Drug Trafficking In Another Country Cannot Be Prosecuted in the United States – U.S. v. Bellaizac-Hurtado

November 14, 2012 by David S. Seltzer

Here in South Florida, we are a kind of a gateway to the Caribbean and Latin America, which means we see a lot of immigrants as well as a lot of travelers to those countries. This is culturally and economically rewarding, but it also means that we sometimes end up as a gateway for international crimes, including drug trafficking. In United States v. Bellaizac-Hurtado, the federal government prosecuted four people who were arrested in Panamanian waters with a boat containing 760 kilograms of cocaine. The Panamanian government consented to their prosecution in the U.S., and a Southern Florida federal court convicted them of violating U.S. drug laws, subjecting them to U.S. prosecution through the Maritime Drug Law Enforcement Act. The defendants appealed to the Eleventh U.S. Circuit Court of Appeals, which agreed that the Act is not an “Offense against the Law of Nations.”

The U.S. Coast Guard was patrolling Panamanian waters in 2010 when it saw a wooden fishing vessel operating without lights or a flag. The Coast Guard alerted the Panamanian Navy, which chased the vessel until its occupants abandoned ship and fled on land into the jungle. Panamanian authorities later sent Yimmi Bellaizac-Hurtado, Luis Carlos Riascos-Hurtado, Pedro Anduigo-Rodallega and Albiero Gonzalez-Valois to Florida for prosecution, where they were indicted for conspiracy and possession of cocaine with intent to distribute. They moved to dismiss, saying the Maritime Act was unconstitutional as applied to them. The district court adopted the magistrate’s recommendation to deny it, reasoning that Congress and several courts have determined that drug trafficking is universally condemned by nations with “reasonably developed” legal systems. The defendants made a conditional guilty plea and appealed after conviction.

On appeal, the defendants argued that this use of the Act exceeds Congress’s Constitutional powers. The Act comes from Congress’s power to “define and punish… Offences against the Law of Nations,” but the Eleventh noted that this is limited by “customary international law.” And the appeals court found that drug trafficking is not a violation of customary international law, because the international community has not treated it as one. Indeed, the court noted, several nations that benefit from the drug trade have ignored relevant treaty provisions. Nor was it a violation when the Constitution was written, the court said, because drug trafficking was not a concern in those days. In so ruling, the majority rejected a concurring opinion saying drug trafficking is not an offense of universal jurisdiction and thus the entire Offences clause should not apply.

This issue rarely comes up in the courts, because of course the vast majority of federal criminal charges apply to events that took place in the United States or the portion of the ocean immediately surrounding it. In fact, the Eleventh Circuit notes that this prosecution is rare because most similar cases are prosecuted under the better-established power of Congress to prosecute “felonies on the high seas.” However, as a criminal defense lawyer, I appreciate that the Eleventh Circuit took a careful approach to giving Congress too much power. As the court noted, a broader interpretation could allow Congress to regulate nearly anything by defining it as an offense against customary international law. That may be an overreach of our power—and it may be looked upon poorly by other nations.

Seltzer Law, P.A., represents clients throughout Florida who are charged with serious crimes, including drug crimes and federal charges. If you’d like to tell us about your situation and learn more about your rights, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online for a free consultation.

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