United States v. Carvajal (924 F. Supp. 2d 219, 2013)

United States District Court for the District of Columbia 2013-02-20

Crimes and Criminal Procedure Customs Duties Food and Drugs Shipping

Citations

Full opinion text

OPINION

ROSEMARY M. COLLYER, District Judge.

I. FACTS.................................................................225

A. Procedural History..................................................225

B. The Drug Trafficking Organization and Planned November 2006 Loads............................................................226

C. Caribbean Maritime Geography......................................228

II.LEGAL STANDARD.....................................................229

III. ANALYSIS .......................■......................................230

A. Maritime Drug Law Enforcement Act.................................231

1. 1980s Enactment and Legislative History............................231

2. 1986 Version.....................................................232

3. Present Version..................................................232

B. Maritime Definitional Issues.........................................233

C. Factual Issues — Statelessness & High Seas Travel .....................234

1. Statelessness of Vessel............................................235

2. Travel through the High Seas......................................237

D. Statutory Subject Matter Jurisdiction.................................239

1. Extraterritorial Application........................................239

2. Charming Betsy..................................................240

3. Whether MDLEA Requires Conspiring “On Board” a Vessel...........243

4. Whether MDLEA Requires a Nexus to the United States..............245

5. Whether Colombia’s Consent Was Required..........................246

6. Conclusion.......................................................248

E. Constitutionality of MDLEA as Applied...............................249

1. Legal Standard — Constitutionality..................................249

2. The Treaty Power................................................250

3. Article I, Section 8, Clause 10: The Power. . .To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations ......................................251

F. Due Process ........................................................261

IV. CONCLUSION..........................................................264

This prosecution under the Maritime Drug Law Enforcement Act (MDLEA) is a product of the escalation of a battle. On one side are international drug traffickers, who constantly refine their methods for transporting illegal narcotics from country to country. On the other side is law enforcement, which must adapt its efforts to halt the illicit drug trade, a task made all the more difficult in an increasingly globalized world. In this case, the United States seeks to hold drug traffickers criminally responsible in circumstances not previously addressed by the courts.

This case may be at the outskirts of Congress’s power to criminalize extraterritorial conduct. The two Defendants, Luis Alberto Munoz Miranda and Francisco Jose Valderrama Carvajal, were Colombian-based members of an international drug trafficking conspiracy. They admitted involvement in a conspiracy to use vessels with no registration and nationality, commonly referred to as “stateless vessels,” to transport cocaine from Colombia to a rendezvous point in the seas near Honduras. Two stateless vessels are involved in this case. One never left the dock; the other was seized by the Colombian Navy after traveling a significant distance at sea. The latter vessel was captured after it ran aground on an island that belongs to Colombia, so it was seized by Colombian authorities in Colombian territorial waters. The United States, prosecuting through the Department of Justice, does not claim that it can show that the cocaine recovered from the captured vessel was destined for this country, and it concedes that Messrs. Munoz Miranda and Valderrama Carvajal never left the terra firma of Colombia at any relevant point prior to being extradited to the United States years after the stateless vessel and its crew were seized and prosecuted by Colombia.

Defendants contest the constitutionality of applying MDLEA to foreign citizens, acting in a foreign country, who never set foot on a vessel transporting narcotics. Many cases have upheld MDLEA as a valid exercise of congressional power and have denied due process challenges, but with varying analyses. New cases have involved prosecutions deriving from vessels seized in a foreign country’s territorial waters, whether those vessels were registered in a foreign country or were stateless. Equally rare are MDLEA prosecutions of individuals whose personal involvement took place exclusively within a foreign country’s territory. This case fits both of those categories, which the Court understands to be a factually unprecedented scenario.

The Court must determine whether this prosecution is constitutional. While it may be a close question, it is one the Court resolves in DOJ’s favor.

I. FACTS

A. Procedural History

Along with three other co-defendants, Messrs. Munoz Miranda and Valderrama Carvajal were charged by Indictment filed April 23, 2010 with conspiracy to distribute five kilograms or more of cocaine on board a vessel subject to the jurisdiction of the United States in violation of the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. §§ 70503, 70506(b) and 18 U.S.C. § 2. See Indictment [Dkt. 3]. DOJ filed a Superseding Indictment on August 25, 2010, containing the same charge. See Superseding Indictment [Dkt. 6]. Bench warrants were issued for all Defendants. Messrs. Munoz Miranda and Valderrama Carvajal were arrested in Colombia by the Colombian national police on May 12, 2011 and extradited to the United States. See Extradition Orders, Dkt. 60, Ex. E [Dkt. 60-5]. Mr. Munoz Miranda made his initial appearance before a magistrate judge on February 27, 2012, and Mr. Valderrama Carvajal made his first appearance on April 20, 2012.

Both Defendants filed numerous motions prior to their scheduled October 15, 2012, trial date, raising various arguments against MDLEA’s constitutionality and as to whether MDLEA encompasses the allegations made in this case. Both DOJ and the Defendants filed numerous briefs, and the Court held a motions hearing on October 11, 2012 to address the arguments advanced by Messrs. Munoz Miranda and Valderrama Carvajal.

By agreement of all parties, DOJ proceeded by evidentiary proffer and the Court heard oral arguments only. After extensive and articulate debate from Defendants’ counsel and DOJ, the Court denied the motions to dismiss. Although it noted that the motions presented close questions on which courts had written little, the Court held that MDLEA could be constitutionally applied to the facts in this case. Because Messrs. Munoz Miranda and Valderrama Carvajal immediately stated that they wished to enter into plea agreements with DOJ, there was never a full written opinion, although the Court had summarized its reasoning from the bench.

The following day, October 12, 2012, both Defendants entered guilty pleas to a Superseding Information, Dkt. 71, charging them each with one count of conspiracy to distribute five hundred grams or more of cocaine on board a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. §§ 70503(a)(1), 70506(b), and 21 U.S.C. § 960(b)(2)(B). Both Defendants’ pleas were reliant on Fed.R.Civ.P. 11(c)(1)(C) and stipulated to sentences of five years’ imprisonment. See Plea Agr. (Munoz Miranda) [Dkt. 72] ¶ 8; Plea Agr. (Valderrama Carvajal) [Dkt. 76] ¶ 8. Sentencing hearings were scheduled for November 29, 2012.

