         Case: 11-14049   Date Filed: 11/06/2012        Page: 1 of 35

                                                                           [PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

            Nos. 11-14049; 11-14227; 11-14310; 11-14311
                    ________________________

                  D.C. Docket No. 1:10-cr-20196-JLK

UNITED STATES OF AMERICA,

                                llllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,

                                 versus

YIMMI BELLAIZAC-HURTADO,
a.k.a. Fausto,
a.k.a. El Zarco,
a.k.a. El Colorado,
LUIS CARLOS RIASCOS-HURTADO,
PEDRO ANGULO-RODALLEGA,
a.k.a. Pepito,
ALBEIRO GONZALEZ-VALOIS,
a.k.a. Tocayo,

                          llllllllllllllllllllllllllllllllllllllDefendants - Appellants.

                     ________________________

              Appeals from the United States District Court
                  for the Southern District of Florida
                     ________________________
                          (November 6, 2012)
               Case: 11-14049       Date Filed: 11/06/2012       Page: 2 of 35

Before BARKETT and PRYOR, Circuit Judges, and BATTEN, * District Judge.

PRYOR, Circuit Judge:

       This appeal presents a novel issue about the scope of congressional power to

proscribe conduct abroad: whether the Maritime Drug Law Enforcement Act, 46

U.S.C. §§ 70503(a), 70506, exceeds the power of Congress to “define and

punish . . . Offences against the Law of Nations,” U.S. Const. Art. I, § 8, cl. 10, as

applied to the drug-trafficking activities of Yimmi Bellaizac-Hurtado, Pedro Felipe

Angulo-Rodallega, Albeiro Gonzalez-Valois, and Luis Carlos Riascos-Hurtado in

the territorial waters of Panama. Because we conclude that drug trafficking is not

an “Offence[] against the Law of Nations” and that Congress cannot

constitutionally proscribe the defendants’ conduct under the Offences Clause, we

vacate their convictions.

                                    I. BACKGROUND

       During a routine patrol of Panamanian waters in 2010, the United States

Coast Guard observed a wooden fishing vessel operating without lights and

without a flag. The Coast Guard informed the Panamanian National Aero-Naval

Service of the vessel. The Panamanian Navy pursued the vessel until its occupants

abandoned the vessel and fled into a jungle. When members of the Panamanian

Navy searched the vessel the next morning, they discovered approximately 760
*
Honorable Timothy C. Batten, Sr., United States District Court for the Northern District of
Georgia, sitting by designation.


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kilograms of cocaine. The Panamanian National Frontier Service searched on land

for the occupants of the abandoned vessel and arrested Bellaizac-Hurtado, Angulo-

Rodallega, Gonzalez-Valois, and Riascos-Hurtado in various locations on the

beach and in the jungle. After an exchange of diplomatic notes, the Foreign

Ministry of the Republic of Panama consented to the prosecution of the four

suspects in the United States.

      A federal grand jury indicted Bellaizac-Hurtado, Angulo-Rodallega,

Gonzalez-Valois, and Riascos-Hurtado for conspiracy to possess with intent to

distribute five kilograms or more of cocaine, and for actual possession with intent

to distribute five kilograms or more of cocaine, on board a vessel subject to the

jurisdiction of the United States. See 46 U.S.C. §§ 70503(a), 70506; 21 U.S.C.

§ 960(b)(1)(B). The defendants moved to dismiss the indictment “based upon the

lack of jurisdiction and the unconstitutionality of the Maritime Drug Law

Enforcement Act as applied to [their] conduct.” A magistrate judge recommended

that the motion be denied. The magistrate judge reasoned that the district court had

jurisdiction because the defendants were operating a stateless vessel and that the

Act was constitutional as applied because Congress and several courts had

determined that drug trafficking was “universally condemned” by various nations

with “reasonably developed” legal systems. The district court adopted the

magistrate judge’s report. The district court also explained that section 70505 of


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the Act “limits the actors that have standing to challenge the validity of an

MDLEA prosecution on international law grounds.”

      The defendants conditionally pleaded guilty to the conspiracy charge. The

district court sentenced Bellaizac-Hurtado to imprisonment for 90 months,

supervised release for five years, and a $100 fine; Angulo-Rodallega to

imprisonment for 36 months, supervised release for two years, and a $100 fine;

Gonzalez-Valois to imprisonment for 36 months, supervised release for two years,

and a $100 fine; and Riascos-Hurtado to imprisonment for 25 months, supervised

release for two years, and a $100 fine. The defendants appealed their convictions

on the ground that the Act, as applied, exceeded the power of Congress under

Article I, Section 8, Clause 10. We consolidated their appeals.

                          II. STANDARD OF REVIEW

      “We review de novo the legal question of whether a statute is

constitutional.” United States v. Tinoco, 304 F.3d 1088, 1099 (11th Cir. 2002).

                                III. DISCUSSION

      The United States argues that the Maritime Drug Law Enforcement Act, as

applied to the defendants, is a constitutional exercise of the power granted to

Congress “[t]o define and punish Piracies and Felonies committed on the high

Seas, and Offences against the Law of Nations.” U.S. Const., Art. I., § 8, cl. 10.

The Supreme Court has interpreted that Clause to contain three distinct grants of


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power: the power to define and punish piracies, the power to define and punish

felonies committed on the high seas, and the power to define and punish offenses

against the law of nations. See United States v. Smith, 18 U.S. (5 Wheat.) 153,

158–59 (1820). The first two grants of power are not implicated here: piracy is, by

definition, robbery on the high seas, United States v. Furlong, 18 U.S. (5 Wheat.)

184, 198 (1820), and the Felonies Clause is textually limited to conduct on the high

seas, see U.S. Const., Art. I, § 8, cl. 10. The United States relies instead on the

third grant—the Offences Clause—as the source of congressional power to

proscribe the defendants’ drug trafficking in the territorial waters of Panama. The

question whether Congress has the power under the Offences Clause to proscribe

drug trafficking in the territorial waters of another nation is an issue of first

impression in our Court.

