Ruling threatens US power as world’s high-seas drug police
May 5, 2022, 9:17 AM | Updated: 9:45 am
(AP Photo/Rebecca Blackwell, File)
MIAMI (AP) — Jeffri Dávila-Reyes says he’s still mystified how he ended up serving hard time in a U.S. federal prison.
His cocaine bust at sea was closer to his homeland of Costa Rica than the United States, and the few kilos of drugs he was carrying were bound for Jamaica rather than American shores.
His plight is similar to hundreds of foreigners swept up by the U.S. Coast Guard in international waters every year, most of them poor, semiliterate fishermen from Central and South America driven to smuggling with offers of more money than they’ve ever seen — in Dávila-Reyes’ case $6,000.
“Nobody can be blamed for being born poor,” he wrote in a recent letter to The Associated Press.
But now, seven years into his 10-year sentence, Dávila-Reyes’ conviction has been thrown out in a little-noticed ruling that threatens a key weapon in the United States’ war on drugs: A decades-old law that gives the U.S. broad authority to make arrests on the high seas anywhere in the world, even if the drugs aren’t bound for the U.S.
It’s a law that helps the U.S. bolster its drug-interdiction numbers and flex its maritime muscle in a region where drugs are trafficked most. But since it often targets smugglers at the lowest rungs of the drug trade, it has yet to make a dent in the huge volumes of narcotics flowing into the U.S.
“It is a waste of U.S. taxpayer dollars to have these costly misadventures as we play drug police to the world,” said Eric Vos, head of the public defender’s office in Puerto Rico where Dávila-Reyes’ case began. “Our enforcement efforts and multibillion-dollar expenditures should concentrate exclusively on drugs actually entering America.”
At issue is the Maritime Drug Law Enforcement Act, passed by Congress in 1986 at the height of the crack epidemic. It defines drug smuggling in international waters as a crime against the United States and gives the U.S. unique law enforcement powers anywhere on the seas — whenever it determines a vessel is “without nationality.”
But how a vessel is deemed stateless sometimes gets messy.
When the Coast Guard chased down Dávila-Reyes’ speedboat in the western Caribbean in 2015, he and two cousins who were seen frantically trying to dump packages of cocaine overboard identified their vessel as hailing from Costa Rica, according to the FBI’s summary of the investigation.
But other than the markings on the boat’s side resembling Costa Rica’s flag, the men lacked any documentation proving its nationality. When the U.S. asked the Costa Rican government to confirm the vessel’s registry, it responded 12 weeks after the bust that it could neither confirm nor refute the claim.
A few weeks later the men were charged and eventually pleaded guilty to possessing narcotics “on board a vessel subject to the jurisdiction of the United States.”
The conviction would have gone unnoticed if not for a challenge brought by a group of dedicated public defenders in Puerto Rico, where many of the drug cases are tried.
A three-judge panel of the First Circuit Court of Appeals in Boston ruled in January that the law’s provisions — equating a nation’s equivocal response to an outright denial of a captain’s claim of nationality — were an unconstitutional extension of U.S. policing powers beyond America’s borders.
Tellingly, almost none of those prosecuted under the law had ever set foot in the U.S. nor were they charged with trying to import cocaine. In Dávila-Reyes’ case, the five to 15 kilograms of cocaine he was convicted of transporting were purportedly bound for dealers in Jamaica.
Despite the ruling, Dávila-Reyes remains behind bars as the Justice Department seeks reconsideration by all of the First Circuit’s nine judges. His two co-defendants were released in 2018 and 2020 after completing sentences of around five years each.
From the moment President Richard Nixon declared “war on drugs” in 1971, the U.S. Coast Guard has been at the forefront of the campaign to stop illegal narcotics from entering the U.S. Today, it spends more than $2 billion annually as part of that effort. Other federal agencies — the FBI, Drug Enforcement Administration, Customs and Border Patrol, the Departments of State and Justice — kick in billions more.
The aim of the high-seas busts is to seize cocaine at a vulnerable choke point and inflict heavy losses on traffickers, limiting the amount of drugs that make it onto U.S. streets.
But, almost from the start, that goal has proven elusive.
Cocaine prices, a gauge of supply, have been hovering at historical lows for more than a decade as cocaine production from Colombia has soared to record highs. In a good year, barely 10% of cocaine shipments in the waters off Central and South America — where the bulk of the world’s cocaine is trafficked — are actually seized or destroyed, according to the U.S. government’s own estimates.
Despite that poor record, U.S. officials continue to tout their success at sea.
A 2020 Coast Guard report said at-sea interdictions are the most effective way to combat cartels and criminal networks. Since 2017, the amount of cocaine it has seized or destroyed exceeds 959 metric tons.
“We are hitting the drug traffickers where it hits them most — in their pocketbooks,” Rahul Gupta, the White House drug czar, said at news conference earlier this year in Fort Lauderdale to welcome a U.S. Coast Guard cutter home from a three-month deployment that yielded seizures of 30 metric tons of cocaine and marijuana worth $1 billion.
