United States v. Suerte

                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                       _____________________

                           No. 01-20626
                      _____________________

                    UNITED STATES OF AMERICA,

                                                Plaintiff—Appellant,

                                versus

                            NESTOR SUERTE,

                                                Defendant—Appellee.


          Appeal from the United States District Court
               for the Southern District of Texas


                             May 14, 2002

Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     At issue is whether, for extraterritorial application of the

Maritime Drug Law Enforcement Act, 46 U.S.C. App. § 1901 et seq.,

the Fifth Amendment’s Due Process Clause requires a nexus between

a foreign citizen and the United States, where the flag nation for

his vessel “has consented or waived objection to the enforcement of

United States law by the United States”.      Id. § 1903(c)(1)(C).

Requiring such a nexus, the district court dismissed the indictment

for lack of jurisdiction.    VACATED and REMANDED.
                                I.

     Defendant Nestor Suerte, a Philippine national and resident of

Colombia, has apparently never entered the United States.      The

Government alleges the following.

     Suerte was captain of a freighter registered in Malta and

owned by a member of a Colombian/Venezuelan drug trafficking

organization (DTO); he met in Venezuela with DTO members in July

and August 2000 to coordinate loading the freighter, off the

northern coast of Venezuela, with 4900 kilograms of cocaine for

transport to, and distribution in, Europe; the freighter apparently

departed Venezuela on 11 August; the next day, an attempt was made,

using speed boats, to transport the cocaine to it; after Venezuelan

law enforcement detected the boats, they took evasive action; as a

result, approximately 2700 kilograms of the cocaine was lost; and

the remainder was stored for another attempt.

     The DTO telexed Suerte plans for the second attempt, to occur

at designated coordinates on 18 August; on 16 and 17 August,

however, Venezuelan authorities arrested some of the DTO members,

thwarting the second attempt; but, nevertheless, on 17 August, the

freighter was at the vicinity of the designated rendezvous point,

in international waters.

     The United States requested, and received, permission from

Malta (the flag nation) to board and search the freighter.   (More

specifically, Malta waived objection to the search, and the Coast



                                2
Guard issued a Statement of No Objection to the boarding team.)    A

search by the Coast Guard did not find cocaine.

     Approximately a week later, Malta waived objection to the

enforcement of United States laws over the freighter and its crew.

The Government towed the vessel to the Port of Houston, Texas; on

2 September, it was searched by United States Customs Special

Agents; found in Suerte’s cabin was a torn copy of the above-

referenced telex giving the date, time, and coordinates for the

second attempt to load cocaine; and also found was an attache case

containing $3500 in $100 bills.

     Suerte was arrested and indicted for conspiracy (as discussed

infra) to possess, with intent to distribute, more than five

kilograms of cocaine on board a vessel subject to United States

jurisdiction, in violation of the Maritime Drug Law Enforcement Act

(MDLEA), 46 U.S.C. App. § 1903.       The Act provides, in pertinent

part:

               (a) It is unlawful for any person ... on
          board a vessel subject to the jurisdiction of
          the United States ... to knowingly or
          intentionally ... possess with intent to ...
          distribute[] a controlled substance.

               ....

               (c)(1) For purposes of this section, a
          “vessel subject to the jurisdiction of the
          United States” includes—

                      ....

                     (C)     a vessel registered in a
          foreign   nation   where the flag nation has

                                  3
          consented   or   waived   objection   to   the
          enforcement of United States law by the United
          States;

                ....

                (j) Any person who attempts or conspires
          to commit any offense defined in this chapter
          shall be subject to the same penalties as
          those    prescribed  for   the  offense,   the
          commission of which was the object of the
          attempt or conspiracy.

Id. (emphasis added).

      Suerte   moved    to   dismiss       the   indictment   for   lack   of

jurisdiction, claiming that, because he did not have a nexus to the

United States, the Constitution does not permit the MDLEA to have

extraterritorial effect over him. See United States v. Suerte, No.