Before sentencing, however, Messrs. Munoz Miranda and Valderrama Carvajal filed motions for reconsideration of the Court’s denial of their motions to dismiss. See [Dkts. 86, 87]. The motions for reconsideration depend in large part on an Eleventh Circuit decision issued on November 6, 2012, holding that MDLEA is unconstitutional as applied in that case because Congress lacks the power to criminalize the charged conduct. See United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir.2012). This Court continued sentencing until the motions for reconsideration could be resolved. Noting that the United States had raised a novel jurisdictional argument in its petition for rehearing en banc in the Eleventh Circuit — that MDLEA is constitutional as an exercise of Congress’s power to implement treaties— the Court ordered further briefing on that issue. See Minute Order dated Jan. 17, 2013.

B. The Drug Trafficking Organization and Planned November 2006 Loads

Along with other individuals in Colombia and Mexico, Messrs. Munoz Miranda and Valderrama Carvajal were co-conspirators in a drug trafficking organization (DTO) that, “from in or about 2006 and continuing until August 25, 2010, transported narcotics from Colombia on stateless go-fast vessels through international waters to other countries.” Joint Statement of Stipulated Facts as to Defendant Munoz Miranda (“Munoz Miranda SoF”) [Dkt. 73] ¶ 3; Joint Statement of Stipulated Facts as to Defendant Valderrama Carvajal (“Valderrama Carvajal SoF”) [Dkt. 77] ¶ 3. The DTO provided cocaine to a drug trafficking organization in Mexico headed by a man named Jorge Castro. Dkt. 60, Ex. D [Dkt. 60-4], Affidavit of Agent Christopher Jakim, at 3-4. Defendant Valderrama Carvajal was “the organizer in the Jorge Castro [DTO] and the bridge between the transportation network in Colombia and the cocaine purchaser in Mexico.” Id. Defendant Munoz Miranda “assisted with logistics, as well as with obtaining and delivering maritime supplies and reports to ensure that the cocaine arrived at its planned destination without law enforcement detection.” Id.

During November 2006, “pursuant to a lawfully authorized interception order, Colombia law enforcement officers were listening to telephone calls of some of the conspirators in this case. Based on the intercepted calls, the officers concluded that the Defendants were planning to move a large load of cocaine from the north coast of Colombia.” Dkt. 60 at 2; see also Dkt. 60, Ex. C [Dkt. 60-3] (Wiretap Transcriptions).

The DTO’s intended November 2006 shipment involved at least two separate loads. For both shipments, the DTO planned to use a go-fast boat, a term used by Coast Guard officials to refer to vessels that “can travel at high rates of speed, which makes them a favored vehicle for drug and alien smuggling operations.” United States v. Tinoco, 304 F.3d 1088, 1092 (11th Cir.2002). The vessels were to transport cocaine from the north coast of Colombia that was “to be ultimately delivered to a co-defendant in Mexico.” Munoz Miranda SOF ¶ 3; Valderrama Carvajal SOF ¶ 5. The go-fast boat for the first shipment, which “was not registered in Colombia and did not fly a Colombian flag,” “was standing by with a crew and was ready to transport the cocaine.” Munoz Miranda SOF ¶ 3; see also Valderrama Carvajal SOF ¶ 5. “However, the day before the cocaine was to be loaded on the go-fast boat, the cocaine was stolen from the custody of others who had been entrusted with the cocaine.... ” Munoz Miranda SOF ¶ 3. The DTO’s efforts to recover the stolen load were fruitless. Id.

A different shipment of approximately 2000 kilograms of cocaine was successfully loaded aboard a go-fast vessel that left Colombia’s north coast on November 16, 2006. Valderrama Carvajal SOF ¶ 5. Neither Mr. Munoz Miranda nor Mr. Valderrama Carvajal was aboard; instead, the boat was crewed by five Colombians who were hired by various intermediaries. See Crew Statements, Dkt. 60, Ex. B [Dkt. 60-2]. The vessel was a “launch with a dark blue hull,” “shaped like a large racing boat,” “about 40 feet in length,” and equipped with three Yamaha 200-horse-power motors. Dkt. 60 at 2; Statement of Colombian Naval Lieutenant Gustavo Adolfo Espinosa Redondo, Dkt. 60, Ex. A [Dkt. 60-1], at 3. The go-fast boat flew no flag, was not registered in Colombia or any other country, and carried no registration information. Valderrama Carvajal SOF ¶ 3.

The go-fast boat “headed towards the San Andres Islands, and was to rendezvous with another vessel near the coast of Honduras, where the cocaine would be transferred to the other vessel.” Dkt. 60 at 2; see also Valderrama Carvajal SOF ¶ 3 (“The captain of the go-fast boat admitted ... that the cocaine was to be offloaded onto another vessel near the coast of Honduras.”). The precise path taken by the go-fast vessel is unknown, as discussed below.

On November 18, 2006, “the Colombia Navy and Air Force intercepted the go-fast vessel near Roncador Island, a tiny, essentially uninhabited rock island” that belongs to Colombia and is also sometimes called Roncador Cay; following a brief chase, the go-fast vessel ran aground on Roncador. Dkt. 60 at 3; see also Valderrama Carvajal SOF ¶ 3. The Colombian Navy arrested the five crewmembers. Valderrama Carvajal SOF ¶ 3. One of the crew members identified himself as the captain. Id. None of the crew members claimed Colombian registry for the vessel. Id. When the Colombian Navy personnel inquired as to “where the papers were that proved the ownership of the launch and the motors,” the crew responded that “it had no papers and that they did not know who the owner was and that they knew no one, that they were simply hired to go find a fishing boat in that area named SI SE PUEDE that was supposedly adrift.” Statement of Lt. Espinosa Redondo at 3. The Colombian Navy recovered cocaine from the go-fast vessel and the ocean. Dkt. 60 at 3. The search also uncovered approximately twenty 55-gallon gasoline drums; no other documents and “[n]o other item such as GPS, cellular phones, or two-way radios were found, because the captain told [the Colombian Navy] that the person who had been carrying the knapsack containing the equipment had dropped it in the water.” Statement of Lt. Espinosa Redondo at 3.