      We divide our discussion in two parts. First, we explain why the power of

Congress to define and punish conduct under the Offences Clause is limited by

customary international law. Second, we explain why drug trafficking is not a

violation of customary international law and, as a result, falls outside of the power

of Congress under the Offences Clause.

    A. Customary International Law Limits the Power of Congress to Define and
                     Punish Crimes Under the Offences Clause.

      The power granted to Congress in the Offences Clause is limited by

customary international law for two reasons. First, the related Supreme Court

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precedent and the text, history, and structure of the Constitution confirm that the

power to “define” is limited by the law of nations. Second, the phrase “Offences

against the Law of Nations” is understood today to mean violations of customary

international law.

  1. The Power of Congress to Define “Offences against the Law of Nations” Is
          Limited to Established Offenses Against the Law of Nations.

      The power to “define” offenses against the law of nations does not grant

Congress the authority to punish conduct that is not a violation of the law of

nations. The Supreme Court has explained that the power to “define” in Article I,

Section 8, Clause 10, is limited by the three specific subjects of the Clause. For

example, the Supreme Court has explained that Congress may not define murder as

“piracy” to punish it under the Piracies Clause:

      Nor is it any objection to this opinion, that the law declares murder to
      be piracy. These are things so essentially different in their nature, that
      not even the omnipotence of legislative power can confound or
      identify them. Had Congress, in this instance, declared piracy to be
      murder, the absurdity would have been felt and acknowledged; yet,
      with a view to the exercise of jurisdiction, it would have been more
      defensible than the reverse, for, in one case it would restrict the
      acknowledged scope of its legitimate powers, in the other extend it. If
      by calling murder piracy, it might assert a jurisdiction over that
      offence committed by a foreigner in a foreign vessel, what offence
      might not be brought within their power by the same device? The
      most offensive interference with the governments of other nations
      might be defended on the precedent. Upon the whole, I am satisfied
      that Congress neither intended to punish murder in cases with which
      they had no right to interfere, nor leave unpunished the crime of
      piracy in any cases in which they might punish it . . . .


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Furlong, 18 U.S. (5 Wheat.) at 198. And, on the issue whether Congress must

declare the conduct to be an offense against the law of nations to exercise its power

under the Offences Clause, the Supreme Court has explained that “[w]hether the

offense as defined is an offense against the law of nations depends on the thing

done, not on any declaration to that effect by congress.” United States v. Arjona,

120 U.S. 479, 488, 7 S. Ct. 628, 632 (1887).

      This precedent is consistent with the original understanding of the word

“define.” During the Founding period, the word “define” meant “[t]o give the

definition; to explain a thing by its qualities” and “[t]o circumscribe; to mark

limits.” Samuel Johnson, A Dictionary of the English Language, at DEF, DEF

(10th ed. 1792); see also Thomas Sheridan, A General Dictionary of the English

Language, at DEF, DEF (1780) (“To Define . . . . To give the definition, to explain

a thing by its qualities; to circumscribe, to mark the limit.”). These definitions

reveal that the word “define” would not have been understood to grant Congress

the power to create or declare offenses against the law of nations, but instead to

codify and explain offenses that had already been understood as offenses against

the law of nations.

      The records of the debates at the Constitutional Convention confirm that the

Framers also understood the word “define” to be limited by international law. In

an early draft of the clause, Congress would have been given the power “[t]o


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declare the law and punishment of piracies and felonies &c.” 2 Records of the

Federal Convention of 1787, at 315 (Max Farrand, ed. 1966). After Gouverneur

Morris successfully moved to strike out “declare the law” and insert “punish,”

James Madison and Edmund Randolph moved to insert the power to “define.” Id.

at 316. Morris suggested that they should use the word “designate” as opposed to

“define” because he felt that “define” was limited to the preexisting meaning of

felonies. Id. But the delegates rejected this suggestion and adopted Madison and

Randolph’s proposal to insert the more limited word “define.” Id. About one

month later, the delegates considered a new draft of the clause, which granted

Congress the power “[t]o define & punish piracies and felonies on the high seas,

and ‘punish’ offences against the law of nations.” Id. at 614. Morris moved to

strike out “punish” before the offenses provision, so that the offenses could also be

definable. Id. Wilson objected on the ground that “[t]o pretend to define the law

of nations which depended on the authority of all the Civilized Nations of the

World, would have a look of arrogance” and “would make us ridiculous.” Id. at

615. Morris responded by noting that “[t]he word define is proper when applied to

offences in this case; the law of nations being often too vague and deficient to be a

rule.” Id. (emphasis omitted). Although this last sentence might suggest that

Morris believed that the word define would enable Congress to create offenses not

already recognized as contrary to the law of nations, his statement a month earlier


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that the word “define” would limit the “law of nations” to its preexisting meaning

proves otherwise. See J. Andrew Kent, Congress’s Under-Appreciated Power to

Define and Punish Offenses Against the Law of Nations, 85 Tex. L. Rev. 843, 899

(2007) (explaining that “Morris’s desire for prior notice and clear definition

sound[ed] in the due process and legality principle concerns that we still have

today about vague criminal statutes”). The insertion of the power to “define”

enabled Congress to provide notice to the people through codification; it did not

enable Congress to create offences that were not recognized by the law of nations.

      The structure of the Constitution also confirms the limited power of

Congress under the Offences Clause. If Congress could define any conduct as

“piracy” or a “felony” or an “offence against the law of nations,” its power would

be limitless and contrary to our constitutional structure. “The Constitution creates

a Federal Government of enumerated powers. As James Madison wrote: ‘The

powers delegated by the proposed Constitution to the federal government are few

and defined. Those which are to remain in the State governments are numerous

and indefinite.’” United States v. Lopez, 514 U.S. 549, 552, 115 S. Ct. 1624, 1626

(1995) (citation omitted) (quoting The Federalist No. 45, pp. 292–93 (C. Rossiter

ed. 1961)). “The enumeration of powers is also a limitation of powers, because the

enumeration presupposes something not enumerated. The Constitution’s express

conferral of some powers makes clear that it did not grant others. And the Federal


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Government can exercise only the powers granted to it.” Nat’l Fed’n of Indep.