H-00-CR-659-1, slip op. at 3 (S.D. Tex. 7 June 2001).                Agreeing

with Suerte’s position, the district court reviewed international

law    principles      of    extraterritorial        jurisdiction,      which

“represent[ed] the different types of nexuses recognized under

international law, and thus, inform[ed its] analysis”, id. at 5;

held no nexus existed between Suerte and the United States; and,

accordingly, dismissed the indictment.

                                   II.

      The Government contends:         the Due Process Clause does not

require an individualized nexus for extraterritorial application of

the MDLEA; alternatively, one exists.            Normally, we would first

address the Government’s alternative position. This is because, as

a general, prudential rule, we have a “strong duty to avoid

                                       4
constitutional      issues    that    need   not   be   resolved       in   order   to

determine    the     rights    of     the    parties     to   the       case   under

consideration”.      County Court of Ulster County, N.Y. v. Allen, 442

U.S. 140, 154 (1979).

     Whether the Due Process Clause requires such a nexus, however,

is a much more straightforward question than whether a Philippine

national    and    resident   of     Colombia,     engaged    in   a    large-scale

conspiracy to traffic drugs internationally, but whose voyage is

not proceeding to the United States, has a nexus with this Country.

Therefore, it is appropriate to first consider the constitutional

question.    We review de novo the district court’s holding.                    See,

e.g., United States v. Brown, 250 F.3d 907, 913 (5th Cir. 2001).

                                        A.

     In addition to the Supreme Court’s not having addressed

whether there is such a nexus requirement for the extraterritorial

reach of the MDLEA, this issue is one of first impression for our

court.

                                        1.

     To date we have published only two opinions regarding the

MDLEA.   See United States v. Bustos-Useche, 273 F.3d 622 (5th Cir.

2001); Coumou v. United States, 107 F.3d 290 (5th Cir.), withdrawn

in part and superseded in part, 114 F.3d 64 (5th Cir. 1997).

Neither case concerns the due process constraints vel non governing

the MDLEA’s extraterritorial reach.


                                         5
       Bustos-Useche, however, approaches resolving the issue at

hand.     That case involved a (presumably) Colombian defendant,

aboard a Panamanian vessel bound for Portugal through international

waters between Hispaniola and Puerto Rico.     Based on information

provided by the Greek government, the United States suspected the

vessel of drug trafficking.   Panama waived objection to the United

States’ boarding and searching the vessel.        The flag-nation’s

consent to enforcement of United States law was given before trial

but after the Government’s search for, and seizure of, drugs aboard

the vessel in international waters.     Bustos-Useche, 273 F.3d at

624.

       In addressing whether this belated consent satisfied § 1903’s

statutory jurisdictional requirements, we noted:

            Because Panama consented to the enforcement of
            United States law over the [vessel] prior to
            ... trial, the district court had jurisdiction
            ... so long as the criminal statute under
            which [the defendant] was prosecuted meets the
            subject matter jurisdiction requirements of
            Article III of the United States Constitution
            and 18 U.S.C. § 3231 [(conferring original
            jurisdiction on district courts for “offenses
            against the laws of the United States”)].
            Section 1903(a) defines a “law of the United
            States” sufficiently enough to satisfy Article
            III and defines an “offense against the law of
            the United States” sufficiently enough to
            satisfy ... § 3231. Therefore, the district
            court had the authority to act on this case.




                                  6
Id.   at   628    n.6.   This    implies     that    the    only    constitutional

constraint on jurisdiction under the MDLEA is to be found in

Article III, not the Due Process Clause.

                                       2.

      Of the three circuits that have addressed the issue at hand,

only the Ninth Circuit has held the Due Process Clause requires a

nexus.

                                       a.

      United States v. Davis, 905 F.2d 245 (9th Cir. 1990), cert.

denied, 498 U.S. 1047 (1991), involved a British vessel seized in

international waters off California.                 A search of the vessel,

pursuant to Great Britain’s consent, discovered over 7000 pounds of

marijuana.       Id. at 247.

