United States v. Aybar-Ulloa ( 2021 )

United States Court of Appeals
For the First Circuit
No. 15-2377
UNITED STATES OF AMERICA,
Appellee,
v.
JOHVANNY AYBAR-ULLOA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. Garcia-Gregory, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch, Thompson, Kayatta, and Barron,
Circuit Judges.*
Heather Clark, with whom Clark Law Office was on brief, for
appellant.
Scott A.C. Meisler, Attorney, U.S. Department of Justice,
Criminal Division, Appellate Section, with whom W. Stephen
Muldrow, United States Attorney, Mariana E. Bauzá-Almonte,
Assistant United States Attorney, Chief, Appellate Division, Brian
A. Benczkowski, Assistant Attorney General, and John P. Cronan,
Principal Deputy Assistant Attorney General, were on brief, for
appellee.
* Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the opinion in this case.
Opinion En Banc
January 25, 2021
KAYATTA, Circuit Judge. United States law enforcement
authorities apprehended Johvanny Aybar-Ulloa ("Aybar") on a
stateless vessel in international waters carrying packages of
cocaine in violation of the Maritime Drug Law Enforcement Act
("MDLEA"), 46 U.S.C. §§ 70501–70508. In appealing his subsequent
conviction, Aybar makes a two-step argument. First, he contends
that Congress's authority to criminalize and punish conduct on the
high seas under Article I, Section 8, Clause 10 of the United
States Constitution ("the Define and Punish Clause") must be
cabined by the limitations of international law on a nation's power
to criminally prosecute conduct on the high seas. Second, he
argues that the United States exceeded those limitations of
international law by prosecuting him in this case.
In a divided opinion, a panel of this court trained its
attention exclusively on the second part of Aybar's argument. See
United States v. Aybar-Ulloa, 913 F.3d 47, 53-56 (1st Cir. 2019).
Relying on prior circuit precedent, the panel majority rejected
that necessary part of Aybar's argument for two reasons: First,
we previously held in United States v. Victoria, 876 F.2d 1009(1st Cir. 1989) (Breyer, J.), that international law does indeed
"give[] the United States . . . authority to treat stateless
vessels as if they were its own." Id. at 1010 (second alteration
in original) (quoting United States v. Smith, 680 F.2d 255, 258
(1st Cir. 1982)). Second, our prior opinion in United States v.
- 3 -
Cardales, 168 F.3d 548 (1st Cir. 1999), included certain statements
construing international law as allowing a nation to define
trafficking in controlled substances aboard vessels as a threat
sufficient to justify an assertion of jurisdiction under the
"protective principle." Id. at 553.
As both the panel majority and the panel dissent
observed, our prior opinion in Victoria "did not fully spell out"
its reasoning. Aybar-Ulloa, 913 F.3d at 54; see also id. at 61
(Torruella, J., dissenting in part). Cardales, in turn, can be
read as applying only to the circumstance where a foreign flag
nation consents to the application of United States law to persons
found on that nation's flagged vessel. Id. at 55-56 (citing
Cardales, 168 F.3d at 552-53). And the question of the United
States' jurisdiction over persons on vessels on the high seas
recurs in this circuit. For those reasons, we granted Aybar's
petition to rehear this appeal en banc.
Following that rehearing, we now affirm Aybar's
conviction. In doing so, we find that his prosecution in the
United States for drug trafficking on a stateless vessel stopped
and boarded by the United States in waters subject to the rights
of navigation on the high seas violates no recognized principle of
international law. To the contrary, international law accepts the
criminal prosecution by the United States of persons like Aybar,
who was seized by the United States while trafficking cocaine on
- 4 -
a stateless vessel on the high seas, just as if they were
trafficking on a United States-flagged ship. We therefore need
not and do not reach the question of whether the application of
MDLEA to Aybar would be constitutional were international law
otherwise. We also need not and do not rely on the protective
principle, leaving its potential application for another day.
Finally, for the reasons agreed upon by the full panel, we vacate
Aybar's sentence and remand for resentencing under the Sentencing
Commission's clarified guidance reflected in Amendment 794. See
id. at 56-57.
I.
A.
As Aybar urges, we take the facts as "[p]er the affidavit
[filed by the government] in support of the complaint." On
August 9, 2013, the HMS Lancaster, a foreign warship, launched a
helicopter while on patrol in the Central Caribbean. Operators
aboard the helicopter spotted a thirty-foot go-fast vessel dead in
the water at 15-03N, 067-01W, an area approximately 160 nautical
miles south of Puerto Rico constituting international waters.1 The
1 The coordinates provided by the government nonetheless
appear to place the defendant's vessel within the Exclusive
Economic Zone ("EEZ") of the United States. Because the right of
freedom of navigation on the high seas applies in the EEZ, we
proceed with reference to the rules of interdiction applicable on
the high seas. United Nations Convention on the Law of the Sea
("UNCLOS") arts. 58(1-2), 87, Dec. 10, 1982, S. Treaty Doc.
No. 103-39, 1833 U.N.T.S. 397; see generally id. pt. VII, § 1. We
- 5 -
vessel bore no indicia of nationality and was carrying numerous
packages in plain view.
A Law Enforcement Detachment Team of the United States
Coast Guard was embarked on the HMS Lancaster at the time of the
incident. Members of this team launched a small boat to conduct
a right-of-visit approach. Coast Guard personnel identified
defendant Aybar and two others aboard the go-fast vessel. Aybar
and another member of the vessel claimed to be citizens of the
Dominican Republic, while the master of the vessel claimed
Venezuelan citizenship. In response to inquiry from the Coast
Guard personnel, the master of the vessel made no claim of
nationality for the vessel. The Coast Guard personnel suspected
contraband.
Concluding that the vessel was without nationality, the
Coast Guard personnel then boarded and searched the vessel.
Following the search, the Coast Guard proceeded to take all three
men and the packages found on board back to the HMS Lancaster,
where the packages' contents tested positive for cocaine. The
three men were then transferred to a United States Coast Guard
vessel and taken to Ponce, Puerto Rico, where they were held in
custody.
do not address any potential limitations on freedom of navigation
in the EEZ that may be imposed in this area. See id. art. 58(3).
- 6 -
B.
Shortly thereafter, a federal grand jury issued an
indictment against Aybar, charging him under MDLEA with conspiring
to possess with intent to distribute cocaine on board a vessel
subject to the jurisdiction of the United States, 46 U.S.C.
§ 70506(b) (count one), and aiding and abetting possession with
intent to distribute cocaine on board a vessel subject to the
jurisdiction of the United States, 46 U.S.C. §§ 70502(c)(1)(A),
70503(a)(1), 70504(b)(1), 70506(a), 18 U.S.C. § 2 (count two).
The indictment also included an allegation of forfeiture, 46 U.S.C.
§ 70507.
MDLEA provides that "[w]hile on board a covered vessel,
an individual may not knowingly or intentionally . . . manufacture
or distribute, or possess with intent to manufacture or distribute,
a controlled substance." 46 U.S.C. § 70503(a)(1). As relevant
here, a "covered vessel" includes "a vessel subject to the
jurisdiction of the United States," id. § 70503(e)(1), which is
defined to include "a vessel without nationality," id.
§ 70502(c)(1)(A). "[A] vessel without nationality," in turn,
includes "a vessel aboard which the master or individual in charge
fails, on request of an officer of the United States authorized to
enforce applicable provisions of United States law, to make a claim
of nationality or registry for that vessel." 46 U.S.C.
§ 70502(d)(1)(B).
- 7 -
Aybar moved to dismiss the indictment for lack of
jurisdiction, arguing that Congress's power under Article I "[t]o
define and punish Piracies and Felonies committed on the high Seas,
and Offenses against the Law of Nations," U.S. Const. art. I, § 8,
cl. 10, did not reach his conduct. After the district court denied
his motion, Aybar proceeded to plead guilty. Aybar's plea accepted
the facts substantiating the charges against him under MDLEA.
Those facts, in turn, make clear that the vessel on which he was
found was "a vessel without nationality" as defined in
section 70502(d)(1)(B) because, while on board the vessel, the
master made no claim of nationality when requested to do so by a
United States officer authorized to enforce the United States drug
laws. Despite his guilty plea and concessions, Aybar adequately
preserved his challenge to Congress's constitutional power to
criminalize his conduct pursuant to its Article I powers. See
Class v. United States, 138 S. Ct. 798, 804-05 (2018). On
January 9, 2019, a divided panel rejected that challenge,
affirming his conviction. For unrelated reasons, the panel also
vacated the district court's sentence and remanded for further
proceedings.
II.
Our analysis proceeds in five parts summarized as
follows: First, the "go-fast" ship upon which Aybar travelled was
rendered "stateless" when its master on board failed upon request
- 8 -
to make a valid claim of nationality for it, flouting, among other
things, the important requirement of international law that every
vessel on the high seas sail under the flag of a nation state.
Second, as a stateless vessel, the ship was susceptible to the
exercise of jurisdiction by any nation intercepting the vessel on
the high seas, just as if the vessel were one of that nation's
own. Third, the exercise of jurisdiction over Aybar's ship just
as if it were a United States vessel included jurisdiction over
drug trafficking on the vessel just as if it were drug trafficking
on a United States vessel, which is considered to be the territory
of the United States. Fourth, the application of that territorial
jurisdiction to prosecute Aybar in a United States court for
illegally trafficking cocaine is compatible with, and welcomed by,
any relevant specific rules and undertakings governing the
assertion of domestic power on the high seas. Fifth, we offer
several important caveats.
A.
Under international law governing the seas, every vessel
must sail under the flag of one, and only one, state. United
Nations Convention on the Law of the Sea ("UNCLOS") art. 92,
Dec. 10, 1982, S. Treaty Doc. No. 103-39, 1833 U.N.T.S. 397.2 In
2The United States has signed but not ratified UNCLOS. We
nevertheless cite to it as evidence of the customs and usages of
international law. See The Paquete Habana, 175 U.S. 677, 700
(1900); cf. United States v. Alaska, 503 U.S. 569, 588 n.10 (1992)
- 9 -
turn, every state maintains an obligation to "fix the conditions
for the grant of its nationality to ships, for the registration of
ships in its territory, and for the right to fly its flag," id.art. 91(1), and to "issue to ships to which it has granted the
right to fly its flag documents to that effect," id. art. 91(2).
While the type of registration papers may differ from state to
state depending on domestic laws, every state must keep a register
of "the names of all private vessels sailing under its flag," and
ensure "that every vessel may be identified from a distance."
