Eleventh Circuit Rejects Confrontation Clause Challenge to Means of Establishing Extraterritorial Jurisdiction Under the Maritime Drug Law Enforcement Act

In United States v. Campbell, No. 12-13647 (Feb. 20, 2014), the Eleventh Circuit held that the pretrial admission of a certification by the Secretary of State to establish extraterritorial jurisdiction does not violate the Confrontation Clause of the Constitution, which provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” U.S. Const. Amend. VI.

Christopher Patrick Campbell was one of several indicted following arrest by the Coast Guard in international waters for conspiracy to possess and for possession with intent to distribute 100 kilograms or more of marijuana. Though the master of the vessel on which Campbell was arrested claimed it was registered in Haiti, the Republic of Haiti neither confirmed nor denied such registration. As such, and established via a certification by the Secretary of State, Campbell was aboard a stateless vessel when arrested and thus subject to the extraterritorial jurisdiction of the Maritime Drug Law Enforcement Act. Campbell waived his right to a jury trial and was found guilty by the district court.

The appeal revisited the legal question presented, and answered identically, by United States v. Rojas, 53 F.3d 1212, 1216 (11th Cir. 1995), in light of two background changes subsequent to Rojas. First, Congress amended the Maritime Drug Law Enforcement Act to clarify that jurisdictional questions lay within the province of the judge and that such jurisdictional questions are not to be considered “element[s] of the offense.” Pub. L. 104-324, § 1138, 110 Stat. 3901, 3988-89 (1996) (codified as amended at 46 U.S.C. § 70504(a)). Second, the Supreme Court ushered in a new era of Confrontation Clause analysis with its decision in Crawford v. Washington, 541 U.S. 36, 53–54, 124 S. Ct. 1354, 1365 (2004), which barred admission of “testimonial statement[s]” by “witness[es] who did not appear at trial unless [they were] unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”

Neither of these changes altered the legal landscape in Campbell’s favor. The panel held that the jurisdictional requirement that the extraterritorial reach of the statute be satisfied under the facts of a given case does not bear on the guilt or innocence of the individual defendant nor does it arise in the trial context. The pretrial determination of jurisdiction, where jurisdiction is explicitly not an element of the offense, does not implicate the Confrontation Clause.

Separately, Campbell challenged the Maritime Drug Law Enforcement Act as exceeding the constitutional authority granted by the Felonies Clause, which gives Congress the power “[t]o define and punish Piracies and Felonies committed on the high Seas . . . .” U.S. Const. Art. I, § 8, cl. 10. The Eleventh Circuit found no merit in this challenge. Campbell argued that at the Founding only capital crimes were considered felonies, but the panel stated that the Founders would have understood the term to include certain non-capital offenses and relied on prior precedent to find that Congress has the power, under the Felonies Clause, to criminalize drug trafficking in international waters.

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