      The vessel’s captain, Davis, who was not a United States

citizen,    was     prosecuted   under       the    MDLEA   and     contested     its

extraterritorial application.          Because “[t]he Congress shall have

power ... [t]o define and punish Piracies and Felonies committed on

the high Seas, and Offenses against the Law of Nations” (Piracies

and Felonies Clause), U.S. CONST. art. I, sec. 8, cl. 10, the Ninth

Circuit first decided that the clause “authorize[s] Congress to

give extraterritorial effect to the [MDLEA]”.                Davis, 905 F.2d at

248. The Ninth Circuit qualified this holding:                “In order to apply

extraterritorially       a   federal   criminal      statute       to   a   defendant

consistently with due process, there must be a sufficient nexus


                                         7
between    the   defendant     and   the       United    States     so   that     such

application would not be arbitrary or fundamentally unfair”.                       Id.

at 248-49 (emphasis added; internal citation omitted).

     Further rationale for the Ninth Circuit’s nexus requirement

was provided by United States v. Klimavicius-Viloria, 144 F.3d 1249

(9th Cir. 1998), cert. denied, 528 U.S. 842 (1999).

            The nexus requirement serves the same purpose
            as the “minimum contacts” test in personal
            jurisdiction. It ensures that a United States
            court will assert jurisdiction only over a
            defendant who “should reasonably anticipate
            being haled into court” in this country.

Id. at 1257 (quoting World-Wide Volkswagen Corp. v. Woodson, 444

U.S. 286, 297 (1980)).       (On the other hand, the Ninth Circuit does

not require a nexus for stateless vessels, also covered by the

MDLEA, § 1903(c)(1)(A). See United States v. Caicedo, 47 F.3d 370,

373 (9th Cir. 1995) (“Because stateless vessels do not fall within

the veil of another sovereign’s territorial protection, all nations

can treat them as their own territory and subject them to their

laws.”).)

                                      b.

     The    First   and    Third     Circuits         have    rejected      a    nexus

requirement.     In United States v. Cardales, 168 F.3d 548 (1st

Cir.), cert.     denied,     528   U.S.       838   (1999),   the   First       Circuit

considered an MDLEA prosecution, pursuant to Venezuela’s consent,

of crew members of a Venezuelan vessel boarded and searched 150



                                          8
miles south of Puerto Rico.          Id. at 551-52.         In addressing whether

the Due Process Clause required a nexus, Cardales noted, as had the

Ninth Circuit in Davis:        “To satisfy due process, our application

of the MDLEA must not be arbitrary or fundamentally unfair”.                       Id.

at 553 (emphasis added).

     “In determining whether due process [was] satisfied”, Cardales

consulted   international          law    principles       for    “guid[ance]”     and

concluded     that    the    MDLEA       satisfies     both       the    “territorial

principle”, under which “a ‘state has jurisdiction to prescribe and

enforce a rule of law in the territory of another state to the

extent provided by international agreement with the other state’”,

id. (quoting United States v. Robinson, 843 F.2d 1, 4 (1st Cir.),

cert.   denied,      488    U.S.    834    (1988)),        and,    especially,     the

“protective     principle”,        under       which   a    state       may   “‘assert

jurisdiction over a person whose conduct outside the [state’s]

territory     threatens     the     [state’s]      security’”,          id.   (quoting

Robinson, 843 F.2d at 3).

     Concerning the protective principle, Cardales observed that

Congress had expressly found that “‘trafficking in controlled

substances aboard vessels is a serious international problem and is

universally condemned[, and] ... presents a specific threat to the

security ... of the United States’”.              Id. (alteration in original;

quoting 46 U.S.C. App. § 1902).            In that light, Cardales held due

process did not require the Government to prove a nexus.

                                           9
           When the foreign flag nation consents to the
           application of United States law, jurisdiction
           attaches under the statutory requirements of
           the MDLEA without violation of due process or
           the principles of international law because
           the flag nation’s consent eliminates any
           concern that the application of United States
           law may be arbitrary or fundamentally unfair.

Id.

      The court was careful, however, to note that it did not view

the MDLEA as a congressional override of international law.   Id. at

553 n.2.   “To the extent ... international law requires a nexus to

the United States, that nexus requirement ... is satisfied by the

foreign flag nation’s authorization to apply U.S. law to the

defendants [the territorial principle] and by the congressional

finding that drug trafficking aboard vessels threatens the security

of the United States [the protective principle].”   Id.