1 L.F.L. Oppenheim, International Law §§ 290 (Jennings et al.
eds., 9th ed. 2008). "Without a flag or papers, a vessel may also
traditionally make an oral claim of nationality when a proper
demand is made." United States v. Matos-Luchi, 627 F.3d 1, 5 (1st
Cir. 2010).
This "flag-state" system -- by which all vessels are
required to fly the flag of a state, and states are in turn
required to approve the conditions for granting rights to fly their
flag -- serves several purposes. First, by subjecting vessels to
the exclusive jurisdiction of the flag state, the flag-state system
guarantees freedom of navigation in international waters, as
states generally may not interfere with the passage on the high
(noting that the United States has stated that the "baseline
provisions [of UNCLOS] reflect customary international law"
(citation omitted)).
- 10 -
seas of ships lawfully flying the flag of another state. See
Richard A. Barnes, "Flag States," in The Oxford Handbook on the
Law of the Sea 313 (Rothwell et al. eds. 2015); cf. UNCLOS
arts. 87, 90. Second, the flag-state system provides clear
guidance as to which state bears the primary obligation to regulate
conduct occurring on vessels on the seas. See R.R. Churchill &
A.V. Lowe, The Law of the Sea 205 (1988); cf. UNCLOS art. 94.
Third, the flag-state system indicates which state may bear
responsibility for the conduct of a ship on the seas. See
Churchill & Lowe, supra, at 205. Thus, the flag-state system is
"[o]ne of the most important means by which public order is
maintained at sea." Id.
Aybar concedes that the ship upon which he was found
plainly did not comply with this system. It flew no flag, its
master claimed no nationality, and no other indicia of registration
or nationality were present when authorized United States
officials stopped and boarded the ship. Presumably for these
reasons, Aybar does not dispute that his vessel may be treated as
"stateless" under international law. See, e.g., Matos-Luchi, 627
F.3d at 6 (stating that a vessel "may be deemed 'stateless' . . .
if it fails to display or carry insignia of nationality and seeks
to avoid national identification").
- 11 -
B.
International law plainly provides that a nation's
warship (or law enforcement ship) may stop and board a stateless
vessel on the high seas. See UNCLOS art. 110(1)(d); Restatement
(Third) of the Foreign Relations Law of the United States
§ 522(2)(b) (1987) [hereinafter "Restatement (Third)"] ("[A]
warship or clearly-marked law enforcement ship of any state may
board [a nongovernmental ship] . . . if there is reason to suspect
that the ship . . . is without nationality . . . ."); see also
Brownlie's Principles of Public International Law 285, 292
(Crawford ed., 9th ed. 2019) [hereinafter "Brownlie's
Principles"]; Malcolm Shaw, International Law 457 (8th ed. 2017)
("A ship that is stateless, and does not fly a flag, may be boarded
and seized on the high seas."); Myres S. McDougal & William T.
Burke, The Maintenance of Public Order at Sea and the Nationality
of Ships, 54 Am. J. Int'l L. 25, 76-77 (1960) ("So great a premium
is placed upon the certain identification of vessels for purposes
of maintaining minimal order upon the high seas . . . that
extraordinary deprivational measures are permitted with respect to
stateless ships."). In short, "[b]ecause stateless vessels do not
fall within the veil of another sovereign's territorial
protection," the vessel is afforded no right of free navigation.
United States v. Rendon, 354 F.3d 1320, 1325 (11th Cir. 2003)
(quoting United States v. Caicedo, 47 F.3d 370, 373 (9th Cir.
- 12 -
1995)); see also United States v. Rubies, 612 F.2d 397, 402-03
(9th Cir. 1979) ("A foreign flag[ged] vessel is thereby protected
by her country of registration. . . . An unregistered, or
'stateless,' vessel, however, does not have these rights or
protections.").
To say that international law grants to any state the
authority to interdict and exercise physical control over a
stateless vessel is to say that international law renders stateless
vessels "susceptible to the jurisdiction of any State," Barnes,
supra, at 314, including the United States. See Smith, 680 F.2d
at 258 (recognizing that "[i]nternational law . . . allows any
state to extend its authority over a stateless ship") (citing
United Nations Convention on the High Seas, 13 U.S.T. 2313,
T.I.A.S. No. 5200 (1958)); see also United States v. Juda, 46 F.3d
961, 967 (9th Cir. 1995); United States v. Martinez-Hidalgo, 993
F.2d 1052, 1055 (3d Cir. 1993); Victoria, 876 F.2d at 1010(recognizing that international law "gives the United States . . .
authority to treat stateless vessels as if they were its own");
United States v. Alvarez-Mena, 765 F.2d 1259, 1265 (5th Cir. 1985)
("[I]nternational law does not preclude any nation from exercising
jurisdiction over stateless vessels on the high seas."); United
States v. Pinto-Mejia, 720 F.2d 248, 260-61 (2d Cir. 1983); United
States v. Marino-Garcia, 679 F.2d 1373, 1383 (11th Cir. 1982)
("[I]nternational law permits any nation to subject stateless
- 13 -
vessels on the high seas to its jurisdiction."); United States v.
Howard-Arias, 679 F.2d 363, 371 (4th Cir. 1982); Malcolm D. Evans,
"The Law of the Sea," in International Law 651, 656-60 (Malcolm D.
Evans ed., 3d ed. 2010) ("[I]f a ship is stateless, or flies more
than one flag so that its true State of registry is not clear,
then any state can exercise jurisdiction over it.") (cited with
approval in Restatement (Fourth) of the Foreign Relations Law of
the United States § 408 n.3 (2018) [hereinafter "Restatement
(Fourth)"]).
In sum, there is no doubt that the United States could
exercise jurisdiction over the stateless vessel upon which Aybar
was found.
C.
Offering no persuasive reason why the United States
could not exercise jurisdiction over the stateless vessel upon
which he was found, Aybar narrows his focus to his prosecution.
While it may be clear that international law allows any state to
exercise jurisdiction over a flagless vessel, even to the point of
stopping, boarding and seizing it should they wish to do so, he
asserts that the prosecution of those on board the vessel under
the laws of the seizing country is a different matter altogether.
With respect to United States-flagged vessels, the law
does not distinguish between jurisdiction over the vessel itself
and jurisdiction over the people on the vessel and their conduct
- 14 -
on board. It is well settled that the United States has
jurisdiction over conduct occurring on United States-flagged
vessels because: (1) "[t]he deck of a private American
vessel . . . is considered . . . constructively as territory of
the United States," Ross v. McIntyre, 140 U.S. 453, 464 (1891);
and (2) a state's jurisdiction over conduct on its territory is
one of "the most commonly recognized bases of jurisdiction,"
Restatement (Fourth) § 407 cmt. c; see also id. § 408 cmt. a ("A
state may exercise prescriptive jurisdiction with respect to
persons, property, and conduct within its territory."); Smith, 680
F.2d at 257 (similar). Cf. Restatement (Third) § 502 cmt. d
(explaining that a flag state has jurisdiction over "the conduct
of a ship" as well as "any activity aboard the ship").
Two centuries of case law strongly suggest that the same
territorial principles apply to conduct aboard a stateless vessel.
Shortly after our nation's founding, the United States Supreme
Court issued a series of opinions addressing the scope of the
United States' jurisdiction over conduct committed on board
non-United States vessels. The Court rejected the assertion of
jurisdiction in domestic courts over murders committed by and
against foreigners on foreign vessels. See United States v.
Furlong, 18 U.S. (5 Wheat.) 184, 196–98 (1820); see also United
States v. Klintock, 18 U.S. (5 Wheat.) 144, 151 (1820). Murders
committed by and against foreigners on stateless vessels, though,
- 15 -
could be prosecuted in the United States. See Klintock, 18 U.S.
at 151–52; United States v. Holmes, 18 U.S. (5 Wheat.) 412, 417–
18; see also Furlong, 18 U.S. at 194–95 (stating that murder is
"equally punishable" in the courts of the United States when
committed on an American ship or on a stateless pirate ship, as
opposed to on a foreign ship, which presented "a question of more
difficulty").
While those cases dealt with vessels that were deemed
stateless because of piratical conduct, the Court did not hold
that piracy was the only means by which a vessel could be deemed
stateless so as to justify United States prosecutorial
jurisdiction. On that point, Holmes conveyed the opposite,
signaling that conduct of persons on board a stateless vessel could
be prosecuted whether the vessel was piratical or not:
The said Circuit Court had jurisdiction of the
offen[s]e charged in the indictment, if the
vessel, on board of which it was committed,
had, at the time of the commission thereof, no
real national character but was possessed and
held by pirates, or by persons not lawfully
sailing under the flag, or entitled to the
protection of any government whatsoever.
18 U.S. at 419.
These founding-era cases also did not hold that a foreign
national may be prosecuted in the United States for his conduct on
the high seas only if he personally renounces his nationality by
engaging in piracy. True, the Court certainly approved the
- 16 -
prosecution of "those who acknowledge the authority of no State."
Klintock, 18 U.S. at 152. But the Court also repeatedly emphasized
the statelessness of the ship, rather than the nationality of the
persons on board, in upholding the United States' exercise of
jurisdiction over those persons. For example, in Klintock, the
Court held that "persons on board of a vessel not at the time
belonging to the subjects of any foreign power, but in possession
of a crew acting in defiance of all law, and acknowledging
obedience to no government whatever, . . . are proper objects for
the penal code of all nations." Id. To the extent that there is
any ambiguity as to whether the phrase "acknowledging obedience to
no government whatever" was intended to modify the "persons" or
the "vessel" at issue, the Court clarified in Holmes that the
status of the vessel was determinative:
In Klintock's case, it was laid down, that to
exclude the jurisdiction of the Courts of the
United States, in cases of murder or robbery
committed on the high seas, the vessel in
which the offender is, or to which he belongs,
must be, at the time, . . . the property of a
subject of a foreign State, and . . . subject,
at that time, to [its] control. But if the
offen[s]e be committed in a vessel, not at the
time belonging to subjects of a foreign State,
but in possession of persons acknowledging
obedience to no government or flag, and acting
in defiance of all law, it is [punishable in
the courts of the United States]. It follows,
therefore, that murder or robbery committed on
the high seas, may be an offen[s]e cognizable
by the Courts of the United States, although
it was committed on board of a vessel not
belonging to citizens of the United States, []
- 17 -
if she had no national character, but was
possessed and held by pirates, or persons not
lawfully sailing under the flag of any foreign
nation.
