United States v. Matos-Luchi

United States Court of Appeals
For the First Circuit

Nos. 08-2289, 08-2290, 08-2291

UNITED STATES OF AMERICA,

Appellee,

v.

EPIFANIO MATOS-LUCHI, MANOLO SOTO-PÉREZ,
RAMÓN CARRASCO-CARRASCO,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

Ricardo R. Morel for appellants.
David E. Hollar, Criminal Division, Appellate Section,
Department of Justice, with whom Lanny A. Breuer, Assistant Attorney
General, Gary G. Grindler, Deputy Assistant Attorney General, Rosa E.
Rodríguez-Vélez, United States Attorney, and Nelson J. Pérez-Sosa,
Assistant United States Attorney, Chief, Appellate Division, were on
brief for appellee.

December 1, 2010
 BOUDIN, Circuit Judge. This appeal by several defendants

convicted of drug trafficking--Epifanio Matos-Luchi, Manolo Soto-

Perez, and Ramon Carrasco-Carrasco--requires the interpretation of

the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. §§ 70501

et seq. (2006), which inter alia delineates federal enforcement

authority over drug crimes carried on at sea outside U.S. territorial

limits. The factual background and proceedings in the district court

are as follows.

In May 2007, Petty Officer Richard Young and a team of

five other U.S. Coast Guard personnel were stationed on the HMS

Ocean, a British aircraft carrier, to assist with law enforcement

efforts in the Carribean Sea. On May 12, the Coast Guard team

deployed in a helicopter to investigate a low-flying airplane spotted

in the vicinity; from the air, they saw the plane drop several bale-

shaped packages into the sea about thirty to thirty-five miles from

the coast of the Dominican Republic.1

A small boat waiting nearby--a twenty to twenty-five foot

fishing "yola" propelled by an outboard motor and allegedly crewed by

the three defendants--then approached the drop site and began to

retrieve the bales. The officers suspected drug trafficking and

descended in the helicopter. The boat crew jettisoned the bales and

1
The area is outside Dominican territorial waters and considered
the "high seas" for purposes of the Coast Guard's enforcement
jurisdiction, 14 U.S.C. § 89(a) (2006); 33 C.F.R. § 2.32(c) (2009),
although within the Dominican Republic's exclusive economic zone, id.
§ 2.30(b).

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fled. After giving chase for nearly an hour, the Coast Guard

helicopter returned to the drop site to retrieve the bales, which

proved to contain packages of cocaine.

While the helicopter retrieved the drugs, a U.S. Customs

and Border Protection airplane followed the yola as it proceeded

north towards the Dominican Republic. The boat experienced engine

problems and halted about twenty-five miles from the Dominican coast.

At the request of the U.S. Customs officials, a Dominican Coast Guard

cutter sailed out to retrieve the yola and its crew. The three crew

members were taken on board the cutter and the yola was tied to its

stern.

Later that evening, Young and two others traveled from the

HMS Ocean to the Dominican cutter where, with the permission of the

Dominican authorities, they questioned the three defendants who now

were on board the cutter. Young later testified that when

questioned, Matos, Soto and Carrasco declined to make a claim of

nationality for the yola:

I asked . . . who was the captain of the
vessel they were on or the senior person in
charge of the boat, and they responded there
was no single person in charge. Since I could
not determine if there was a captain of the
vessel, I asked if anybody would like to speak
for the boat and give me a claim of
nationality. And they shook their heads no,
and actually did not give me a full response.
Because I could not get one individual to make
a claim for the vessel, I then questioned what
was the nationality of the personnel. And
they had all told me and informed me that they
were from the Dominican Republic. I asked if

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 the boat had come from the Dominican Republic
as well, and they, in turn, agreed.

While Young interrogated the yola crew, another Coast

Guard officer boarded the yola, now tied to the stern of the cutter.

No ensign, flag, registration, or other evidence of the vessel's

nationality was found on board. The U.S. Coast Guard crew were

instructed by their superiors to detain the defendants, who were

transferred to the HMS Ocean and then brought to Puerto Rico for

prosecution in federal district court.

The defendants were charged by indictment with violations

of the MDLEA: one count of possessing cocaine with the intent to

distribute, 46 U.S.C. § 70503, and one count of aiding and abetting

that crime, 18 U.S.C. § 2 (2006), all while on board a "vessel

without nationality" and so within the enforcement authority of the

United States, 46 U.S.C. §§ 70502(c)(1)(A), 70503(a)(1). The

defendants moved to dismiss the indictment "for lack of

jurisdiction," arguing that there was no proof that they were on

board a "vessel without nationality" as alleged in the indictment.