C. Caribbean Maritime Geography

Understanding the geography at issue in this case is useful to the following discussion. There is an historical dispute between Nicaragua and Colombia as to ownership of the seas and islands in the area, referred to as the San Andres Islands. The parties do not dispute where the territories and seas are located, and they agree on a beginning point and an endpoint for the go-fast vessel: (1) it left from some port on the northern coast of Colombia, and (2) it ended up aground on Roncador. The International Court of Justice prepared a sketch of the area in question, referred to as “Map A.” Roncador appears in the upper center of the map.

Territorial & Maritime Dispute (Nicaragua v. Colombia), 2012 I.C.J. No. 124 (“ICJ Decision”), at 64. The shaded area shows Roncador and other scattered islands, not land.

“Roncador is an atoll located on a bank 15 km long and 7 km wide. It is about 190 nautical miles to the east of the mainland of Nicaragua, 320 nautical miles from the mainland of Colombia, 75 nautical miles east of the island of Providencia and 45 nautical miles from Serrana. Roncador Cay, located half a mile from the northern border of the bank, is some 550 metres long and 300 metres wide.” ICJ Decision ¶ 24(c). This Court takes judicial notice of the geography depicted in Map A and as explained in the ICJ’s ruling. See Fed. R.Evid. 201.

The dispute between Nicaragua and Colombia over the ownership of the islands depicted in Map A has its origin in the eighteenth century. The countries tried to settle the matter through a treaty in 1928, but Nicaragua renounced the treaty in the 1980s and claimed that the islands belonged to it. “UN ruling gives Colombia islets but Nicaragua more sea,” BBC, Nov. 19, 2012, available at http://www.bbc.co.uk/ news/world-latin-america-20391180 (last accessed Feb. 19, 2013) (“BBC Article”). In 2007, a preliminary ICJ decision held that three of the biggest islands in the archipelago belonged to Colombia. Id. In the November 2012 ruling, the ICJ upheld Colombia’s claim to all of the islands in question, including Roncador. See ICJ Decision ¶ 103. The parties have briefed this case on the assumption that Roncador belongs to Colombia, so the ICJ’s ruling does not change matters. The ICJ also determined the rights of Nicaragua and Colombia with respect to the waters surrounding the islands. This issue is discussed in the context of other maritime definitional issues below.

II. LEGAL STANDARD

“[A]t any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court’s jurisdiction or to state an offense.” Fed.R.Crim.P. 12(b)(3)(B). The jurisdiction of a United States court under MDLEA “is not an element of an offense,” and jurisdictional issues in MDLEA prosecutions are “preliminary questions of law to be determined solely by the trial judge.” 46 U.S.C. § 70504; see also United States v. Mitckellr-Hunter, 663 F.3d 45, 51 (1st Cir.2011) (“[T]he purpose of the MDLEA’s jurisdictional requirement is not to protect a defendant’s rights, but instead to maintain comity between foreign nations .... ”). Courts have required the government to establish jurisdiction by a preponderance of the evidence, e.g., United States v. Matos-Luchi, 627 F.3d 1, 5 (1st Cir.2010), and the Court imposes that standard here.

Other judges of this Court have addressed whether motions to reconsider are properly entertained in criminal cases and, if so, what standards govern. See United States v. Bloch, 794 F.Supp.2d 15, 18-19 (D.D.C.2011) (“In sum, while judges of this court have, on occasion, entertained motions for reconsideration of interlocutory orders in criminal cases, no Federal Rule of Criminal Procedure, or Local Criminal Rule of the United States District Court for the District of Columbia, provides for such motions.”). This Court, like others, e.g., United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C.2009), assumes that such motions are available but need not resolve the issue for two reasons. First, and most importantly, Messrs. Munoz Miranda and Valderrama Carvajal challenge the Court’s jurisdiction. Second, the motions provide the Court with an opportunity to amplify its oral ruling for appeal in a case of first impression. To that extent, the motions addressed herein are essentially the original motions to dismiss. Justice is best served if the Court considers the claims advanced by the Defendants, however styled. See id. (applying “as justice requires” standard to similar motion for reconsideration after denial of motion to dismiss).

III. ANALYSIS

Messrs. Munoz Miranda and Valderrama Carvajal raise multiple jurisdictional challenges to their prosecutions. Many of their arguments overlap issues that are analytically distinct. The small-but-growing body of MDLEA case law has evolved over time, has interpreted a statute that has been amended on numerous occasions, and has addressed a number of legal questions that can be difficult to separate. This Court attempts to distinguish and treat each legal issue separately.

The Court first reviews the statute, discussing the provisions and history necessary to understand the issues presented here and to read prior MDLEA decisions correctly. Next, the Court addresses a number of factual matters that must be determined before reaching the Defendants’ legal arguments, including the status of the vessel seized by the Colombian Navy, what constitutes the “high seas,” and whether this particular go-fast vessel traveled on the high seas. Third, the Court addresses statutory subject matter jurisdiction, considering whether MDLEA applies to the facts of this case. The constitutionality of MDLEA as applied is addressed fourth. Finally, the Court considers whether the prosecution of Messrs. Munoz Miranda and Valderrama Carvajal comports with due process. •

A. Maritime Drug Law Enforcement Act

1. 1980s Enactment and Legislative History

In 1980, Congress enacted what would later become MDLEA as part of legislation “to facilitate increased enforcement by the Coast Guard of laws relating to the importation of controlled substances.” §§ 1-4, Pub. L. 96-350, 94 Stat. 1159. The first version of the statute was codified at 21 U.S.C. 955a et seq., and the earliest cases interpreting the statutory language of MDLEA — those from the early 1980s— cite to this statute. MDLEA itself was enacted as §§ 3201-02 of the Anti-Drug Abuse Act of 1986 and codified at 46 U.S.C. App. § 1901 et seq. See Pub. L. 99-570, 100 Stat. 3207. In 2006, the MDLEA was moved to its present location at 46 U.S.C. § 70501 et seq. without any amendment relevant to this case. See Act of Oct. 6, 2006, § 10(2), Pub. L. 109-304, 120 Stat. 1485.