18 U.S. at 416–17. Because the Court in Holmes held that the
existence of jurisdiction depended on whether or not the vessel at
issue was under the control of a foreign nation, "it made no
difference, as to the point of jurisdiction, whether the
[offenders] were citizens of the United States" or citizens of
foreign nations. Id. at 419–20. As we have described, this
approach comports with the overall system of flag-state
jurisdiction. See Furlong, 18 U.S. at 198 (explaining that the
distinction between foreign vessels and stateless vessels serves
to avoid "offensive interference with the governments of other
nations").
Our concurring colleague well develops the case for
treating Holmes as binding authority dictating our holding in this
case. This is certainly a defensible view. If murder, a crime
over which there is no universal jurisdiction, can be prosecuted
by the United States when committed by a foreigner upon a foreigner
on a vessel that has no national character, why can the United
States not also prosecute drug trafficking committed by a foreigner
on such a vessel? Nevertheless, the sometimes challenging syntax
in Holmes, Furlong, and Klintock, plus the possibility that
international law itself now differs materially from international
- 18 -
law as understood 200 years ago, counsel against resting our
conclusion solely on those cases if we do not need to do so. And
we do not.
No other circuit has held that conduct aboard a stateless
vessel seized by the United States on the high seas may not be
prosecuted as conduct committed on United States territory.3 See
United States v. Moreno-Morillo, 334 F.3d 819, 828 (9th Cir. 2003)
(noting that "a showing of statelessness effectively moots the
nexus requirement because those aboard stateless vessels
effectively have waived their right to object to the exercise of
jurisdiction over them by United States courts"); see also
Marino-Garcia, 679 F.2d at 1383 (concluding that stateless status
"makes the vessel subject to action by all nations proscribing
certain activities aboard stateless vessels and subjects those on
board to prosecution for violating th[ose] proscriptions"); Juda,
46 F.3d at 967 (recognizing no distinction between the right to
seize stateless vessels and the right to prosecute persons on board
them); Alvarez-Mena, 765 F.2d at 1266-67 (same).
While there is no unanimity among scholars on this point,
see Douglas Guilfoyle, "The High Seas," in The Oxford Handbook on
the Law of the Sea 218 (Rothwell et al. eds. 2015), the
Because we sustain MDLEA as applied to Aybar, we need not
3
decide whether and to what effect MDLEA should be construed as
reaching even more broadly.
- 19 -
longstanding unanimity among United States courts is especially
significant, as "the state practice of the United States
contributes to the development of customary international law when
followed out of a sense of international legal right or
obligation." Restatement (Fourth) § 402 cmt. b; see also id. n.2.
Treating conduct on stateless vessels in this manner
furthers a basic aim of international law to achieve order on the
high seas by disincentivizing the use of stateless vessels.
Marino-Garcia, 679 F.2d at 1382-83. This approach also yields
significant practical benefits, such as reducing complications
when, for example, officials of the seizing nation are needed as
witnesses in a subsequent prosecution of offenses committed on the
vessel. Moreover, those who set out in stateless vessels cannot
be said to possess the same reasonable expectation of sanctuary
from foreign jurisdiction under international law as those on a
flagged vessel would. See Caicedo, 47 F.3d at 372 (distinguishing
properly flagged vessels, which have a "legitimate expectation" of
being subject only to the laws of the flag state, from stateless
vessels, which "subject themselves to the jurisdiction of all
nations" such that a state's exercise of jurisdiction over them
cannot, categorically, be said to be "arbitrary or fundamentally
unfair"); see also Moreno-Morillo, 334 F.3d at 828; Marino-Garcia,
679 F.2d at 1382 (describing stateless vessels as "international
pariahs" having "no internationally recognized right to navigate
- 20 -
freely on the high seas" and finding no categorical limits to the
exercise of jurisdiction over stateless vessels under
international law). Simply put, if a person intent on drug
trafficking on the high seas wants to be prosecuted in his own
country should he be caught, he should sail under that country's
flag.
D.
Aybar contends that, notwithstanding the foregoing, his
prosecution was prohibited by other, more specific rules and
undertakings governing jurisdiction and the high seas. As we will
explain, we find that the relevant and more specific rules and
undertakings are entirely consistent with our conclusion that
Aybar was properly subject to prosecution in the United States for
his conduct on board the stateless vessel.
1.
Aybar first points to the 1988 United Nations Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances ("UN Drug Trafficking Convention"), U.N.T.S. 27627
(1988), which was adopted to give effect to UNCLOS's call on states
to "cooperate in the suppression of illicit traffic in narcotic
drugs" on the high seas, UNCLOS art. 108. Specifically, he points
out that the UN Drug Trafficking Convention does not explicitly
address the possibility of states exercising jurisdiction over
persons found engaging in drug trafficking on stateless vessels on
- 21 -
the high seas. See UN Drug Trafficking Convention art. 17. But
it does not rule out such prosecutions either. To the contrary,
at least one United Nations body has suggested that states may
exercise jurisdiction under the convention over persons found
engaging in illegal activities on stateless vessels, in
combination with domestic sources of authority. See Commission on
Crime Prevention and Criminal Justice, Outcome of the Expert Group
Meeting on Transnational Organized Crime at Sea, held in Vienna,
Austria, on 5-6 April 2016, U.N. Doc. E/CN.15/2016/CRP.3, ¶ 18
(May 19, 2016) (recognizing debate over enforcement activity
against perpetrators found on stateless vessels but observing that
"if a State is party to the [UN Drug Trafficking Convention], it
should exercise jurisdiction over vessels without nationality").
To implement the UN Drug Trafficking Convention, several
European states adopted the 1995 Council of Europe Convention on
Illicit Traffic by Sea. That convention provides further support
for the proposition that international law welcomes prosecutions
by the seizing nation of those found engaged in drug trafficking
on stateless vessels: It not only allows but requires parties to
prosecute persons found trafficking drugs on stateless vessels.
See Agreement on Illicit Traffic by Sea, Implementing Article 17
of the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances art. 3, C.E.T.S. 156
(1995) (mandating that "each Party shall take such measures as may
- 22 -
be necessary to establish its jurisdiction over the relevant
offen[s]es committed on board a vessel which is without
nationality, or which is assimilated to a vessel without
nationality under international law").4
Several other international law instruments similarly
leave open the possibility of states taking law enforcement action
against persons found on stateless vessels. Such instruments
typically use language indicating that states may take action "in
accordance with relevant domestic and international law" after
searching a stateless vessel on the high seas. See Brownlie's
Principles, supra, at 291 (explaining that this language
"perpetuates the ambiguity regarding the exercise of prescriptive
jurisdiction and enforcement over stateless vessels"). For
example, the 2000 Migrant Smuggling Protocol indicates with
respect to vessels without nationality that "[i]f evidence
confirming the suspicion [of smuggling] is found," the boarding
State "shall take appropriate measures in accordance with relevant
domestic and international law." See Protocol Against the
Smuggling of Migrants by Land, Sea and Air, Supplementing the
4 See also Agreement Concerning Co-Operation in Suppressing
Illicit Maritime Air Trafficking in Narcotic Drugs and
Psychotropic Substances in the Caribbean Area (not yet in force)
(signed by the United States on April 10, 2003) (providing the
same).
- 23 -
United Nations Convention Against Transnational Organized Crime
art. 8(7), U.N.T.S. 2241 (2000) (emphasis added).
Likewise, the United Nations Straddling Fish Stocks
Agreement suggests that states may take enforcement action against
stateless fishing vessels for illegal fishing "in accordance with
international law," but does not specify what such action might
entail. See Agreement for the Implementation of the Provisions of
the United Nations Convention on the Law of the Seas of 10 December
1982 Relating to the Conservation and Management of Straddling
Stocks and Highly Migratory Fish Stocks art. 21(17), Conference on
Straddling Fish Stocks and Highly Migratory Fish Stocks,
6th Sess., U.N. Doc. A/CONF.164/37 (Sept. 8, 1995); see also
Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea
108 (2009) (observing that this language "accommodat[es] divergent
views as to prescriptive and enforcement jurisdiction over
stateless vessels at general international law"). Moreover,
various regional fisheries organizations have encouraged states to
take legal action where evidence is found of illegal fishing on
stateless vessels.5 See Guilfoyle, Shipping Interdiction and the
See, e.g., International Commission for the Conservation
5
of Atlantic Tunas (ICCAT), Recommendations by ICCAT on Vessel
Sightings, ¶ 3 (June 20, 2020) ("If the vessel is confirmed to be
without nationality, a competent authority . . . is encouraged to
inspect the vessel, consistent with international law and, if
evidence so warrants, the Contracting Party is encouraged to take
such action as may be appropriate, in accordance with international
law."); Northeast Atlantic Fisheries Commission, Scheme of Control
- 24 -
Law of the Sea, supra, at 129 (explaining that the Northeast
Atlantic Fisheries Commission Scheme "appears to directly
encourage the adoption of national laws permitting
extraterritorial enforcement action against stateless vessels,"
even if, like the UN Drug Trafficking Convention, it does not
itself provide for such enforcement measures); Rosemary Rayfuse,
Non-Flag State Enforcement in High Seas Fisheries 330-31 (2004).
Moreover, certain bilateral instruments to which the
United States is a party explicitly leave open the possibility of
states taking enforcement action against persons found on board
stateless vessels where the evidence so warrants. See, e.g.,
Agreement between the Government of the United States of America
and the Government of the Dominican Republic Concerning Maritime
Counter-Drug Operations, U.S.-Dom. Rep., Mar. 23, 1995, T.I.A.S.
No. 12620 (providing that counter-drug operations pursuant to the
agreement may be carried out against vessels "without
nationality," but also noting under the protocol to the agreement
that law enforcement personnel are to act in accordance with
and Enforcement, art. 38(2) (Feb. 7, 2020); see also Indian Ocean
Tuna Commission, Resolution 16/05 on Vessels Without Nationality
(Sept. 27, 2016); United Nations Food and Agriculture
Organization, Implementation of the International Plan of Action
to Prevent, Deter and Eliminate Illegal, Unreported, and
Unregulated Fishing 14-15 (2002) ("Taking action against
[stateless] vessels should be a high priority, because their very
statelessness frustrates the primary means to control fishing
activity on the high seas -- through flag State jurisdiction.").
