet that representation, though entitled to some weight, is not

binding on us. United States v. Bucci, 582 F.3d 108, 119 n.9 (1st

Cir. 2009). As the Supreme Court has pointed out, our "judgments
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are precedents, and the proper administration of the criminal law

cannot be left merely to the stipulation of parties." Young v.

United States, 315 U.S. 257, 259 (1942). A concession by the

government therefore "does not relieve [us] of the performance of

the judicial function." Id. at 258; see also Roberts v. Galen of

Va., Inc., 525 U.S. 249, 253 (1999) (per curiam) (noting that "the

concession of a point on appeal by respondent is by no means

dispositive of a legal issue"). If the law requires us to adhere

to Angulo-Hernández, we must adhere to it, the government's

concession to the contrary notwithstanding.

The second difficulty is that there is limited authority

directly addressing the role of stare decisis in the sufficiency of

the evidence context. It is possible that this limited authority

reflects a belief that sufficiency of the evidence rulings are

categorically exempt from the ordinary rules of stare decisis.

Sufficiency of the evidence rulings, after all, "generate[] no

precedential force upon the decisionmaking processes of fact

finders at criminal trials." United States v. Willoughby, 27 F.3d

263, 268 (7th Cir. 1994). Perhaps the same principle extends to

appellate review for evidentiary sufficiency as well.

We reject that proposition. The role of an appellate

court in judging the sufficiency of the evidence is fundamentally

different from the role of the jury in finding the facts and

determining guilt. Whereas the jury must determine whether, in its
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subjective judgment, the government has overcome the presumption of

innocence and eliminated any reasonable doubt that the defendant

committed the charged offense, a court reviewing for sufficiency is

not permitted to "make its own subjective determination of guilt or

innocence." Jackson v. Virginia, 443 U.S. 307, 319 n.13 (1979).

Rather, appellate courts ask "whether the evidence introduced is

sufficient to convict as a matter of law (which is not to say the

jury must convict, but only that, as a matter of law, the case may

be submitted to the jury and the jury may convict)." Carmell v.

Texas, 529 U.S. 513, 547 (2000) (emphasis altered). The question

calls for a "binary response: Either the trier of fact has power as

a matter of law [to make a finding of guilt] or it does not."

Schlup v. Delo, 513 U.S. 298, 330 (1995).

The distinction between fact-finding and sufficiency

review is important because stare decisis "deals only with law."

United States v. Reveron Martinez, 836 F.2d 684, 691 (1st Cir.

1988) (internal citations and quotation marks omitted). The trier

of fact is thus free to make an independent assessment of the

evidence because "the facts of each successive case must be

determined by the evidence adduced at trial." Id. By contrast,

even the narrowest conception of stare decisis demands that two

panels faced with the same legal question and identical facts reach

the same outcome. See 18 James Wm. Moore et al., Moore's Federal

Practice § 134.03[1] (3d ed. 2010) ("At a minimum, stare decisis
-8-

extends to the result reached by the prior authoritative

decisions."); Drive Fin. Servs., L.P. v. Jordan, 521 F.3d 343, 349

(5th Cir. 2008) ("[W]hen a future case presents the same facts as

a past case decided by a higher court[,] stare decisis requires

that we decide those cases in a similar manner."); Tate v. Showboat

Marina Casino P'ship, 431 F.3d 580, 582 (7th Cir. 2005) (noting

that the holding of a case includes "the facts and the outcome").

The proposition that courts policing the legal boundaries

of the fact-finder's authority must act in conformity with binding

legal precedent is confirmed explicitly in a few cases. E.g.,

Willoughby, 27 F.3d at 268 (noting that the stare decisis effect of

a prior panel decision extends to "other appellate tribunals in the

same jurisdiction faced with comparable challenges to the

sufficiency of the evidence"); United States v. Gillis, 942 F.2d

707, 711 (10th Cir. 1991) (holding that a previous panel decision

"is stare decisis on the issue of sufficiency of the evidence to

support this conviction"). It is also implicit in many others.

E.g., United States v. Johnson, 519 F.3d 478, 485-86 (D.C. Cir.

2008) (affirming conviction on the ground that "[t]he evidence

introduced in this case is indistinguishable from evidence we have

previously held sufficient"); United States v. Hernandez, 141 F.3d

1042, 1055-56 (11th Cir. 1998) (reversing conviction on the ground

that the evidence was indistinguishable from evidence previously

held insufficient).
Particularly vexing problems arise when two binding 4

precedents are in conflict. See, e.g., Reveron Martinez, 836 F.2d

at 693 (Torruella, J., concurring in part and dissenting in part).

Some other circuits have held that "where two previous holdings or

lines of precedent conflict[,] the earlier opinion controls and is

the binding precedent." Rios v. City of Del Rio, 444 F.3d 417, 425

n.8 (5th Cir. 2006). We need not address that issue here.

Angulo-Hernández is the only precedent at issue.

-9-

There are of course limits to stare decisis, which we

have catalogued in numerous cases. See, e.g., United States v.

Rodríguez, 527 F.3d 221, 224-25 (1st Cir. 2008); EEOC v. Trabucco,

791 F.2d 1, 4 (1st Cir. 1986). Most relevantly for our purposes, 4

"a decision dependent upon its underlying facts is not necessarily

controlling precedent as to a subsequent analysis of the same

question on different facts and a different record." Gately v.

Massachusetts, 2 F.3d 1221, 1227 (1st Cir. 1993). That rule is no

more than a restatement of the familiar idea that prior cases are

often distinguishable on their facts. It also likely explains why

stare decisis is so infrequently invoked by name in sufficiency of

the evidence cases. As a practical matter, the evidence in one

case is rarely duplicated in a subsequent case, and so precedents

in the sufficiency of the evidence arena tend to serve primarily as

rough guides that can be likened or distinguished according to the

accepted norms of legal reasoning. Yet even accepting that there

are legitimate grounds for distinguishing cases on the basis of

materially different facts, cf. Trabucco, 791 F.2d at 2 (noting

that stare decisis "leaves some room for judgment as to its
-10-

preclusive power"), it remains true that a panel may not disregard

binding precedent simply out of disagreement. See Lacy v. Gardino,

791 F.2d 980, 984-85 (1st Cir. 1986).

Therefore, it would be no small matter to find that an

area of the law was categorically exempt from the constraining

force of precedent. Stare decisis is always "the preferred course

because it promotes the evenhanded, predictable, and consistent

development of legal principles, fosters reliance on judicial

decisions, and contributes to the actual and perceived integrity of

the judicial process." Payne v. Tennessee, 501 U.S. 808, 827

(1991). Indeed, the Supreme Court has described stare decisis as

"a basic self-governing principle within the Judicial Branch, which

is entrusted with the sensitive and difficult task of fashioning

and preserving a jurisprudential system that is not based upon 'an

arbitrary discretion.'" Patterson v. McLean Credit Union, 491 U.S.

164, 172 (1989) (quoting The Federalist No. 78), superseded on

other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105

Stat. 1071. If courts of appeals rendering legal decisions do not

feel obligated to treat materially identical cases alike, the law

will largely depend upon who happens to be making the decision, and

our adherence to the rule of law will be diminished. Cf. James B.

Beam Distilling Co. v. Georgia, 501 U.S. 529, 537 (1991) (opinion

of Souter, J.) (the principle "that litigants in similar situations
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should be treated the same" is "a fundamental component of stare

decisis and the rule of law generally").