      The Third Circuit (which earlier rejected a nexus requirement

for MDLEA prosecutions involving stateless vessels, see United

States v. Martinez-Hidalgo, 993 F.2d 1052 (3d Cir. 1993), cert.

denied, 510 U.S. 1048 (1994)), follows a similar approach.    United

States v. Perez-Oviedo, 281 F.3d 400 (3d Cir. 2002), involved the

MDLEA prosecution of a foreign captain of a Panamanian-registered

vessel, which was sailing from Colombia to Canada when intercepted

by the Coast Guard north of Trinidad and Tobago.       Id. at 401.

After Panama waived objection, a search uncovered over two tons of

cocaine.   Id.


                                 10
     After noting that “‘§ 1903(d) [(providing that “a failure to

comply    with    international     law     shall    not     divest   a   court   of

jurisdiction or otherwise constitute a defense”)] expresses the

necessary congressional intent to override international law to the

extent that international law might require a nexus to the United

States’”, id. at 403 (quoting Martinez-Hidalgo, 993 F.2d at 1056),

the court held that no due process violation occurred from the

MDLEA’s extraterritorial application because “drug trafficking is

condemned universally by law-abiding nations”, id., and “[t]he

Panamanian government expressly consented to the application of the

MDLEA”,    id.     The   court     found    the     second    fact    particularly

compelling:       “Such consent from the flag nation eliminates a

concern that the application of the MDLEA may be arbitrary or

fundamentally unfair”.       Id.

                                       c.

     In addition, in United States v. Mena, 863 F.2d 1522 (11th

Cir.), cert. denied, 493 U.S. 834 (1989), while not expressly

ruling on a nexus requirement vel non, the Eleventh Circuit upheld

the MDLEA against a due process challenge for vagueness.                        Mena

involved    the   prosecution,      with    Honduran       consent,    of   foreign

defendants arrested aboard a Honduran vessel in international

waters     east   of   the   Bahamas.         The     defendants      claimed     as

unconstitutionally vague § 1903’s term “vessel subject to the

jurisdiction of the United States”.

                                       11
     Noting that due process requires “[s]tatuory language [to]

convey ‘sufficiently definite warning as to the proscribed conduct

when measured by common understanding and practices[]’”, id. at

1527 (quoting Jordan v. DeGeorge, 341 U.S. 223, 231-32 (1951)), the

court concluded:

            There is nothing vague about the statute.
            Congress has provided clear notice of what
            conduct is forbidden.... Those embarking on
            voyages   with  holds   laden  with    illicit
            narcotics, conduct which is contrary to laws
            of all reasonably developed legal systems, do
            so with awareness of the risk that their
            government may consent to enforcement of the
            United States’ law against the vessel.

Id. (emphasis added; quoting United States v. Gonzalez, 776 F.2d

931, 940-41 (11th Cir. 1985)).          As discussed infra, the same is

true for those who conspire to commit an offense proscribed by the

MDLEA.

                                       B.

     The opinions by these circuits do not discuss several sources

of law which, although not dispositive of the present issue,

provide us    great    assurance     that,    “where    the    flag   nation   has

consented or waived objection to the enforcement of United States

law by the United States”, § 1903(c)(1)(C), due process does not

require a nexus for the MDLEA’s extraterritorial application.

Those    sources    include:    the    Constitutional         Convention   debate

surrounding the Piracies and Felonies Clause (“The Congress shall

have Power    ...    [t]o   define    and    punish    Piracies    and   Felonies


                                       12
committed on the high Seas, and Offenses against the Law of

Nations”); the earliest exercise of Congressional power under the

clause; and Supreme Court opinions reviewing that exercise.

                                           1.

      Concerning the Piracies and Felonies Clause, the Committee of

Detail’s draft Constitution, submitted to the Convention on 6

August 1787, would have empowered Congress “[t]o declare the law

and punishment of piracies and felonies committed on the high seas,

and the punishment of counterfeiting the coin of the United States,

and of offences against the law of nations”.                   2 RECORDS   OF THE   FEDERAL

CONVENTION   OF   1787 182 (Max Farrand ed., 1999) (emphasis added).