The district court held that motion in abeyance, and the defendants

proceeded to trial.

When the government rested its case in chief, the

defendants sought a judgment of acquittal from the court, repeating

that there was no proof that they were on board a "vessel without

nationality." The court denied the motion. The most extensive

explanation given by the judge, provided in response to defense

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counsel's repeated efforts to have the jury instructed on the issue,

was as follows:

Title [46], the law defines a vessel without
nationality. And look at this. A vessel on
which the master or individual in charge--you
need a master or individual in charge, to
begin with--fails on request of an officer of
the United States, authorized to enforce
applicable United States law, to make a claim
of nationality or registry for that vessel.
. . . .
And then what happens on top of that,
you have a vessel that is in international
waters, no written registration on the
outside. No name, no flying flag, no nothing.
. . . .
I believe it is entirely up to me to
make a determination as to jurisdiction, and
I'm convinced that there is jurisdiction, so I
cannot ask the jury to make that
determination.

Ultimately, the jury found the defendants guilty as

charged of possession with intent to distribute the seized drugs.

Conformably with the statute, the issue of whether the vessel was

without nationality was not submitted to the jury. See 46 U.S.C. §

70504(a). Based on the weight of the cocaine recovered--which was

386 kilograms--the defendants were later each sentenced to 235

months' imprisonment. This appeal followed.

The most abstruse issue in the case, with which we begin,

is whether the defendants' possession of the cocaine with intent to

distribute occurred on board "a vessel subject to the jurisdiction of

the United States," 46 U.S.C. § 70503(a)(1). To put the issue in

context requires an understanding of the design and background the

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MDLEA--a statute initially enacted in 1986 as 46 U.S.C. app. § 1903,

see Pub. L. No. 99-570, § 3202, 100 Stat. 3207, 3207-95 to -97

(1986), and later relocated to its present code sections, 46 U.S.C.

§§ 70501-70507, see Pub. L. No. 109-304, § 10(2), 120 Stat. 1485,

1685-89 (2006).

Invoking its constitutional power "[t]o define and punish

Piracies and Felonies committed on the high Seas," U.S. Const. art.

I, § 8, cl. 10, Congress in the MDLEA made it unlawful inter alia for

anyone to

knowingly or intentionally manufacture or
distribute, or possess with intent to
manufacture or distribute, a controlled
substance on board . . . a vessel subject to
the jurisdiction of the United States . . .
even though the act is committed outside the
territorial jurisdiction of the United States.

46 U.S.C. § 70503(a)-(b).2

Underscoring its aim to reach broadly, Congress defined "a

vessel subject to the jurisdiction of the United States" to include

six categories of boats (listed in full in an appendix to this

decision)--first among them "a vessel without nationality," 46 U.S.C.

§ 70502(c)(1)(A).

In turn, "a vessel without nationality" is defined to

"include[]" the following:

2
The same prohibition applies to such conduct by anyone onboard
"a vessel of the United States," id. § 70503(a)(1), or "any vessel if
the individual is a citizen of the United States or a resident alien
of the United States," id. § 70503(a)(2); but neither of these
conditions was satisfied in this case.

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 (A) a vessel aboard which the master or
individual in charge makes a claim of registry
that is denied by the nation whose registry is
claimed;
(B) a vessel aboard which the master or
individual in charge fails, on request of an
officer of the United States authorized to
enforce applicable provisions of United States
law, to make a claim of nationality or
registry for that vessel; and
(C) a vessel aboard which the master or
individual in charge makes a claim of registry
for which the claimed nation of registry does
not affirmatively and unequivocally assert
that the vessel is of its nationality.

46 U.S.C. § 70502(d)(1).

That the listed examples do not exhaust the scope of

section 70502(d) is confirmed by Congress' contrasting use of the

phrase "includes only" in a related provision,3 by its evident and

explicit attempts to sweep quite broadly, see, e.g., S. Rep. 99-530,

at 15-16 (1986), and by relevant precedent, United States v. Rosero,

42 F.3d 166, 170 (3d Cir. 1994) (Alito, J.). At the very least,

Congress intended to include in section 70502(d), in addition to the

specific examples given, those vessels that could be considered

3
The term "claim of nationality or registry" in subsection (d)
is defined in subsection (e) such that it

includes only--
(1) possession on board the vessel and production of
documents evidencing the vessel's nationality as provided
in article 5 of the 1958 Convention on the High Seas;
(2) flying its nation's ensign or flag; or
(3) a verbal claim of nationality or registry by the master
or individual in charge of the vessel.