According to the legislative history, the 1980 legislation was enacted to “facilitate enforcement by the Coast Guard of laws relating to the importation of illegal drugs and other purposes.” S.Rep. No. 96-855, 1980 U.S.C.C.A.N. 2785, 2785 (July 16, 1980). The Coast Guard had faced difficulty because the Comprehensive Drug Abuse Prevention and Control Act of 1970 inadvertently “repealed] the criminal provision under which drug smugglers apprehended on the high seas were prosecuted without creating a new provision to replace it.” Id. The repeal created a “statutory void” because if the government wished to prosecute offenders seized on the high seas, it had to prosecute conspiracy or attempt to import narcotics. Id. at 2785-86. However, “in most cases, evidence to prove importation or conspiracy beyond a reasonable doubt [was] impossible to obtain.” Id. Accordingly, although the Coast Guard could “seize and confiscate the ship and the illegal drugs,” it could not “prosecute the crew or others involved in the smuggling operation,” creating a situation in which there was “little deterrent effect on the crews or the trafficking organizations in the highly lucrative trade in illegal drugs” because the organizations considered occasional seizures “part of the cost of doing business.” Id. at 2786. The Senate Report also states that the 1980 legislation was intended to “give the Justice Department the maximum prosecutorial authority permitted under international law” and “to address acts committee [sic] outside the territorial jurisdiction of .the United States.” Id.; see also id. (MDLEA “would apply to prohibited acts even if such acts occurred outside the territorial jurisdiction of the United States”). The statute explicitly stated that it would apply extraterritorially because, some courts declined to give statutes extraterritorial effect without an explicit statement from Congress. Id.

The 1980 version of the statute contained provisions nearly identical to those under which Messrs. Munoz Miranda and Valderrama Carvajal are charged. The statute provided: “[I]t is unlawful for any person ... on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance,” 21 U.S.C. § 955a(a), and it extended its reach to “[a]ny person who attempts or conspires to commit any offense defined in this Act,” id. § 955c. The statute made clear that it was “intended to reach acts of possession, manufacture, or distribution committed outside the territorial jurisdiction of the United States.” Id. § 955a(h).

2. 1986 Version

The version of MDLEA enacted in 1986 is very similar to the version in effect today, apart from its different location in the United States Code. See 46 U.S.C.App. §§ 1902-03. The statute was moved to its present location at 46 U.S.C. § 70501 et seq. in 2006. Importantly, the predecessors of the sections with which Messrs. Munoz Miranda and Valderrama Carvajal are charged included substantially the same statutory text as the present versions, making reliance on cases from 1986 to 2006 feasible even though they cite to a different section of the United States Code. See 46 U.S.C.App. § 1903(a) (2002) (“It is unlawful for any person ... on board a vessel subject to the jurisdiction of the United States ... to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.”); id. § 1903(c)(1)(A) (“[A] ‘vessel subject to the jurisdiction of the United States’ includes a vessel without nationality ... ”); id. § 1903(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 ... ”). However, it bears noting that the “on the high seas” language present in the 1980 version was omitted from the 1986 version. Compare 21 U.S.C. § 955a(a) (1980) (“[I]t is unlawful for any person ... on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance .... ” (emphasis added)), with 46 U.S.C.App. § 1903(a) (2002) (“It is unlawful for any person ... on board a vessel subject to the jurisdiction of the United States ... to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.”).

3. Present Version

The present version of MDLEA retains as a preamble from the 1986 version a statement that “Congress finds and declares that trafficking in controlled substances aboard vessels is a serious international problem, is universally condemned, and presents a specific threat to the security and societal well-being of the United States....” 46 U.S.C. § 70501(1).

Messrs. Munoz Miranda and Valderrama Carvajal are charged with violating 46 U.S.C. §§ 70503(a)(1) & 70506(b). The substantive offense provision, § 70503(a)(1), provides: “An individual may not knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board a vessel of the United States or a vessel subject to the jurisdiction of the United States.... ” Furthermore, § 70506(b) provides that “[a] person attempting or conspiring to violate section 70503 of this title is subject to the same penalties as provided for violating section 70503.”

As to extraterritorial application, MDLEA states explicitly that § 70503(a) “applies even though the act is committed outside the territorial jurisdiction of the United States.” Id. § 70503(b). Moreover, the statute provides that individual defendants charged with violating MDLEA have no standing to raise an international-law violation as a defense:

A person charged with violating section 70503 of this title ... 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 in the enforcement of this chapter 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.

Id. § 70505.

A “vessel subject to the jurisdiction of the United States” is defined in 46 U.S.C. § 70502(c), which provides:

(1) ... [T]he term “vessel subject to the jurisdiction of the United States” includes—

(A) a vessel without nationality;

(C) a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States;

(D) a vessel in the customs waters of the United States;

(E) a vessel in the territorial waters of a foreign nation if the nation consents to the enforcement of United States law by the United States....

(2) Consent or waiver of objection.— Consent or waiver of objection by a foreign nation to the enforcement of United States law by the United States under paragraph (1)(C) or (E)-(A) may be obtained by radio, telephone, or similar oral or electronic means; and (B) is proved conclusively by certification of the Secretary of State or the Secretary’s designee.

The statute and case law further define “vessel without nationality,” as discussed below.

B. Maritime Definitional Issues

For purposes of a ruling here, the Court must determine the meaning of “the high seas” as used in the United States Constitution Article I § 8, clause 10, which provides that Congress is empowered “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Complicating matters is that the terminology for bands of water at differing ranges from a nation’s coast is complex and not uniform. The following terms are relevant to the instant analysis:

Customs Waters: Refers to “three miles of water from any point of land out to sea.” United States v. Ledesma-Cuesta, 347 F.3d 527, 530 n. 3 (3d Cir.2003). “[I]n the case of a foreign vessel subject to a treaty or other arrangement between a foreign government and the United States enabling or permitting the authorities of the United States to board, examine, search, seize, or otherwise to enforce upon such vessel upon the high seas the laws of the United States, [customs waters are] the waters within such distance of the coast of the United States as the said authorities are or may be so enabled or permitted by such treaty or arrangement and, in the case of every other vessel, the waters within four leagues of the coast of the United States.” 19 U.S.C. § 1401(j).

Territorial Waters or Territorial Seas: Refers to twelve miles of water from any point of land of any country out to sea. Ledesma-Cuesta, 347 F.3d at 530 n. 3. “[I]nternational law today sets the breadth of the territorial sea which the coastal State has the right to establish at 12 nautical miles.... Colombia has established a 12-nautical-mile territorial sea in respect of all its territories.” ICJ Decision ¶ 177; see also id. ¶ 178 (discussing how the Court of Arbitration and International Tribunal on the Law of the Sea have reached the same result regarding the extent of territorial seas); 1982 United Nations Convention on the Law of the Sea (UNC-LOS), opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994), Art. 3. “In accordance with long-established principles of customary international law, a coastal State possesses sovereignty over the sea-bed and water column in its territorial sea.” ICJ Decision ¶ 177 (citation omitted). The ICJ’s 2012 decision included a finding that Roncador is entitled to a twelve-mile territorial sea. Id. ¶ 180.