Subsequent debate over the clause primarily concerned the propriety

of granting the power to both punish and declare and whether the

latter power should read “declare”, “designate”, or “define”.                          See

id. at 315-16.

      There was apparently no debate regarding constraints vel non

on the clause’s extraterritorial reach.                   It would seem that, had

they been         of   concern,    the   matter      would   have   been    discussed,

especially because the clause contains “the only specific grant of

power to be found in the Constitution for the punishment of

offenses outside the territorial limits of the United States”.

CONGRESSIONAL RESEARCH SERVICE, LIBRARY         OF   CONGRESS, THE CONSTITUTION     OF THE

UNITED STATES, ANALYSIS      AND   INTERPRETATION, S. DOC. NO. 103-6, at 304




                                           13
(Johnny H. Killian & George A. Costello eds., 1992) (S. DOC. NO.

103-6).

     The First Congress promptly enacted far-reaching legislation

under     the   Piracies   and   Felonies   power.   In   April   1790,

approximately seven months after proposing the Bill of Rights to

the States (25 September 1789), Congress approved An Act for the

Punishment of Certain Crimes Against the United States (1790 Act).

It provides, in part:       in § 8, “[t]hat if any person or persons

shall commit upon the high seas ... murder or robbery, ... every

such offender shall be ... adjudged ... a pirate and felon, and

being thereof convicted, shall suffer death”; and, in § 12, “[t]hat

if any ... person shall commit manslaughter upon the high seas, ...

such person ... so offending, and being thereof convicted, shall be

imprisoned not exceeding three years, and fined not exceeding one

thousand dollars”.     Act of 30 Apr. 1790, ch. 9, 1 Stat. 112, 113-15

(emphasis added).

     For purposes of this appeal, perhaps the most striking aspect

of the 1790 Act is that many of its provisions regarding crimes on

the high seas apply to “any person”.         (Emphasis added.)    It is

important to note, especially in a case in which at issue is the

constitutionality of another exercise of the Piracies and Felonies

power, that, at the time it passed the 1790 Act, the First Congress

had already drafted the Fifth Amendment and proposed it to the

States.


                                    14
     While that Amendment was not ratified until 15 December 1791,

during “[t]he debates [in August 1789 for] what became the Fifth

Amendment ... there was no hint ... of any intention, by the

adoption of that amendment, to deprive Congress of this [Piracies

and Felonies] power expressly and uncontroversially granted to it

by the Convention”.      A. Mark Weisburd, Due Process Limits on

Federal Extraterritorial Legislation?, 35 COLUM. J. TRANSNAT’L          L.

379, 421 (1997) (citing 1 ANNALS        OF   CONG. 753 (Joseph Gales ed.,

1789)). In this regard, the First Congress, which drafted the 1790

Act and the Amendment, “included 20 Members who had been delegates

to the [Constitutional] Convention”.           Bowsher v. Synar, 478 U.S.

714, 724 n.3 (1986).

                                   2.

     Early   Supreme   Court   opinions      addressing   extraterritorial

applications of the 1790 Act intimate that the Fifth Amendment

imposes no nexus requirement on the reach of statutes criminalizing

felonious conduct by foreign citizens on the high seas.          In United

States v. Palmer, 16 U.S. 610 (1818), the Court considered, inter

alia, whether the United States had jurisdiction, pursuant to § 8

of the 1790 Act, to try, and punish, foreign citizens who had, on

the high seas, boarded and robbed a foreign-owned vessel manned by

a Spanish crew.

     In answering “whether th[e] act extends farther than to

American citizens, or to persons on board American vessels, or to


                                   15
offences committed against citizens of the United States”, id. at

630, Chief Justice Marshall stated for the Court:

           The constitution having conferred on congress
           the power of defining and punishing piracy,
           there can be no doubt of the right of the
           legislature to enact laws punishing pirates,
           although they may be foreigners, and may have
           committed no particular offence against the
           United States. The only question is, has the
           legislature enacted such a law? Do the words
           of the act authorize the courts of the Union
           to inflict its penalties on persons who are
           not citizens of the United States, nor sailing
           under their flag, nor offending particularly
           against them?