- 25 -
international law when engaging in boardings and searches);
Agreement between the United States of America and Cyprus
Concerning Cooperation to Suppress the Proliferation of Weapons of
Mass Destruction, Their Delivery Systems, and Related Materials by
Sea, U.S.-Cyp., July 25, 2005, T.I.A.S. 06-112 (including
stateless vessels among the vessels against which operations may
be undertaken under the agreement); Agreement between the United
States of America and Belize Concerning Cooperation to Suppress
the Proliferation of Weapons of Mass Destruction, Their Delivery
Systems, and Related Materials by Sea, U.S.-Blz., Oct. 29, 2005,
T.I.A.S. 05-1019 (same); see also United States v. Bravo, 489 F.3d
1, 4 (1st Cir. 2007) (recounting that the claimed flag state could
not confirm registry of the vessel and authorized the United States
to proceed with law enforcement action under "international law").
2.
Aybar insists that UNCLOS nevertheless prohibits his
prosecution. He relies on Article 110, which provides a right to
visit ships suspected of being without nationality and to search
those ships if suspicion of statelessness remains after checking
the ship's documents. See also Aybar-Ulloa, 913 F.3d at 62-63
(Torruella, J., dissenting in part) (arguing that the unilateral
extension of domestic jurisdiction over a stateless vessel on the
high seas without a nexus violates UNCLOS). But in recognizing a
right to visit certain ships, including a ship "without
- 26 -
nationality," Article 110 does not prohibit the prosecution of
those on board. It simply remains silent as to whether and when
the visiting nation may prosecute persons found on the ship.
Aybar argues that we should draw a negative inference
from that silence because other articles of UNCLOS do contain
express grants of authority to penalize persons found on certain
vessels. For example, Article 105 authorizes the arrest and
punishment of persons found on pirate ships. Similarly,
Articles 99 and 109 expressly grant the power to penalize persons
for engaging in slavery and unauthorized broadcasting,
respectively. We reject the negative inference Aybar would have
us draw for two reasons.
First, and most simply, there are obvious differences
between the examples given and that of a stateless vessel,
undercutting any negative inference that could be drawn from the
presence of express grants in some articles but not others. For
starters, a ship engaged in piracy may retain its nationality.
UNCLOS art. 104. So there was a reason for Article 105 to
expressly confirm that any state can exercise universal
jurisdiction to seize and prosecute individuals on such a ship --
otherwise, it might have been possible to argue that only the
ship's flag state would be able to seize and prosecute those
individuals. Under this reading, Article 105 grants no new
authority. Similarly, because vessels that engage in unauthorized
- 27 -
broadcasting can retain their nationality, an exception was needed
to overcome the presumption of exclusive flag-state jurisdiction
where it was desirable for impacted states to have the possibility
of arresting "person[s] or ship[s] engaged in" this activity. See
id. art. 109(4) (providing that states receiving transmissions or
suffering from interference may exercise their jurisdiction to
prosecute unauthorized broadcasting). Further, because slave
ships also generally retain their nationality, Article 99 had to
expressly impinge on flag-state jurisdiction in order to declare
that enslaved persons found on any ship are ipso facto free.
Without these provisions -- which codify limitations on the rights
of flag states where their ships engage in conduct of severe
concern to the international community -- other states may have
presumed that their hands were tied.
Not so in the case of the stateless vessel. The
presumption of flag-state jurisdiction, which arguably made the
express grants of authority in Articles 99, 105, and 109 necessary,
simply does not apply where the vessel at issue is stateless.
Rather, as we have explained, stateless vessels are treated as
subject to the exercise of authority by any nation. Accordingly,
the absence of an express grant of authority to seize and prosecute
persons on board a stateless vessel in Article 110 does not, on
its own, establish that Aybar's seizure and prosecution are
prohibited by UNCLOS.
- 28 -
Second, Aybar's argument cannot be squared with the
approach taken in the international instruments and undertakings
we have described. If a categorical rule against the extension of
domestic jurisdiction over stateless vessels could be found in
UNCLOS Article 110, it is unlikely that subsequent instruments
mentioning stateless vessels could avoid it or that their drafters
would have been unaware of it. Instead, it appears that in the
decades since UNCLOS was concluded, the relevant international
organizations and actors have resolved to leave the issue to the
judgment of states. See Guilfoyle, "The High Seas," supra, at 218
(explaining that "[t]reaty law is silent" on the extension of
national jurisdiction over stateless vessels without a nexus and
"sometimes deliberately ambiguous" such that existing treaty
language "covers divergent national (and academic)
interpretations").
Our reading of international law does not render the
United States an outlier. Other nations have also adopted laws
and regulations permitting exercises of domestic jurisdiction over
stateless vessels and persons found on board them. See United
Nations Food and Agriculture Organization, Implementation of the
International Plan of Action to Prevent, Deter and Eliminate
Illegal, Unreported, and Unregulated Fishing 15 (2002) (discussing
laws adopted by Canada and Norway to extend jurisdiction over
stateless vessels); see also Fisheries Jurisdiction Case (Spain v.
- 29 -
Canada), Jurisdiction, Judgment, 1998 I.C.J. Rep. 432, ¶¶ 19, 61
64, 75 (Dec. 4) (describing Canada's seizure of a vessel under its
Coastal Fisheries Protection Act, adopted to cover high seas areas
governed by the Northwest Atlantic Fisheries Organization, and the
subsequent arrest and prosecution of its master for illegal fishing
under that law, as well as Spain's response that such law
enforcement actions were permissible only if the vessel were
stateless); Molvan v. Attorney-General for Palestine, A.C. 351
(1948); Guilfoyle, "The High Seas," supra, at 218 (noting that the
United States and United Kingdom have historically taken the view
that no nexus is required to extend national jurisdiction over a
stateless vessel).6 That there is not even more evidence of similar
state practices engenders no surprise, given the practical
difficulties of seizing ships on the high seas. "[W]hile
international law may allow states to arrest stateless vessels,
states may not yet have appropriated that right unto themselves."
Rayfuse, supra, at 330 (explaining that the absence of a widespread
practice of arresting and prosecuting stateless fishing vessels
may "reflect[] . . . the reality that few states have the physical
capability to arrest these vessels on the high seas" and that
See generally Coastal Fisheries Protection Act (R.S.C.,
6
1985, c. c-33) § 5.5 (Canada); Marine Resources Act no. 37 (6 June
2008) (Norway), available at https://www.fiskeridir.no/English/
Fisheries/Regulations/The-marine-resources-act; Policing and
Crime Act 2017, c.3 § 84(1)(b) (United Kingdom), available at
https://www.legislation.gov.uk/ukpga/2017/3/section/84.
- 30 -
"states may lack a basis in their domestic legal framework
permitting their authorities to take such action").
E.
We add, finally, several caveats.
First, our holding makes no attempt to assert universal
jurisdiction over drug trafficking offenses. The holding does not
apply at all to the large majority of vessels sailing on the high
seas. Rather, it applies only to vessels flouting order and custom
on the high seas by eschewing the responsibilities and protections
of the flag-state system.
Second, we do not suggest that international law does
not apply to the seizure of the vessel or that persons on board
such vessels fall outside of the protection of international law.
See Rayfuse, supra, at 57 (explaining that "a ship without
nationality[] is not necessarily a ship without law[,] . . . [b]ut
it is a ship without protection" (quoting D.P. O'Connell, 2 The
International Law of the Sea 755 (1984))). Fundamental principles
of customary international human rights law, and requirements of
due process under United States law, may well still apply in
circumstances not present in this appeal. See Brownlie's
Principles, supra, at 285 (noting that stateless ships "are not
outside the law altogether," as "their occupants are protected by
elementary considerations of humanity"); Maarten Den Heijer,
Europe and Extraterritorial Asylum 238 (2012) (recognizing that
- 31 -
the "taking of coercive measures" against stateless vessels "is
likely to come within the ambit of human rights law"); see also
United States v. Ballestas, 795 F.3d 138, 148 (D.C. Cir. 2015);
United States v. Yousef, 327 F.3d 56, 111-12 (2d Cir. 2003) (citing
United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990));
Cardales, 168 F.3d at 553.
While the fundamental "arbitrariness or unfairness" of
a prosecution may depend in some part on notions of "fair warning"
under either domestic or international law, see United States v.
Van Der End, 943 F.3d 98, 106 (2d Cir. 2019), such "fair warning"
has certainly been given in the case of drug trafficking. Although
not a crime that gives rise to universal jurisdiction, see
Restatement (Fourth) § 413 n.1 (explaining that "universal
jurisdiction is limited to the most serious offenses about which
a consensus has arisen for the existence of universal
jurisdiction"); United States v. Cardales-Luna, 632 F.3d 731,
740-41 (Torruella, J., dissenting), drug trafficking has long been
regarded as a serious crime by nearly all nations. See United
Nations Treaty Depositary, Status of the United Nations Convention
against Illicit Traffic in Narcotics (accessed August 9, 2020)
(indicating that 191 states are party to the UN Drug Trafficking
Convention); see also 46 U.S.C. § 70501(1) (recognizing that
"trafficking in controlled substances aboard vessels is a serious
international problem" that "is universally condemned").
- 32 -
Third, we opt not to decide one way or the other whether
the United States may prosecute a foreign citizen engaged in drug
trafficking on a stateless vessel where the United States never
boarded and seized the vessel. Nor do we reach the question of
whether the MDLEA by its own terms reaches such a situation. In
this case the law has been applied to a person apprehended on board
the stateless vessel when stopped and boarded by United States
Coast Guard officers. Although the government seeks a broader
ruling in its supplemental briefing, it does not abandon its
argument that "MDLEA was not unconstitutional as applied to this
case because Aybar's stateless vessel was intercepted on the high
seas" by the United States. And resolving this "as applied"
argument is all that is necessary to dispose of this appeal.
Finally, nothing in our reasoning forecloses a
successful claim of diplomatic protection by a foreign state,
should a foreign state make such a petition on behalf of its
national. See Barnes, supra, at 315; Churchill & Lowe, supra, at
172. What we hold, instead, is that international law does not
generally prohibit the United States from prosecuting drug
traffickers found on a stateless vessel stopped and boarded by the
United States on the high seas as if they had been found on a
United States vessel subject to the territorial jurisdiction of
the United States. Therefore, even if Congress's power under the
- 33 -
Define and Punish Clause is cabined by international law, Aybar's
prosecution under MDLEA would not exceed any such limitation.
III.
That leaves only Aybar's challenge to his sentence. For
the reasons stated in the panel opinion, we vacate and remand for
resentencing under the Sentencing Commission's clarified guidance,
as reflected in Amendment 794. See Aybar-Ulloa, 913 F.3d at 56–
57 (citing United States v. Sarmiento-Palacios, 885 F. 3d 1, 6
(1st Cir. 2018)).
IV.
