special to Drug War Chronicle by Clarence Walker, firstname.lastname@example.org
America's war on drugs overseas was dealt a heavy blow in the federal courts late last year. In November, the 11th US Circuit Court of Appeals in Atlanta handed prosecutors a crushing defeat by reversing the multiple drug convictions of four foreign nationals arrested after their fishing vessel with 760 kilos of cocaine was seized off the Panamanian coast three years ago. That cocaine was valued at between $180 million and $200 million.
If upheld, the decision in US v. Bellaizac-Hurtado, could prevent the US from prosecuting suspected smugglers caught within the 12-mile territorial waters of South and Central America countries, and it may hinder US authorities from entering the 12-mile limit themselves while carrying out anti-narcotics operations. That would wreak havoc with US drug enforcement offensives such as Operation Martillo (Hammer), which has been aimed squarely at Central America and has so far seized over $2 billion worth of drugs from sea-going vessels.
Federal prosecutors haven't said whether they will appeal, but it would be a surprise if they didn't.
As the justices at the 11th Circuit noted, the Bellaizac-Hurtado case is the first taken up during modern times to determine whether the "Offenses clause" of the US Constitution can legally allow US prosecution of drug trafficking crimes in another country. The Offenses clause gives Congress the right to "define and punish… Offenses against Law of Nations."
The court found that the use of the clause to justify the prosecution of Bellaizac-Hurado under the Maritime Drug Law Enforcement Act is illegal because drug trafficking was not a crime under the Law of Nations when the Constitution was written more than two centuries ago, nor is it a crime under "customary international law" now. The pursuit of felony crimes overseas is limited by customary international law, and the international community has not treated drug trafficking under these premises as a crime, the court held.
"Drug trafficking was not a violation of customary international law during the 'Founding of the US law' and drug trafficking is not a violation of customary international law today," the opinion stated. "Because drug trafficking is not a violation of customary international law, we hold that Congress exceeded its power, under the Offences Clause, when it proscribed the defendants' conduct in the territorial waters of Panama. And the United States has not offered us any alternative ground upon which the Act could be sustained as constitutional. As applied to these defendants, the Act is unconstitutional, and we must vacate their convictions."
While the ruling found the act could not be used to prosecute suspected drug smugglers arrested within a country's 12-mile territorial waters, it does not impact cases against smugglers using "stateless" submarines, nor impede the ability of US authorities to prosecute felonies committed on "the high seas."
The potentially precedent-setting case began in 2010 when US Coast Guard patrols in Panamanian waters spotted a wooden fishing vessel operating without lights or a flag. Suspicious, the Coast Guard alerted the Panamanian Navy and the chase was on. The Navy officers chased the vessel until the suspects abandoned the ship and fled on land deep into Panama's jungle. Following a thorough search of the vessel the Coast Guard discovered "760 kilos of cocaine." The feds had scored a mother lode. Meanwhile the four occupants of the vessel were arrested the next day in the jungle by Panamanian National Frontier Service.
Through a diplomatic agreement, Panama handed the captured men over to the US for prosecution.They were indicted in Florida's Southern District in Miami for conspiracy and possession with intent to distribute five kilograms or more of cocaine aboard a vessel subject to US jurisdiction under the Maritime Drug Law Enforcement Act.
They were convicted and sentenced to federal prison. Their attorneys, led by Miami defense attorney Tracey Dreispul, appealed. The Maritime Drug Law Enforcement Act was unconstitutional because it exceeded Congress' constitutional powers under the Offenses Clause, they argued.
The Justice Department responded that "drug trafficking is an offense against 'Law of Nations' as applied to the defendants' conduct -- -subject to Universal Jurisdiction because when Congress enacted the Maritime Drug Law Enforcement Act, it stated that drug trafficking is 'universally condemned' and a threat to the security and societal well-being of the United States." Prosecutors also argued that "the US federal district court had lawful jurisdiction over the cocaine because the defendants had been operating a vessel without a flag or national identification, and that the Panamanian government consented to have the men prosecuted in the United States."
But the appeals court in Atlanta wasn't buying it. "Offenses against Laws of Nations can only be interpreted in accordance with principles of customary international law because international law proscribes which conduct may be punished as an Offense against the Laws of Nations," the court held.
In other words, Congress doesn't get to define what constitutes customary international law.
"Where does the government get off on by prosecuting people they don't have the power to prosecute?" asked attorney Stephen Leckar, counsel for the defense in the landmark US v. Antoine Jones GPS drug trafficking case, in an interview with the Chronicle. "Where is the evidence that the drugs were headed for the US market to be distributed?"
"This basically was a Panamanian internal matter and their government is saying 'United States, you clean this up for us,'" Miami lawyer Phillip Horowitz, who represented one of the defendants, told the Miami Herald.
The ruling could have a cascading effect, impacting some of the thousands of drug smuggling cases stemming from offshore arrest. Legal experts predict that if the ruling withstands appeal, other convicted drug smugglers may go free if they, too, were arrested in foreign territorial waters by international police, then turned over to US for prosecution under "Offences against Laws of Nations."
Those defendants need to act, though, said Florida defense attorney David Silverstein. "Any defendants convicted under the same set of facts in Bellaizac-Hurtado must file a writ of habeas corpus within two years after the opinion was issued," he told the Chronicle.
With their convictions now voided, it remains to be seen if Bellaizac-Hurtado and his codefendants will now be prosecuted by Panamanian authorities. If so, let's hope they get credit for time served. Luis Carlos Hurtado did 25 months, Pedro Angulo-Rodallega and Albeiro Gonzales did 36 months, and Yimmie Bellaizac-Hurtado is still doing his 90-month sentence pending resolution of the appeals. The others have been deported.