Bus. v. Sebelius, __ U.S. __, 132 S. Ct. 2566, 2577 (2012) (internal quotation

marks and citation omitted). For that reason, we must interpret the Clause as

consistent with the structure of our government of enumerated powers. See, e.g.,

United States v. Comstock, -- U.S. --, --, 130 S. Ct. 1949, 1956–58 (2010) (holding

that a federal criminal law must, at least, be necessary and proper to the

accomplishment of an enumerated power); see also Charles D. Siegal, Deference

and Its Dangers: Congress’ Power to ‘Define . . . Offenses Against the Law of

Nations’, 21 Vand. J. Transnat’l L. 865, 873–74 (1988) (“Congress possesses some

discretion in establishing the boundaries of offenses that are unclear, but Congress

may not create offenses where none exist.”). For these reasons, we look to

international law to ascertain the scope of power granted to Congress under the

Offences Clause.

   2. The Phrase “Offences Against the Law of Nations” Is Synonymous With
                  Violations of Customary International Law.

      We and our sister circuits agree that the eighteenth-century phrase, the “law

of nations,” in contemporary terms, means customary international law.

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009), abrogated on other

grounds by Mohamad v. Palestinian Auth., __ U.S. __, 132 S. Ct. 1702, 1706 &

n.2 (2012); Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 738 (9th Cir.

2008); Flores v. S. Peru Copper Corp., 414 F.3d 233, 237 n.2 (2d Cir. 2003). And

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although the Supreme Court has never held that the “law of nations” is

synonymous with “customary international law,” its decision in Sosa v. Alvarez-

Machain, 542 U.S. 692, 124 S. Ct. 2739 (2004), confirms that it is. See id. at 735

(evaluating whether the “prohibition of arbitrary arrest has attained the status of

binding customary international law” to determine whether Alvarez could bring a

claim under the Alien Tort Statute). These decisions interpreted the Alien Tort

Statute, instead of the Offences Clause, but the Alien Tort Statute was enacted by

the First Congress and uses the same term of art—“the law of nations”—that is

used in the Offences Clause. Given the proximity in time between the writing of

these provisions and the substantial overlap between the delegates of the

Constitutional Convention and the members of the First Congress, one would

expect that the Framers understood the term “the law of nations” in the Offences

Clause and the Alien Tort Statute to mean the same thing. The more difficult

question involves how to determine whether a crime violates customary

international law.

      Our Court has referred to customary international law several times, but we

have never defined it. See, e.g., Sinaltrainal, 578 F.3d at 1261; Aquamar S.A. v.

Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1294–95 (11th Cir. 1999);

Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996); Garcia-Mir v. Meese,

788 F.2d 1446, 1448 (11th Cir. 1986); United States v. Postal, 589 F.2d 862, 869


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(5th Cir. 1979). Five of our sister circuits have adopted the definition in the

Restatement (Third) of Foreign Relations, which provides that customary

international law is the “general and consistent practice of states followed by them

from a sense of legal obligation,” Restatement (Third) of Foreign Relations

§ 102(2) (1987). See Aziz v. Alcolac, Inc., 658 F.3d 388, 399 (4th Cir. 2011);

United States v. Struckman, 611 F.3d 560, 576 (9th Cir. 2010); Buell v. Mitchell,

274 F.3d 337, 372 (6th Cir. 2001); Sampson v. Federal Republic of Germany, 250

F.3d 1145, 1149 (7th Cir. 2001); Comm. of U.S. Citizens Living in Nicar. v.

Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988).

      We agree with our sister circuits that customary international law is

determined by examining state practice and opinio juris:

      Customary international law . . . consists of two components. First,
      there must be a general and consistent practice of states. This does
      not mean that the practice must be universally followed; rather it
      should reflect wide acceptance among the states particularly involved
      in the relevant activity. Second, there must be a sense of legal
      obligation, or opinio juris sive necessitatis. In other words, a practice
      that is generally followed but which states feel legally free to
      disregard does not contribute to customary law; rather, there must be a
      sense of legal obligation. States must follow the practice because they
      believe it is required by international law, not merely because that
      they think it is a good idea, or politically useful, or otherwise
      desirable.

Buell, 274 F.3d at 372 (internal quotation marks and citations omitted); see also

Aziz, 658 F.3d at 399; Doe v. Exxon Mobil Corp., 654 F.3d 11, 54 (D.C. Cir.

2011); Swarna v. Al-Awadi, 622 F.3d 123, 144 n.12 (2d Cir. 2010); Struckman,

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611 F.3d at 576; Sampson, 250 F.3d at 1149. As evidence of customary

international law, we consider “the works of jurists and commentators who by

years of labor, research, and experience have made themselves peculiarly well

acquainted with the subjects of which they treat.” See Sosa, 542 U.S. at 734, 124

S. Ct. at 2766–67 (quoting The Paquete Habana, 175 U.S. 677, 700, 20 S. Ct. 290,

299 (1900)).

      Private criminal activity will rarely be considered a violation of customary

international law because private conduct is unlikely to be a matter of mutual legal

concern:

      Matters of “mutual” concern between States are those involving
      States’ actions performed . . . towards or with regard to the other—
      matters that, as Judge Friendly aptly noted, concern the dealings of
      States “inter se.” Matters of “several” concern among States are
      matters in which States are separately and independently interested.
      Even if certain conduct is universally proscribed by States in their
      domestic law, that fact is not necessarily significant or relevant for
      purposes of customary international law. . . . Therefore, for example,
      murder of one private party by another, universally proscribed by the
      domestic law of all countries (subject to varying definitions), is not
      actionable . . . as a violation of customary international law because
      the nations of the world have not demonstrated that this wrong is of
      mutual, and not merely several, concern.

Flores, 414 F.3d at 249 (internal quotation marks and citations omitted).

      Courts must exercise restraint in defining violations of customary

international law because customary international law is, by its nature, difficult to

determine:


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      The determination of what offenses violate customary international
      law . . . is no simple task. Customary international law is discerned
      from myriad decisions made in numerous and varied international and
      domestic arenas. Furthermore, the relevant evidence of customary
      international law is widely dispersed and generally unfamiliar to
      lawyers and judges. These difficulties are compounded by the fact
      that customary international law—as the term itself implies—is
      created by the general customs and practices of nations and therefore
      does not stem from any single, definitive, readily-identifiable source.
      All of these characteristics give the body of customary international
      law a soft indeterminate character that is subject to creative
      interpretation.