Id. at 630-31 (emphasis added).

     The Court answered in the negative.         After emphasizing the

generality of the language employed by the 1790 Act in setting its

reach (e.g., “any captain, or mariner of any ship or vessel”; “any

seaman”; “any person or persons”), the Court stated: “Every nation

provides for such offense[s] the punishment its own policy may

dictate, and no general words of a statute ought to be construed to

embrace   them   when   committed   by   foreigners   against   a   foreign

government”. Id. at 632-33 (emphasis added). Therefore, the Court

concluded that, as a statutory matter, “the crime of robbery,

committed by a person on the high seas, on board of any ship or

vessel belonging exclusively to subjects of a foreign state, on

persons within a vessel belonging exclusively to subjects of a

foreign state, is not a piracy within the true intent and meaning

of the act”.     Id. at 633-34 (emphasis added).

                                    16
     Palmer is an illustration of the well-established canon of

construction espoused by Chief Justice Marshall in Murray v. The

Schooner Charming Betsy, 6 U.S. 64 (1804):      “[A]n act of Congress

ought never to be construed to violate the law of nations if any

other possible construction remains....”     Id. at 118.     Later, the

Court emphasized in Lauritzen v. Larsen, 345 U.S. 571 (1953),

however, that this canon “is not, as sometimes is implied, any

impairment of our own sovereignty, or limitation of the power of

Congress”.   Id. at 578.

     While the constraints vel non imposed by the Fifth Amendment

on extraterritorial application of laws enacted pursuant to the

Piracies and Felonies Clause may not have been directly at issue in

Palmer, Chief Justice Marshall’s assessment of the relevant inquiry

regarding extraterritorial applications — “The constitution having

conferred on congress the power of defining and punishing piracy,

... [t]he only question is, has the legislature enacted such a

law?” — arguably removes any doubt that such enactments comport

with the Fifth Amendment.    And while at issue was Congress’ power

to define and punish piracies, Chief Justice Marshall’s assessment

should apply with equal weight to felonies such as at issue here,

a parallel provision within the same constitutional clause.

     Other   case   law    interpreting   the   1790   Act    suggests

international law principles are in some way inherent in the

Piracies and Felonies Clause.   In United States v. Furlong, 18 U.S.

                                 17
184 (1820), the Court considered, in dictum, whether Congress could

punish a murder, committed upon the high seas, by one foreign crew

member against another aboard a foreign vessel.            Id. at 193-98.

Justice Johnson opined for the Court:        “I am led to the conclusion,

that [§ 8 of the 1790 Act] does not extend the punishment for

murder to the case of that offence committed by a foreigner upon a

foreigner in a foreign ship.       But otherwise as to piracy, for that

is a crime within the acknowledged reach of the punishing power of

Congress”.     Id. at 197 (emphasis added).

     Addressing the fact that, in § 8 of the 1790 Act, Congress had

declared murder committed upon the high seas to be piracy, Justice

Johnson further concluded:         “[Murder and piracy] are things so

essentially     different   in    their   nature,   that   not   even   the

omnipotence of legislative power can confound or identify them”.

Id. at 198.     He continued:

             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 [did not] intend[]
             to punish murder in cases with which they had
             no right to interfere....

Id. at 198 (first emphasis in original).

     In   short,   it   appears    Justice   Johnson   thought   Congress’

Piracies and Felonies power extends only so far as permitted by


                                     18
international law.      That position may be at loggerheads, however,

with    more   recent   pronouncements   by   the   Court.   See,   e.g.,

Lauritzen, 345 U.S. at 578 (as discussed supra, noting that the

canon of construction announced in The Charming Betsy “is not, as

sometimes is implied, any impairment of our own sovereignty, or

limitation of the power of Congress”); Hartford Fire Ins. Co. v.

California, 509 U.S. 764, 815 (1993) (Scalia, J., dissenting in

part) (“Though it clearly has constitutional authority to do so,

Congress is generally presumed not to have exceeded those customary

international-law limits on jurisdiction to prescribe.” (Emphasis

added.)).