For the foregoing reasons, we affirm the defendant's
conviction, vacate the defendant's sentence, and remand for
resentencing.
- Concurring Opinion Follows -
- 34 -
BARRON, Circuit Judge, concurring in the judgment.
Johvanny Aybar-Ulloa ("Aybar") contends that Article I, Section 8,
Clause 10 of the United States Constitution, which authorizes
Congress to "define and punish . . . Felonies committed on the
high Seas," provides the sole constitutional source of power for
the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C.
§§ 70501-70508. He further argues that there is an implicit limit
on this power, rooted in the law of nations, and that this limit
restricts Congress's authority to rely on this Clause to extend
our country's domestic criminal laws to foreign nationals who
violate them while they are outside the territorial jurisdiction
of the United States. He therefore contends that his conviction
under the MDLEA is unconstitutional, because he is a foreign
national who is alleged to have engaged in drug trafficking while
in international waters and on a vessel that is not registered to
the United States.
In pressing this contention, Aybar asserts that his
prosecution for violating the MDLEA cannot be deemed to accord
with international law on the ground that the offense for which he
was convicted is a crime against all nations. He emphasizes that
this is so because international law does not recognize drug
trafficking as a universal jurisdiction offense. He further
asserts that there is no basis under international law for
- 35 -
permitting the United States to criminalize the conduct for which
he was convicted based on an assertion of what is known as
protective jurisdiction. This is so, he contends, because there
was no nexus between his drug trafficking and the United States,
as the vessel that he was on left from one foreign country and was
headed to another. See United States v. Robinson, 843 F.2d 1, 3-
4 (1st Cir. 1988) (Breyer, J.) (noting "forceful argument" against
application of protective principle to encompass drug trafficking
on the high seas).
There is a fair amount of support for the contention
that Article I's Define and Punish Clause is impliedly limited by
the law of nations in ways that constrain Congress's authority to
rely on that Clause to subject foreign nationals to our criminal
laws for conduct that they engage on while they are on foreign
vessels -- even when those vessels are on the high seas. See
United States v. Furlong, 18 U.S. (5 Wheat.) 184, 197-98 (1820)
("Congress . . . ha[s] no right to interfere" with other nations
by "punishing [murders by foreign nationals] when committed within
the [foreign] jurisdiction, or, (what is the same thing,) in the
vessel of another nation."); see also Congressman John Marshall,
Speech to the House of Representatives (Mar. 7, 1800), in 10 Annals
of Cong. 607 (1800) (hereinafter "Speech of John Marshall")
(arguing that the Define and Punish Clause cannot authorize federal
"jurisdiction over offences, committed on board a foreign ship
- 36 -
against a foreign nation" on the high seas); Justice James Wilson,
Charge to the Grand Jury of the Circuit Court for the District of
Virginia (May 23, 1791), reprinted in 2 The Documentary History of
the Supreme Court of the United States, 1789-1800, at 179 (Maeva
Marcus ed., 1988) (suggesting that "no state or states can; by
treaties or municipal laws, alter or abrogate the law of nations"
to the extent of reaching the crime of murder by a foreigner aboard
a foreign flag ship).7 But, without disputing that point, and
without relying on either a claim that the crime involved here
qualifies as a universal jurisdiction offense or that the MDLEA is
the product of our nation's valid assertion of its protective
jurisdiction, the majority nevertheless rejects Aybar's
constitutional challenge.
The majority does so because, it rightly points out,
although Aybar was on the high seas while he was in possession of
the cocaine that led to his MDLEA charges, he was not at that time
on a foreign vessel. Instead, he was on a stateless one that our
7 In fact, the United States itself early on took the position
before the Supreme Court that the Define and Punish Clause was
subject to this limitation, even though it takes the opposite view
here. See United States v. Palmer, 16 U.S. (3 Wheat.) 610, 620
(1818) (argument of Mr. Blake on behalf of the United States) ("A
felony, which is made a piracy by municipal statutes, and was not
such by the law of nations, cannot be tried by the courts of the
United States, if committed by a foreigner on board a foreign
vessel, on the high seas; because the jurisdiction of the United
States, beyond their own territorial limits, only extends to the
punishment of crimes which are piracy by the law of nations.").
- 37 -
national authorities had interdicted in accord with international
law. Thus, in the majority's view, Aybar was within the
territorial jurisdiction of the United States when he violated the
MDLEA no less than if he had been on a ship flying our nation's
flag. See Slip Op. 4-5, 10-14. For that reason, the majority
concludes, the premise on which Aybar's constitutional challenge
rests -- that he violated the MDLEA while he was outside the
territorial jurisdiction of the United States -- is mistaken. See
id. at 33-34.
I do not disagree with the majority that Aybar's
constitutional challenge must be rejected. I write separately,
however, because I reach that conclusion through a different,
albeit somewhat related, line of reasoning.
I.
The majority observes that, under the law of nations, a
foreign national on a U.S.-flagged vessel is within the territorial
jurisdiction of the United States even when that vessel is in
international waters. Id. at 4-5, 14-15. The majority also notes
that, under the law of nations, a country's war or clearly marked
law enforcement ship may board and search a vessel in international
waters when there is adequate reason to suspect that the vessel is
stateless. Id. at 12-13; see, e.g., Restatement (Third) of the
Foreign Relations Law of the United States § 522(2)(b) & n.7 (1987)
(hereinafter "Restatement (Third)") ("[A] warship or clearly-
- 38 -
marked law enforcement ship of any state may board . . . a
ship . . . if there is reason to suspect that the ship . . . is
without nationality"; "[a] stateless vessel is not entitled
to . . . protection . . . against boarding and search.");
Brownlie's Principles of Public International Law 285, 292 (James
Crawford ed., 9th ed. 2019) (hereinafter "Brownlie's Principles")
(noting statelessness as a "circumstance[] in which a warship may
exercise the right of visit on the high seas"); Malcolm N. Shaw,
International Law 457 (8th ed. 2017) ("A ship that is stateless,
and does not fly a flag, may be boarded and seized on the high
seas.").
But, although the Third and Fourth Restatement of the
Foreign Relations Law of the United States clearly establish the
soundness of these twin propositions, see Restatement (Third)
§§ 501 cmt. c, 502(2) & cmt. d, 522(2)(b) & n.7; Restatement
(Fourth) of the Foreign Relations Law of the United States § 408
cmt. b & n.3 (2018), I do not read them to go further and establish
that the prevailing view of the law of nations is that the
interdicting country acquires the same territorial jurisdiction
over the vessel's occupants as it acquires over the vessel itself.
In fact, as the majority recognizes, Slip Op. 19, experts in
international law have long noted the disagreement that exists
over that very view, even in the case in which the interdicting
country's officials have boarded the vessel. See Brownlie's
- 39 -
Principles at 292 (noting "two schools of practice" on the question
of exercising jurisdiction over stateless vessels, one of which is
the U.S. practice that also permits criminal prosecution of those
aboard and the other which requires "some further jurisdictional
nexus," and explaining that the latter "position [is] more
consistent with existing treaty practice"); Douglas Guilfoyle,
"The High Seas," in The Oxford Handbook of the Law of the Sea 216,
218 (Donald R. Rothwell et al. eds. 2015) ("[S]cholarly views vary"
on "[t]he consequences of statelessness," and there are equally
"divergent national . . . interpretations."); Douglas Guilfoyle,
Shipping Interdiction and the Law of the Sea 17-18 (2009)
(similar). Nor have these commentators suggested that, insofar as
there is a prevailing view in this debate, it is one that is at
odds with the understanding that Aybar asks us to conclude that
international law embraces. See R.R. Churchill & A.V. Lowe, The
Law of the Sea 214 (3d ed. 1999) ("[I]t has been held . . . that
[stateless] ships enjoy the protection of no State," but the
"better view appears to be that there is [still] a need for some
[additional] jurisdictional nexus in order that a State may extend
its laws to those on board a stateless ship and enforce the laws
against them." (emphases added)); Richard Barnes, "The
International Law of the Sea and Migration Control," in
Extraterritorial Immigration Control: Legal Challenges 130-33 (B.
Ryan and V. Mitsilegas eds., 2010) (noting that "US jurisprudence"
- 40 -
notwithstanding, "it is not at all clear that attempts to
circumvent the requirement for a jurisdictional nexus . . . would
be consistent with the law of the sea"; "the fact that right of
visit and matters of enforcement are treated separately in the
[United Nations Convention on the Law of the Sea] suggests that a
positive right of visit does not imply wider enforcement powers").
Thus, insofar as the majority's understanding of the
scope of territorial jurisdiction over Aybar under the law of
nations is tied to the fact that the stateless vessel that he was
on had been seized and boarded by the United States' authorities
in the course of their attempt to determine the nation (if any) to
which the vessel belonged, see Slip Op. 19 n.3, 33, I cannot find
any clear support for that understanding in either the pertinent
Restatements or the relevant learned commentary. I should add
that I also am not aware of any precedent from U.S. courts that
would provide such support.
There is precedent from our country's courts that stakes
out a more expansive view of territorial jurisdiction under the
law of nations than Aybar would have us countenance. But, that
precedent, as I read it, does not tie that more expansive view to
a showing that the officials from the nation that is claiming
territorial jurisdiction over the foreign national on a stateless
vessel in international waters had seized and boarded the vessel
in question pursuant to their recognized right under international
- 41 -
law to determine its status. Rather, that precedent appears to
hold that foreign nationals on stateless vessels in international
waters are subject to domestic prosecution by the United States
for their conduct on board them pursuant to an assertion of the
United States' territorial jurisdiction simply because there is
support for all nations exercising such jurisdiction over vessels
that are both stateless and in such waters. See, e.g., United
States v. Rendon, 354 F.3d 1320, 1325 (11th Cir. 2003) ("Because
stateless vessels do not fall within the veil of another
sovereign's territorial protection, all nations can treat them as
their own territory and subject them to their laws." (quoting
United States v. Caicedo, 47 F.3d 370, 373 (9th Cir. 1995)));
Caicedo, 47 F.3d at 373 ("Such vessels are 'international
pariahs' . . . [and] subject themselves to the jurisdiction of all
nations 'solely as a consequence of the vessel's status as
stateless.'" (quoting United States v. Marino-Garcia, 679 F.2d
1373, 1382-83 (11th Cir. 1982))); United States v. Victoria, 876
F.2d 1009, 1010 (1st Cir. 1989) (Breyer, J.) ("[A]s United States
courts have interpreted international law, that law gives the
'United States authority to treat stateless vessels as if they
were its own.'" (alteration omitted) (quoting United States v.