46 U.S.C. § 70502(e).

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stateless under customary international law. Id. at 170-71; see also

H.R. Rep. No. 96-323, at 23-24 (1979) (discussing predecessor

statute).

Congress' intent to reach broadly was reconfirmed in the

Coast Guard Authorization Act of 1996, Pub. L. No. 104-324, § 1138,

110 Stat. 3901, 3988-89, which amended the MDLEA by providing that

the "jurisdiction" of the United States over a vessel under the MDLEA

was "not an element of the offense" but a matter to be determined

"solely by the trial judge," id. § 1138(a)(5) (now codified at 46

U.S.C. § 70504(a)), and that a defendant had no standing to claim

that enforcement violated "international law"--reserving such

objections only to foreign nations, id. § 1138(a)(4) (now codified at

46 U.S.C. § 70505).4

Against this background, the district court's

determination that the defendants' yola was "a vessel without

nationality" within the meaning of the MDLEA was correct. This is so

regardless of whether that finding is to be made by a preponderance

of the evidence--as one of our earlier decisions implies, Vilches-

Navarrete, 523 F.3d at 20 (separate opinion of Lynch & Howard, JJ.)--

4
"Jurisdiction" in this context refers to the enforcement reach
of the statute--not federal court subject-matter jurisdiction, which
extends to any federal felony. United States v. González, 311 F.3d
440, 443 (1st Cir. 2002), cert. denied, 540 U.S. 826 (2003). That
reach was limited by Congress to minimize conflict with foreign
nations who might also assert rights to regulate. See United States
v. Vilches-Navarrete, 523 F.3d 1, 22 (1st Cir.) (separate opinion of
Lynch & Howard, JJ.), cert. denied, 129 S. Ct. 208 (2008).

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or beyond a reasonable doubt. Indeed, virtually none of the raw

facts bearing on the reach of the statute is disputed; the problem is

primarily one of interpreting the statute.

Still, the burden of proof question is likely to be a

recurring one for district courts within the circuit. In our view,

Congress intended it to be a preliminary issue, like venue and other

judge-determined issues, to be proven by a preponderance of the

evidence. In González, 311 F.3d at 443, we likened U.S. jurisdiction

over a vessel to statutory language that signals Congress' invocation

of its own authority, like "affects interstate commerce"; but unlike

other such "jurisdictional hooks" decided by a jury beyond a

reasonable doubt, the reach of the statute in this case is not an

element of the offense, 46 U.S.C. § 70504(a).

Our reading--requiring proof only to a preponderance--is

common to many judge-determined issues, e.g., United States v.

Vanvliet, 542 F.3d 259, 264 (1st Cir. 2008) (consent to search);

United States v. Schussel, 291 F. App'x 336, 343 (1st Cir. 2008)

(unpublished) (existence of privilege); United States v. Rojas-Tapia,

446 F.3d 1, 4 (1st Cir.) (voluntariness of confession), cert. denied,

549 U.S. 905 (2006); United States v. Garza, 435 F.3d 73, 77 (1st

Cir.) (admissibility of evidence), cert. denied, 547 U.S. 1158

(2006); United States v. Wiggin, 429 F.3d 31, 36-37 (1st Cir. 2005)

(competency to stand trial); United States v. Cordero, 668 F.2d 32,

44 n.18 (1st Cir. 1981) (propriety of venue), and it here comports

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with Congress' aim to facilitate enforcement. Defendants raise no

constitutional objection on this issue, and we see none.5

Turning now to the issue of the yola as a stateless

vessel, viewed in part retrospectively, the boat had various links to

the Dominican Republic. The crew members were Dominicans and the

small vessel was likely headed there before its engine troubles and

subsequent interception by the Dominican Coast Guard. At trial one

defendant said that the vessel was registered there in some fashion.

But neither the MDLEA nor international law limits U.S. enforcement

authority merely because the vessel has associations with another

state.

Under international law, every vessel must sail under the

flag of one and only one state; those that sail under no flag or more

than one flag enjoy no legal protection. 1 L. Oppenheim,

International Law § 261, at 595-96 (H. Lauterpacht ed., 8th ed.