Exclusive Economic Zone (EEZ) and Continental Shelf: Exclusive Economic Zone refers to two-hundred miles of water from the baseline of a coastal state, UNC-LOS Art. 57, and the Continental Shelf is “the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial .sea is measured where the outer edge of the continental margin does not extend up to that distance,” id. Art. 76. “States enjoy specific rights, rather than sovereignty, with respect to the continental shelf and exclusive economic zone.” ICJ Decision ¶ 177. In its 2012 ruling, the ICJ set out a line of maritime delimitation to divide the continental-shelf and EEZ rights of Colombia and Nicaragua. See ICJ Decision ¶¶ 184-247; see also id. Map no. 11 (illustrating maritime boundary fixed by the ICJ). This ruling has upset Colombia because its EEZ has been reduced in size and because two of its islands — Roncador not among them — are now surrounded by waters in the Nicaraguan EEZ, notwithstanding the 12-mile territorial sea around them belonging to Colombia. See Jim Wyss, “World court: Colombia loses swath of sea but keeps islands in dispute with Nicaragua,” Miami Herald, Nov. 19, 2012, available at http://www.miamiherald.co m/2012/11/19/3104915/world-court-colombia-losesswath.html (last accessed Feb. 20, 2012).

The High Seas: Courts treat “the high seas” as the waters not within any nation’s territorial seas — i.e., the high seas are the waters beyond the coastal state’s sovereignty, meaning those greater than twelve miles from the coast. E.g., United States v. Romero-Galue, 757 F.2d 1147, 1149 (11th Cir.1985) (MDLEA case) (citing United States v. Williams, 617 F.2d 1063, 1073 ,n. 6 (5th Cir.1980) (en banc); other citations omitted); see also Convention on the High Seas, Sept. 30, 1962, art. 1, 13 U.S.T. 2312 (“The term ‘high seas’ means all parts of the sea that are not included in the territorial sea or in the internal waters of a State.”); In re Air Crash Off Long Island, New York, on July 17, 1996, 209 F.3d 200, 205 (2d Cir.2000) (surveying United States and international law on meaning of “high seas” and concluding that the “high seas” are those outside territorial waters).

C. Factual Issues — Statelessness & High Seas Travel

Before turning to issues of statutory subject matter jurisdiction, constitutionality, and due process, the Court makes two findings of fact that guide its legal analysis: (1) the vessel seized by the Colombian Navy off Roncador and the vessel planned to transport the stolen load were “stateless vessels” subject to United States jurisdiction under 46 U.S.C. § 70502(c)(1), (d); and (2) the vessel seized by the Colombian Navy traveled on the high seas before being seized off Roncador in the territorial waters of Colombia.

1. Statelessness of Vessel

DOJ relies on the theory that the vessels were “without nationality” and thus subject to United States jurisdiction under 46 U.S.C. §§ 70502(c)(1), (d). See Dkt. 47 at 2. For the reasons set forth below, the Court finds that both vessels were “without nationality.”

A “ ‘vessel subject to the jurisdiction of the United States’ includes a vessel without nationality.” 46 U.S.C. § 70502(c)(1)(A). MDLEA in turn defines a “vessel without nationality” to include three different categories of vessels. 46 U.S.C. § 70502(d)(1). Those categories are:

(A) a vessel aboard which the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed;

(B) a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and

(C) a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.

Id. Moreover, MDLEA limits to three the ways in which a vessel can make a “claim of nationality or registry” in 46 U.S.C. § 70502(e):

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.

(emphasis added).

Because MDLEA’s list of what constitutes a “vessel without nationality” is not exhaustive, see 46 U.S.C. § 70502(d)(1) (“the term ‘vessel without nationality’ includes ...” (emphasis added)), courts have held that MDLEA’s definition of a “vessel without nationality” also encompasses vessels considered “stateless” or “without nationality” under international law. See United States v. Rosero, 42 F.3d 166, 171 (3d Cir.1994) (“[T]he residual category of vessels ‘without nationality’ [in the MDLEA] ... are those that would be regarded as without nationality or stateless under international law.”); see also United States v. Henriquez, 731 F.2d 131, 134 n. 5 (2d Cir.1984) (“[T]he term ‘vessel without nationality’ clearly encompasses vessels not operating under the authority of any sovereign nation.”). Essentially, “the core of the concept of a vessel that is ‘without nationality’ or stateless is that the vessel lacks authorization to fly the flag of any recognized state.” Rosero, 42 F.3d at 171.

Both Messrs. Munoz Miranda and Valderrama Carvajal conceded in their factual proffers that both vessels the DTO used in this case were stateless. See Munoz Miranda SOF ¶ 3 (“[The DTO] ... transported narcotics from Colombia on stateless go-fast vessels.... ”); Valderrama Carvajal SOF ¶¶ 3 (same).

However, the Defendants had argued prior to entering guilty pleas that statelessness was unresolved as a factual matter. See Dkt. 34 at 3 (“[I]t appears the Colombian Navy believed the vessel was Colombian as it asserted its jurisdiction over the vessel. There is no evidence that the Colombian Navy questioned or considered the nationality of the vessel to be anything other than Colombian.”); see also Dkt. 61 at 8-9, 10 (“[T]he ‘statelessness of the vessel’ has in fact not been proven.”). They speculate that, prior to the seizure in Colombian territorial waters, “there may well have been aboard the boat at some point documents relating to the nationality of the vessel.... [H]ad the vessel ... been seized on the high seas, it may have very well maintained ‘documents’ on board,” asserted a claim of nationality when seized, or carried a flag. Dkt. 51 at 5. In their motions for reconsideration, Defendants also raised a legal argument: the vessels cannot have been stateless because “[ujnder international law, only a vessel in international waters[] can be ‘stateless’ or without nationality.” Dkt. 91 at 3 (citing Schoenbaum, Admiralty & Maritime Law 5th ed., 2012, Vol. 1, § 3-12).