We are thus drawn to an inescapable conclusion: although

Angulo-Hernández has no res judicata effect here, "we nonetheless

are bound to follow it, under principles of stare decisis, insofar

as the record now before us does no more than replicate the same

facts that were before us" in the previous appeal. Perez v. Volvo

Car Corp., 247 F.3d 303, 313 (1st Cir. 2001). As we have already

said, Cardales-Luna has not pointed to any fact or circumstance

that favorably distinguishes his case from that of Casiano-Jiménez

and Brito-Fernández. The exact same evidence that we held to be

sufficient to prove knowledge in Angulo-Hernández was offered

against Cardales-Luna in his separate trial, and nothing in the

record of this case suggests that the four circumstantial

considerations we considered dispositive in Angulo-Hernández apply

with any less force here. We therefore follow Angulo-Hernández in

concluding that the evidence against Cardales-Luna was sufficient

to sustain his conviction.

II.

Cardales-Luna raises a second issue that we did not

squarely decide in Angulo-Hernández, apparently because the other

defendants did not raise it on appeal. The MDLEA prohibits drug

trafficking aboard "a vessel subject to the jurisdiction of the

United States," 46 U.S.C. § 70503(a)(1), which includes "a vessel
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registered in a foreign nation if that nation has consented or

waived objection to the enforcement of United States law by the

United States," id. § 70502(c)(1)(C). To prove that the Osiris II

was subject to the jurisdiction of the United States, the

government presented the certification of G. Philip Welzant, U.S.

Coast Guard Liaison Officer to the Bureau of International

Narcotics and Law Enforcement Affairs, U.S. Department of State,

who declared: "On February 5th, 2007, Bolivian authorities notified

the United States that the Government of Bolivia waived objection

to the enforcement of U.S. laws by the United States with respect

to the vessel Osiris II, including its cargo and all persons

onboard."

Cardales-Luna contends that Commander Welzant's

certification is deficient because it does not state the name of

the Bolivian official involved or the exact time and means of the

communication between the two governments. In support of his

position, he cites United States v. Leuro-Rosas, a decision in

which we quoted from the legislative history of the MDLEA:

In instances where the United States is

required to prove a foreign nation's consent

or waiver of objection to U.S. enforcement, or

such a nation's denial of claim of registry,

this section permits proof by certification of

the Secretary of State or the Secretary's

designee. Such a certification should spell

out the circumstances in which the consent,

waiver, or denial was obtained, including the

name and title of the foreign official acting

on behalf of his government, the precise time
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of the communication, and the means by which

the communication was conveyed.

952 F.2d 616, 620 (1st Cir. 1991) (quoting S. Rep. No. 99-530, at

14 (1986), reprinted in 1986 U.S.C.C.A.N. 5986, 6000-01). We

implied in Leuro-Rosas that a certification that did not

substantially comply with the "requirements articulated by

Congress" might be rejected as insufficient to prove the foreign

nation's consent. See id. at 620-21.

Any argument under Leuro-Rosas is unavailing to CardalesLuna because the MDLEA has been materially amended since we decided

that case. When we heard Leuro-Rosas, the statute provided that

the foreign nation's consent "may be proved" by certification of

the Secretary of State or her designee. Id. at 619 (quoting former

46 U.S.C. app. § 1903(c)(1)). That left open the possibility that

a defendant could "look behind the State Department's certification

to challenge its representations and factual underpinnings."

United States v. Guerrero, 114 F.3d 332, 341 (1st Cir. 1997)

(reserving the issue).

Congress effectively foreclosed that possibility in 1996,

when it amended the MDLEA to provide that "[c]onsent or waiver of

objection by a foreign nation to the enforcement of United States

law by the United States . . . is proved conclusively by

certification of the Secretary of State or the Secretary's
There are minor differences in wording between the 1996 5

amendment and the version in force today, but they have no

substantive significance. See United States v. Betancourth, 554

F.3d 1329, 1334 & n.4 (11th Cir. 2009).

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designee." 46 U.S.C. § 70502(c)(2) (emphasis added). Under the 5

current statute, the Secretary of State (or her designee) need only

certify that the "foreign nation" where the vessel is registered

"has consented or waived objection to the enforcement of United

States law by the United States." Id. § 70502(c)(1)(C). Such a

certification is "conclusive[]," and any further question about its

legitimacy is "a question of international law that can be raised

only by the foreign nation." United States v. Bustos-Useche, 273

F.3d 622, 627 & n.5 (5th Cir. 2001). Commander Welzant's terse

certification, though not in the preferred form, was therefore

sufficient to establish that the Osiris II was "subject to the

jurisdiction of the United States."

III.

Finally, we must address one other matter. We

acknowledge the forceful dissent by Judge Torruella concluding that

Congress exceeded its authority under Article I of the Constitution

by enacting 46 U.S.C. §§ 70502(c)(1)(C) and 70503(a)(1) and thereby

authorizing the enforcement of United States criminal law against

people and activities lacking any nexus with this country. Judge

Torruella asserts that this constitutional challenge implicates the

subject matter jurisdiction of the court and must be addressed by
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us even though the constitutional challenge was never raised below

or on appeal. We respectfully disagree with the assertion that

this constitutional challenge posed by Judge Torruella involves the

subject matter jurisdiction of the court. Instead, we agree with

the position of the D.C. Circuit in United States v. Baucum, 80

F.3d 539, 541 (D.C. Cir. 1996): "If a challenge to the

constitutionality of an underlying criminal statute always

implicated subject-matter jurisdiction, then federal courts, having

an obligation to address jurisdictional questions sua sponte, would

have to assure themselves of a statute's validity as a threshold

matter in any case. This requirement would run afoul of

established Supreme Court precedent declining to address

constitutional questions not put in issue by the parties."

Affirmed.

- Dissenting Opinion Follows -
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TORRUELLA, Circuit Judge (Dissenting). For the reasons

laid out below, I respectfully dissent.

A. Stare decisis, the insufficiency of the evidence and

the failure of the government to meet its constitutional

burden

The application of the doctrine of stare decisis to

Appellant, under the circumstances of this case, effectively

results in the denial, or at least the unconstitutional diminution,

of his right to a full and independent assessment of his

particularized guilt or innocence. Such a consideration is

mandated by the due process clause of the Fifth Amendment. This

failing is readily reflected in the majority's tractable conclusion

that there is sufficient evidence on the record from which a jury

can conclude that Appellant is guilty beyond a reasonable doubt of

the crimes for which he is charged. This outcome against Appellant

is principally based on the fact that this same evidence was

presented in the earlier case, United States v. Angulo-Hernández,

565 F.3d 2 (1st Cir. 2009), see Maj. Op. at 4, in which three of

the crew members were found guilty, while four were acquitted. But

two of the guilty crew members were in substantially different

factual and legal postures than the Appellant in this case, for

they were the captain and engineer of the Osiris II. Id. at n.4.

This crucial difference to Appellant's case is called by the

majority a "somewhat stronger" case against those other defendants.
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Id. at n.2. No explanation is given for third crew member found

guilty on the same evidence on which the other four were acquitted.

At the government's urging, the deficiencies in the

government's present case (e.g., Appellant not being an officer of

the Osiris II), are made up by resorting to speculation ("[the]

Coast Guard officer testified that the other crew members appeared

to treat [Appellant] . . . with deference." Id. at 4), and by the

piling of inference upon inference (e.g., Appellant was given a

wood chair to sit on; Appellant was fed first; and such similar

banalities). The smoking gun that is relied upon in both the first

case and in this one is the discovery of "new-looking" screws

securing the secret compartment in which the contraband was found

near the vessel's aft lube oil tank. The top to this compartment,

which the "shining screws" were securing, was under a layer of

rubber matting and two layers of plywood. It took the Coast Guard

six days of intensive search to find and uncover this compartment.

