How have U.S. appellate courts differed on the nexus requirement for MDLEA prosecutions since 2018?
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Executive summary
Since 2018, federal appellate courts have split over whether the Maritime Drug Law Enforcement Act (MDLEA) requires a fact-specific “nexus” to the United States before prosecuting defendants who never set foot on the high seas: the Ninth Circuit has developed a concrete nexus framework while the Second Circuit has read MDLEA more broadly and treated nexus as either satisfied by the general harms of maritime drug trafficking or not a distinct element, producing conflicting doctrinal pathways and intense scholarly debate [1] [2] [3] [4].
1. The Ninth Circuit’s nexus model: a judicial gloss to cabin MDLEA’s reach
The Ninth Circuit has articulated a formal “nexus” requirement as a judicially imposed limit on MDLEA jurisdiction—essentially treating nexus as a due‑process safeguard that must connect a defendant or scheme to the United States before prosecution—an approach analyzed and promoted in academic literature as the Ninth Circuit model [1].
2. The Second Circuit’s broader reading: nexus downplayed or satisfied by general harms
By contrast, the Second Circuit’s post‑2018 practice, exemplified in United States v. Alarcon‑Sanchez, has been read to downplay a discrete nexus element: the court held that due process requires sufficient nexus for land‑based conspirators not on a stateless vessel but found the government’s showing adequate in that case and, in commentary, the court’s reasoning has been characterized as essentially concluding no specific nexus must be separately established for MDLEA prosecutions [3] [2].
3. Factual showings and doctrinal workarounds — how circuits reach different outcomes
Where the Ninth Circuit demands an affirmative connection to U.S. territory, citizens, or interests before asserting jurisdiction, the Second Circuit has relied on a combination of statutory interpretations (e.g., stateless‑vessel jurisdiction and the Necessary and Proper Clause) and findings that maritime drug trafficking’s general harm to U.S. societal well‑being suffices, producing outcomes that permit prosecution of land‑based conspirators whose scheme lacks a clear U.S. nexus [3] [2].
4. Consequences in practice: prosecutions, defenses, and criticism
That split matters on the ground because hundreds of foreign nationals are prosecuted under the MDLEA annually and defense lawyers have seized on the Ninth Circuit’s requirement as a tangible way to challenge jurisdictional overreach, while prosecutors favor the Second Circuit’s broader posture as essential to suppressing international narcotics flows—this conflict has provoked scholarly calls for adopting the Ninth approach to avoid “improperly hailing” foreign defendants into U.S. courts and also generated criticism that narrowing MDLEA undermines enforcement [4] [1].
5. Scholarly debate and reported appellate rulings since 2020
Legal commentary and practice pieces note a notable appellate decision in or around 2020 finding MDLEA reach unconstitutional as an overreach, and law reviews have both mapped the circuit split and advocated for a uniform nexus rule to constrain extraterritorial prosecutions; these sources frame the tension as a live, unresolved national question with persuasive arguments on both sides [4] [1].
6. Limits of available reporting and the open questions
Available reporting and the provided case summaries document the core split between the Ninth Circuit’s affirmative nexus gloss and the Second Circuit’s more permissive readings [1] [3] [2], but these sources do not catalog every circuit’s post‑2018 decisions nor offer a comprehensive tally of how lower courts applied either test across all pending MDLEA cases, so a full mapping of all appellate outcomes after 2018 is beyond what these materials alone can prove [4] [5].
7. The practical takeaway and the road ahead
The doctrinal divergence means defendants and prosecutors will continue to litigate whether the Constitution or statutory text imposes a meaningful U.S. nexus under MDLEA, with defense counsel pressing Ninth‑style limits, prosecutors relying on Second‑style readings and statutory tools like stateless‑vessel jurisdiction, and scholars urging the Supreme Court or Congress to resolve the split to provide predictable, uniform rules for transnational maritime drug enforcement [1] [3] [4].