Flores, 414 F.3d at 247–49 (internal quotation marks and citations omitted))); see

Aziz, 658 F.3d at 400 (4th Cir. 2011); Flomo v. Firestone Natural Rubber Co., 643

F.3d 1013, 1015 (7th Cir. 2011).

     B. Because Drug Trafficking Is Not a Violation of Customary International
       Law, Congress Lacks the Power to Proscribe Drug Trafficking Under the
                                  Offences Clause.

      The text of the Offences Clause does not resolve the question whether it

limits the power of Congress to define and punish only those violations of

customary international law that were established at the Founding or whether the

power granted under the Clause expands and contracts with changes in customary

international law. The Supreme Court has not resolved the issue in either of the

two cases in which it upheld federal statutes as a constitutional exercise of the

power granted under the Offences Clause. See Ex Parte Quirin, 317 U.S. 1, 27–28,

63 S. Ct. 2, 10–11 (1942); Arjona, 120 U.S. at 488, 7 S. Ct. at 632. In both cases,

the Court explained that the conduct at issue had been condemned as a violation of

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the law of nations since the time of the Founding. Scholars have long debated

whether the Offences Clause is affected by the later development of customary

international law. See J. Andrew Kent, Congress’s Under-Appreciated Power to

Define and Punish Offenses Against the Law of Nations, 85 Tex. L. Rev. 843, 847

(2007) (“[B]ecause the Constitution created a government of limited and

enumerated powers, it seems potentially problematic that Congress’s regulatory

powers under the Law of Nations Clause could change or expand as a concomitant

of expanding or changing understandings of what today constitutes customary

international law or punishable ‘offences’ against that law.”); Charles D. Siegal,

Deference and Its Dangers: Congress’ Power to ‘Define . . . Offenses Against the

Law of Nations’, 21 Vand. J. Transnat’l L. 865, 869 (1988) (“The limited evidence

available suggests that the framers knew that the list of international law offenses

would expand with time. It is doubtful, however, that they anticipated several

developments which would undermine the balance implicit in the offenses

clause.”); Beth Stephens, Federalism and Foreign Affairs: Congress’s Power to

“Define and Punish . . . Offenses Against the Law of Nations”, 42 Wm. & Mary L.

Rev. 447, 454 (2000) (“[T]he constitutional language is not limited to the

particular international law norms existing at the time the Constitution was ratified,

or to any categories indicated by the types of violations recognized in the




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eighteenth century, but rather evolves over time as international law continues to

develop.”).

      We need not decide whether the power granted to Congress under the

Offences Clause changes with the evolution of customary international law

because, under either approach, the result is the same. Drug trafficking was not a

violation of customary international law at the time of the Founding, and drug

trafficking is not a violation of customary international law today.

     1. Drug Trafficking Was Not a Violation of the Law of Nations During the
                                 Founding Period.

      When the Constitution was ratified, the range of conduct that could be

viewed as a violation of customary international law was even more limited than it

is today. In his Commentaries on the Laws of England, William Blackstone

explained that, because offenses against the law of nations are “principally incident

to whole states or nations,” they “can rarely be the object of the criminal law of

any particular state.” 4 William Blackstone, Commentaries at *68. As a result,

“[t]he principal offences against the law of nations [that could be committed by

private individuals and punished criminally] . . . [we]re of three kinds: 1. Violation

of safe conducts; 2. Infringement of the rights of ambassadors; and, 3. Piracy.” Id.;

see also Sosa, 542 U.S. at 715, 124 S. Ct. at 2756. Although the Supreme Court

added counterfeiting of foreign currency and violations of the laws of war to this

list in Arjona and Ex Parte Quirin, respectively, those norms were also discussed in

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Vattel’s influential treatise on the law of nations from that period. See 120 U.S. at

484, 7 S. Ct. at 630 (quoting Vattel for the principal that sovereigns had a duty to

prosecute false coiners); Vattel, Law of Nations § 179 (1797) (explaining that

“[s]pies are generally condemned to capital punishment, and with great justice,

since we have scarcely any other means of guarding against the mischief they may

do us,” and citing provisions that describe assassination and poisoning as contrary

to the laws of war).

      Drug trafficking was not a matter of international concern in 1789, let alone

a violation of customary international law. Vattel’s Law of Nations contains no

references to narcotics, opium, or drug trafficking. And the international

community did not even begin its efforts to limit the drug trade until the turn of the

twentieth century. As the United Nations Office on Drugs and Crime has

observed, “[p]rior to the 1909 Shanghai Opium Commission, national governments

and state-sponsored monopolies played an active role in peddling opium across

borders. The profits to be made were enormous, generating as much as half of the

national revenues of some island states serving as redistribution centres.” United

Nations Office on Drugs and Crime, A Century of International Drug Control 7,

(2008). Because violations of customary international law during the Founding

Period were so limited, and narcotics then were not even a subject of international




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concern, we cannot conclude that drug trafficking was an offense against the law

of nations when the Constitution was ratified.

 2. Drug Trafficking Is Not a Violation of Customary International Law Today.

      Drug trafficking is also not a violation of contemporary customary

international law. Although a number of specially affected States—States that

benefit financially from the drug trade—have ratified treaties that address drug

trafficking, they have failed to comply with the requirements of those treaties, and

the international community has not treated drug trafficking as a violation of

contemporary customary international law. Scholars also agree that drug

trafficking is not a violation of contemporary customary international law.

      The United States argues that the widespread ratification of the 1988 United

Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances establishes that drug trafficking violates a norm of customary

international law, but we disagree. Treaties may constitute evidence of customary

international law, but “will only constitute sufficient proof of a norm of customary

international law if an overwhelming majority of States have ratified the treaty, and

those States uniformly and consistently act in accordance with its principles.”

