The Maduro Indictment: When Can US Gun Restrictions Apply Beyond American Borders?
In a rapid military exercise commencing on the night of January 2, American troops launched strikes against Venezuela and then entered the country to capture Venezuelan President Nicolás Maduro and his wife. Maduro was flown to the United States to be detained pending criminal charges for engaging in narco-terrorism and drug trafficking. His wife, Cilia Flores, and other Venezuelan political leaders were also charged in a multi-count superseding indictment filed in federal court in the Southern District of New York. The indictment, as expected, accuses the defendants of conspiring to traffic narcotics into the United States on a vast scale.
In addition to charges of narco-terrorism and drug trafficking, the indictment includes two counts related to firearms: one for possessing prohibited machineguns and for conspiring to possess such weapons. Both of the weapons counts relate back to the drug allegations: pursuant to 18 U.S.C. 924(c), the government is alleging that machineguns were possessed during or in relation to the drug trafficking crimes by members of the conspiracy.
Much remains unclear about the case against Maduro and the other Venezuelan defendants, but the gun charges specifically raise interesting questions about the extent to which criminal gun charges can be brought in American courts based on firearm possession or use outside of the country. On its face, the fact that Maduro and others may have used guns in Venezuela in ways that are prohibited under U.S. federal law would not seem to form the basis for a valid criminal charge in an American court. However, in a number of cases involving foreign terrorist attacks, federal courts have generally held that Section 924(c) does apply extraterritorially, or outside of the country, as long as it is charged together with a substantive underlying crime that can be prosecuted in the United States.
Section 924(c) is derivative in that it depends for its operation on a defendant being charged with (and ultimately convicted of) an underlying crime of violence or drug trafficking crime. While federal prosecutors often charge 924(c) as a separate “count,” as they have with Maduro, the provision operates effectively like a sentencing enhancement. If the defendant is convicted on the underlying substantive count(s)—here, alleged narco-terrorism and drug trafficking—and the jury also determines that a machine gun was used during that conspiracy, then the resulting prison sentence will be substantially longer. Section 924(c)(1)(B)(ii) provides, specifically, that where the gun used is a machinegun the resulting criminal sentence “shall be . . . not less than 30 years.” Thus, the gun charges may substantially increase the potential sentence if Maduro and his co-defendants are convicted. In the meantime, these charges provide prosecutors with serious leverage if they were inclined to seek a plea deal.
Crucially, the use of 924(c) in this context does not require the government to show that machineguns were used during the drug conspiracy on American soil. Rather, if the drug trafficking conspiracy can be prosecuted in the United States, then guns possessed anywhere in the world during and in relation to that conspiracy will ratchet up the corresponding sentence. It’s relatively well-established that American drug laws—including those charged in the Maduro case—do apply to certain conduct outside of American borders despite the general presumption that laws do not have extraterritorial effect. That’s because, as the Third Circuit explained in the 1980s,
Congress undoubtedly intended to prohibit conspiracies to import controlled substances into the United States, and intentions to distribute such contraband there, as part of its continuing effort to contain the evils caused on American soil by foreign as well as domestic suppliers of illegal narcotics.
When prosecutors allege that defendants intend to smuggle or traffic drugs into the country, they can bring criminal charges under American law even if large parts of the conspiracy occurred on foreign soil. That seems to be precisely the scenario presented by prosecutors in the Maduro case. It’s a strategy that federal prosecutors have pursued in other recent cases including against former president of Honduras Juan Orlando Hernández, who was indicted in 2022 for running a drug trafficking operation from Honduras directed to the U.S., convicted and sentenced to a 45-year prison term in 2024, and then pardoned by President Trump in late 2025.
Courts have almost universally upheld the application of 924(c) to extraterritorial conduct when charges are brought in connection with U.S.-directed drug trafficking or terrorist activity. The Second Circuit noted in 2012 that “every federal court that has considered the issue has given [924(c) gun charges] extraterritorial application where . . . the underlying substantive criminal statutes apply extraterritorially.” As it turns out, there is substantial case law on this point even within the Southern District of New York—which tends to receive a high number of cases dealing with foreign-based activities including drug trafficking and terrorism.
In one high-profile example, a group of defendants (which initially included Osama bin Laden, in absentia) was charged in SDNY for orchestrating the 1998 African Embassy bombings that killed more than 200 people. The charges included numerous terrorism and murder counts as well as “using and carrying dangerous devices” during the commission of the bombings in violation of 924(c). When the defendants argued that they couldn’t be convicted under 924(c) for using or possessing weapons or dangerous devices outside of the U.S. as non-US citizens, the SDNY rejected that proposition. Congress, the court said, intended the substantive underlying crimes of violence—in that case, maliciously destroying or attempting to destroy property belonging to the US government and causing loss of life in the process—to apply extraterritorially. Therefore, the court held, “we conclude that this ancillary provision likewise applies extra-territorially.”
Importantly, this does not mean foreign nationals can be charged with possessing prohibited guns abroad when those guns are not involved in a US-directed drug trafficking operation or crime of violence. So even though it would be illegal for Maduro to possess an unregistered machine gun within the U.S. absent a drug connection (under 18 U.S.C. § 922(o)), prosecutors could not charge him for extraterritorial possession under that statute alone.
A separate question, which the indictment does not answer, is what types of machineguns Maduro and his co-defendants allegedly used during the conspiracy. The government’s case is relatively simple if it can show that fully-automatic guns initially manufactured in that manner were used. But things potentially become more complicated if the allegations are that these defendants converted semiautomatic weapons to fire automatically. After the Supreme Court’s decision in Garland v. Cargill, holding that bump stocks are not machineguns within the statutory definition, and the Trump administration’s recent decision to settle cases involving forced reset triggers and concede that semiautomatic firearms equipped with such devices are not machineguns, the statutory scope of what constitutes a machinegun appears to be shrinking. And, if conversion devices were involved, the case may set up a fascinating clash between anti-drug and pro-gun interests.