There is not an iota of evidence connecting Appellant to this

compartment or to its contents except outright speculation. Cf.,

United States v. Pérez-Meléndez, 599 F.3d 31 (1st Cir. 2010). Why

do the "shining screws" doom Appellant in particular any more (or

less) than all the other crew members found not guilty? Can his

sitting on a wooden chair, and his eating first, make for the

quantum leap that is being asked of this court to establish his

knowledge beyond a reasonable doubt? I think not. Based on this
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record, if the evidence against Appellant is independently

considered apart from the outcome of the case of the defendants

found guilty in the prior case, I fail to see how it can possibly

be concluded that the government has established the element of

"knowledge" that is essential to the establishment of the charges

against Appellant.

The outcome that results from this case is one more step

on the slippery slope down which we have been sliding for some

time. See United States v. Azubike, 564 F.3d 59 (1st Cir. 2009).

This conclusion unquestionably constitutes a further lowering of

the bar which the government must constitutionally meet to prove

guilt beyond a reasonable doubt. Id. at 71.

B. The unconstitutional application of U.S. criminal law

to persons and activity without any nexus to, or impact

in, the United States

The matters previously discussed are almost irrelevant to

the outcome of this appeal when compared to the more basic

jurisdictional issue that arises from the government's reliance on

the Maritime Drug Enforcement Act (MDLEA), codified as amended at

46 U.S.C. §§ 70501-70507, as the basis for the extraterritorial

application of the criminal laws of the United States to Appellant.

The invalidity of the application of MDLEA to Appellant

results from Congress's ultra vires extension of its Article I
Article I, § 8, cl. 10 grants Congress power "[t]o define and 6

punish Piracies and Felonies committed on the high Seas, and

Offences against the Law of Nations."

A vessel is considered territory of the nation whose flag it 7

flies. United Nations Convention on the Law of the Sea art. 91,

Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]. Available

at http://www.un.org/Depts/los/index.htm.

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legislative powers to foreign territory, as applied to persons 6 7

and/or activities that have no nexus with the United States. See,

Eugene Kontorovich, Beyond the Article I Horizon: Congress's

Enumerated Powers and Universal Jurisdiction over Drug Crimes, 93

Minn. L. Rev. 1191 (2009); cf. José A. Cabranes, Our Imperial

Criminal Procedure: Problems in Extraterritorial Application of

U.S. Constitutional Law, 118 Yale L. J. 1660, 1671-1680 (2009). By

the enactment of 46 U.S.C. §§ 70503(a) (1) and 70502(c) (1) (C) of

the MDLEA, allowing the enforcement of the criminal laws of the

United States against persons and/or activities in non-U.S.

territory in which there is a lack of any nexus or impact in, or

on, the United States, Congress has exceeded its powers under

Article I of the Constitution. Any prosecution based on such

legislation constitutes an invalid exercise of jurisdiction by the

United States, and is void ab initio. See United States v. Walker,

59 F.3d 1196, 1198 (11th Cir. 1995). Cf. United States v. Lopez,

514 U.S. 549 (1995) (holding that Congress exceeded its commerce

clause authority when it enacted the Gun-Free School Zone Act and

concluding that the conviction must be vacated.). This is a
The Osiris II was on a Coast Guard watch list as a suspected 8

smuggler of contraband.

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fundamental structural problem that goes to Congress's power to

legislate under Article I of the Constitution which cannot be

waived by any individual or foreign nation.

The facts relevant to this question are crystal clear and

undisputed: Appellant, a Colombian national, was apprehended in

international waters near the northern coast of South America,

aboard a Bolivian-registered vessel, the Osiris II, which was

crewed by an all non-United States citizen compliment. The Osiris

II was en route from Colombia to the Dominican Republic with a

cargo of toilet paper and diverse other items. Initially, the

Coast Guard boarded the vessel allegedly to help the crew repair 8

the broken-down engine of the Osiris II. However, while rummaging

aboard the vessel inspecting for safety matters, the boarding party

found some powder residue which originally field-tested positive

for heroin. Although this eventually turned out not to be the

case, this "discovery" provided the excuse for the arrest of the

Osiris II and its crew after the Bolivian Government "waived

objection to the enforcement of U.S. laws by the United States with

respect to the Osiris II, including its cargo, and all persons

onboard." Thereafter, the Osiris II was towed by the Coast Guard to

San Juan, Puerto Rico where for the next six days the vessel was

thoroughly searched for contraband. As previously indicated,
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contraband was eventually found in a secret stern compartment

hidden below a rubber matting and two sheets of plywood. There is

no evidence that any of the contraband found aboard the vessel was

destined for U.S. territory, or that there was any connection with

persons or activities in U.S. territory, or with persons who were

U.S. nationals. The only injection of the United States into this

case comes about from the fact that the vessel that intercepted the

Osiris II was a U.S. Coast Guard vessel, and the further fact, that

upon the erroneous discovery of what was believed to be contraband

by the Coast Guard, the United States sought and received from the

Government of Bolivia a waiver to the enforcement of U.S. laws in

Bolivian territory.

Appellant was charged, tried, convicted and sentenced

pursuant to the MDLEA, which prohibits drug trafficking aboard "a

vessel subject to the jurisdiction of the United States," 46 U.S.C.

§ 70503(a) (1), which definition includes "a vessel registered in

a foreign nation if that nation has consented or waived objection

to the enforcement of United States law by the United States." 46

U.S.C. § 70502(c) (1) (C). The question is thus squarely presented

whether Congress has the power to extend the criminal jurisdiction

of the United States extraterritorially irrespective of the lack of

a nexus of the activity or persons to the United States, merely

because there is consent to the exercise of such jurisdiction by

the nation whose citizens or territory are the subject of said
An additional issue presented by the MDLEA and the facts in 9

this case is the validity of the retroactive application of U.S.

criminal law to Appellant, that is, the application of U.S. law to

Appellant for actions that were not violations of that law until

after the consent was given by the Bolivian government to subject

Appellant to said law. This in turn presents an issue of the

extent to which the Constitution is applicable in international

waters. Cf. Boumediene v. Bush, 553 U.S. 723 (2008). Because these

matters were not raised below, and are not jurisdictional in

nature, I will not attempt to decipher their complexity at this

time.

-22-

application of U.S. law. This issue is, of course, jurisdictional

in nature and thus can be raised at any stage of a case, United

States v. Madera-López, 190 F. App'x 832, 834 (11th Cir. 2006),

including by the court motu proprio, as I am presently doing.

In my opinion, Congress does not have the power to extend

the criminal jurisdiction of the United States for the crimes

charged on the facts of the case before us.9

Although under the international law doctrine of

universal jurisdiction (UJ), a nation may prosecute certain serious

offenses even though they have no nexus to its territory or its

nationals, and no impact on its territory or its citizens, see

Restatement (Third) of Foreign Relations Law of the United States,

§ 404 cmt. a (1987), the crimes charged in this case are not within

the categories for which the application of UJ is permitted. In

enacting the MDLEA, Congress has purportedly attempted to come

within the umbrella of UJ doctrine by looking to Article I, § 8,

cl. 10 of the Constitution as the source of its authority. This

provision, however, does not authorize the regulation of purely
-23-

foreign conduct except as regards to piracy on the high seas, and

two other situations to be presently discussed. See Eugene

Kontorovich, The "Define and Punish" Clause and the Limits of

Universal Jurisdiction, 103 Nw. U. L. Rev. 149 (2009) (examining

the scope of these powers). In this respect it should be noted that

Article I, § 8, cl. 10 -- which gives Congress the power to "define

and punish Piracies and Felonies committed on the high Seas, and

Offences against the Law of Nations" -- enumerates three distinct,

although related, groupings but only authorizes UJ over crimes that

are universally cognizable under international law. The term

"universally cognizable," as will be presently explained, is not

equivalent to "generally" cognizable but refers to those crimes

conferring universal jurisdiction as that term is used in

international law. Other than in the case of those limited crimes,

there is no general authority to regulate purely foreign criminal

conduct that does not have a demonstrable connection with the

United States.