Smith, 680 F.2d 255, 258 (1st Cir. 1982))); United States v. Pinto-
Meija, 720 F.2d 248, 260-61 (2d Cir. 1983) ("[S]tateless vessels
- 42 -
on the high seas are, by virtue of their statelessness, subject to
the jurisdiction of the United States.").
For these reasons, I see no clear support in either case
law or commentary for the comparatively modest proposition that
persons on stateless vessels that a foreign country's officials
have seized and boarded pursuant to their recognized right to visit
it are subject to that country's territorial jurisdiction under
international law. Instead, I find no judicial precedent
supporting that particular proposition, and much debate within the
relevant commentary about its soundness.
There is another reason that prevents me from signing on
to the majority's analysis. This reason has to do with the fact
that I understand the MDLEA to have been premised on a broader
theory of territorial jurisdiction under the law of nations than
the majority is willing to embrace. That broader theory makes
neither the physical presence of our authorities on a stateless
vessel in the high seas or those authorities' interaction with
that vessel of any legal significance in determining whether the
occupants on that vessel come within our country's territorial
jurisdiction. Instead, that broader theory makes the fact that
the occupants are on a vessel that is both stateless and in
international waters in and of itself the reason that their conduct
while on board may be said to occur within the territorial
jurisdiction of the United States. The notion that this more
- 43 -
expansive theory of territorial jurisdiction under international
law grounds the MDLEA finds support in the text of the statute
itself. The MDLEA expressly criminalizes drug trafficking on any
"vessel subject to the jurisdiction of the United States," 46
U.S.C. § 70503(e)(1), and then proceeds to define such vessels
expansively to "include[]" not just those whose crews fail to make
a claim that they belong to another nation "on request of an
officer of the United States," id. § 70502(d)(1)(B) (deeming such
vessels to be "without nationality," i.e., stateless), but also
those vessels aboard which the crew's "claim of registry . . . is
denied" or is "not affirmatively and unequivocally" affirmed "by
the nation whose registry is claimed," without reference to a
request being made by a United States officer at all, id.
§ 70502(d)(1)(A), (C) (same). In these respects, the MDLEA notably
fails to make the fact that U.S. authorities either have boarded
the vessel or even interacted with the vessel's crew at the time
of the commission of the offense a precondition for the vessel
being subject to the jurisdiction of the United States. As a
result, the MDLEA, by its terms, appears to make the bare fact
that a foreign national engages in drug trafficking while on a
stateless vessel in international waters a trigger for subjecting
the foreign national to the reach of our domestic criminal laws.
To be sure, Aybar does not dispute on appeal that his
vessel was in fact boarded by the U.S. authorities who interdicted
- 44 -
it. But, it is not evident to me that the jurisdictional basis
for his MDLEA conviction was premised on any such finding, as it
is not evident to me that any legal significance was attributed to
that fact in convicting him of violating the MDLEA.8
For that reason, it is not surprising to me that the
government describes the question concerning the scope of
8Aybar's indictment charging him with drug trafficking under
the MDLEA mentioned only that he did so "on board a vessel subject
to the jurisdiction of the United States; that is, a vessel without
nationality," without noting the physical presence of U.S.
officials on board the vessel at the time of the offense (or even
any U.S. "interaction" with the vessel or the crew), and he did
not admit to the vessel having been boarded in pleading guilty to
the offense charged in the indictment, as he was not asked to do
so, given that none of the elements of the offense made the fact
of the boarding of legal relevance to his commission of it. The
government's submissions to the District Court concerning whether
Aybar was on board a vessel subject to U.S. jurisdiction, moreover,
did not purport to make the finding that he was dependent on the
fact of the vessel having been boarded by such officials. Finally,
the District Court rejected Aybar's constitutional challenge on
the ground that the United States had territorial jurisdiction
over him while he possessed the cocaine at issue without purporting
to premise that conclusion on the fact that U.S. officials had
actually boarded his vessel. Thus, I am dubious that a conclusion
that his conviction may be affirmed against this international-
law-based constitutional challenge to Congress's Article I power
is sustainable on the basis of the vessel having been boarded
rather than on the more expansive theory that made his presence on
a stateless vessel in international waters itself dispositive of
whether he was subject to our nation's jurisdiction. Cf. United
States v. Lopez, 514 U.S. 549, 559 (1995) (holding that the Gun-
Free School Zones Act "exceeds the authority of Congress to
'regulate Commerce'" as it "neither regulates a commercial
activity nor" "contains [a] jurisdictional element which would
ensure, through case-by-case inquiry, that the firearm possession
in question affects interstate commerce" (emphasis added) (quoting
U.S. Const. Art. I § 8 cl. 3)); Richard H. Fallon, Jr., As-Applied
and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev.
1321, 1332-34 (2000).
- 45 -
territorial jurisdiction that Aybar's constitutional challenge to
his MDLEA conviction implicates in terms that render both the
physical presence of our authorities on his vessel and their
interaction with it legally irrelevant. In fact, it would be
surprising to me if the government were to embrace the view that,
to ensure that the MDLEA would be enforced against a foreign
national consonant with the law of nations, our law enforcement
authorities must board the defendant's vessel (or even make contact
with it) while he is both on it and in possession of the drugs.
Such a view would appear to require the conclusion that our
government could avoid flouting the law of nations in enforcing
the MDLEA only by accepting that a foreign national on a stateless
vessel on the high seas could protect himself from the statute's
reach merely by dumping contraband from his vessel (stateless
though it is conceded to be) as soon as a ship carrying our
country's law enforcement personnel is in view. Yet, in fact, the
government has enforced the MDLEA even when the defendant had
finished possessing the drugs at issue before U.S. authorities had
made any contact with the stateless vessel on which the offense
had occurred. See, e.g., Rendon, 354 F.3d at 1322–23; Caicedo, 47
F.3d at 371.
Of course, the fact that the government makes this
broader assertion of territorial jurisdiction in asking us to
reject Aybar's constitutional challenge does not mean that the
- 46 -
government's view of the scope of the United States' territorial
jurisdiction under international law is correct. The Restatements
and commentary described above provide no clear support for the
notion that, under the law of nations, all countries are entitled
to assert territorial jurisdiction over any foreign national in
international waters who is on board a vessel that is stateless
simply because that vessel is in those waters and does not belong
to any nation. In fact, as I have explained, those materials do
not even provide clear support for the relatively narrower but
still broad proposition that a nation that exercises its right to
visit a vessel in international waters that it suspects is
stateless automatically acquires the right to assert domestic
criminal jurisdiction over that vessel's foreign-national
occupants.
I have noted above that a number of United States Circuit
Courts have endorsed the view that, under the law of nations, a
person's presence on a stateless vessel in international waters is
in itself enough to make that person subject to a foreign nation's
domestic criminal laws for the conduct in which he engages while
on board -- if, that is, the nation chooses to apply those laws to
him. See, e.g., Rendon, 354 F.3d at 1325; Caicedo, 47 F.3d at
372; Pinto-Mejia, 720 F.2d at 260-61. Thus, it is true that these
courts have signed on to the government's expansive view of
territorial jurisdiction under the law of nations.
- 47 -
But, in doing so, these courts have supported that view
merely by citing to other circuit-level precedents, see, e.g.,
Rendon, 354 F.3d at 1325; Caicedo, 47 F.3d at 372; Victoria, 876
F.2d at 1010-11, or by treating international law authorities that
clearly establish that a nation has territorial jurisdiction over
a vessel in international waters that is stateless as if such
authorities also establish that a nation has territorial
jurisdiction over the foreign nationals who are on such a vessel,
see Pinto-Mejia, 720 F.2d at 260-61; Marino-Garcia, 679 F.2d at
1382-83; Smith, 680 F.2d at 258. For that reason, I do not see
how these precedents help to demonstrate that the law of nations
is what the government says it is.
II.
The lack of clear authority for either the government's
(or the majority's more modest but still broad) view of territorial
jurisdiction under the law of nations does not necessarily compel
us to hold that the United States lacks the constitutional
authority to extend the MDLEA to Aybar's conduct. Even if we were
to assume that the law of nations places limits on Congress's power
under the Define and Punish Clause to subject foreign nationals on
foreign vessels in international waters to our domestic criminal
laws, and even if we were to assume that the United States may not
assert protective jurisdiction over drug trafficking merely
because it occurs on stateless vessels in international waters,
- 48 -
see Robinson, 843 F.2d at 3-4, it still may be that we are in no
position to conclude that the application of the MDLEA to Aybar's
conduct in this case would violate international law -- and thus
in no position to conclude that such application would transgress
Article I.
A rule of international law that would insulate foreign
nationals on stateless vessels on the high seas from domestic
criminal jurisdiction would raise practical difficulties for law
enforcement authorities -- and not only for those from our country.
See Slip Op. 20-21. In light of those difficulties and the degree
of legal uncertainty that exists in this realm, it may be that it
would be proper for us to defer to our political branches' judgment
as to what the law of nations permits here.9 Cf. United States v.
9 Much like Congress in the MDLEA, the Executive Branch has
before taken the position that our laws may punish drug trafficking
by foreign nationals aboard stateless vessels in the high seas
consistently with international law. See, e.g., Stopping "Mother
Ships" -- A Loophole in Drug Enforcement: Hearing on S. 3437
Before the Subcomm. to Investigate Juvenile Delinquency of the H.
Comm. on the Judiciary, 95th Cong. 28 (1978) (statement of Morris
Busby, Acting Deputy Assistant Secretary, Dep't of St. Off. of
Oceans Aff.) (explaining in supporting a precursor bill to the
MDLEA that "making it a crime to possess drugs on the high seas
with an intent to distribute, whether or not the intent was to
distribute the[] drugs in the United States" "where you have a
ship without any nationality on the high seas" "would comport with
international law"); Coast Guard Drug Law Enforcement: Hearing on
H.R. 2538 Before the Subcomm. on Coast Guard and Navigation of the
H. Comm. on Merchant Marine and Fisheries, 96th Cong. 55 (1979)
(statement of Morris Busby, Director, Dep't of St. Off. of Ocean
Aff.) (elaborating that international law did, in his Department's
view, create "an exception which allows us to board a vessel on
the high seas which is without nationality," and further
- 49 -
Smith, 18 U.S. (5 Wheat.) 153, 159 (1820) (explaining that "there
is a peculiar fitness in giving the power to define as well as to
punish; and there is not the slightest reason to doubt that this
consideration had very great weight in producing the phraseology
in question"); id. at 169-72 (Livingston, J., dissenting) ("The
special power here given to define . . ., can be attributed to no
other cause, than to the uncertainty . . . in the law of nations,
and which it must have been the intention of the framers of the
constitution to remove, by conferring on the national legislature
the power which has been mentioned.").
