Federal Court of Appeals in Atlanta Rules that Law Allowing U.S. Prosecution of International Drug Dealers is Unconstitutional

November 7, 2012 by Paul Kish

I am looking down from my office here in Atlanta at the U.S. Court of Appeals for the Eleventh Circuit, the federal appellate court that handles cases from Georgia, Florida and Alabama. Yesterday, that court issued a huge decision in which they decided that Congress violated the Constitution by enacting a law that allows for prosecuting international drug dealers in U.S. courts. It's kind of complicated, and even after this case there still can be similar prosecutions using different laws, but the case is nevertheless worth looking at. The case is U.S. v. Bellaizac-Hurtado.

United States surveillance detected a vessel sailing in international waters near Panama with no flag or lights. They informed the Panamanian navy, which went after the boat, eventually capturing its crew and the boatload of drugs inside the vessel. Eventually, the crew were brought to Florida and prosecuted in federal court. The defense lawyers wisely argued that a U.S. court did not have jurisdiction, and in yesterday's decision, the Court of Appeals agreed and threw out their convictions.

As we all know, the Constitution is the beginning point for all laws enacted by Congress. Under the Constitution, Congress has the power “define and punish . . . Offences against the Law of Nations,” U.S. Const. Art. I, § 8, cl. 10. Using the Maritime Drug Law Enforcement Act (MDLA), prosecutors got an indictment against the sailors alleging they had the intent to distribute five kilograms or more of cocaine, and actual possession with intent to distribute five kilograms or more of cocaine, on board a vessel subject to the jurisdiction of the United States. See 46 U.S.C. §§ 70503(a), 70506; 21 U.S.C. § 960(b)(1)(B).

Prosecutors argued that the MDLA, as applied to the defendants, was a constitutional exercise of the power granted to Congress “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” In rejecting this claim, the Court of Appeals first discussed how the power of Congress to define and punish conduct under the Offences Clause is limited by customary international law. Second, the court explained that drug trafficking is not a violation of customary international law and, as a result, fell outside of the power of Congress under the Offences Clause. As a result, the Panel took the highly unusual step of deciding that a federal law (the MDLA) was unconstitutional.

There still are other federal laws that prosecutors can use when trying to haul an international criminal into a court sitting in the U.S. However, this decision is important for a variety of reasons, not the least of which is that it shows that lawyers need to try each and every avenue available in trying to assist their clients.