DOJ responds that the vessels were “without nationality.” Dkt. 47 at 5. “[Tjhere was no name or markings on the vessel, and the go-fast boat was not flying a flag. Moreover, a search of the vessel did not reveal any registration documents. Additionally, when questioned, none of the crew members indicated that the vessel was registered to a particular country, identified the vessel’s owner, or provided paperwork documenting ownership or registration with the Colombian government.” Dkt. 47 at 4-5; see also Dkt. 60 at 14, Dkt. 89 at 9-11.

Messrs. Munoz Miranda and Valderrama Carvajal agreed at the motions hearing that they would not present any evidence on the issue of statelessness. Both from their pleas and the entire record, the Court concludes that DOJ has met its burden of proving statelessness. In Mr. Munoz Miranda’s factual proffer, he conceded that the stolen load was to be shipped aboard a boat that “was not registered in Colombia and did not fly a Colombia flag.” Munoz Miranda SOF ¶ 3. Mr. Valderrama Carvajal likewise admitted that the vessel that ran aground off Roncador “did not fly a flag, was not registered in Colombia or any other nation, and contained no registration identification” and that “[n]o one in the crew, including the captain, claimed that the go-fast boat was registered in Colombia.” Valderrama Carvajal SOF ¶ 3. Accordingly, there was no “claim of nationality or registry” as to either vessel at any time. See 46 U.S.C. § 70502(e). Moreover, because neither boat was registered, had a “claim of nationality or registry” been made, it inevitably would have been rejected. See id. § 70502(d)(1).

These vessels fit comfortably within the concept of a “stateless vessel” or “vessel without nationality” as recognized in international law, as comparison to a representative sampling of cases shows. See United States v. Rendon, 354 F.3d 1320, 1328 (11th Cir.2003) (vessel stateless when it “flew no flag, contained no identification markings or registration documents, and Colombian officials were unable to confirm [a crewmember’s] assertion of Colombian registry”) (citations to predecessor statute omitted); Tinoco, 304 F.3d at 1115 (vessel stateless where, inter alia, there were no “identifying marks on the vessel or any registration documents on board,” the crew members “never volunteered the name of the vessel and its registration number,” and Colombia, the claimed nation of registration, was unable to confirm or deny the vessel’s registry); United States v. Cuevas-Esquivel, 905 F.2d 510, 514 (1st Cir.1990) (vessel stateless when “[n]o one identified himself as the master or person in charge,[] the vessel had no name, no flag, or other identifying characteristics” and “the crew denied knowing who the master was, the name of the vessel and its nationality”).

The Court turns to the Defendants’ legal argument — that a vessel cannot be “stateless” unless it is in international waters. See Dkt. 91 at 3. This argument fails for several reasons. First, Messrs. Munoz Miranda and Valderrama Carvajal overstate the contents of the only source on which they rely, an admiralty law treatise. That text states a proposition that is far less helpful than the one the Defendants cite it for: “Since stateless vessels are ‘international pariahs’ and have no right to navigate freely on the high seas, they may be subjected to the jurisdiction of any state.” Schoenbaum, supra, § 3-12 at 216. This statement says nothing about tying statelessness to seizure only on the high seas. Second, as discussed below, the Court finds that the go-fast boat seized by the Colombian Navy did travel through the high seas. The Defendants have offered nothing more than speculation that the vessel was equipped with registration documents or a flag while it was on the high seas, before reentering Colombian waters. To the contrary, the description of that vessel in the factual proffer was unequivocal and unconditional: “The go-fast boat did not fly a flag, was not registered in Colombia or any other nation, and contained no registration identification.” Valderrama Carvajal SOF ¶3. Third, the Court has located no authority — in MDLEA or otherwise — for the proposition that stateless vessels only become truly stateless when they cross into the high seas. The absence of such authority is unsurprising; the sine qua non of statelessness is the vessel’s lack of nationality, not where the vessel happens to be. See Rosero, 42 F.3d at 171 (“[T]he core of the concept of a vessel that is “without nationality’ or stateless is that the vessel lacks authorization to fly the flag of any recognized state.”).

Accordingly, the Court concludes that the vessels used by the DTO were subject to the jurisdiction of the United States as vessels without nationality. See 46 U.S.C. §§ 70502(c)(1)(A), (d)(1).

2. Travel through the High Seas

Messrs. Munoz Miranda and Valderrama Carvajal contend that there is no evidence that the go-fast vessel actually traveled on the high seas at any point prior to being seized. DOJ responds that the circumstantial evidence overwhelmingly confirms that the vessel passed through the high seas at least once. For the reasons discussed below, the Court concludes that DOJ has shown by a preponderance of the evidence that the vessel did pass through the high seas.

According to Messrs. Munoz Miranda and Valderrama Carvajal, they “at no time conceded ... that the boat traveled through the high seas, nor from where the boat initially embarked, or its route of travel, [or] which waters it traversed.... [T]he government’s discovery, namely, statements of crew members, are inconsistent to each other, on various points of their travel including where exactly they departed....” Dkt. 95 at 2-3. The Defendants reason that “[t]he vessel may have traveled along the territorial waters of Panama and other nations before returning to Colombian waters [where] it was seized.” Dkt. 51 át 5. Their argument, then, is that it is possible the go-fast vessel skirted the coasts of Colombia, Panama, Costa Rica, and Nicaragua, then traveled from island to island, never traveling outside of the territorial seas of those nations at any point prior to being interdicted. See Map A.

DOJ responds that “it is a reasonable inference from the crew’s post-arrest statements that the vessel left a point somewhere on the northern coast of Colombia, then traveled through international waters, before being interdicted by the Colombian officials on Roncador’s reefs.” Dkt. 60 at 21. DOJ summarizes those statements as follows:

One of the crew members, Domingo Borja Melendez, admitted that he was Captain of the go-fast vessel and that the crew picked up the cocaine-laden vessel at Puerto Estrella, which is located in La Guajira Department on the Northern Coast of Colombia. He further stated that they were instructed to deliver the drugs that were on that vessel to another that would be located in Honduran waters. Two other crew members, Elvis Ramos Gorgona and Miguel Antonio Benitez Ladeus, stated that they left from a place close to Covefias, which is also on the Northern Coast of Colombia. Benitez Ladeus also stated that they were headed towards a key in San Andres when they detoured to Roncador after being spotted by a plane.