It may also be that, as the majority suggests, see Slip
Op. 19-21, there is a "general usage and practice of nations,"
Smith, 18 U.S. (5 Wheat.) at 160-61, that supports the United
States' position. Other nations do not appear to have
affirmatively resisted our country's assertion of this expansive
view of territorial jurisdiction, and we are dealing with the
peculiar context of the high seas. Perhaps, then, it would be
prudent to reject Aybar's constitutional challenge to his
"recommend[ing] . . . that [the United States] make it a
[prosecutable] violation for [drug trafficking] to occur on board
a vessel which is stateless"; "[w]hile ordinarily the United States
does not favor a unilateral extension of jurisdiction . . . over
the activities of non-U.S. citizens on board stateless vessels
without proof of some connection to the United States, the serious
nature of [the drug trafficking] problem, and the fact that persons
on board these stateless vessels [generally] are engaged in
narcotics trafficking aimed at the United States, warrant an
extension in this particular case.").
- 50 -
conviction for this additional reason, notwithstanding that the
evidence before us of this practice consists chiefly of what other
nations have not done in response to what ours has. See Andrew W.
Anderson, Jurisdiction over Stateless Vessels on the High Seas:
An Appraisal under Domestic and International Law, 13 J. Mar. L.
& Com. 323, 331-32 (1982); Myres S. McDougal, The Law of the High
Seas in Time of Peace, 26 Naval War C. Rev. 35, 36 (1973); Myres
S. McDougal & William T. Burke, The Public Order of the Oceans: A
Contemporary International Law of the Sea 1047 (1962).
But, I am wary of rejecting Aybar's constitutional
challenge by relying on either a principle of deference to the
political branches that I am not sure obtains or a state practice
that is based only on the limited evidence of it that we have here.
Rather, I conclude that we -- as a lower court -- must reject it
due to the guidance supplied by the more than two-century-old
Supreme Court precedent to which the majority gives great weight
but ultimately concludes fails to dictate how we must decide this
case. See Slip Op. 15-19.
III.
That precedent, United States v. Holmes, 18 U.S. (5
Wheat.) 412 (1820), was among the cases that the Supreme Court
decided just decades after the Constitution's ratification and
that are sometimes referred to as the "piracy cases," G. Edward
White, The Marshall Court and International Law: The Piracy Cases,
- 51 -
83 Am. J. Int'l L. 727 (1989). The cases in this line of authority
dealt with the United States' power to prosecute defendants of a
range of citizenships and circumstances who shared the attribute
of having been indicted in our country pursuant to our criminal
justice system for murder, robbery, or other wrongdoing on the
high seas. See Holmes, 18 U.S. (5 Wheat.) 412; Furlong, 18 U.S.
(5 Wheat.) 184; Smith, 18 U.S. (5 Wheat.) 153; United States v.
Klintock, 18 U.S. (5 Wheat.) 144 (1820); United States v. Palmer,
16 U.S. (3 Wheat.) 610 (1818).
These cases were decided amidst the then-swirling debate
over whether the law of nations permitted the United States to
assert domestic criminal jurisdiction over foreign nationals who
committed crimes while on the high seas. Compare United States v.
Robins, 27 F. Cas. 825, 832 (D.S.C. 1799) ("There is no doubt that
the circuit courts of the United States have a concurrent
jurisdiction" that allows the U.S. government to prosecute the
offense of murder aboard a British ship on the high seas, "and
this arises under the general law of nations."), with Speech of
John Marshall at 598-99 ("It is not true that all nations have
jurisdiction over all offenses committed at sea. . . . [T]he
jurisdiction of th[is] nation cannot extend to a murder committed
by a British sailor, on board a British frigate navigating the
high seas under a commission from his Britannic majesty. . . . It
follows that no such common jurisdiction exists."). And Holmes
- 52 -
itself implicated that debate, as it concerned a challenge to the
legal basis for a U.S. criminal prosecution of three defendants
-- two foreigners and one U.S. citizen -- who had been indicted
for knifing and throwing overboard an individual while they were
on a vessel on the high seas that did not belong to the United
States. See Holmes, 18 U.S. (5 Wheat.) at 412-13; see also The
Trial of William Holmes, Thomas Warrington, and Edward Rosewain on
an Indictment for Murder on the High Seas Before the Circuit Court
of the United States 5 (Boston, Joseph C. Spear 1820) (hereinafter
"The Holmes Trial").
Specifically, Holmes posed the following question:
when, if ever, is "murder" by a foreign national "committed on the
high seas, . . . an offence cognizable by the Courts of the United
States"? Holmes, 18 U.S. (5 Wheat.) at 417. The Supreme Court
answered as follows.
The Court first observed that, if the murder "be
committed on board of a foreign vessel by a citizen of the United
States, or on board of a vessel of the United States by a foreigner,
the offender is to be considered . . . as belonging to the nation
under whose flag he sails." Id. at 417 (emphasis added). But,
the Court then continued, there would be jurisdiction in our
nation's courts over such a prosecution "if [the vessel] had no
national character, but was possessed and held by pirates, or
persons not lawfully sailing under the flag of any foreign
- 53 -
nations." Id. (emphasis added). And, the Court reiterated this
same understanding in the certificate,10 explaining: "the said
Circuit Court had jurisdiction of the offence charged in the
indictment [i.e., murder], if the vessel, on board of which it was
committed, had, at the time of the commission thereof, no real
national character but was possessed and held by pirates, or by
persons not lawfully sailing under the flag, or entitled to the
protection of any government whatsoever." Id. at 419 (emphasis
added).
Holmes appears to state, then, that a foreign national
is subject to the domestic criminal jurisdiction of the United
States if he commits a felony while on a vessel on the high seas
that is "not lawfully sailing under the flag of any foreign
nation." Id. at 417 (emphasis added). For this reason, Holmes
appears to sink Aybar's constitutional challenge -- by rejecting
the view that a stateless vessel in international waters is a
foreign vessel, and by supporting the view that international law
does not bar a nation from extending its domestic criminal laws to
persons who are engaged in felonious conduct on board vessels
10The "Certificate" "blend[ed] the views of all the justices
together on the broadest common position." Alfred P. Rubin, The
Law of Piracy 141 (1988).
- 54 -
lacking any national character while those vessels are in
international waters.11
Recognizing the potential threat that Holmes presents,
Aybar seeks to keep his challenge afloat in the following way. He
argues that Holmes is best read to address only the extent of
Congress's power to regulate the conduct of "piracy committed
either by a citizen or a foreigner . . . based on the universal
jurisdiction of piracy." Accordingly, he contends, Holmes
supplies no support for concluding that the law of nations
permitted his prosecution under the MDLEA, given that "drug
trafficking is not understood to be a universal jurisdiction
offense."
The problem for Aybar is that the predicate offense in
the foreign nationals' indictment in Holmes was "murder." 18 U.S.
(5 Wheat.) at 413. That is significant because it was well
understood at the time that general piracy was "rob[bery] . . . on
the high seas" and that this single category of piracy offense
was, under the law of nations, "punishable by all" -- but "[n]o
particular nation can increase or diminish the list of offences
thus punishable." Speech of John Marshall at 600; see also Smith,
11 It is worth noting that the Holmes defendants were
apprehended only after they eventually sailed their ship into a
harbor in Scituate, Massachusetts; there is no indication that
U.S. officials were aboard or interacted with the vessel at the
time of the murder. See The Holmes Trial at 6.
- 55 -
18 U.S. (5 Wheat.) at 162 ("[T]he offence [of general piracy] is
supposed to depend, not upon the particular provisions of any
municipal code, but upon the law of nations, both for its
definition and punishment."). Thus, because the charged offense
at issue in Holmes was murder on the high seas rather than robbery
on the high seas, there is little basis for concluding that the
Court understood the foreign national defendants there to have
been charged with general piracy -- and thus with a universal
jurisdiction offense -- rather than with merely a domestic felony.
That the statute of conviction in Holmes provided that
"if any person . . . shall commit, upon the high seas, . . .
murder . . . every such offender shall be deemed, taken, and
adjudged to be, a pirate and felon, and being thereof convicted,
shall suffer death," Act of April 30th, 1790, for the Punishment
of Certain Crimes Against the United States, ch. 9 § 8, 1 Stat.
113 (emphasis added), does not suggest otherwise. It was
understood at the time that "[a] statute may make any offence
piracy, committed within the jurisdiction of the nation passing
the statute, and such offence will be punishable by that nation"
-- but, unless the statutory offense was general piracy, "[t]he
jurisdiction of the nation is [here] confined to its territory and
to its own subjects." Speech of John Marshall at 600, 602
(emphases added); see also id. at 600-01 (rejecting the notion
that all "piracies at common law" are "punishable by every nation,"
- 56 -
and explaining that a statute might punish murder or other crimes
as piracy, but such a "municipal regulation could not be considered
as proving that those offences were . . . piracy by the law of
nations"); Eugene Kontorovich, The "Define and Punish" Clause and
the Limits of Universal Jurisdiction, 103 Nw. U. L. Rev. 149, 167
(2009) (explaining the then-familiar understanding that general
piracy and municipal piracy were not equivalent).
Nor is there anything in Holmes that indicates that the
Court understood the offense of murder that was at issue --
denominated though it was in the underlying federal criminal
statute as a species of piracy -- to constitute "general" rather
than "municipal" piracy. In fact, during the sentencing
proceedings in Holmes, Justice Story, who not only participated in
the case at the Supreme Court but also, while riding circuit, below
in the First Circuit, referenced the defendants' mutiny aboard the
vessel in question -- noting that the knifing had been part of a
plan to seize control of the ship -- and informed the offenders
that their conduct could have been indicted as a form of general
piracy. See The Holmes Trial at 16-17. But, Justice Story made
clear, the offense of murder on the high seas, for which the
defendants had been indicted, was not itself such an offense.
Indeed, he contrasted that offense with robbery on the high seas,
which he concluded the defendants could have been indicted for in
consequence of their "piratical usurpation and seizure of the
- 57 -
vessel," and which would have "left [them] only the character of
general pirates and enemies of the human race, who had thrown off
allegiance to all nations, and were justly amenable for [their]
crime to the tribunal of all." The Holmes Trial at 16-17; see
also Report on the Trial of Samuel Tulley and John Dalton, on an
Indictment for Piracy and Murder, Committed January 21st, 1812,
Before the Circuit Court of the United States 30-31, 33 (Boston,
J. Belcher 1812) (reporting a decision by Judge Davis, in which
Justice Story concurred, which noted that "[t]he description of
the offense [of piracy] in the first part of the 8th Section of
[the Act of 1790] is analogous to the common law description" of
piracy, as distinct from "piracy by the law of nations").