       The opinions addressing the reach of the 1790 Act are of

significance to our consideration of the MDLEA’s reach.             Those

opinions concern an exercise of power, pursuant to the Piracies and

Felonies Clause, by a Congress which, as noted, had some members

who had drafted that clause, the 1790 Act, and the Fifth Amendment.

While none of these cases addresses whether the Fifth Amendment has

any applicability to exercises of power under the Piracies and

Felonies Clause, neither the Fifth Amendment generally, nor its Due

Process Clause specifically, was flagged as an issue in any of

them.     In fact, in addressing an 1819 law providing for the

punishment of piracy on the high seas, the Court noted that,

“notwithstanding a series of contested adjudications on [§ 8 of the

1790 Act], no doubt has hitherto been breathed of its conformity to


                                   19
the constitution”.     United States v. Smith, 18 U.S. 153, 158 (1820)

(emphasis added).

                                      3.

     In the light of this rich history, and for the issue at hand,

it is not necessary to decide whether the Due Process Clause

imposes no constraints on the extraterritorial application of the

MDLEA.    For      example,   in     previously      considering    whether      a

predecessor to the MDLEA required a nexus for stateless vessels,

our court noted:

          [G]iven the clear authority of Congress in the
          premises, [citing the Piracies and Felonies
          Clause], the relevance of international law to
          the problem at hand is as a reflection of
          Congressional   intent   rather   than  as   a
          limitation on the power of Congress, at least
          where, as here, there is no basis for any
          claim of due process violation.

United States v. Alvarez-Mena, 765 F.2d 1259, 1266 (5th Cir. 1985)

(emphasis added).

     Accordingly, we hold that, for the MDLEA issue at hand, and to

the extent   the    Due   Process    Clause    may   constrain     the   MDLEA’s

extraterritorial     reach,   that    clause   does    not   impose      a   nexus

requirement, in that Congress has acted pursuant to the Piracies

and Felonies Clause.       Again, that clause is “the only specific

grant of power to be found in the Constitution for the punishment

of offenses outside the territorial limits of the United States”.

S. DOC. NO. 103-6, at 304.

                                      C.

                                      20
      Assuming, arguendo, that resolution of this issue does require

consulting international law, the MDLEA’s application to Suerte

still   passes   constitutional           muster   because,    on   these   facts,

international law does not require a nexus.

                                          1.

      Malta,   under     whose     flag    Suerte’s   vessel     was   registered,

consented to the boarding and search of his vessel, as well as to

the application of United States law.              A flag nation’s consent to

a seizure on the high seas constitutes a waiver of that nation’s

rights under international law. See United States v. Williams, 617

F.2d 1063, 1090 (5th Cir. 1980) (en banc).               “[I]nterference with a

ship that would otherwise be unlawful under international law is

permissible if the flag state has consented”.                 RESTATEMENT (THIRD)   OF

FOREIGN RELATIONS LAW   OF THE   UNITED STATES § 522 cmt. e (1987); see also

Robinson, 843 F.2d at 4.

      Along this line, and as noted, the MDLEA provides:                       “[A]

‘vessel subject to the jurisdiction of the United States’ includes

... a vessel registered in a foreign nation where the flag nation

has consented or waived objection to the enforcement of United

States law by the United States”.              46 U.S.C. App. § 1903(c)(1)(C).

This codifies the above-described generally accepted principle of

international    law:       a     flag    nation   may   consent    to   another’s

jurisdiction.     See RESTATEMENT (THIRD) § 522 reporters note 8 (the

MDLEA “confirmed the practice” of relying on informal grants of


                                          21
consent by flag nations (emphasis added)); THOMAS J. SCHOENBAUM,

ADMIRALTY   AND   MARITIME LAW § 3-12 n.41 (3d ed. 2001) (the principle that

flag-nation consent satisfies international law requirements “is

confirmed by the MDLEA” (emphasis added)).                Such an agreement

between the United States and a flag nation to apply United States

law on a flag-nation vessel may be made informally.           Robinson, 843

F.2d at 4; see also RESTATEMENT (THIRD) § 301 & cmt. b. (international

agreements need not be formalized, nor need they be in writing).

