In case of drug seizure on high seas by U.S. authorities, Ninth Circuit finds that Maritime Drug Law Enforcement Act validly assigned determination of constitutional nexus to judge rather than jury
In March 2001, the Navy frigate, U.S.S. Rodney M. Davis, intercepted the fishing vessel Svesda Maru, registered in the State of Belize, sailing in international waters off the coast of southern Mexico. Something appeared fishy on board the vessel. There were only 12 fish of the size that would ordinarily be caught by fishermen, and the bait was frozen solid.
The Davis's crew searched the fishing vessel for four days. On the fifth day, a U.S. Coast Guard crew also examined the ship and found more than 9200 kilograms [about 20 tons] of cocaine hidden behind a fuel tank. This was one of the largest drug seizures in U.S. maritime history.
The Coast Guard seized the vessel based on a bilateral treaty with Belize and on the express permission of the Belize Government. The Guard took the vessel's crew to San Diego. Anatoli Zakharov (Defendant), one of the crew members, eventually admitted that he knew of the cocaine and that he was to be paid $20,000 for the trip.
A federal grand jury indicted Defendant for conspiring to possess large amounts of cocaine and for possessing the drug with intent to distribute. After a trial, he was convicted. Defendant appealed his conviction. The U.S. Court of Appeals for the Ninth Circuit affirms the judgment but remands for resentencing.
In his appeal, Defendant challenged the Maritime Drug Law Enforcement Act (MDLEA) (46 U.S.C. app. Sections 1901-1904) as unconstitutional. His main point was that Congress had improperly removed the jurisdiction issue from those enumerated elements of the maritime drug-smuggling offense that a jury would have to decide beyond a reasonable doubt.
Section 1903(a) of the MDLEA bans drug smuggling by "any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States, or who is a citizen of the United States or a resident alien of the United States on board any vessel." Moreover, Section 1903(f) provides that "[j]urisdiction of the United States with respect to vessels subject to this chapter is not an element of any offense. All jurisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge."
Defendant contended (1) that the district court erred in failing to submit facts necessary to establish jurisdiction to the jury, and (2) that the Government failed to put on enough evidence to establish a nexus between the U.S. and the seized cocaine.
In the Ninth Circuit's view, the MDLEA is constitutional as applied to Defendant. First, he failed to challenge the underlying statutory jurisdiction below. Second, the statute validly assigned the determination of the nexus jurisdiction to the court, rather than to the jury.
"[T]here is no factual question pertaining to statutory jurisdiction for the jury to decide. There is no dispute for purposes of Section 1903 that the district court possessed statutory jurisdiction in the instant action: the Svesda Maru was a Belizean-flagged vessel registered in Belize, and the Coast Guard received consent to enforce United States law aboard her both expressly from the Belizean government and pursuant to our bilateral treaty with Belize, 46 U.S.C. app. Section 1903(c)(1)(C) (extending statutory jurisdiction to "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')."
"Unlike statutory jurisdiction, the constitutional nexus requirement is not an express element of the crime but is "a judicial gloss applied to ensure that a defendant is not improperly haled before a court for trial.' [United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998)]. To accord with due process, we require a sufficient nexus between the United States and the defendant's activities before exerting jurisdiction over foreign vessels."
"... Nexus is a constitutional requirement analogous to "minimum contacts' in personal jurisdiction analysis. ... Nexus has been treated as a non-element of an offense ...; Klimavicius-Viloria, supra at 1257 ("Nexus is part of the jurisdictional inquiry, but it is an inquiry for the court, not the jury.')."
"In this context, MDLEA Section 1903(f) merely codified this court's longstanding rule that the constitutional nexus inquiry is a matter for the court's determination. ... Accordingly, we reject [Defendant's] contention that the constitutional nexus inquiry must be submitted to a jury." [Slip op. 3-4]
Furthermore, the evidence here is enough to support the required nexus between the U.S. and Defendant's drug smuggling. Except for stateless ships, due process requires a district court to find such a nexus even when the flag nation has consented to the application of U.S. laws. (The Court incidentally notes that the First and Fifth Circuits do not require a finding of nexus for foreign vessels when the flag national has consented to the application of U.S. laws to their passengers or crew.)
Here, the district court found by a preponderance of the evidence that the cocaine shipment was likely to have effects in the U.S. for three reasons. First, authorities had previously seen four of the twelve markings on the cocaine bundles seized in the U.S. Second, the vessel's location and navigational charts indicated that it was heading toward the U.S. Finally, the circumstances made it unlikely that either Russia or Europe were the intended destinations.
Citation: United States v. Zakharov, No. 03-50214 (9th Cir. November 15, 2006).
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