Trafficking in Narcotics—International Waters

On February 8, the US Coast Guard intercepted the fishing vessel Victoria in international waters 40 miles north of the Panama coast.^[1] Coast Guard law enforcement agents boarded the Victoria and allegedly discovered 1001 kilograms of cocaine.^[2] The cocaine was allegedly found “in a hidden compartment” which was located in the pilothouse; all four crew members were arrested.^[3]

Seizures like this are fairly routine, and we have discussed such arrests from time to time. What distinguishes this case from the ordinary is the statute being used to prosecute the four individuals.

Normally, narcotics trafficking charges are brought under 21 U.S.C. § 841, which makes it a crime for a person to possess a controlled substance with the intent to distribute it; the law has extraterritorial application. The punishment for the possession of more than a ton of cocaine would be at least 10 years in prison and possibly up to life in prison.^[4]

Instead, this case is being prosecuted under 46 U.S.C. Appx. § 1903. Under this statute, it is a crime for “any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States, or who is a citizen of the United States or a resident alien of the United States on board any vessel,” to knowingly possess with intent to distribute a controlled substance.^[5] Congress mandated that any person charged with a violation of this statute is forbidden from raising a defense based on failure to comply with international law.^[6] Violations of this statute are punished under 21 U.S.C. § 960, which carry the same penalties as a violation of 21 U.S.C. § 841.^[7]

Congress passed the law because it found “that trafficking in controlled substances aboard vessels is a serious international problem and is universally condemned.”^[8] This is a very interesting statement because it suggests that the United States has at least near-universal jurisdiction over the drug trade. Courts generally look to the Restatement (Third) of Foreign Relations Law of the United States § 404 to determine what offenses are included in the universality principle; trafficking in narcotics is not among them.

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[1] US Attorney’s Office, Coast Guard Intercept of One Ton of Cocaine Leads to Federal Drug Charges Against Four Individuals, Feb. 16, 2006.
[2] Id.
[3] Id.
[4] 21 U.S.C. § 841(b)(1). A Pakistani man was recently sentenced to life in prison in Maryland for trafficking more than 100 pounds of heroin. See US Attorneys Office, Pakistani Father Sentenced To Life And Son Sentenced To 30 Years In International Heroin Trafficking Scheme, Feb. 15, 2006.
[5] 46 U.S.C. Appx. § 1903(a).
[6] Id. § 1903(d).
[7] See 21 U.S.C. § 960(b)(1).
[8] 46 U.S.C. Appx. § 1902.