Feitel Law Firm


by Robert Feitel www.rfeitellaw.com

Under the Maritime Drug Law Enforcement Act (MDLEA), 46 United States Code Section 70503, et seq. the United States claims the authority to prosecute international drug trafficking on board maritime vessels. Since its enactment in 1986, the statute has given the United States a very significant tool in its role as “world policeman” in the fight against international drug trafficking. The MDLEA has several advantages over other frequently used criminal conspiracy laws. First, the statue expressly authorizes prosecution in the United States even when the vessel is found in the territorial waters of a foreign nation, so long as that nation consents to the enforcement action.  Second, the statute does not require any proof that the drugs were intended for importation into the United States. United States v. Vargas, 781 Fed. App. 815 (11th Cir. 2019)(and cases cited therein). Finally, federal courts have ruled that the statute applies to co-conspirators, even when they have never set foot on the vessel and at all times remained outside of the United States. See United States v. Carvajal, 924 F.Supp.2d 219 (D.D.C. 2013). Despite years of favorable rulings for the Government, a new appellate decision concludes that part of the MDLEA is unconstitutional as applied.

In United States v. Davila-Mendoza, No. 17-2038 (11th Cir. Aug. 26, 2020), the Eleventh Circuit ruled that the Government lacks the authority under the “foreign commerce clause” to criminalize drug trafficking in the territorial waters of another nation. The unanimous court held that Congress had only the the power to regulate “commerce with foreign nations,” and that using the “substantial effects test” from domestic commerce clause jurisprudence and that the question presented was:

whether there is a rational basis for concluding that the drug-trafficking conduct here in the territorial waters of a foreign nation, by foreign nationals using a foreign-registered vessel, of drugs not bound for the United States, substantially affects United States commerce with foreign nations. The record contains no evidence to support this conclusion.

Thus, the United States can no longer bring criminal prosecutions under the MDLEA when there is no evidence of a United States nexus.

This conclusion also has potential implications for the federal trafficking statute which criminalizes drug trafficking on board a United States registered airplane.  21 United States Code Section 959(c). As with the MDLEA, the “airplane” statute does not require proof of a United States nexus for the drugs beyond the mere fact that the plane was registered in the United States. In United States v. Thompson, 921 F.3d 263 (D.C. Cir. 2019), the Court of Appeals held that by its express terms, the statute does not apply extraterritorially to the crime of Possession With Intent to Distribute a controlled substance. The trial court rejected the argument that the Foreign Commerce Clause did not provide a sufficient predicate for this assertion of extraterritorial jurisdiction, United States v. Knowles, 197 F.Supp.2d 143 (D.D.C. 2016), but the issue was not raised on appeal. See also, e.g., United States v. Rojas, 812 F.3d 382 (5th Cir. 2016). In light of the Eleventh Circuit’s recent decision in Davila-Mendoza, however, prudent defense counsel would be well advised to argue that the statute is unconstitutional. See 12 Cr. 266; United States v. Knowles, DE 128 (Motion To Dismiss).



Robert Feitel is a former federal prosecutor and now defense attorney in private practice specializing in the representation of defendants in international criminal cases. He can be reached through his website: www.rfeitellaw.com