DTVIADrug Trafficking Vessel Interdiction Act of 2008
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67) In the latter case, the defendants asserted that Congress exceeded its powers because the DTVIA does not require a finding of nexus in order to properly maintain jurisdiction over the defendants, but the court noted "early Supreme Court opinions intimate that statutes passed under the High Seas Clause may properly criminalize conduct that lacks a connection with the United States.
The court, perhaps to further solidify their opinion, also noted that the protective principle provided "an equally compelling reason to uphold the DTVIA.
Those who engage in conduct the DTVIA targets threaten our nation's security by evading detection while using submersible vessels to smuggle illegal drugs or other contraband, such as illegal weapons, from one country to another, and often into the United States.
Furthermore, the constitutionality of the DTVIA itself is called into question when viewed in light of what appears to be an ad hoc and cursory application of international law principles.
First, the Eleventh Circuit's conflation of the MDLEA and the DTVIA, and subsequent use of persuasive legislative history is an aggressive, and arguably reactionary judicial attempt to combat the illicit drug trade.
Therefore, there should be a consolidation of both the MDLEA and DTVIA under a single, comprehensive "umbrella" statute with a broad, presumptive nexus component based on a totality of the circumstances approach similar to that in Medjuck, (79) A more narrowly tailored, factor-based approach in which the prosecutor bears the burden of establishing nexus would preclude jurisdiction in cases where the evidence is destroyed and/or circumstantial.
A criminal conviction under the DTVIA is punishable by up to 15 years imprisonment in addition to a fine.
Two cases brought under [section] 2285 resulted in conditional guilty pleas, with defense counsel filing motions alleging 1) the extraterritorial application of the DTVIA is unconstitutional and 2) the statutory element requiring a showing that defendant "attempt[ed] to evade detection" is unconstitutionally vague.
The remaining cases of scuttled SPSS vessels are currently pending and are likely to be charged under Title 46, the MDLEA, rather than the DTVIA.
The enactment of the DTVIA is a potentially strong tool to deter the use of SPSS vessels to transport large amounts of drugs into the United States.