The Maritime Drug Law Enforcement Act (“MDLEA”) is a series of federal laws that allow the United States to prosecute nautical drug crimes even outside of its own territory.
First implemented in 1986 as part of the larger Anti-Drug Abuse Act, the MDLEA remains a key player in federal drug prosecutions, accounting for 296 cases in fiscal year 2021 alone. Due to the expansive jurisdiction granted by this law, the U.S. Coast Guard is able each year to seize more cocaine than all other American law enforcement agencies combined, removing over 1,100 metric tons of the drug from smugglers between 2015 and 2020.
The core provision of the MDLEA makes it illegal for a person to take any of the following actions while aboard a “covered vessel”:
- Making or distributing drugs (or possessing them with the intent to do either)
- Destroying anything that is subject to legal forfeiture under U.S. drug laws—including any drugs and any money received for drugs
- Concealing (or trying to conceal) cash worth more than $100,000
The law then goes on to define a “covered vessel” as either:
- any ship at all, so long as the person charged is either a U.S. citizen or resident alien
- a vessel of the United States, or
- a “vessel subject to the jurisdiction of the United States”
The third of these categories gives the MDLEA an unusually broad sweep. The law defines the term “vessel subject to the jurisdiction of the United States” to include not only ships in United States territorial waters and those that are under the jurisdiction of consenting foreign nations, but also ships that are found to be “without nationality.”
When a ship is stopped on suspicion of drug trafficking, the Coast Guard officer or other U.S. agent conduction the operation must ask whoever is in charge of the boat what its nationality is. If the nation claimed either denies or fails to confirm the claim, or if the ship’s captain does not claim any nation at all, then the vessel can be designated as “without nationality” and is subject to U.S. jurisdiction under the MDLEA.
Hundreds of foreign nationals are arrested each year under the MDLEA, many of whom are poor fishermen from Latin America. Though many such prosecutions are successful, recent developments in the law have given rise to new potential defenses to challenge these charges.
In 2020, one of the federal appellate courts found unconstitutional overreach in the MDLEA’s authorization of U.S. prosecutions for vessels stopped in the territories of consenting foreign nations. Even more promisingly, in January of this year, a different court found it unconstitutional for the law to apply to people on vessels whose claims to a nationality were neither confirmed nor denied.
For now, at least, these rulings only affect people in some areas of the country. Even in cases where they do not apply, however, making constitutional and jurisdictional challenges is an important part of mounting an effective defense. Constitutionally speaking, strong arguments can be made for:
- the invalidity of MDLEA conspiracy charges against foreign nationals who never themselves leave foreign soil
- requiring a jury to decide whether a given ship was a “covered vessel” as an element of the offense
Additionally, in every case, a diligent lawyer will need to consider and argue:
- whether and how the captain of the vessel claim nationality for the craft and whether it flew any flags
- the citizenship status of all occupants of the vessel
- the registration or lack of registration of the ship with any country
- the identified place where the vessel was stopped and the legal claims any country has on those waters
If you or someone you know is facing charges under the MDLEA, you need an experienced federal criminal defense attorney to scrutinize the circumstances of the case and determine how best to fight it. For more information and to find out how our firm can help, contact us today.