As a learned scholar on this subject sardonically

comments, "Congress cannot punish dog-fighting by Indonesians in

Java because Congress has not been authorized by the Constitution

to make such laws." Kontorovich, Beyond the Article I Horizon,

supra, at 1194 (emphasis in original). Perhaps an even more

relevant example would be if Congress passed legislation attempting

to apply the criminal laws of the United States, with the Bolivian
-24-

government's consent, to the conduct of Colombian nationals in

Bolivia traveling over its mountain roads carrying a load of coca

leaves destined for Peru. The power of Congress to legislate in

such a case cannot be countenanced even with the consent of

Bolivia, whose consent is ultimately irrelevant, for Bolivia cannot

grant Congress powers beyond those allotted to it by the

Constitution.

Until recently, piracy was the only crime which was

punishable by all nations, and which could be prosecuted by

whatever nation acquired personal jurisdiction over the alleged

pirate. Thus it was the only crime to which the doctrine of UJ

could be applied. Kontorovich, Beyond the Article I Horizon, supra,

at 1194; see also United States v. Yousef, 327 F.3d 56, 104 (2d

Cir. 2003) ("The class of crimes subject to universal jurisdiction

traditionally included only piracy."). This point is of more than

passing academic relevance, for the constitutional power of

Congress to legislate is thus considerably different depending on

whether it is dealing with "Piracy," "Felonies committed on the

high Seas," or "Offences against the Law of Nations" (piracy also

falls within this category). See United States v. Shi, 525 F.3d

709, 721 (9th Cir. 2008) (citing United States v. Smith, 18 U.S. (5

Wheat.) 153, 158-59 (1820), and noting that Smith treats these

three crimes "as three separate offenses.").
-25-

During the legislative process leading to the enactment

of the MDLEA's predecessor, the Marijuana on the High Seas Act of

1980 (MHSA), Pub. L. No. 96-350, 94 Stat. 1159 (1980), an attempt

was made to enact a provision that would have allowed the

application of U.S. drug laws to foreign vessels, irrespective of

a U.S. nexus, provided that the U.S. received prior approval of its

exercise of extraterritorial jurisdiction from the flag nation of

the vessel in question. See Kontorovich, Beyond the Article I

Horizon, supra, at 1198 (citing H.R. Rep. No. 96-323 (1979), at 7).

This proposal, however, was rejected by the Committee on Merchant

Marine and Fisheries of the House based on "'[v]arious

jurisdictional and constitutional' objections to using a state's

'prior consent as a basis for . . . domestic criminal

jurisdiction.'" Id. (quoting H.R. Rep. No. 96-323, at 7).

Additionally, the proponents of that provision expressed the view

that "as a matter of international law, flag state consent would

still be an inadequate basis [for jurisdiction to attach] given

that drug trafficking is not generally accepted as an international

crime." Id. (citing H.R. Rep. No. 96-323, at 20).

These concerns were swept aside in the intervening years

until the MDLEA was enacted because of the abysmal failure of the

so-called War on Drugs to stem the inflow of illegal drugs into the
A congressional report noted that the Coast Guard was "able 10

to seize 'at best, 8 to 10 percent' of the drugs" smuggled by sea

into the United States. See Kontorovich, Beyond the Article I

Horizon, supra, at 1197 (quoting H.R. Rep. No. 96-323, at 4).

-26-

United States, and the perceived difficulties of "international 10

jurisdictional questions as legal technicalities to escape

conviction." S. Rep. No. 95-797, at 15 (1986), reprinted in 1986

U.S.C.C.A.N. 5986, 5993. The MDLEA was thus enacted, expanding

U.S. drug laws to any foreign vessel on the high seas, or even in

foreign territorial waters, so long as the relevant foreign nation

consented. See 46 U.S.C. § 70502(c)(1)(C). The MDLEA allows this

consent to be given in any form, including "by radio, telephone, or

similar oral or electronic means," id. § 70502(c) (2) (A), and

provides that it "is proved conclusively by certification of the

Secretary of State or the Secretary's designee," id. § 70502(c) (2)

(B). Furthermore, the MDLEA brushes aside any presumption against

extraterritoriality, id. § 70503(b), barring any challenge based on

jurisdictional or substantive defenses that the United States has

failed to comply with international law. Id. § 70505. "[A] 1996

amendment sought to keep all questions of statelessness away from

the jury by providing that '[j]urisdiction of the United States

with respect to vessels of the United States subject to [the drug

laws] is not an element of any crime . . . [and instead] are

preliminary questions of law to be determined solely by the trial

judge." Kontorovich, Beyond the Article I Horizon, supra, at 1201
Obviously Congress has the power to override international 11

law by either passing legislation to said effect, or entering into

treaties that modify or reject international law. See United States

v. Martínez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993) ("Congress

may override international law by clearly expressing its intent to

do so.").

-27-

(quoting Coast Guard Authorization Act of 1996, Pub. L. No. 104-

324, § 1138 (a) (5), 110 Stat. 3901 (currently at 46 U.S.C. §§

70501-70707)).

Although under "international law, the Coast Guard cannot

stop or board foreign vessels on the high seas or in foreign

waters," id. at 1201 (citing United Nations Convention on the Law

of the Sea, Nov. 16, 1994, 1833 U.N.T.S. 438, signed by 161 nations

(not including the United States) [hereinafter "UNCLOS"] art. 110),

since the enactment of the MDLEA the United States has negotiated

twenty-six bilateral agreements with Caribbean and Latin American

countries which implement this statute in various degrees and forms

allowing the enforcement of American criminal laws aboard foreign

vessels, with the prior approval of the national government in

question. Id. (citing U.S. Dep't. of State, Bureau of Int'l

Narcotics and Law Enforcement Affairs, Narcotics Control Strategy

Report, Mar c h 2 0 0 7 , a v a i l a b l e at

http://www.state.gov/p/inl/rls/nrcpt/2007/vol1/html/80853.htm).11

The bottom line is that the MDLEA is the only statute under which

the United States asserts universal criminal jurisdiction.
The Ninth and Eleventh Circuits have considered, and 12

rejected, challenges to the MDLEA based on Article I. United

States v. Perlaza, 439 F.3d 1149, 1158-60 (9th Cir. 2006); United

States v. Humphries-Brant, 190 F. App'x. 837 (11th Cir. 2006);

United States v. Madera-López, 190 F. App'x. 832 (11th Cir. 2006);

and United States v. Moreno-Morillo, 334 F.3d 819, 824 (9th Cir.

2003).

 However, it is important to note, that the Ninth Circuit's

constitutional holdings in Perlaza and Moreno-Morillo were dictated

by binding circuit precedent -- in particular, two prior Ninth

Circuit cases, United States v. Davis, 905 F.2d 245 (9th Cir.