Flores, 414 F.3d at 256. “Of course, States need not be universally successful in

implementing the principle in order for a rule of international law to arise. . . . But

the principle must be more than merely professed or aspirational.” Id. at 248. And


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as the International Court of Justice has explained, a customary international law

norm will not form if specially affected States have not consented to its

development through state practice consistent with the proposed norm. North Sea

Continental Shelf Cases (Fed. Republic of Ger. v. Den.; Fed. Republic of Ger. v.

Neth.), 1969 I.C.J. 3, 43 (Feb. 20).

      The 1988 Convention was ratified by an overwhelming majority of States

and currently has 188 States Parties, U.N. Treaty Collection Database,

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VI-

19&chapter=6&lang=en, but the drug trade continues to flourish in many specially

affected States despite their ratification of the Convention. In 2011, the President

of the United States designated 21 of these States Parties as “major drug transit or

major illicit drug producing countries.” Memorandum from Barack Obama,

President of the United States, to Hillary Rodham Clinton, Secretary of State (Sept.

15, 2011). And the President described Bolivia, Burma, and Venezuela “as

countries that have failed demonstrably during the previous 12 months to make

substantial efforts to adhere to their obligations under international

counternarcotics agreements.” Id. The International Narcotic Control Board—the

independent, quasi-judicial body established by the United Nations to monitor

compliance with international drug treaties—has reported that drug-related

corruption “has increasingly weakened the criminal justice systems in Central


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America and the Caribbean.” International Narcotics Control Board, Report of the

International Narcotics Control Board for 2011, at 52, E/INCB/2011/1 (Feb. 28,

2012). The 2011 Report of the Board found that “[c]orruption and limited law

enforcement capacity in Central America and the Caribbean have facilitated the

use of smuggling channels and drug trafficking activities.” Id. The Board also has

expressed concern about corruption and lack of progress in reducing illicit opium

poppy cultivation in Afghanistan. Id. at 17.

      The practice of these specially affected States evidences that drug trafficking

is not yet considered a violation of customary international law. Governments

corrupted by the interests of drug traffickers are not simply unable to prosecute

drug traffickers, but are often unwilling to do so because their economies are

dependent upon the drug trade. Cf. United Nations Office on Drugs and Crime,

Estimating Illicit Financial Flows Resulting from Drug Trafficking and Other

Transnational Organized Crimes: Research Report 65–70 (Oct. 2011) (calculating

the gross profits of drug trafficking and allocating those profits to countries in

South America and to Afghanistan). The persistent failure of these specially

affected States to comply with their treaty obligations suggests that they view the

curtailment of drug trafficking as an aspirational goal, not a matter of mutual legal

obligation under customary international law.




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      The international community has also distinguished drug trafficking from

established violations of customary international law in its efforts to combat drug

trafficking. Comparing the 1988 Drug Convention with the Genocide Convention

is instructive. Article 2 of the 1988 Drug Convention described drug trafficking as

conduct “having an international dimension.” Convention Against Illicit Traffic in

Narcotic Drugs and Psychotropic Substances, art. 2(1), Dec. 19, 1988, 1582

U.N.T.S. 95, 28 I.L.M. 497. But Article 1 of the Genocide Convention defined

genocide as a “crime under international law.” Convention on the Prevention and

Punishment of the Crime of Genocide, art. 1, Dec. 9, 1948, 78 U.N.T.S. 277, 280.

And, unlike genocide, the international community has addressed drug trafficking

at the domestic, instead of international, level. The 1988 Drug Convention, for

example, relied on domestic enforcement mechanisms to combat drug trafficking

and prohibited States Parties from interfering in the domestic enforcement efforts

of other States Parties. Convention Against Illicit Traffic in Narcotic Drugs and

Psychotropic Substances, art. 2, art. 3(1), Dec. 19, 1988, 1582 U.N.T.S. 95, 28

I.L.M. 497. By contrast, the Genocide Convention provided for trial by

international tribunals, in addition to domestic tribunals, and permitted States

Parties to appeal to the United Nations to take further action to prevent and

suppress genocide. Convention on the Prevention and Punishment of the Crime of

Genocide, art. 6, art. 8, Dec. 9, 1948, 78 U.N.T.S. 277, 280.


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      The drafters of the Rome Statute, which established the International

Criminal Court, considered and rejected a proposal to make drug trafficking a

crime within the jurisdiction of the court. Johan David Michels, Keeping Dealers

Off the Docket: The Perils of Prosecuting Serious Drug-Related Offences at the

International Criminal Court, 21 Fla. J. Int’l L. 449, 450 (2009). The negotiators

of the Rome Statute repeatedly referred to drug crimes as “treaty crimes” only, in

contrast to genocide, war crimes, and crimes against humanity, which are

violations of customary international law. U.N. Diplomatic Conference of

Plenipotentiaries on the Establishment of an International Criminal Court,

A/CONF.183/2 at 172, 176–78, 278 (June 15-July 17, 1998). And several

delegates expressed the opinion that drug crimes “had no place in a statute dealing

with international crimes” and should be addressed at the national level. Id. at 271;

see id. at 172, 176, 272.

      Scholars who have considered the status of drug trafficking in international

law agree too that it is not a violation of customary international law. Antonio

Cassesse, a noted international criminal law scholar, has explained, for example,

that drug trafficking is not an international crime because it is not a crime under

customary international law and is not a matter of mutual concern:

      [T]he notion of international crimes does not include illicit traffic in
      narcotic drugs and psychotrophic substances . . . . For one thing, this
      broad range of crimes is only provided for in international treaties or
      resolutions of international organizations, not in customary law. For

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      another, normally it is private individuals or criminal organizations
      which perpetrate these offences; States fight against them, often by
      joint official action. In other words, as a rule these offences are
      committed against States. Usually they do not involve States as such
      or, if they involve State agents, these agents typically act for private
      gain, perpetrating what national legislation normally regards as
      ordinary crimes.