                                        2.

       Maintaining that Malta’s consent is irrelevant, Suerte asserts

that, because no drugs were found on his vessel, he was not in

violation of United States law when his vessel “was converted in

effect to American territory” by Malta’s consent.

                                        a.

       This claim has no merit.       As noted earlier, we held recently:

“The    only       statutory   prerequisite    to   the   district   court’s

jurisdiction under section 1903(c)(1)(C) is that the flag nation

consent to the enforcement of United States law before trial”.

Bustos-Useche, 273 F.3d at 627 (emphasis added).

                                        b.

       Even accepting Suerte’s contention, we note he was not charged

with drug possession; instead, he was charged with conspiracy to

possess with intent to distribute.           “A conspiracy is ‘an agreement

by two or more persons to commit one or more unlawful acts and an


                                        22
overt    act   by    one      of   the   conspirators    in     furtherance      of   the

conspiracy.’”        United States v. Thomas, 12 F.3d 1350, 1356 (5th

Cir.) (quoting United States v. Romeros, 600 F.2d 1104, 1106 (5th

Cir. 1979), cert. denied, 444 U.S. 1077 (1980)), cert. denied, 511

U.S. 1114 (1994).          “If the totality ... of evidence is adequate to

show    a   concert      of    action,    all    the   parties    working       together

understandingly, with a single design for the accomplishment of a

common purpose[,] then the conspiracy may be found.” United States

v. Perez, 489 F.2d 51, 61 (5th Cir. 1973), cert. denied, 417 U.S.

945 (1974).

       As alleged by the Government:               meetings during which Suerte

agreed to receive and transport the cocaine occurred in Venezuela;

he was working with others with a single design for a common

purpose at the time the United States requested and received

permission from Malta to board and search his vessel; and, he was

then    acting      in   furtherance      of    that   common    purpose    —    he   was

assisting and awaiting the second attempt to load cocaine by

positioning his vessel in the vicinity of the coordinates provided

by the telex (found in the search of his cabin) designating the

location for that attempt.

       In   this     light,        application    of   the    MDLEA   to   Suerte     is

permissible; a nexus between his conduct and the United States is

not required. Rejecting a nexus requirement will not result in the




                                            23
unrestrained, global law enforcement by the United States decried

by Suerte.

     Again, the power “to define and punish Piracies and Felonies

committed on the high seas, and Offenses against the Law of

Nations” is “the only specific grant of power to be found in the

Constitution for the punishment of offenses outside the territorial

limits of the United States”.       S. DOC. NO. 103-6, at 304 (emphasis

added). The MDLEA represents an extremely limited exercise of that

power.    For certain persons not aboard United States vessels or in

United States customs waters, it proscribes drug trafficking only

aboard a stateless vessel or, as in the case at hand, a vessel

whose flag nation consents to enforcement of United States law.

     Enforcement of the MDLEA in these circumstances is neither

arbitrary nor fundamentally unfair (the due process standard agreed

upon by Suerte and the Government).      Those subject to its reach are

on notice.   In addition to finding “that trafficking in controlled

substances aboard vessels ... presents a specific threat to the

security and societal well-being of the United States”, Congress

has also found that such activity “is a serious international

problem and is universally condemned”.          46 U.S.C. App. § 1902

(emphasis added).    Along this line, the United Nations Convention

Against    Illicit   Traffic   in   Narcotic   Drugs   and   Psychotropic

Substances, opened for signature 20 Dec. 1988, 28 I.L.M. 493, to

which Malta and the United States are signatories, provides as its


                                    24
purpose:   “to promote cooperation among the Parties so that they

may address more effectively the various aspects of illicit traffic

in   narcotic   drugs   and   psychotropic   substances   having    an

international dimension”.     Id. art.2.

                                 III.

     For the foregoing reasons, we VACATE the dismissal of the

indictment in this case and REMAND for further proceedings.

                                             VACATED and REMANDED




                                  25