1990), and United States v. Aikins, 946 F.2d 608 (9th Cir. 1990).

We are not similarly bound.

 Moreover, as with the Eleventh Circuit Madera-López and

Humphries-Brant cases (decided the same day), Davis and Aikins

addressed the Article I challenge in the most cursory fashion,

without the benefit of any developed analysis. Davis merely cited

the define and punish clause as a constitutional basis for the

MDLEA, 905 F.2d at 248, and Aikins added only that the MDLEA was

"intended by Congress to apply to conduct on the high seas," but

did not consider the question of what construction of the define

and punish clause would allow it to do so. 946 F.2d at 613.

 Finally, and perhaps most tellingly, the Ninth Circuit has

consistently held -- even in Davis itself -- that the MDLEA cannot

apply extraterritorially unless there is proof of some kind of

nexus to the United States. Davis, 905 F.2d at 248-49 ("In order

to apply extraterritorially a federal criminal statute to a

defendant consistently with due process, there must be a sufficient

nexus between the defendant and the United States, so that such

application would not be arbitrary or fundamentally unfair.")

-28-

As indicated, the question of Congress exceeding its

Article I power under the facts of this case is structural in

nature and cannot be waived by either the individual concerned or

the nation of which he is a citizen or on whose vessel he is

apprehended. As regards Article I, this is a question of first

impression which has not been dealt with by either the Supreme

Court or this court. Although these questions have been summarily 12
(citation omitted); Perlaza, 439 F.3d at 1160 (finding that

district court's claim of jurisdiction over defendants, when

government had not produced any evidence of nexus, was reversible

error).

 In short, although the Ninth Circuit has rejected the Article I

challenge considered here, it did so on the basis of its own case

law, did not give sustained analysis to the merits of the claim,

and came to very nearly the same conclusion that the Article I

challenge suggests, albeit under the rubric of due process rather

than Article I.

-29-

considered under the Fifth Amendment's due process clause, those

resolutions rest on different criteria because those challenges

have been based on Fifth Amendment claims of individual rights

(i.e., due process), which can thus be waived by individuals (and

probably the nation of which they are citizens), while the

challenge under Article I concerns the structural power of Congress

under the Constitution. The issue of whether Congress has the

authority to enact the MDLEA cannot be waived, and Congress' power

cannot be augmented by the consent of a foreign entity or even by

treaty, but only by amending the Constitution.

At the time of the Framing (and until recently), piracy

was the only UJ offense. See United States v. Robins, 27 F. Cas.

825, 862 (D.S.C. 1799) (No. 16,175) ("Piracy under the law of

nations . . . alone is punishable by all nations . . . .")

(emphasis added). Referred to as hostis humani generis (enemy of

all mankind), it was subject to prosecution by any nation,

irrespective of territorial jurisdiction or national nexus. "The

definition of UJ piracy [under] international law [is] narrow,
-30-

specific, and undisputed: it is robbery on the high seas."

Kontorovich, Beyond the Article I Horizon, supra, at 1209 (citing

Smith, 18 U.S. (5 Wheat.) at 158). However, in addition to UJ

piracy, each nation can make diverse offenses "municipal" or

"statutory" piracies, which can be punished within the particular

state's municipal jurisdiction. But such crimes can only be

punished by that state within its territorial jurisdiction, or when

committed against its vessels, which includes its own vessels while

on the high seas. The distinction of the power of Congress between

cases involving "Piracy" (the UJ variety), and "Felonies committed

on the high seas" (the "municipal" piracies variety and other

statutory crimes), was recognized from the beginning of our

constitutional history. Justice James Wilson, a member of the

first Supreme Court and a member of the Constitutional Convention,

argued that if it was Congress's intention to apply a murder

provision in a statute then being considered, to foreigners on a

foreign vessel, it would be an unconstitutional exercise of power

by Congress. Kontorovich, Beyond the Article I Horizon, supra, at

1211 (citing 2 The Works of James Wilson 803, 813 (Robert Green

McCloskey ed., 1967)). This view was confirmed by Chief Justice

John Marshall while he was a member of Congress, who rhetorically

asked in a speech challenging the validity of this proposal, "could

the United States punish desertion by British seamen from a British

vessel to a French one, or pick-pocketing among British sailors
-31-

[aboard a British ship]? If the text [of the Constitution] does not

expressly forbid [universal jurisdiction in such circumstances] it

is only because it was too silly for the Framers to have

contemplated it." Id. at 1211-12 (citing 4 The Papers of the John

Marshall, Charles T. Cullen & Leslie Tobias eds., 1984, at 102).

These views were judicially confirmed in two Supreme

Court cases that considered these issues early in the 19th Century.

In United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818), in which

a Spanish vessel was robbed by a foreign defendant on the high

seas, a classic case of UJ piracy, the Court held that while

Congress could constitutionally extend UJ to genuine piracies, the

1790 act in question had not done so. Kontorovich, Beyond the

Article I Horizon, supra, at 1212-13 (citing Palmer, 16 U.S. (3

Wheat.) at 633-34.) It should be noted that in that case, the U.S.

Attorney arguing for a broad scope of the law conceded that the

statute in question could not be constitutionally applied

universally to non-piratical offenses. Palmer, 16 U.S. (3 Wheat.)

at 618. In dissent, Justice Johnson wrote, "[C]ongress cannot make

[something]... piracy which is not piracy by the law of nations, in

order to give jurisdiction to its own courts over such offenses."

Id. at 641-42 (Johnson, J. dissenting).

Just two years later, a unanimous Court reaffirmed that

principle when it held that Congress could not punish the murder of

a foreigner by a foreigner on a foreign vessel in international
-32-

waters. Kontorovich, Beyond the Article I Horizon, supra, at 1214.

The holding in United States v. Furlong, 18 U.S. (5 Wheat.) 184,

196 (1820), again made a distinction between UJ piracy and other

crimes, stating that the later were "beyond the punishing power of

the body that enacted" the law, i.e., Congress. Thus, Furlong

makes clear that Congress lacks the power to define the

"constituents" of an offense without regard to the definition of

that crime under international law, and furthermore, that it cannot

apply the "incidents" of piracy to something that does not have

that status under international law, i.e., Congress cannot expand

its UJ jurisdiction by calling crimes "piracies" when they do not

have that status under international law. Kontorovich, Beyond the

Article I Horizon, supra, at 1215. Piracy and murder, the Court

held in Furlong, "are things so essentially different in nature,

that not even the omnipotence of legislative power can confound or

identify them." 18 U.S. (5 Wheat.) at 198.

The first major incursion by Congress at expansion of UJ

occurred in the early 19th Century as a result of the changing

international views on slavery, and the international efforts to

eradicate the transcontinental slave trade. The first federal

statute in this area, enacted in 1820, declared the slave trade a

form of piracy punishable by death, but stopped short of extending

UJ to cover this crime, punishing only this conduct where there was

a demonstrable U.S. nexus. Kontorovich, Beyond the Article I
-33-

Horizon, supra, at 1216 (citing "An Act to protect the commerce of

the United States," ch. 113, §§ 4-5, 3 Stat. 600, 600-01 (1820)).

The report of the House Committee on the Slave trade explained that

"the Constitutional power of the Government had already been

exercised . . . in defining the crime of piracy," but as to the

slave trade, it had yet to become a crime that was universally

cognizable. "The definition and punishment [of the slave trade] can

bind only the United States." Id. (citing 36 Annals of Cong. 2210

(1820)).