Antonio Cassesse, International Criminal Law 24 (2003). Another scholar has

explained that “there is a vast difference between conduct that all nations

criminalize and international crimes. Uniform condemnation and criminalization

does not make something an international crime. Murder and rape, and indeed,

most malum in se offenses, are also universally condemned, and all fall outside of

international law.” Eugene Kontorovich, Beyond the Article I Horizon:

Congress’s Enumerated Powers and Universal Jurisdiction Over Drug Crimes, 93

Minn. L. Rev. 1191, 1226 (2009). The question “whether drug trafficking will and

should ever rise to a level of a crime under general customary international law is

questionable and remains to be seen.” Claus Kress, The Crime of Aggression

Before the First Review of the ICC Statute, 20 Leiden J. Int’l Law 851, 853 & n.8

(2007).

      The United States argues that this appeal is controlled by our decision in

United States v. Saac, 632 F.3d 1203 (11th Cir. 2011), but we disagree. In Saac,

we considered a constitutional challenge to the Drug Trafficking Vessel

Interdiction Act, which provides for the punishment of any person who


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“knowingly operates . . . or embarks in any submersible vessel or semi-submersible

vessel that is without nationality” on the high seas “with the intent to evade

detection.” 18 U.S.C. § 2285(a). In Saac, we held that Congress had the authority,

under the High Seas Clause, to prohibit this conduct. 632 F.3d at 1210–11. We

did not hold that drug trafficking was an “Offence against the Law of Nations.”

Instead, we held that Congress had the authority under the High Seas Clause to

punish the operation of these stateless vessels. Saac is inapposite.

      Moreover, none of our earlier precedents about the extraterritorial

application of our drug trafficking laws have answered the constitutional question

presented in this appeal. Indeed, all of the appeals in which we have considered

the constitutionality of those laws involved conduct on the high seas. See, e.g.,

United States v. Ibarguen-Mosquera, 634 F.3d 1370, 1376–77 (11th Cir. 2011);

Saac, 632 F.3d at 1209; United States v. Estupinan, 453 F.3d 1336, 1338–39 (11th

Cir. 2006); United States v. Rendon, 354 F.3d 1320, 1322–23 (11th Cir. 2003);

United States v. McPhee, 336 F.3d 1269, 1271–73 (11th Cir. 2003); United States

v. Tinoco, 304 F.3d 1088, 1092–95 (11th Cir. 2002); United States v. Gonzalez,

776 F.2d 931, 933–34 (11th Cir. 1985); United States v. Romero-Galue, 757 F.2d

1147, 1149–51 (11th Cir. 1985); United States v. Marino-Garcia, 679 F.2d 1373,

1377–78 (11th Cir. 1982). Congress possesses additional constitutional authority

to restrict conduct on the high seas, including the Piracies Clause, U.S. Const., Art.


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I, § 8, cl. 10, the Felonies Clause, id., and the admiralty power, United States v.

Flores, 289 U.S. 137, 148–49, 53 S. Ct. 580, 582 (1933). And we have always

upheld extraterritorial convictions under our drug trafficking laws as an exercise of

power under the Felonies Clause. See Estupinan, 453 F.3d at 1339 (“[W]e readily

hold that the district court committed no error in failing to sua sponte rule that

Congress exceeded its authority under the Piracies and Felonies Clause in enacting

the [Maritime Drug Law Enforcement Act].”). But we have never held that

Congress has the power, under the Offences Clause, to apply our drug trafficking

laws to conduct in the territorial waters of another State.

      Judge Barkett argues in her special concurrence that we should decide this

appeal on the ground that drug trafficking is not an offense of universal jurisdiction

and, as a result, Congress may not punish the defendants’ conduct under the

Offences Clause, but that reasoning raises issues that we need not decide. We need

not decide whether the Offences Clause, which makes no mention of the

requirements of prescriptive jurisdiction under international law in its grant of

power to “define and punish . . . Offences against the Law of Nations,” U.S. Const.

Art. I, § 8, cl. 10, nevertheless incorporates those jurisdictional principles. We

need not decide whether Congress exempted prosecutions under the Act from any

limitations on prescriptive jurisdiction imposed by international law. See 46

U.S.C. § 70505 (“A person charged with violating section 70503 of this title . . .


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does not have standing to raise a claim of failure to comply with international law

as a basis for a defense. A claim of failure to comply with international law . . .

may be made only by a foreign nation. A failure to comply with international law

does not divest a court of jurisdiction and is not a defense to a proceeding under

this chapter.”). We need not decide whether the Constitution imposes any limit on

the power of Congress to violate international law. Cf. United States v. Pinto-

Mejia, 720 F.2d 248, 259 (2d Cir. 1983) (“[I]n enacting statutes, Congress is not

bound by international law. If it chooses to do so, it may legislate with respect to

conduct outside the United States, in excess of the limits posed by international

law. As long as Congress has expressly indicated its intent to reach such conduct,

a United States court would be bound to follow the Congressional direction unless

this would violate the due process clause of the Fifth Amendment.” (internal

quotation marks and citation omitted)). And we need not decide whether

international law would permit the exercise of prescriptive jurisdiction by the

United States over a stateless vessel in territorial waters when, as here, the

sovereign of those waters has consented to that jurisdiction. Cf. United States v.

Postal, 589 F.2d 862, 869 (5th Cir. 1979) (explaining that, in territorial waters,

“[t]he sovereignty of the coastal state extends into the territorial sea, with the

proviso that foreign vessels enjoy the right of innocent passage through it” (citation

omitted)); United Nations Convention on the Law of the Sea, art. 17, Dec. 10,


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1982, 1833 U.N.T.S. 397 (providing that only “ships of all States, whether coastal

or land-locked, enjoy the right of innocent passage through the territorial sea”

(emphasis added)); Convention on the Territorial Sea and the Contiguous Zone,

art. 14, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 11 (same).

      Because drug trafficking is not a violation of customary international law,

we hold that Congress exceeded its power, under the Offences Clause, when it

proscribed the defendants’ conduct in the territorial waters of Panama. And the

United States has not offered us any alternative ground upon which the Act could

be sustained as constitutional. As applied to these defendants, the Act is

unconstitutional, and we must vacate their convictions.

                               IV. CONCLUSION

      We VACATE the defendants’ convictions.




