Wednesday, October 09, 2013

Conspiracy to Possess Drugs on Aircraft With Intent to Distribute Applies Extraterritorially

Appellants challenged the application of 21 U.S.C. § 963 to these circumstances: they hired U.S. citizens in the United States to fly to South America, obtain drugs, and then fly with those drugs to the United Kingdom.  The panel finds that 21 U.S.C. § 959(b)(2), which prohibits the possession of illicit substances with intent to distribute either by a U.S. citizen on an aircraft or on an aircraft registered in the United States, applies extraterritorially since that was Congress’s intent and such application is constitutional. 

The panel reaches this decision by analyzing the statutory language, justifications for overcoming the presumption against extraterritorial application of U.S. statutes in the context of drug smuggling laws, and international law principles including that a country can supervise and regulate the acts of its citizens outside of its territories and the protective theory that a country can enforce criminal laws wherever if the act threatens the country’s security or directly interferes with its governmental operations.  The panel also concluded that Congress had the authority to enact § 959(b) with extraterritorial application under the Necessary and Proper Clause as necessary to implement its treaty-making power.  That said, the panel seemed comfortable with its decision because the facts of this case involved actions taken in the United States (coordination, hiring of mules, and ultimate receipt of money) that resulted in the drugs being possessed by U.S. citizens on a flight from South America to the United Kingdom.   Perhaps a case without that extra hook—which is not statutorily required—would have a different result or at least cause a court more pause.

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