Drug Interdiction on the High Seas

Drug Interdiction on the High Seas

The ability to stop drugs entering the United States on the high seas is a major part of the government’s efforts to stop the flow of drugs into the U.S. Most drugs entering the U.S. come by water on all types of vessels. Drug cartels trying to send large quantities of drugs must rely on shipping as a means of introducing contraband. There are dozens of major seaports along the east and west coast and the Gulf of Mexico that offer areas where concealed shipments can be snuck passed customs officials. There are too many cargo ships bring containers everyday and it is impossible for Customs to inspect every container and ship entering the U.S. Beyond the seaports where Customs inspectors are stationed, drug smugglers try to bring their contraband through unmonitored areas along the coast without detection.

In order to combat the flow of drugs coming into the U.S. on the high seas, Congress has passed a series of laws giving the Coast Guard, the federal law enforcement are charged with protecting the U.S. borders, authority to stop, search and seize boats that are carrying drugs or are suspected of operating as part of a drug smuggling ring.

Congress determined that trafficking in controlled substances aboard vessels is a serious international problem. It determined that drug trafficking aboard vessels presents a specific threat to the security and the well being of society. For this reason it passed laws regulating vessels that could be carrying drugs through international waters and enforcing drug importation laws against these vessels.

One law passed by Congress is called the Drug Trafficking Vessel Interdiction Act (“DTVIA”) which makes it a federal crime to distribute or possess drugs or a controlled substance aboard a vessel of the United States or a vessel subject to the jurisdiction of the United States. A vessel of the United States means any vessel registered in the U.S., any vessel owned by a U.S. citizen or U.S. corporation. A crime is committee on these U.S. vessels even if the vessel is found with drugs beyond the territorial jurisdiction of the United States. Drug laws of the United States prohibiting the possession and distribution of drugs can be applied to any vessel operating with any nationality. A vessel without any nationality is subject to U.S. jurisdiction. A vessel without nationality is a defined as follows::

1. A captain makes a claim of registry that is denied by that nation;

2. The captain fails to give the registry of the vessel; or

3. The claim of registry is not unequivocally affirmed.

A vessel that is registered to any other nation is subject to U.S. jurisdiction if the nation has consented or waived objection to the U.S. enforcement of its drug laws. This means that if the nation under the vessels is registers does not object, the Coast Guard can board the ship and search for drugs. If drugs are found on board, the crew or anyone on the boat can be prosecuted under U.S. drug laws. Any vessel no matter what country the boat is registered is subject to U.S. drug laws if it is found within the territorial waters of the U.S.

If you or someone you know is accused of a being on or using a boat for a drug-related crime, call Miami attorney Ken Swartz at the Swartz Law Firm to schedule a consultation with an experienced, board certified criminal trial attorney.

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S. 3598

One Hundred Tenth Congress of the United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Thursday, the third day of January, two thousand and eight

An Act To amend titles 46 and 18, United States Code, with respect to the operation of submersible vessels and semi-submersible vessels without nationality.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Drug Trafficking Vessel Interdic-

tion Act of 2008’’.

TITLE I—CRIMINAL PROHIBITION

SEC. 101. FINDINGS AND DECLARATIONS.

Congress finds and declares that operating or embarking in a submersible vessel or semi-submersible vessel without nationality and on an international voyage is a serious international problem, facilitates transnational crime, including drug trafficking, and terrorism, and presents a specific threat to the safety of maritime navigation and the security of the United States.

SEC. 102. OPERATION OF SUBMERSIBLE VESSEL OR SEMI-SUBMERS-

IBLE VESSEL WITHOUT NATIONALITY.

(a) IN GENERAL.—Chapter 111 of title 18, United States Code, is amended by adding at the end the following new section:

‘‘§ 2285. OPERATION OF SUBMERSIBLE VESSEL OR SEMI-SUBMERSIBLE VESSEL WITHOUT NATIONALITY.

‘‘(a) OFFENSE.—Whoever knowingly operates, or attempts or.conspires to operate, by any means, or embarks in any submersible vessel or semi-submersible vessel that is without nationality and that is navigating or has navigated into, through, or from waters beyond the outer limit of the territorial sea of a single country or a lateral limit of that country’s territorial sea with an adjacent country, with the intent to evade detection, shall be fined under this title, imprisoned not more than 15 years, or both.

‘‘(b) EVIDENCE OF INTENT TO EVADE DETECTION.—For purposes of subsection (a), the presence of any of the indicia described in paragraph (1)(A), (E), (F), or (G), or in paragraph (4), (5), or (6), of section 70507(b) of title 46 may be considered, in the totality of the circumstances, to be prima facie evidence of intent to evade.detection.

‘‘(c) EXTRATERRITORIAL JURISDICTION.—There is extraterritorial Federal jurisdiction over an offense under this section, including an attempt or conspiracy to commit such an offense.

S. 3598—2

‘‘(d) CLAIM OF NATIONALITY OR REGISTRY.—A claim of nationality or registry under this section includes only—

‘‘(1) possession on board the vessel and production of documents evidencing the vessel’s nationality as provided in article 5 of the 1958 Convention on the High Seas;

‘‘(2) flying its nation’s ensign or flag; or

‘‘(3) a verbal claim of nationality or registry by the master or individual in charge of the vessel.

‘‘(e) AFFIRMATIVE DEFENSES.—

‘‘(1) IN GENERAL.—It is an affirmative defense to a prosecution for a violation of subsection (a), which the defendant has the burden to prove by a preponderance of the evidence, that the submersible vessel or semi-submersible vessel involved was, at the time of the offense—

‘‘(A) a vessel of the United States or lawfully registered in a foreign nation as claimed by the master or individual in charge of the vessel when requested to make a claim by an officer of the United States authorized to enforce applicable provisions of United States law;

‘‘(B) classed by and designed in accordance with the rules of a classification society;

‘‘(C) lawfully operated in government-regulated or licensed activity, including commerce, research, or exploration; or

‘‘(D) equipped with and using an operable automatic identification system, vessel monitoring system, or long range identification and tracking system.

‘‘(2) PRODUCTION OF DOCUMENTS.—The affirmative defenses provided by this subsection are proved conclusively by theproduction of—‘‘(A) government documents evidencing the vessel’s nationality at the time of the offense, as provided in article 5 of the 1958 Convention on the High Seas;

‘‘(B) a certificate of classification issued by the vessel’s classification society upon completion of relevant classification surveys and valid at the time of the offense; or ‘‘(C) government documents evidencing licensure, regulation, or registration for commerce, research, or exploration.

‘‘(f) FEDERAL ACTIVITIES EXCEPTED.—Nothing in this section

applies to lawfully authorized activities carried out by or at the direction of the United States Government.

‘‘(g) APPLICABILITY OF OTHER PROVISIONS.—Sections 70504 and 70505 of title 46 apply to offenses under this section in the same manner as they apply to offenses under section 70503 of such title.

‘‘(h) DEFINITIONS.—In this section, the terms ‘submersible vessel’, ‘semi-submersible vessel’, ‘vessel of the United States’, and ‘vessel without nationality’ have the meaning given those terms in section 70502 of title 46.’’.

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