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BARKETT, Circuit Judge, specially concurring:

       I concur in the majority’s conclusion that drug trafficking does not constitute

an “Offence[] against the Law of Nations” and agree with much of the majority’s

opinion. However, my conclusion is based on my view that when conduct has no

connection to the United States, such as the conduct at issue here, it can only be

punished as an “Offence[] against the Law of Nations” if it is subject to universal

jurisdiction.

       I agree with the majority that the “Offences against the Law of Nations”

Clause must be interpreted in accordance with principles of customary

international law. That is to say, customary international law necessarily informs

what conduct may be punished as an “Offence[] against the Law of Nations.” 1

However, I believe that customary international law contains both a substantive

and a jurisdictional component. Thus, when analyzing Congress’s authority to

proscribe conduct under the Offences Clause in light of customary international

law, a court determines both whether the conduct at issue violates a “‘norm[ ] of

international law’” that is “‘well-established’ and ‘universally recognized,’” Velez

v. Sanchez, 693 F.3d 308, 316 (2d Cir. 2012) (internal citation omitted), and

       1
          The majority questions whether the Constitution imposes any limit on the power of
Congress to violate international law. However, Congress may only violate international law to
the extent that it is acting within the authority granted to it by the Constitution. In other words,
while Congress may violate international law when invoking its authority under other
constitutional clauses, it cannot do so when acting under the Offences Clause, which is defined
by customary international law. Congress cannot violate international law when the Constitution
says that it is bound by international law.

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whether customary international law provides some basis for the exercise of

jurisdiction over that conduct, Hartford Fire Ins. Co. v. California, 509 U.S. 764,

815 (1993) (Scalia, J., dissenting) (“‘[T]he law of nations,’ or customary

international law, includes limitations on a nation’s exercise of its jurisdiction to

prescribe.”). Only conduct that violates a norm of customary international law and

is subject to United States jurisdiction under customary international law principles

may be prosecuted in United States courts as an “Offence[] against the Law of

Nations.”2

       Customary international law recognizes five theories of jurisdiction:

territorial, protective, national, passive personality, and universality. See United

States v. Benitez, 741 F.2d 1312, 1316 (11th Cir. 1984). The first four theories

permit nations to exercise jurisdiction over offenses that implicate domestic

interests—that is, offenses that occur within a nation’s territory and those that

occur outside the territory but have effects within it. In contrast, the universality

theory authorizes any nation to exercise jurisdiction over certain offenses, even

when no domestic interests are directly implicated. Here, because the drug

       2
         That is not to say, as the majority seems to suggest, that I consider a failure to comply
with jurisdictional principles under international law to be a defense to prosecution under the
Maritime Drug Law Enforcement Act (“MDLEA”). See 46 U.S.C. § 70505 (“A claim of failure
to comply with international law does not divest a court of jurisdiction and is not a defense to a
proceeding under this chapter.”). Rather, to the extent that international law is incorporated into
the Offences Clause of the Constitution, jurisdictional principles of international law must
necessarily be considered in determining whether Congress has the authority to proscribe a
defendant’s conduct under that Clause.


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trafficking occurred outside of United States territory and had no direct impact on

the interests of the United States, the only potential basis for jurisdiction is the

universality principle. 3

       Although the class of offenses that triggers universal jurisdiction has

expanded over the last century, the scope of universal jurisdiction remains

exceedingly narrow:

       There are two premises underlying universal jurisdiction. The first
       involves the gravity of the crime. Crimes subject to the universality
       principle are so threatening to the international community or so
       heinous in scope and degree that they offend the interest of all
       humanity, and any state may, as humanity’s agent, punish the
       offender. The second involves the locus delicti (place of the act).
       Crimes subject to the universality principle occur in territory over
       which no country has jurisdiction or in situations in which the
       territorial State and State of the accused’s nationality are unlikely to
       exercise jurisdiction, because, for example, the perpetrators are State
       authorities or agents of the State.

Michael P. Scharf, Application of Treaty-Based Universal Jurisdiction to Nationals

of Non-Party States, 35 New Eng. L. Rev. 363, 368-69 (2001).




       3
          Conduct can also be punished as an “Offence[] against the Law of Nations” if there is a
jurisdictional basis other than universal jurisdiction. For example, in United States v. Arjona,
120 U.S. 479 (1887), the Supreme Court held that counterfeiting of foreign securities was an
“Offence[] against the Law of Nations” where the conduct took place within the United States
and the United States, thus, had territorial jurisdiction. It would be a different scenario if the act
of counterfeiting foreign securities, albeit a violation of a norm of international law, had no
connection to the United States and occurred in another country. I do not believe the United
States could prosecute it as an “Offence[] against the Law of Nations” without a jurisdictional
basis.


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             Case: 11-14049      Date Filed: 11/06/2012    Page: 31 of 35

      The government argues that drug trafficking is an “Offence[] against the

Law of Nations” that is subject to universal jurisdiction because Congress, when

enacting the MDLEA, stated that drug trafficking is “universally condemned” and

is a “threat to the security and societal well-being of the United States[.]” 46

U.S.C. § 70501. However, it is not Congress’s declaration that establishes conduct

as subject to universal jurisdiction under customary international law. Rather, the

scope of universal jurisdiction is “ascertained by consulting the works of jurists,

writing professedly on public law; or by the general usage and practice of nations;

or by judicial decisions recognising and enforcing that law.” United States v.

Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820); see also Anthony J. Colangelo, The

Legal Limits of Universal Jurisdiction, 47 Va. J. Int’l L. 149, 150 (2006) (“If

national courts prosecute on grounds of universal jurisdiction, they must use the

international legal definitions . . . of the universal crimes they adjudicate;

otherwise, their exercise of universal jurisdiction contradicts the very international

law upon which it purports to rely.”).

      Furthermore, universal condemnation is by itself insufficient to place an

offense within the scope of universal jurisdiction. As noted by the Supreme Court

in United States v. Furlong, murder may be universally condemned, but it is not

subject to universal jurisdiction. 18 U.S. (5 Wheat.) 184, 197 (1820) (“[P]unishing

[murder] when committed within the jurisdiction . . . of another nation[] has not


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been acknowledged as a right, much less an obligation. It is punishable under the

laws of each State . . . .”). For universal jurisdiction to apply to an offense, the

international community must reach both a “substantive agreement” that the

offense is “universally condemned” and a “procedural agreement that universal

jurisdiction exists to prosecute [that offense].” Sosa v. Alvarez-Machain, 542 U.S.

