## Facts

- Nestor Suerte, a Philippine national residing in Colombia, served as captain of a Malta-registered freighter allegedly tied to a Colombian/Venezuelan drug trafficking organization.
- The government alleged Suerte coordinated efforts in July–August 2000 to load the freighter off Venezuela with approximately 4,900 kilograms of cocaine for transport and distribution in Europe.
- A first loading attempt failed after Venezuelan law enforcement detected speedboats; about 2,700 kilograms of cocaine was lost, and the remainder was stored for a second attempt.
- The organization sent Suerte a telex detailing a second rendezvous (date, time, and coordinates); Venezuelan authorities arrested some participants before the second attempt, though the freighter was near the rendezvous point in international waters.
- At the United States’ request, Malta waived objection to boarding and search of the vessel in international waters; the Coast Guard found no cocaine.
- About a week later, Malta waived objection to enforcement of United States law over the vessel and crew; the United States towed the vessel to Houston for further search.
- U.S. Customs agents found in Suerte’s cabin a torn copy of the telex with rendezvous details and an attaché case containing $3,500 in $100 bills.
- Suerte was indicted under the Maritime Drug Law Enforcement Act (MDLEA) for drug trafficking activity aboard a vessel subject to U.S. jurisdiction based on flag-state consent.

## Issues

1. Whether the Fifth Amendment Due Process Clause requires a nexus between a foreign defendant’s conduct and the United States for extraterritorial prosecution under the MDLEA when the vessel’s flag nation consents or waives objection to U.S. enforcement.

## Decision

- The Fifth Circuit vacated the district court’s order dismissing the indictment and remanded.
- The court held that no additional due process “nexus” with the United States is required when the foreign flag state consents or waives objection to U.S. enforcement under the MDLEA.
- The court concluded the MDLEA’s jurisdictional predicate was satisfied by Malta’s waiver of objection to enforcement over the vessel and crew.

## Legal Principles

- Under the MDLEA, a foreign-flag vessel is subject to U.S. jurisdiction when the flag nation consents or waives objection to enforcement of U.S. law.
- Congress may criminalize certain conduct on the high seas under the Constitution’s Offenses Clause, including felonies committed on the high seas, within limits recognized by international law.
- Due process is satisfied in MDLEA prosecutions where exercising jurisdiction is not arbitrary or fundamentally unfair and where the statute’s reach is constrained by internationally recognized bases of jurisdiction (including flag-state consent).
- When flag-state consent exists, the Due Process Clause does not impose an extra requirement that the defendant’s conduct be directed at, or have effects in, the United States.

## Conclusion

The Fifth Circuit held that extraterritorial prosecution under the MDLEA of a foreign national aboard a foreign-flag vessel does not require a separate U.S. nexus when the flag state has consented or waived objection to U.S. enforcement, and it reinstated the indictment for further proceedings.


United States v. Suerte, 291 F.3d 366 (5th Cir. 2002)