But nowhere to be seen among the drugs piled neatly on deck were the 86 foreign drug runners responsible for the contraband, some of whom had been offloaded and jailed the day before.
Prosecutions under the Maritime Drug Law Enforcement Act exploded last fiscal year to 296 — nearly five times the number a decade ago, according to Syracuse University’s Transactional Records Access Clearinghouse, which collects Justice Department data. But since each case involves multiple defendants, the actual number of foreigners detained at sea last year was 635 — the highest tally since 2017.
Each offense carries a mandatory minimum sentence of 10 years because of the large amounts of cocaine involved.
Critics of U.S. drug policy say most such smugglers fell into the job because of poverty and are hardly worth locking up for so long when legions of their poor compatriots stand ready to take their place. Davila-Reyes, for example, had to quit school in the third grade to help support his family, eventually finding hand-blistering construction work for $10 a day.
“These are not masterminds like Pablo Escobar or Chapo Guzman,” said Kendra McSweeney, an Ohio State University geographer who has spent years researching U.S. drug policies.
“But if you’re trying to hit numbers, and nobody is measuring the importance of those numbers, then all the incentives are there to keep going,” she said. “It makes people feel good about themselves but it’s egregiously ineffective.”
After Dávila-Reyes’ bust, he said he was mistreated while adrift at sea, allowed to bathe just once a week, and served spoiled, foul-smelling plates of beans.
“I couldn’t eat this food,” he wrote in a series of letters in Spanish to the AP from his West Virginia prison.
AP was unable to verify Dávila-Reyes’ account but attorneys appointed by the courts to represent foreign drug runners say such tales are commonplace.
Miami defense attorney Bert Dominguez pointed to courtroom testimony last year in which a Coast Guard officer described how detainees are shackled by their leg to the deck of a cutter. The restraints are removed only to allow the detainees to use the bathroom, take a shower or for a short amount of daily exercise.
“They’re treated like warehoused fruit,” Dominguez said.
The U.S. Coast Guard rejects that characterization and says all suspects have regular access to medical treatment, personal hygiene products, shelter from the elements and regular meals after being detained.
“The Coast Guard treats each person entrusted to our care with dignity and respect,” said Cmdr. Matt Kroll, a spokesman.
What’s undisputed is that 19 days passed from the time of Dávila-Reyes’ detention until he made his initial appearance before a federal magistrate in Puerto Rico. By the standards of justice in drug boat cases, that’s actually fast: nationwide, the average delay is more than 23 days, according to an AP analysis of 28 cases this year involving 89 foreign nationals. In one case, the wait lasted 46 days.
U.S. criminal proceedings mandate that suspects, even those apprehended outside the country, be brought before a judge “without unnecessary delay.” Typically, that means no more than 48 hours after arrest.
Kroll said the Coast Guard seeks to ensure a “timely” transfer of suspects but justified the prolonged detentions because of the need to maintain ongoing law enforcement operations across vast geographical distances.
“The government is operating under this fiction that they’re not really arrested when they’re taken into custody and chained to a deck of a Coast Guard cutter,” Miami public defender Tracy Dreispul said during the hearing last year where the Coast Guard witness testified. “But we all know what arrest means.”
Neither the Coast Guard nor Justice Department would comment on Dávila-Reyes’ appeal but experts say it’s too early to judge the fallout from the landmark ruling.
Currently Vos’ office in Puerto Rico is preparing 14 motions for dismissal in other boat cases on behalf of jailed defendants from Colombia, Venezuela and the Dominican Republic. The ruling has also been cited in at least five proceedings outside the First Circuit.
Of the 28 interdictions on the high seas this year, 10 involve a claim of nationality for the vessel that a foreign government was unable to confirm or deny, according to an AP analysis of court records. In only five cases there was no nationality claimed and in the remaining 13 the court records did not say.
“It’s definitely a chink in the armor,” said Roger Cabrera, a court-appointed attorney in Miami seeking to leverage Dávila-Reyes to appeal his own client’s conviction. “But like most chinks, I’m sure the federal government is already looking for a workaround.”
For now, U.S. law enforcement continues to conduct regular search and seizures on the high seas with little indication of concern.
In court filings, attorneys for the U.S. government have argued that the procedures for boarding a vessel and determining whether a claim of nationality is legitimate are governed by bilateral treaties, including one with Costa Rica, which has never complained that its sovereignty was being violated.
Further, they said holding up interdictions to wait for an unequivocal denial of registry from a foreign nation before declaring a vessel stateless would be impractical and quickly encourage traffickers to claim their vessels are from small Micronesian states, or North Korea, where diplomatic contacts are limited.
“Anyone involved with bringing dangerous drugs into the United States will be held accountable, no matter their position in the drug distribution network,” said Justice Department spokeswoman Nicole Navas Oxman. “These offenders are an intricate part of drug-trafficking networks, which pose a direct threat to the health and safety of American communities.”
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