Dkt. 47 at 6.

Moreover, according to DOJ, “it would have been impossible for the go-fast vessel to depart the northern coast of Colombia, at the points the crew members described, and reach Roncador Island, without venturing into waters beyond the 12 nautical mile territorial limit of Colombia (or Nicaragua, Honduras, or Panama, for that matter).” Dkt. 89 at 17. DOJ also relies on the judicially authorized wiretaps, during which members of the DTO discussed coordinates in international waters at which the go-fast vessel was to meet another vessel to transfer the cocaine. Dkt. 60 at 18; see also Dkt. 89 at 12-13.

Both the evidence proffered by DOJ and logic firmly support DOJ’s contention that the go-fast vessel traveled on the high seas. Nothing in the record supports the Defendants’ theory that the go-fast vessel intentionally scooped a longer, wide U-shaped path along the coasts and islands. To the contrary, all of the crew members testified that they left the north Colombian coast and headed towards a rendezvous point off Honduras. E.g., Statement of Carlos Andres Naranjo Jaramillo, Dkt. 60, Ex. B [Dkt. 60-2] at 3 (“We left in the early morning hours of Friday from beyond Coveñas headed toward the cays over here, of San Andres. We sailed all night until we were intercepted by the plane and they made us run aground.”); Statement of Domingo Borja Melendez, Dkt. 60, Ex. B [Dkt. 60-2] at 6-13 (go-fast vessel’s captain statement that he was instructed to deliver the cocaine to “a boat in Honduran territorial waters”). Taking a circuitous route would have been contrary to the goal of using the go-fast vessel: to transport narcotics as swiftly as possible while minimizing the risk of interdiction.

Even if the go-fast vessel had taken a circuitous route in an attempt to avoid the high seas, there is a stark fact of geography the Defendants cannot overcome. According to Map A, the chart prepared by the ICJ, there is no land mass within 12 nautical miles of Roncador. The nearest island in the most logical U-pattern is Providencia Island, 75 nautical miles away; the Serrano Cays are approximately 45 nautical miles away from Roncador. The go-fast vessel must, therefore, have traveled outside the 12-mile territorial sea limit at some point. Even assuming travel in a perfectly plotted path, it was impossible for the go-fast vessel to have arrived on Roncador’s reefs without having traveled on the high seas. The Court thus proceeds to the other sections of its analysis having found that the go-fast vessel did travel on the high seas.

D. Statutory Subject Matter Jurisdiction

The Defendants also argue that the offenses with which they are charged fall outside the scope of MDLEA. Analysis of any statute that purports to apply extra-territorially — that is, to conduct outside the United States — begins with two preliminary inquiries: (1) did Congress intend the statute to apply extraterritorially?; and (2) the Charming Betsy canon: should the Court give the statute a limited interpretation to comport with international law? After addressing those matters, the Court turns to the specific arguments raised by Messrs. Munoz Miranda and Valderrama Carvajal: (1) DOJ has not alleged that they conspired while “on board” a vessel subject to United States jurisdiction; (2) there is no allegation that Defendants’ conduct had any nexus to the United States; and (3) prosecution in the United States fails ab initio because Colombia has not “consented.”

As discussed in more detail below, the Court concludes that, as a matter of statutory construction, MDLEA prohibits the conduct charged here because the Defendants conspired with the crew to distribute a controlled substance on board a stateless vessel.

1. Extraterritorial Application

“It is beyond doubt that, as a general proposition, Congress has the authority to ‘enforce its laws beyond the territorial boundaries of the United States.’ ” United States v. Yousef, 327 F.3d 56, 86 (2d Cir.2003) (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991)). “Although there is a presumption that Congress does not intend a statute to apply to conduct outside the territorial jurisdiction of the United States, that presumption can be overcome when Congress clearly expresses its intent to do so.” Yousef, 327 F.3d at 86 (citing, inter alia, Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949)); see also Morrison v. Nat’l Australia Bank Ltd., — U.S. -, 130 S.Ct. 2869, 2877, 177 L.Ed.2d 535 (2010) (“It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” (internal quotation marks and citations omitted)); United States v. Yakou, 428 F.3d 241, 252 (D.C.Cir.2005). If Congress’s intent is clear, and the statute is not otherwise beyond constitutional authority, then courts are bound to follow that intent so long as the Fifth Amendment’s guarantee of due process is satisfied. See Yousef, 327 F.3d at 86 (citation omitted); United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir.1983).

The presumption against extraterritoriality does not apply to criminal statutes that are “not logically dependent on their locality for the government’s jurisdiction.” See United States v. Bowman, 260 U.S. 94, 98-99, 43 S.Ct. 39, 67 L.Ed. 149 (1922) (giving as examples “enticing desertions from the naval service” and “[gorging or altering ship’s papers”). In those cases, “to limit [the statute’s] locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home,” and Congress can reasonably be assumed to have intended to criminalize conduct beyond United States borders. See id.; see also Yakou, 428 F.3d at 252 (“[A]bsent an indication from Congress to the contrary, the crime of aiding and abetting ‘conferfs] extraterritorial jurisdiction to the same extent as the offense [] that underlie[s it].’ (quoting United States v. Hill, 279 F.3d 731, 739 (9th Cir.2002); alterations in Yakou)).

No hesitation is required; Congress intended MDLEA to apply extra-territorially. The conduct alleged in this case, while at the outer limits of the statutory text, nonetheless falls within it: Congress criminalized “attempting or conspiring” to “knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board.” 46 U.S.C. §§ 70503(a)(1), 70506(b). There is no territorial limitation in the statutory text, and the offenses reached by it overcome the presumption against extraterritoriality because they “not logically dependent on their locality” for United States jurisdiction. Bowman, 260 U.S. at 98-99, 43 S.Ct. 39. Congress’s designs are made even more plain by the supporting sections of MDLEA, in which Congress “declare[d] that trafficking in controlled substances aboard vessels is a serious international problem” and specified that § 70503(a) “applies even though the act is committed outside the territorial jurisdiction of the United States.” 46 U.S.C. §§ 70501, 70503(b). Courts have uniformly ruled that MDLEA applies to conduct outside the United States. E.g., United States v. Davis, 905 F.2d 245, 248 (9th Cir.1990) (“Congress explicitly stated that it intended the Maritime Drug Law Enforcement Act to apply extraterritorially.”).

