The World in U.S. Courts: Summer 2015 - White Collar Criminal Law | May.06.2015
Defendant Reid-Varga, a non-U.S. national, was arrested with other non-U.S. nationals in international waters off the coast of Colombia on a speedboat they claimed was registered in Costa Rica, and which was found to be transporting significant quantities of drugs whose possession and distribution are illegal under U.S. law. Reid-Varga was transported to the U.S. and charged with violating the Maritime Drug Law Enforcement Act ("MDLEA"). He moved to dismiss the indictment on grounds that his alleged conduct had no relation to the U.S., and that he could not be prosecuted in the U.S. consistent with the "Define and Punish" clause of the U.S. Constitution, which specifies the power of the U.S. Government to criminalize certain "Felonies on the high seas."
As relevant here, the MDLEA prohibits the possession and intent to distribute certain drugs while on a vessel "subject to the jurisdiction of the United States." That phrase is defined to include vessels where claims of nationality are not confirmed by the purported country of registry. The MDLEA specifically applies to conduct outside the territorial jurisdiction of the U.S. A magistrate judge in the U.S. District Court for the District of Puerto Rico rejected Reid-Varga's argument that the application of the MDLEA was unconstitutional because the Define and Punish Clause should be read to require that the conduct at issue have some connection to the U.S. He began by noting that courts had uniformly upheld the constitutionality of the MDLEA, although some judges had dissented, and none of the decisions specifically analyzed in detail the issue presented. He agreed with the courts' decisions, however, because he found no basis to infer a limitation on Congress' general power to criminalize conduct on the high seas, especially as to stateless vessels such as the one on which Reid-Varga was arrested.