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How Long Can the U.S. Coast Guard Detain Smugglers?

Cutter crews often have to detain low-level smugglers on board for weeks, and it's legal - for now

bertholf bust eastern pacific
A routine cocaine bust for the cutter Bertholf in the Eastern Pacific (file image courtesy USCG)

Published Nov 24, 2021 7:55 PM by CIMSEC

[By Thomas “Buddy” Bardenwerper]

This article is an excerpt, and the reader is encouraged to visit its full two-part form on CIMSEC here.

Lengthy Detentions and Federal Rule of Criminal Procedure 5(a)

Once the Coast Guard has made a successful drug interdiction, the smugglers are embarked upon the patrolling Coast Guard cutter as detainees. Rarely, if ever, will these individuals be formally placed under arrest while at sea, meaning they will neither be read their Miranda rights nor interrogated.

It is not until detainees are disembarked on U.S. soil – days or weeks later – that they are formally placed under arrest, usually by Drug Enforcement Administration (DEA) or Homeland Security Investigations (HSI) agents. Delaying formal arrest avoids the Fed. Rule of Crim. Procedure 5(a)(1)(B) requirement that “a person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise.”

Lengthy Detentions

These prolonged detentions have come under considerable scrutiny in recent years. Most notably, the New York Times Magazine chronicled how, in a span of six years, “more than 2,700 men […] have been taken from boats suspected of smuggling Colombian cocaine to Central America, to be carried around the ocean for weeks or months as the American ships continue their patrols.”

These decisions regarding where and when to transfer detainees ashore are not solely left to the discretion of the Coast Guard, however, but are instead made by the Department of Justice and its subordinate agencies. These organizations justify the long detention periods by pointing out the logistical hurdles associated with patrolling over six million square miles of ocean and the fact that most Latin American countries do not allow air transfer of detainees to the United States. If the U.S. government is serious about combating the unrelenting flow of northbound cocaine with only a handful of Coast Guard cutters deployed at any given time, such assets cannot be taken out of the fight for several days just to transit one smuggling crew to port.

Defendants have had little success challenging the legality of their extended stays aboard Coast Guard cutters. In United States v. Cabezas-Montano, the Eleventh Circuit denied an Ecuadorian national’s argument that the 49-day delay between his initial detention in the eastern Pacific and his presentment before a magistrate in Florida violated both Fed. Rule Crim. Pro. 5(a) and the Fourth Amendment right to a probable cause determination.

Possible Forum Shopping

Some believe that the Coast Guard’s practice of transporting detained smugglers vast distances – and in some cases through the Panama Canal – to the government-friendly Eleventh Circuit amounts to impermissible forum shopping.

In Cabezas-Montano, however, the Eleventh Circuit denied the defendant’s claim “that the government purposely delayed his presentment to a magistrate judge in order to forum shop because federal courts in California require the government to prove a U.S. ‘nexus’ to establish subject-matter jurisdiction, whereas Florida courts do not.” According to the court, even if such an incentive existed, “The MDLEA [Maritime Drug Law Enforcement Act] does not prohibit the government from taking offenders to Florida rather than California [because] a person violating the MDLEA ‘may be tried in any district,’ ‘if the offense was begun or committed upon the high seas.’”

The government fended off an even stronger allegation of forum shopping in Alvarez-Cuan v. United States, a Middle District of Florida case in which a smuggler challenged his MDLEA conviction. Alvarez-Cuan argued that he should have been tried in the District of Puerto Rico vice the Middle District of Florida since a Coast Guard cutter upon which he was embarked pulled into port in San Juan before his eventual transfer ashore in Tampa.

The court denied his motion on procedural grounds, but noted that the jurisdictional claim was without merit since the MDLEA “makes clear […] that the accused may be tried in any district.” 

Detention Takeaways

For the time being, the Coast Guard’s dual practices of lengthy smuggler detention and government-friendly venue selection seem resilient to legal attack. Lengthy detentions will likely continue to stand – unless they are particularly egregious – because judges know that the maritime counter-drug mission would be logistically impossible if cutters had to rush detainees ashore after every interdiction.

Convenient forum selection will likely continue to stand because the only judges and justices who can deem such a practice unlawful sit on either the government-friendly Eleventh Circuit or the majority conservative Supreme Court. However, while the government in general and the Coast Guard in particular benefit from this status quo, both entities would do well to develop long range contingency plans in the event that the judiciary someday changes course.

Conclusion

All three branches of the U.S. government have helped create a maritime law enforcement apparatus specially designed to combat the trafficking of South American cocaine. The executive has contributed an aggressive and proficient Coast Guard; the legislature has produced the MDLEA; and the judiciary has provided government-friendly interpretations of statutes and the Constitution.

Even in today’s favorable legal environment, several hundred known smuggling ventures go untargeted each year. There are just too few cutters and too many square miles of ocean. For the calculus to change, either Americans must curb their appetite for cocaine or their government must legalize and regulate the drug.

Until either of these changes happen, the cycle of Coast Guard interdictions, detentions, and prosecutions will continue to play itself out, with lawyers arguing the points raised in this article, low-ranking South American traffickers heading to U.S. prisons, and cartels profiting from the illegal trade.

Thomas “Buddy” Bardenwerper served for five years as a Coast Guard officer assigned to cutters homeported in Maine and Puerto Rico. Thanks to the GI Bill and Yellow Ribbon Program, Bardenwerper will graduate with a joint degree from Harvard Law School and the Harvard Kennedy School of Government this spring.

This excerpt appears courtesy of CIMSEC and is presented here in an abbreviated form. It may be found in its original form here

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.