We thus come to the central question affecting the UJ

that MDLEA attempts to create: are the drug offenses established

under MDLEA, "Piracy" or are they "Felon[ies]" within the meaning

of Article I, § 8, cl. 10? As we have seen, the definition of UJ

piracy is "robbery when committed upon the sea." Smith, 18 U.S. (5

Wheat.) at 162. The MDLEA drug offenses are clearly outside this

definition of "piracy." Equally pellucid is the proposition that

Furlong prohibits Congress from attaching the jurisdictional

consequences of UJ to run of the mill "felonies." Furlong, 18 U.S.

(5 Wheat.) at 196-97 (stating that universal criminal jurisdiction

over piracy does not extend to murder.). As stated by the Court in

Furlong "[i]f by calling murder piracy, [the United States] might

assert jurisdiction over that offense committed by a foreigner in

a foreign vessel, what offense might not be brought within [its]

power by the same device?" Id. at 198. The short answer is no
-34-

offense, for certainly if murder, which often follows acts of

piracy on the high seas, cannot be independently brought within UJ,

drug trafficking, which is a distinctly different and separate type

of offense than UJ piracy, cannot be so treated by Congress, among

other reasons because drug trafficking is not a universally

cognizable offense in international law, the point of reference on

this issue under the Constitution. See U.S. Const. art. I, § 8,

cl. 10 (referring to "Offences against the Law of Nations.").

The "Law of Nations" is generally understood to be the

eighteenth and nineteenth-century term for "customary international

law." Kontorovich, Beyond the Article I Horizon, supra, at 1224

n.225 (citing Flores v. S. Peru Copper Corp., 414 F.3d 233, 237 n.2

(2d Cir. 2003) ("[W]e have consistently used the term 'customary

international law 'as a synonym for the term the "law of

nations.'")). The major sources of international law in the United

States pursuant to the Supremacy Clause, U.S. Const. art. VI, § 2,

are treaties and customary international law (which is somewhat the

common law of international law, but is nevertheless part of our

municipal law under the Supremacy Clause.

Drug trafficking is not recognized in customary

international law as a universally cognizable offense, and all U.S.

courts to have considered this issue have so ruled. Kontorovich,

Beyond the Article I Horizon, supra, at 1224 n.229 (citing United

States v. Perlaza, 439 F.3d 1149, 1162-63 (9th Cir. 2006)
-35-

(rejecting UJ as a jurisdictional basis for the MDLEA) and 1224

n.226 (citing Antonio Cassese, International Law, 426 (2d ed. 2005)

(noting that illicit drug traffic in narcotics is not a crime under

customary international law); United States v. Wright-Baker, 784

F.2d 161, 168 n.5 (3d Cir. 1986) ("[I]nternational agreements have

yet to recognize drug smuggling as a threat to a nation's 'security

as a state or the operation of its governmental functions'

warranting protective jurisdiction or as a heinous crime subject to

universal jurisdiction.") (superseded by statute, 46 U.S.C. § 70505

(2007)). Although the exact contours of what crimes come within UJ

are not established with precision, there is a general consensus

that to qualify for UJ the crime involve egregious, violent human

rights abuses. See Kontorovich, Beyond the Article I Horizon,

supra, at 1224 n.228 (citing Restatement (Third) of Foreign

Relations Law § 404 (1987) (providing a list of UJ offenses);

Universal Jurisdiction: National Courts and the Prosecution of

Serious Crimes Under International Law, 178-79 (Stephen Macedo ed.

2004) (stating that for a crime to qualify as a UJ offense it must

be "contrary to a peremptory norm of international law" and "be so

serious and on such a scale that [it] can justly be regarded as an

attack on the international legal order.")). Clearly drug

trafficking, although unquestionably a serious crime, is hardly an

"attack on the international legal order." Other than the United

States under the MDLEA, there is no other state practice
Article 99 of the UNCLOS provides, "[e]very State shall take 13

effective measures to prevent and punish the transport of slaves in

ships authorized to fly its flag and to prevent the unlawful use of

its flag for that purpose. Any slave taking refuge on board any

ship, whatever its flag, shall ipso facto be free."

 Article 105 provides, "[o]n the high seas, or in any other place

outside the jurisdiction of any State, every State may seize a

pirate ship or aircraft, or a ship or aircraft taken by piracy and

under the control of pirates, and arrest the persons and seize the

property on board. The courts of the State which carried out the

seizure may decide upon the penalties to be imposed, and may also

determine the action to be taken with regard to the ships, aircraft

or property, subject to the rights of third parties acting in good

faith."

 Piracy is defined in Article 101.

Article 108 is as follows: 14

1. All States shall cooperate in the suppression of

illicit traffic in narcotic drugs and psychotropic

substances engaged in by ships on the high seas contrary

-36-

establishing UJ over drug trafficking. Kontorovich, Beyond the

Article I Horizon, supra, at 1225.

The UNCLOS is regarded as expressing customary

international law on the subject. Id. (citing Statement on United

States Ocean Policy, 1 Pub. Papers 378 (March 10, 1983) ("[T]he

convention . . . contains provisions with respect to traditional

uses of the oceans which generally confirm existing maritime law

and practice . . .")). Only piracy and the slave trade are defined

as within UJ jurisdiction, and in those cases, by explicit

provision in Articles 99 and 105 of the Convention. Id. at 1226.13

As to drug trafficking, Article 108 makes it clear that this

activity is not considered an international law crime. To be 14
to international conventions.

2. Any State which has reasonable grounds for believing

that a ship flying its flag is engaged in illicit traffic

in narcotic drugs or psychotropic substances may request

the cooperation of other States to suppress such traffic.

-37-

classified as such, the crime must be "so inhumane, so shocking to

the conscience, that it makes all jurisdictional" considerations

irrelevant. Id. In fact, U.S. courts have ruled that not even

"terrorism has attained the status of a UJ offense, and thus cannot

be placed on the same jurisdictional footing as piracy." Id.

(citing Yousef, 327 F.3d at 107-08).

There are crucial differences between conduct that all

nations criminalize, and what is considered an international crime,

particularly one subject to UJ. Id. (citing M. Cherif Bassiouni,

Universal Jurisdiction for International Crimes: Historical

Perspectives and Contemporary Practice, 42 Va. J. Int'l. L. 81, 152

(2001) (distinguishing "universality of condemnation" from

"universal reach of national jurisdiction.")). Indeed

international views about murder are almost unanimous in their

condemnation of such conduct, as compared to drug laws and

attitudes, as to which there are considerable variations. Id. at

1226-27. See also Susana Ferreira, At 10, Portugal's Drug Law

Draws New Scrutiny, Wall St. J., July 20, 2010, at A13; Associated

Press, Mexico Legalizes Drug Possession, N. Y. Times, Aug. 21,

2 0 0 9 , a v a i l a ble at
-38-

http://www.nytimes.com/2009/08/21/world/americas/21mexico.html;

Christian Moraff, Latin America's Legalization Push, A. M.

Prospect, July 6, 2009, available at http:/www.prospect.org/cs/

articles?article=latin _americas_legalization_push). Yet as we

know from Furlong, murder is not a UJ offense. 18 U.S. (5 Wheat.)

at 196-97.

