Extradition of Foreign Nationals Under the MDLEA Subverts Justice

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In 2001, I participated in the most intriguing criminal case of my career to date. More than a dozen Russians and Ukrainians, who were crew members on a boat that was seized by the United States Coast Guard off the coast of Mexico, were forcibly extradited to the United States.

After a five day search, eleven tons of cocaine were found secreted in one of several fuel tanks. The most prominent members of the crew were convicted and sentenced to double-digit sentences. My client was acquitted after two jury trials.

I remember naively wondering how individuals who had never been to the United States and were thousand miles from it, could be extradited to the
United States. The mechanism that the government used was the “MDLEA” or the Maritime Drug Law Enforcement Act, 45 U.S.C. §§ 1901-1904. This statute provides that the United States may indict and ultimately extradite individuals who may affect the United States government outside the country from their criminal activities.

The Ninth Circuit Court of Appeals has developed a ”nexus test” where the government must establish a nexus to the United States through proving to the court by a preponderance of the evidence that the drugs were most likely destined to the United States. Here, the “nexus” was very tenuous because the government relied in large part on the route taken by the Svesda Maru up the coast of Mexico. What is to say that the drugs weren’t ultimately destined for China or Europe? And the fact that cocaine with markings similar to those seized on the Svesda Maru before doesn’t support the government’s premise. It is a bit like reasoning that since people in the United States wear Nike shoes, then any Nike shoes seized must have been destined for the United States–fallacious reasoning.

Since this case, there have been many Colombian nationals extradited from the United States under similar circumstances. ( See e.g. United States v. Peralza 2006, Ninth Cir., 439 F.3d 1149.)

Many of the Colombians who are extradited to the United States have never been outside their country before. While they may have been guilty of drug crimes in their country, their connection with the United States is tenuous at best.

Colombia is a close partner with the United States in the “war on drugs.” The United States provides Colombia with millions of dollars annually to help thwart drug crimes: money that is spent for surveillance equipment and eradication equipment of the coca fields. The United States provides Colombia with money to purchase scanners and technology to prevent the smuggling of the drugs through airports.

My point is if the United States really wishes to eradicate cocaine shipments that it should support this country and other countries in the development of their own independent judicial systems. The giving of foreign aid to Colombia and other drug producing countries could be based upon their development of a strong, independent, and non-corrupt judiciary.

The United States should not become a junkyard for the depositing of criminals who are essentially committing a crime in their own country and against their own people. The act of extradition under these circumstances appears to be very imperialistic and contrary to the goal of assisting countries in developing their own judicial system.

The United States spends millions of dollars in the extradition and incarceration of many Colombian nationals as well as individuals from other countries such as the Russians and Ukrainian crew of the Svesda Maru. Conditioning foreign aid on the development of an effective justice system would promote international respect for the law and avoid having the United States continue to play the role of the international policeman.

ABOUT THE AUTHOR: Russell S. Babcock
Russell Babcock is a preeminent federal and state criminal defense attorney. He is bilingual en Espanol.
He has won many awards for his work including Superlawyers, best criminal attorney, best appellate attorney. He is a certified criminal law specialist. The emphasis of his firm is on complex federal felonies including border and drug crime, white-collar crime and appeals He has argued six times in front of the California Supreme Court. Mr. Babcock received his JD from the University of California Davis in 1981.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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