In addition, the large amount of money involved would mean that people involved in the operation, including suppliers, investors, and others, would generally be unwilling to wait to realize their gains. Sergeant Martin also testified that in his opinion, the hashish market in Canada was the same size as the hashish market in the United States, and that the hashish was therefore likely to end up in the United States.
With respect to geography, Sergeant Martin testified that the major turnpike connecting Montreal with the United States border was a main route of importation of hashish from Canada to the United States.
Defendants introduced evidence suggesting that Canada is a much bigger market for hashish than is the United States. For instance, the 1993 report of the National Narcotics Intelligence Consumers Committee noted: "The United States does not constitute a large market for hashish . . . . Canada, however, is a major market." The NNICC Report 1993: The Supply of Illicit Drugs to the United States (August 1994) at 67. (N-I). See also, The NNICC Report 1991: The Supply of Illicit Drugs to the United States (July 1992) at 51 (N-B); The NNICC Report 1992: The Supply of Illicit Drugs to the United States (August 1994) at 37 (N-C).
Medjuck also argued that because the penalties in the United States are so high, the conspirators did not intend for the drugs to come to the United States.
While it appears that the hashish market in the United States is not as large as that in Canada, in light of all the evidence, the Court finds Sergeant Martin's expert testimony about the economics and geography of the hashish trade is compelling. The evidence suggests that the hashish was bound for the populous eastern portion of Canada rather than to the sparsely populated western Canada.
Seventy tons is an extraordinary amount of hashish to go to market in eastern Canada at one time. While hashish use may be more popular in Canada than it is in the United States, Canada has a much smaller population than does the United States.
The Court finds that the small Canadian population would be unlikely to be able to absorb the huge load imported by Medjuck and his confederates. The Court therefore concludes that both economics and geography dictate that at least some portion of the hashish would at some point be found in the United States. Even if the conspirators themselves did not intend to import the hashish into the United States, it is very likely that some of this exceptionally large supply would find its way across the permeable U.S. border. While this evidence does not establish that the hashish was destined for the United States, the Court finds that it is enough to show the hashish would likely have effects in this country, thereby satisfying the Kahn definition.
V. POLICY IMPLICATIONS
In enacting the MDLEA, Congress stated: "The Congress finds and declares that trafficking in controlled substances aboard vessels is a serious international problem and is universally condemned. Moreover, such trafficking presents a specific threat to the security and societal well-being of the United States." 46 U.S.C. § 1902. The Eleventh Circuit observation in 1982 that "there is growing consensus among nations to include drug trafficking as a universally prohibited crime," United States v. Marino-Garcia, 679 F.2d 1373, 1382 n.16 (11th Cir. 1982), has become more apt over the last decade and a half. The Ninth Circuit has recently noted that there is no jurisdiction in which drug trafficking is legal. Caicedo, 47 F.3d at 373. While drug trafficking has not yet been included in the same category as slave trafficking and piracy, which would "extend the criminal jurisdiction of the United States to all foreign vessels on the high seas that are engaged in drug trafficking," Marino-Garcia, 679 F.2d at 1382 n.16, neither has the United States become a safe haven from which international drug dealers may conspire and plan, so long as they do not plan to distribute in the United States.
Defendants argue that due process is offended unless the government proves that the drugs were destined for the United States. The Court finds that it is not so long as the connections between the criminal conduct and the United States are sufficient. The United States has stated that its drug control policy includes a significant international component, incorporating
programs for effectively attacking international production and trafficking. . . . A cornerstone of our international drug policy must be a determination to work with and motivate other countries to engage their own resources and efforts to defeat trafficking. Only through broad, cooperative international efforts can we reduce the foreign drug supply to our country while motivating other nations to assist us in our drug control efforts and combat the drug menace themselves.
U.S. Office of National Drug Control Policy, National Drug Control Strategy at 61 (The White House, 1989). See also, id. at 106, 116. In keeping with its policy, the United States' government sanctions foreign nations which do not fully cooperate in this country's drug control efforts. See, e.g., Jose de Cordoba and Carla Anne Robbins, U.S. Rebuke Puts Columbia's Samper In The Hot Seat, Wall. St. J., Mar. 4 1996. In addition, a significant part of the money the government spends in its "War on Drugs" is devoted to international efforts. For instance, in 1994, over $ 300 million dollars [ILLEGIBLE WORD] the government's $ 12 billion dollar federal drug control [ILLEGIBLE WORD] was internationally allocated. Kathleen Maguire and Ann L. Pastore, eds., Sourcebook of Criminal Justice Statistics 1994, U.S. Department of Justice, Bureau of Justice Statistics (1995).