These principles regarding UJ jurisdiction have been

relaxed to include, in addition to piracy and the slave trade, the

case of stateless vessels and situations in which the protective

principle of jurisdiction is implicated. Kontorovich, Beyond the

Article I Horizon, supra, at 1227. In the case of stateless

vessels we again go back to early constitutional history, not

totally unrelated to the UJ piracy. In 1820, the Supreme Court in

essence decided that stateless vessels, that is, vessels that were

not registered or did not fly the flag of any nation, were

considered to have "turned pirate," i.e., were engaged in piracy

and the crew were pirates, and thus lost their status under

international law of having the protection of any nation and were

subject to the jurisdiction of whatever nation first acquired

physical jurisdiction over the vessel and its crew. See id. at

1228 (citing United States v. Holmes, 18 U.S. (5 Wheat.) 412, 417-

18 (1820); United States v. Klintock, 18 U.S. (5 Wheat.) 144, 150

(1820)). Although the MDLEA includes some jurisdictional

provisions that fall within these criteria of stateless vessels,
-39-

and which are consistent with today's customary international law,

the MDLEA's definition of "statelessness" goes far beyond what is

recognized by international customs or convention. See id. (citing

46 U.S.C. §§ 70502(c)(1)(A), 70502(c)(2)(A)-(B), 70502(c)(2)).

This, however, is an issue for another day, as these provisions are

not directly before us.

Under the principle of protective jurisdiction a state

may "punish extraterritorially 'a limited number of offenses . . .

directed against the security of the State or other offenses

threatening the integrity of governmental functions.'" Id. at 1229

(citing Restatement (Third) of Foreign Relations Law § 402 cmt. f

(1987)). However, "the conduct must be 'directed against the

security of the [forum] state . . . .'" Id. at 1230 (citing

Restatement (Third) of Foreign Relations Law § 403 (3)). Although

"the legislative findings of the MDLEA conclude that trafficking

'presents a specific threat to the security and societal well-being

of the United States,'" id. at 1229-30 (citing 46 U.S.C. § 70501),

it is difficult to surmise how the conduct in this case was either

directed at or constitutes a threat to, specific or otherwise, the

security or societal well-being of the United States considering

that the Osiris II was not headed to U.S. territory or even that

the contraband aboard was destined for trans-shipment to the United

States. Treating drug crimes as generally within the protective
-40-

jurisdiction theory would effectively eliminate the distinction

with UJ, which would be unacceptable under Article I. Id. at 1231.

There are several other theories which could be argued as

the basis for supporting the validity of the UJ created by MDLEA.

The first is the power conceded to Congress by the Constitution

over admiralty and maritime matters. See id. at 1234-37; U.S.

Const. Art III, § 2. In United States v. Flores, 289 U.S. 137

(1933), the Court ruled that the Constitution granted to the

federal government all powers within the admiralty jurisdiction.

Kontorovich, Beyond the Article I Horizon, supra, at 1234 (citing

Flores, 289 U.S. at 149-50). The Court thus concluded that within

its admiralty powers, the United States had jurisdiction over a

murder committed by a U.S. citizen aboard a U.S. flagged vessel,

even though the vessel was in Belgian territorial waters, in fact

several hundred miles up the Congo River. Flores, 289 U.S. at 153-

54, 159. The defendant had contended that Article I, § 8, cl. 10

power could not reach conduct in foreign waters, id. at 146-47, an

argument with which the Court agreed because the crime charged did

not take place in the high seas and was thus was outside of the

powers conceded to Congress under that provision. Id. However,

the Court ruled that the matter was otherwise within the admiralty

jurisdiction of the United States, because admiralty law follows

the flag, irrespective of the fact that the ship in question was up

a river in Africa. Id. at 159 ("[I]t is the duty of courts of the
-41-

United States to apply to offenses committed by its citizens on

vessels flying its flag, its own statutes, interpreted in the light

of recognized principles of international law."). But crucial to

this conclusion is the fact that it involved a U.S. vessel, which

is considered U.S. territory irrespective of where found. See

Kontorovich, Beyond the Article I Horizon, supra, at 1234-35;

UNCLOS, supra, art. 91. The Court stated, however, that the

situation would have presented "a different question" had the case

involved a foreign vessel. Flores, 289 U.S. at 157.

In point of fact Flores had been preceded almost one

hundred years earlier by United States v. Wiltberger, which

involved the killing of an American crew member aboard a U.S.

vessel on a river thirty-five miles inside China. 18 U.S. (5

Wheat.) 77 (1820). That case was argued, however, on the

international law principle that the law of the flag follows the

vessel wherever it is located, rather than on the Court's admiralty

jurisdiction. Kontorovich, Beyond the Article I Horizon, supra, at

1235-36 ("'There is no civilized nation, with which we are

acquainted, where jurisdiction over offenses committed on board its

own vessels, in foreign waters, would not be exercised[.]'")

(citing United States v. Wiltberger, 28 F. Cas. 727, 728 (E.D. Pa.

1819) (No. 16, 738)). Chief Justice Marshall, in dictum, opined

that foreign vessels would have stood on a different footing, and

the U.S. Attorney who argued the case saw the constitutionality of
Most of the challenges to the MDLEA brought under the due 15

process clause have been rejected. Kontorovich, Beyond the Article

I Horizon, supra, at 1239 n.318; see, e.g., United States v.

Cardales, 168 F.3d 548, 552-53 (1st Cir. 1999); United States v.

Martínez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993); United States

v. Suerte, 291 F.3d 366, 372 (5th Cir. 2002); United States v.

Rendon, 354 F.3d 1320, 1326-27 (11th Cir. 2003).

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U.S. jurisdiction as depending entirely on the fact that the vessel

was American. Id. at 126 (citing Wiltberger, 18 U.S. (5 Wheat.) at

82-84, 113-15).

Another possible source of Congressional power which it

could be argued, sustains the validity of MDLEA is the Treaty

Power. See U.S. Const. art II, § 2, cl. 2. Pursuant to Missouri v.

Holland, 252 U.S. 416 (1920), it is claimed that Congress can act

outside its enumerated powers under Article I when implementing a

treaty. Kontorovich, Beyond the Article I Horizon, supra, at 1238

(citing Holland, 252 U.S. at 433). Thus, under current Supreme

Court doctrine, legislation enacted pursuant to treaty obligations

entered into by the United States, can allegedly trump structural

constitutional constraints, but not express limitations of

congressional power, such as individual rights guaranteed in the

Bill of Rights. Id. at 1239 (citing Boos v. Barry, 485 U.S. 312,

324-29 (1988) and Reid v. Covert, 354 U.S. 1, 16-19 (1957)). Since

the MDLEA does not raise any questions of federalism or separation

of powers, and assuming it does not violate express individual

rights (due process in particular ), under Missouri it could be 15

argued that the MDLEA is a valid exercise of Congress's treaty
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making authority, if "Necessary and Proper" to effectuate the

obligations assumed by the United States which have become the law

of the land. See U.S. Const. art I, § 8, cl. 18; Kontorovich,

Beyond the Article I Horizon, supra, at 1239.

The question is, what treaty is being implemented?

Kontorovich, Beyond the Article I Horizon, supra, at 1239. Nothing

in the legislative history of MDLEA mentions a treaty or intimates

that the legislation is in compliance with treaty obligations. Id.

No court decision dealing with MDLEA refers to any treaty

obligation as the source of Congress's Article I authority. Id. In

fact, if anything, as previously stated, the UNCLOS does not

authorize UJ over drug trafficking. See id. at 1239 & n.322.

Nor is the U.N.'s Convention Against Illicit Traffic in

Narcotics and Psychotropic Substances, which has more than 150

state parties, the basis for UJ under the MDLEA, as its

jurisdictional provisions first require the parties to take

jurisdiction of offenses committed within their own respective

territorial or flag jurisdiction. Id. at 1239-40 (citing United

Nations Convention Against Illicit Traffic in Narcotic Drugs and

Psyotropic Substances art. 4 (1) (a), adopted Dec. 19, 1988, S.