I do recognize that Holmes refers at one point to the
vessel that the defendants were on as being "piratical." 18 U.S.
(5 Wheat.) at 417. But, this reference also does not help Aybar
in his attempt to show that Holmes fails to undermine the basis
for his constitutional challenge to his conviction.
In describing the vessel from which the defendants
committed the charged offense as "piratical," Holmes was not
purporting to describe the nature of the defendants' charged
offense as one that constituted general piracy. As we have seen,
it was understood by those involved -- Justice Story among them
-- that the offense did not qualify as such. Holmes was simply
explaining why the vessel that the defendants had been on in the
- 58 -
high seas was fairly deemed to have no national character, or,
otherwise put, to be stateless as opposed to foreign, such that
the United States could subject those aboard to our laws. For, a
description of the evidence presented during the proceedings below
reveals that the vessel on which the defendants had been when
committing the murder on the high seas had earlier been unlawfully
captured in those waters by pirate ships, at least if one followed
the Court in disbelieving testimony that the seizing ships "were
publicly fitted out at Buenos Ayres" and intended to "molest[]
none but Spanish vessels." The Holmes Trial at 5, 7-8, 12; see
Eugene Kontorovich, Beyond the Article I Horizon: Congress's
Enumerated Powers and Universal Jurisdiction over Drug Crimes, 93
Minn. L. Rev. 1191, 1228 (2009) (arguing that the vessel in Holmes
was "stateless by virtue of 'turning pirate'"); see also Talbot v.
Jansen, 3 U.S. (3 Dall.) 133, 159 (1795) (opinion of Iredell, J.)
("[If] upon the enquiry it shall appear, that the vessel pretending
to be a lawful privateer, is really not such, but uses a colourable
commission for the purposes of plunder, she is to be considered by
the law of nations . . . in the same light as having no commission
at all."); The Holmes Trial at 10-11 ("If a murder be committed on
board of a ship having no national character, as on board of ships
owned and possessed by pirates, it is within the statute, if the
ship be on the high seas when the crime is perpetrated. . . .
Palmer's case goes only to exclude the operation of the statute,
- 59 -
in cases where other nations have an exclusive jurisdiction.");
cf. Palmer, 16 U.S. (3 Wheat.) at 632-33 ("The[r]e are offences
against [a] nation under whose flag the vessel sails, and within
whose particular jurisdiction all on board the vessel are. Every
nation provides for such offences the punishment its own policy
may dictate; and no general words of a statute ought to be
construed to embrace them when committed by foreigners against a
foreign government." (emphasis added)).12
Moreover, Aybar, who has waived any challenge to whether
his vessel was actually stateless, makes no argument to us that
the statelessness of a vessel in international waters permits the
foreign national aboard it to be subjected to our domestic criminal
See Letter from John Quincy Adams, U.S. Sec'y of State, to
12
Francisco Dionisio Vives, Ambassador of Spain to the U.S. (May 3,
1820), reprinted in 5 Wheat. App. 154 (1820) (explaining that "[i]n
the existing unfortunate civil war between Spain and the South
American Provinces, the United States have constantly avowed, and
faithfully maintained, an impartial neutrality," although the
United States would -- and did -- prosecute "individuals guilty of
piracy" that "illegally captured" "Spanish property" (emphasis
added)); The Holmes Trial at 11 (reporting Justice Story's charge
to the jury that "[i]f at the time when the crime was
committed, . . . this vessel was under the exclusive jurisdiction
of the Government of Buenos Ayres, then the statute does not reach
the case [of murder aboard a foreign-flagged ship], and the
Prisoners ought to be acquitted. And this depends on the fact,
whether the capture was made by the privateers, under any authority
derived from the Government of Buenos Ayres as a belligerent and
independent nation . . . [and] sailed rightfully under its
flag . . . [as this would mean] the capture was rightful, and the
captured vessel immediately after the capture, may be justly deemed
to have been exclusively under the jurisdiction of the Government
of Buenos Ayres.").
- 60 -
laws consistent with the law of nations only if the vessel is
stateless by virtue of it having engaged in conduct that qualifies
as general piracy. Aybar instead argues to us only that there is
an important distinction to be drawn under the law of nations
between offenses that are of universal jurisdiction and offenses
that are not, and that the offense for which he was charged --
drug trafficking -- is of the latter kind.
Thus, the fact that Holmes deemed the foreign nationals
who were the defendants in that case to be on a vessel lacking
national character because it was piratical lends little aid to
Aybar's cause. The offense that was at issue in Holmes was a mere
domestic felony, just like his, and it occurred on a vessel that
was stateless, just like his.13
13 Interestingly, in his charge to the jury, Justice Story
explained that the defendants could even be prosecuted if they had
committed the murder while aboard no ship:
The statute refers as to locality to "the high
seas" only, and it would be far too narrow a
construction, to limit its operation to crimes
committed on board of ships or vessels.
Murder may be committed on the high seas when
neither the murderer, or the murdered is on
board of any ship or vessel. A man may in the
sea murder another who is in the sea swimming,
or on a plank or raft; and it is obvious, that
when the death is by drowning, the murder is
committed literally on the high seas, wherever
the murderer may at the time be. . . . We see
no reason in a case of this sort, where the
murder is committed actually in the sea, why
the case which is within the literal terms of
the statute, should not be held within its
purview, whether the murder were committed by
- 61 -
Aybar also makes no argument to us that even if Holmes
did take an expansive view of the United States' authority to
assert domestic criminal jurisdiction over foreign nationals
engaged in felonious conduct on a stateless vessel on the high
seas, intervening developments in international law preclude us
from construing Article I's Define and Punish Clause to permit
Congress to rely on that power to enact this criminal statute on
the understanding of the law of nations that Holmes embraced. His
a citizen on a citizen, or by a foreigner on
a citizen, or by a foreigner on a foreigner.
Such a case is not within the reason of
Palmer's case. Every nation has concurrent
jurisdiction with every other nation on the
high seas; and when a crime is committed on
the high seas, not on board of any ship or
vessel, it is not exclusively within the
jurisdiction of any nation; and every nation
may, if it choose, punish such crime without
doing any wrong to either nation.
The Holmes Trial at 10 (emphasis added). In Homes itself,
moreover, the Supreme Court agreed that
it makes no difference whether the offence was
committed on board of a vessel, or in the sea,
as by throwing the deceased overboard and
drowning him, or by shooting him when in the
sea, though he was not thrown overboard. The
words of the above act of Congress are
general, and speak of certain offences
committed upon the high seas, without
reference to any vessel whatsoever on which
they should be committed; and no reason is
perceived why a more restricted meaning should
be given to the expressions of the law, than
they literally import.
18 U.S. (5 Wheat.) at 418 (emphasis added).
- 62 -
only contention regarding Holmes is that it did not embrace that
understanding of the law of nations even then.
IV.
For these reasons, I am convinced that Holmes requires
that we conclude that the Define and Punish Clause is best
understood not to contain an implicit limit that would prevent the
United States from prosecuting foreign nationals for their
felonious conduct on stateless vessels in international waters.
The founding generation was attentive to the strictures of the law
of nations. See David M. Golove & Daniel J. Hulsebosch, The Law
of Nations and the Constitution: An Early Modern Perspective, 106
Geo. L. J. 1593, 1595-96 (2018) (describing "the prominent place
of the law of nations in the constitutional reform project that
culminated in the Philadelphia Convention"). And so, as between
the uncertain or even skeptical views of more contemporary
commentators on the law of nations and the seemingly unqualified
statements of the Supreme Court in Holmes, I am persuaded that the
latter must control our judgment as a lower court in this case --
at least given that state practice is not clearly contrary to what
the political branches of our country assert it to be. See United
Nurses & Allied Prof'ls v. Nat'l Labor Rels. Bd., 975 F.3d 34, 40
(1st Cir. 2020) ("We are bound by the Supreme Court's
'considered dicta.'" (quoting McCoy v. Mass. Inst. of Tech., 950
F.2d 13, 19 (1st Cir. 1991))).
- 63 -
Accordingly, I would affirm Aybar's conviction against
his constitutional challenge to Congress's exercise of its Article
I power on the basis of Holmes, while leaving all other questions
-- including whether and when MDLEA prosecutions comport with the
Fifth Amendment's Due Process Clause -- for a case in which they
are properly raised. I do note, though, that while I reach the
same destination as the majority, the route that I take to get
there may bear on the proper answer to at least one question that
the case before us does not require us to resolve.
I do not dispute the majority's observation that "fair
warning has certainly been given" that drug trafficking is commonly
outlawed. Slip Op. 32. But, there is potentially a separate
notice question concerning whether "fair warning" exists as to
where that commonly outlawed offense may be prosecuted. Cf. Int'l
Shoe v. Washington, 326 U.S. 310, 316 (1945) ("[D]ue process
requires . . . that, in order to subject a defendant to a judgment
in personam, if he be not present within the territory of the
forum, he have certain minimum contacts with it . . . .").
It is not clear to me that our own Supreme Court's
precedent (let alone precedents from lower U.S. courts such as
ours) as to the scope of valid congressional power over misconduct
by foreign nationals on stateless vessels on the high seas could
supply fair warning on the "where" question to a foreign national.
At least, I am not sure that it could do so if other authoritative
- 64 -
sources for determining the content of the law of nations -- ones
not generated solely by a single country's legal system -- do not
themselves provide fair warning that all nations possess
territorial jurisdiction over the conduct of foreign nationals on
board stateless vessels in international waters and thereby makes
them potentially subject to prosecution in any nation under its
domestic criminal laws.
Aybar, however, does not pursue a due process challenge
to his conviction. I thus see no need to decide here whether the
law of nations, uncertain though it appears to me to be in that
respect, is nonetheless clear enough to provide a person who
ventures into international waters in a stateless vessel the
constitutionally requisite degree of warning of the risk of being
prosecuted in a foreign forum for drug trafficking while on board
that vessel. Nor do I see any reason to decide in this case
whether Holmes itself requires us to conclude that, despite what
more modern commentary suggests, the law of nations is clear enough
on that score to mitigate any notice concerns that might be of a
constitutional magnitude.
- 65 -