It bears emphasizing that the Court’s conclusion as to extraterritoriality extends to the conspiracy provision. As the plain text quoted above makes clear and as courts have recognized, MDLEA’s conspiracy prohibition reaches coextensively with the substantive offense. See Pinto-Mejia, 720 F.2d at 259 (“[T]here is evidence that Congress had as a primary goal the ability to reach stateless possessors of narcotics who could not be proved to have intent to distribute the narcotics in the United States.”); cf Yousef, 327 F.3d at 87-88 (“[I]f Congress intended United States courts to have jurisdiction over the substantive crime of placing bombs on board the aircraft at issue, it is reasonable to conclude that Congress also intended to vest in United States courts the requisite jurisdiction over an extraterritorial conspiracy to commit that crime.”).

2. Charming Betsy

Under the Charming Betsy canon, the Court is required to consider whether extraterritorial application of a Congressional statute accords with international law.

The Supreme Court early cautioned that “an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains.... ” Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18, 2 L.Ed. 208 (1804); accord Weinberger v. Rossi, 456 U.S. 25, 32, 102 S.Ct. 1510, 71 L.Ed.2d 715 (1982) (applying Charming Betsy as a “maxim of statutory construction”). Nonetheless, the Charming Betsy canon guides interpretation of ambiguous statutes as a matter of international comity, not as a hard-and-fast rule. “[I]n fashioning the reach of our criminal law, ‘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.’ ” Yousef, 327 F.3d at 86 (quoting Pinto-Mejia, 720 F.2d at 259; other citations omitted). “If a statute makes plain Congress’s intent (instead of employing ambiguous or ‘general’ words), then Article III courts, which can overrule Congressional enactments only when such enactments conflict with the Constitution, must enforce the intent of Congress irrespective of whether the statute conforms to customary international law.” Id. at 93 (internal citation and quotation omitted). “[W]ithin the domestic legal realm, that inconsistent statute simply modifies or supersedes customary international law to the extent of the inconsistency.” United States v. Yunis, 924 F.2d 1086, 1091 (D.C.Cir.1991) (quoting Comm, of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929 (D.C.Cir.1988)).

As discussed above, Congress’s intent in passing MDLEA was plain: MDLEA is intended to apply extraterritorially, and on its face it reaches the conduct alleged in this case: conspiracy to use a stateless vessel to distribute narcotics. See 46 U.S.C. §§ 70503(a)(1), 70506(b); see also id. § 70503(b) (§ 70508(a) applies “even though the act is committed outside the territorial jurisdiction of the United States”). The Court is thus bound to apply MDLEA as written regardless of whether application of MDLEA in this case is consistent with international law. See Yunis, 924 F.2d at 1091.

Whether MDLEA is, in fact, contrary to international law is a difficult question. It suffices to say that DOJ has not demonstrated any clear authority under international law for the proposition that a country may exercise jurisdiction over conspirators whose conduct took place wholly in a foreign country, with no demonstrated nexus to the country exercising jurisdiction, on the theory that the conspiracy involved use of a stateless vessel that traveled on the high seas. However, the Defendants have likewise not pointed to any clear authority to demonstrate that their prosecution contravenes international law.

“[I]nternational law itself imposes limits on the extraterritorial jurisdiction that a domestic court may exercise. It generally recognizes five theories of jurisdiction, the objective territorial, national, passive, protective and universal.” Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 n. 7 (D.C.Cir.1984). This Court summarized the five theories as follows:

Territorial, wherein jurisdiction is based on the place where the offense is committed; National, wherein jurisdiction is based on the nationality of the offender; Protective, wherein jurisdiction is based on whether the national interest is injured; Universal, wherein jurisdiction is conferred in any forum that obtains physical custody of the perpetrator of certain offenses considered particularly heinous and harmful to humanity; and Passive personal, wherein jurisdiction is based on the nationality of the victim.

United States v. Yunis, 681 F.Supp. 896, 899-900 (D.D.C.1988), aff'd, 924 F.2d 1086 (D.C.Cir.1991).

DOJ relies in this case on two theories: universal and protective. See Dkt. 60 at 6-7 (citing, inter alia, Romero-Galue, 757 F.2d at 1154-55). Congress invoked both theories in the text of MDLEA. See 46 U.S.C. § 70501(1) (“Congress finds and declares that trafficking in controlled substances aboard vessels is a serious international problem, is universally condemned, and presents a specific threat to the security and societal well-being of the United States....”). Nonetheless, there are distinct weaknesses when applying either theory to the conduct at issue here. As to universal jurisdiction, “[n]o 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. ... [And] several courts of appeals have held that drug trafficking is not a universal jurisdiction offense.... ” Bellaizac-Hurtado, 700 F.3d at 1260-61 (Barkett, J., concurring). United States v. Salcedo-Ibarra, No. 8:07-CR-49-T-27TGW, 2009 WL 1953399, at *1 (M.D.Fla. July 6, 2009), cited by DOJ in support of its claim for universal jurisdiction, was implicitly overruled by Bellaizac-Hurtado and did not provide a rationale that would clearly survive Bellaizac-Hurtado. Salcedo-Ibarra stated only: “Just as trafficking in narcotics on the high seas is considered an offense against the ‘Law of Nations,’ including the United States, likewise, conspiring to traffic in narcotics on the high seas constitutes such an offense.” Id. On the other hand, Bellaizac-Hurtado is not binding on this Court.

Protective jurisdiction makes a better, if not perfect, fit. “The protective principle permits a nation to assert jurisdiction over a person whose conduct outside the nation’s territory threatens the nation’s security or could potentially interfere with the operation of its governmental functions.” Romero-Galue, 757 F.2d at 1154. “The protective principle does not require that there be proof of an actual or intended effect inside the United States. The conduct may be forbidden if it has a potentially adverse effect and is generally recognized as a crime by nations that have reasonably developed legal systems.” United States v. Gonzalez, 776 F.2d 931, 939 (11th Cir.1985). It is beyond peradventure that illegal drugs are a problem in the United States, and, specifically, that cocaine imported to the United States from Colombia is a major part of that problem. See, e.g., United States v. Cabrera, 734 F.Supp.2d 66, 72 (D.D.C.2010) (finding as fact from trial testimony that “[t]he United States is the world’s largest cocaine cons