In light of this policy, to hold that the United States did not have jurisdiction in this instance would be to allow this country to be a safe haven for drug lords. If the law permitted the United States to be used as a base from which conspirators could plan and conduct their importation schemes so long as the drugs were going to some other country, the United States would become a sanctuary for drug conspirators. In this era of large international drug conspiracies and of electronic communications, having a secure base for communications and coordination is crucial. If United States destination was required in order for this country to have jurisdiction, the United States would become such a safe communications base. Drug dealers wishing to import drugs to Canada or Mexico (and perhaps thereby indirectly to this country) could base their operations, including vital communications headquarters, in the United States so long as they did not directly import drugs into the United States. Such a result would be anomalous at a minimum in light of this country's significant efforts to enlist foreign countries in the United States' "War on Drugs." It would be ironic indeed if the United States were to carry out diplomatic and economic policies designed to enlist other countries in its War on Drugs, punish foreign states that did not comply, and devote significant resources to keeping drugs out of this country, but were nonetheless willing to become a safety zone from which drug lords could plot their crimes upon other nations. The Court finds that due process does not compel this result. United States destination is not required in general, nor is it required here in light of the evidence of the extensive connections between both Medjuck and Sotirkys and their criminal conduct and the United States. These connections are more than "sufficient to justify the United States' pursuit of its interests." Caicedo, 47 F.3d at 372.
The Court has carefully considered the relevant authority on both the procedure and the substance of the nexus requirement. It has heard the nexus evidence with respect to both defendants, and has had the opportunity to review the credibility of all witnesses. The Court concludes that there is a sufficient connection between both defendant Medjuck and defendant Sotirkys and the United States so as to justify this country's assertion of jurisdiction in the matter. Due process is not offended by this prosecution in light of the involvement of the United States in the crime. While the majority of the evidence supports a finding that the conspirators intended that 70-ton load of hashish be shipped to Canada, the facts compel the conclusion that much of the conspiracy itself took place on United States' soil. The conspirators took full and deliberate advantage of the United States in planning, coordinating, controlling and conducting their conspiracy. Defendant Medjuck and defendant Sotirkys had ample contact with the United States. Not only is the connection between their criminal contact sufficient to warrant the United States' interest in prosecuting the crime, failure to find such a connection would allow the United States to be a refuge for the planning and carrying out of large conspiracies to import drugs into other countries.
In the vernacular, the nexus inquiry asks this Court to determine whether prosecuting the crime is any of the United States' business. The Court finds that it most certainly is. It is not the case that this was a wholly Canadian operation in which the defendants had absolutely no connection with the United States. Nor is it the case that the United States has intruded into Canadian sovereignty or injected itself into Canada to "grab" Canadian defendants. In this light, the Caicedo discussion of nexus is worth repeating.
A defendant would have a legitimate expectation that because he has subjected himself to the laws of one nation, other nations will not be entitled to exercise jurisdiction without some nexus. Punishing crimes committed on a foreign flag ship is like punishing a crime committed on foreign soil; it is an intrusion into the sovereign territory of another nation. As a matter of comity and fairness, such an intrusion should not be undertaken absent proof that there is a connection between the criminal conduct and the United States sufficient to justify the United States' pursuit of its interests.
Caicedo, 47 F.3d at 372.
If Medjuck had hired a Canadian fishing vessel and Canadian crew, set up a Canadian communications base, used only Canadian currency, used Canadian telephones for only for domestic calls about the conspiracy, met only on Canadian soil, and had confederates who never ventured outside the Canadian border, his expectation that he would not be haled into the United States to answer for those acts would be reasonable. The United States would have little cause to prosecute him. Similarly, if Sotirkys had stayed in Singapore and communicated with the Lucky Star only from that country regarding a load destined for Canada, or if he had been in Canada and communicated only with others in Canada about the load, or if he had used a telephone number in Singapore or Canada for receiving messages about the conspiracy, due process would in all likelihood be offended by haling him into the United States. The defendants would have a legitimate expectation that the United States would not be entitled to proceed against them. But in this instance, the defendants purposefully acted in such a way that the United States was substantially involved in the conspiracy. They came repeatedly to the United States for the purpose of planning and carrying out their international conspiracy. The vast majority of the conspiracy's communications arose in or were directed to the United States. Indeed, this Court finds, as did the Kahn court, that the "coordination and control of the conspiracy occurred in the United States." Kahn, 35 F.3d at 429. Given these facts, this prosecution is no assault on due process. Again in the vernacular, the defendants made this case the United States' business.
The Court finds that the government has fully met its burden of showing nexus. Due process is not offended by the United States' prosecution of defendants Medjuck and Sotirkys for the violation of the MDLEA.
IT IS SO ORDERED.
DATED: JUN 17 1996.
EUGENE F. LYNCH
United States District Judge