Treaty Doc. No. 101-4 (1989), 1582 U. N. T. S. 165 [hereinafter

UNCAITNPS]). This Convention does encourage, but does not require,

states to enter into bilateral agreements with each other,
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authorizing interdiction of drug trafficking by each other's

vessels. Id. at 1240 (citing UNCAPTNPS, supra, art. 17 (4) (c)).

The record does not reveal, and the Government has not

pointed to the existence of a treaty between Bolivia and the United

States establishing an MDLEA arrangement. We are unaware whether

it is a treaty, or an executive agreement which does not receive

Senate approval, and would be altogether on a different footing

than a treaty under the Missouri v. Holland doctrine, or even an

informal arrangement with Bolivia. See id. at 1240-41 (noting that

mere executive agreements cannot be substitutes for treaties for

purposes of Missouri v. Holland doctrine). I have searched all the

usual sources and have failed to unearth any treaty or executive

arrangement authorizing the exercise of U.S. jurisdiction over

Bolivian territory (including vessels). But even if such a treaty

exists, the UNCAITNPS only speaks of the possibility of these

arrangements. It creates no rights or obligations, wherefore it

cannot, in any event, be considered a source of legislative power

under Missouri v. Holland doctrine, which speaks to the enactment

of legislation which is required by treaty obligations of the

United States. Id. at 1238-40. In fact, during the drafting of

this Convention, a proposal by Canada specifically extending UJ to

drug trafficking vessels, was specifically rejected. Id. at 1243

(citing Natalie Klein, The Right of Visit and the 2005 Protocol on
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the Suppression of Unlawful Acts Against the Safety of Maritime

Navigation, 35 Denv. J. Int'l. L. & Pol'y 287, 304 (2007)).

This conclusion is reinforced when the UNCLOS and the

Convention Against Illicit Traffic of Drugs are compared: the first

specifically authorizes UJ over piracy and slave trading, while the

second, which explicitly points to the first in its Article 17 (1)

(referring to the "international law of the sea"), merely calls for

"cooperat[ion]." Id. at 1244; compare UNCLOS, supra, art. 108 (1)

with UNCAITNPS, supra, art. 17 (1). The UNCLOS establishes a

general rule of freedom of the Seas, a principle to which the

United States has adhered since the early days of the Republic, see

James Kraska and Brian Wilson, The Pirates of the Gulf of Aden: The

Coalition is the Strategy, 45 Stan. J. Int'l. L. 243, 258 (2009)

(noting that freedom of the seas is a core U.S. maritime interest

and that throughout history, the U.S. has worked to resist

disruptions to freedom of the seas), and does not make any

exception for drug trafficking, but rather reflects a deliberate

judgement to not allow UJ in only those cases. Kontorovich, Beyond

the Article I Horizon, supra, at 1244; see UNCLOS, supra, art. 108.

One last argument favoring the authority of Congress to

legislate the MDLEA is the Foreign Commerce Clause. See U.S. Const.

art I, § 8, cl. 3 (granting Congress power to "[t]o regulate

Commerce with foreign Nations."). Notwithstanding the breadth of

this power, it is unavailing in the present case, for it only
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authorizes Congress to legislate conduct with a demonstrable and

direct nexus to the United States, and in the present situation, no

such nexus is extant. Kontorovich, Beyond the Article I Horizon,

supra, at 1249 ("[Congress] is not empowered to regulate foreign

commerce which has no connection with the United States.") (citing

United States v. Yunis, 681 F. Supp. 896, 907 n.24 (D.D.C. 1988)).

The majority is of the view that it is inappropriate for

me to raise, motu propio and on appeal for the first time, the lack

of Article I power by Congress to enact legislation exercising

criminal jurisdiction under the circumstances of this case. In

support of its contention it cites United States v. Baucum, 80 F.3d

539, 541 (D.C. Cir. 1996), to the effect that "[i}f a challenge to

the constitutionality of an underlying statute always implicated

subject-matter jurisdiction, then federal courts, having an

obligation to address jurisdictional questions sua sponte, would

have to assure themselves of a statute's validity as a threshold

matter in any case." Maj. Op. at 15. I respectfully disagree that

this general proposition is applicable in the present

circumstances.

The issues raised by Congress's ultra vires action in the

present case do not involve just a run-of-the-mill constitutional

challenge to the invalid exercise of an otherwise valid Article I

power. What we have here is a question involving a structural lack

of Article I power to legislate, whose very exercise is invalid.
There is no such other criminal or civil statute on the 16

books. Congress has not attempted to exercise universal

jurisdiction for any crime (except piracy, slavery and flagless

vessels, all crimes recognized as coming within the universal

jurisdiction exception), since its last attempt to do so in 1820,

when its actions in this respect were declared unconstitutional.

See Furlong, 18 U.S. (5 Wheat.) 184 (1820).

The United States has resisted attempts to exercise extra- 17

territorial jurisdiction over its citizens by other nations. See,

Press Statement, Richard Boucher, U.S. Dep't of State,

International Criminal Court: Letter to UN Secretary General Kofi

Annan (May 6, 2002) at http//www.state.gov/r/paprs/2002/9968.htm.

See also, Marise Simons, Spanish Court Weighs Inquiry on Torture

for 6 Bush-Era Officials, N. Y. Times, Mar. 28, 2009, at A6,

available at http://www.nytimes.com/2009/03/29/world/europe/29

spain.html?+baltazargarzon (describing complaint under Judge

Baltazar Garzón's review asserting that Spain has jurisdiction over

U.S. officials under, inter alia, the 1984 Convention Against

Torture, which is binding on the United States); David Bosco, The

Inquisition, Part II?, Washington Post, May 24, 2009, at BO2

(discussing Spain's judicial activism in the context of U.S.

detention policies at Guantanamo Bay); cf. Rachel Donadio, Italy

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This is a lack of power that has existed and been recognized as

such since the beginnings of our Nation. See, supra, at 15-19.

Furthermore, even the very Baucum court cited by the majority

recognized that "there may well be appropriate circumstances when,

in the exercise of its discretion, the appellate court may choose

to hear constitutional claims not raised at trial." Baucum, 80 F.3d

at 544. I can think of no better case in which to exercise such

discretion than in a case involving this unprecedented action by

Congress, involving a situation of absolute lack of Article I 16

power, and one which can have serious long-range implications

against United States citizens in the context of other

international scenarios.17
Convicts 23 Americans for C.I.A.Renditions, N. Y. Times, Nov. 2009,

at A15, available at http://www.nytimes.com/2009/11/05world/

europe/05/italy.html.

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Additionally, the majority's assertion that subjectmatter jurisdiction is not implicated by this issue is far from a

forgone conclusion. Allowing a conviction to stand under a statute

which Congress was without power to enact is unacceptable, for

"[i]n essence, the statute was void ab initio, and consequently,

the district court below lacked subject matter jurisdiction with

respect to that charge." United States v. Walker, 59 F.3d 1196,

1198 (11th Cir. 1995).

C. Conclusion

This court lacks jurisdiction over Appellant because the

law under which he was prosecuted, the MDLEA, is an

unconstitutional exercise of the power beyond the authority granted

to Congress under Article I of the Constitution. Except for

piracy, slave trading, and stateless vessels, the United States

lacks UJ to apprehend and try foreigners for conduct on foreign

vessels on the high seas for violation of United States criminal

laws where there is no nexus to the United States. I dissent.