692, 762 (2004) (Breyer, J., concurring). Thus, “because universal jurisdiction

over a crime is established by international consensus, a state can only invoke

universal jurisdiction for those acts that fall within the specific ‘subset of

[universally condemned] behavior’ that the international community has agreed

warrants the assertion of universal jurisdiction.” United States v. Hasan, 747 F.

Supp. 2d 599, 608 (E.D. Va. 2010). 4

       Drug trafficking does not fall within that subset. No source of customary

international law has designated drug trafficking as being subject to universal

jurisdiction. The academic community is in accord that drug trafficking is not

considered a universal jurisdiction offense. Although “[i]nternational criminal law
       4
          I agree with the majority that drug trafficking probably does not violate a norm of
customary international law as of yet. However, I do not believe that this is because the drug
trade continues to exist or because some signatories to an international drug treaty have not
complied with their obligations under the treaty. There are undisputed violations of customary
international law, such as torture, that also continue to exist and with regard to which countries
may not comply with their treaty-based obligations.
        However, as explained above, even if drug trafficking were to be considered a violation
of a norm of customary international law, I do not believe that the United States would have the
authority to prosecute drug trafficking that has no connection to the United States as an
“Offence[] against the Law of Nations” because drug trafficking is not subject to universal
jurisdiction and no other jurisdictional basis exists.


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evidences the existence of twenty-seven crime categories[,]” 5 only the so-called jus

cogens crimes of “piracy, slavery and slave-related practices, war crimes, crimes

against humanity, genocide, apartheid, and torture” have thus far been identified as

supporting universal jurisdiction. Bassiouni, supra, at 106-09; see also, e.g., Sosa,

542 U.S. at 762 (Breyer, J., concurring) (listing crimes supporting universal

jurisdiction to include torture, genocide, crimes against humanity, and war crimes);

Restatement (Third) of Foreign Relations Law § 404 (1987) (recognizing that

universal jurisdiction applies only to “prescribe punishment for certain offenses

recognized by the community of nations as of universal concern, such as piracy,

slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps

certain acts of terrorism”); The Princeton Principles on Universal Jurisdiction 48

(Stephen Macedo et al. eds., 2001) (noting that drug crimes “were raised as

candidates for inclusion” in the Princeton Principles’ list of serious crimes subject

       5
           These international crimes are:

       aggression, genocide, crimes against humanity, war crimes, crimes against the UN
       and associated personnel, unlawful possession and/or use of weapons, theft of
       nuclear materials, mercenarism, apartheid, slavery and slave-related practices,
       torture, unlawful human experimentation, piracy, aircraft hijacking, unlawful acts
       against civil maritime navigation, unlawful acts against internationally protected
       persons, taking of civilian hostages, unlawful use of the mail, nuclear terrorism,
       financing of international terrorism, unlawful traffic in drugs and dangerous
       substances, destruction and/or theft of national treasures and cultural heritage,
       unlawful acts against the environment, international traffic in obscene materials,
       falsification and counterfeiting of currency, unlawful interference with submarine
       cables, and bribery of foreign public officials.

M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and
Contemporary Practice, 42 Va. J. Int’l L. 81, 107 (2001).

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to universal jurisdiction, but ultimately were not selected); Anne H. Geraghty,

Universal Jurisdiction and Drug Trafficking: A Tool for Fighting One of the

World’s Most Pervasive Problems, 16 Fla. J. Int’l L. 371, 372 (2004) (explaining

that the idea of utilizing universal jurisdiction as a tool for prosecuting drug

trafficking has never been “widely embraced”); Christina E. Sorensen, Drug

Trafficking on the High Seas: A Move Toward Universal Jurisdiction Under

International Law, 4 Emory Int’l L. Rev. 207, 208 (1990) (“Drug trafficking is . . .

not subject to universal jurisdiction.”).

      Nor are there any judicial decisions recognizing Congress’s authority to

punish drug trafficking that has no connection to the United States as an “Offence[]

against the Law of Nations.” Indeed, several courts of appeals have held that drug

trafficking is not a universal jurisdiction offense, albeit discussing drug trafficking

as an offense occurring on the “high Seas” rather than as an “Offence[] against the

Law of Nations.” See, e.g., United States v. Perlaza, 439 F.3d 1149, 1161-63 (9th

Cir. 2006) (rejecting the government’s argument that it had jurisdiction over drug

trafficking conducted on a go-fast vessel under the principle of universal

jurisdiction); United States v. Wright-Barker, 784 F.2d 161, 168 n.5 (3d Cir. 1986)

(“[I]nternational agreements have yet to recognize drug smuggling . . . as a heinous

crime subject to universal jurisdiction.”). Nor have we been able to find any case




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decided by any international court defining drug trafficking as an offense subject to

universal jurisdiction.

      Because the drug trafficking at issue here is not subject to universal

jurisdiction and no other internationally recognized jurisdictional basis applies,

Congress does not have the authority to proscribe these defendants’ conduct under

Article I, Section 8, Clause 10 of the Constitution. The government’s argument

that this authority can be supplied by another nation’s consent to United States

jurisdiction is without merit. As Judge Torruella illustrates in United States v.

Cardales-Luna, accepting this argument leads to absurd results:

      Perhaps an even more relevant example would be if Congress passed
      legislation attempting to apply the criminal laws of the United States,
      with the Bolivian government’s consent, to the conduct of Colombian
      nationals in Bolivia traveling over its mountain roads carrying a load
      of coca leaves destined for Peru. The power of Congress to legislate in
      such a case cannot be countenanced even with the consent of Bolivia,
      whose consent is ultimately irrelevant, for Bolivia cannot grant
      Congress powers beyond those allotted to it by the Constitution.

632 F.3d 731, 741 (1st Cir. 2011) (Torruella, J., dissenting).




                                          35