1955); see also Convention on the High Seas art. 6, Apr. 29, 1958, 13

U.S.T. 2312, 450 U.N.T.S. 82; United States v. Victoria, 876 F.2d

1009, 1010-11 (1st Cir. 1989). By custom, a vessel claims

nationality by flying the flag of the nation with which it is

5
See Vilches-Navarrete, 523 F.3d at 20-22 (separate opinion of
Lynch & Howard, JJ.) (holding it constitutional for Congress to
allocate jurisdiction question to the judge); accord United States v.
Tinoco 304 F.3d 1088, 1111 (11th Cir. 2002), cert. denied, 538 U.S.
909 (2003). But see United States v. Perlaza, 439 F.3d 1149, 1167
(9th Cir. 2006). In criminal cases, jury fact-finding and the
beyond-reasonable-doubt standard generally go hand in hand. Sullivan
v. Louisiana, 508 U.S. 275, 278 (1993).

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affiliated or carrying papers showing it to be registered with that

nation. 1 Oppenheim, supra, §§ 260-261, at 594-96. Without a flag

or papers, a vessel may also traditionally make an oral claim of

nationality when a proper demand is made--a pattern the MDLEA

follows. See supra note 3 (quoting 46 U.S.C. § 70502(e)).6

Although enforcement jurisdiction presumptively lies with

the flag state, 1 Oppenheim, supra, § 266, at 603, "[i]t is not

enough that a vessel have a nationality; she must claim it and be in

a position to provide evidence of it." Anderson, supra note 6, at

341. Anderson, id. at 336-37, pertinently quotes a Privy Council

judgment:

[T]he freedom of the open sea, whatever those
words may connote, is a freedom of ships which
fly, and are entitled to fly, the flag of a
State . . . . Their Lordships would accept as
a valid statement of international law, the
following passage from Oppenheim's
International Law . . . : "In the interest of
order on the open sea, a vessel not sailing
under the maritime flag of a State enjoys no
protection whatever . . . ."

Molvan v. Att'y-Gen. for Palestine, [1948] A.C. 351 (P.C.) 369-70;

see also 1 Oppenheim, supra, § 261, at 595.

The MDLEA follows this approach, one might say,

energetically. Section 70502(d) "includes" in the phrase "vessel

6
See also Anderson, Jurisdiction over Stateless Vessels on the
High Seas: An Appraisal Under Domestic and International Law, 13 J.
Mar. L. & Com. 323, 341 (1982). On the traditional right to approach
a suspect vessel to verify its nationality, see 1 Oppenheim, supra,
§ 266, at 604.

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without nationality" those ships for which a claim of nationality is

made but rejected or not backed up by the nation invoked, 46 U.S.C.

§ 70502(d)(1)(A), (C), or those "aboard which the master of

individual in charge" fails on request "to make a claim of

nationality or registration" for the vessel, id. § 70502(d)(1)(B).

In our case, the defendants when questioned by the U.S. Coast Guard

refused to make a claim of nationality for the yola.

That questioning was aboard the Dominican cutter rather

than the defendants' yola and so arguably does not fit within the

language of section 70502(d)(1)(B)--at least if "aboard" is given its

common meaning of "on board."7 But neither "aboard" the yola, nor

adjacent to it on the cutter, did any crew member make an affirmative

claim of nationality for the vessel, nor did the yola fly a flag or

carry registry papers issued by any state. Under both the statute

and international law, this is more than enough to "include" the yola

as a vessel "without nationality" within the meaning of the MDLEA

even if it is merely similar to and not within one of the specific

examples given in the statute.

Practically every vessel, including the legendary Flying

Dutchman, has links with some country; but the stateless vessel

7
The word can also mean "alongside of," especially in nautical
contexts, and the defendants were arguably alongside of the yola when
they declined to make a claim of nationality. See Webster's Third
New International Dictionary of the English Language 4 (2002); The
Random House Dictionary of the English Language 5 (2d ed. unabr.
1987).

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concept in the MDLEA and in international law is designed

prudentially. The controlling question is whether at the point at

which the authorities confront the vessel, it bears the insignia or

papers of a national vessel or its master is prepared to make an

affirmative and sustainable claim of nationality. To read the MDLEA

more restrictively would mean that the master and crew need only

carry no papers and jump overboard to avoid having their vessel

classed as stateless. Cf. González, 311 F.3d at 449 (Torruella, J.,

concurring in the judgment).

The defendants are not entitled to raise a violation of

international law as an objection, see 46 U.S.C. § 70505, but in any

case the MDLEA does not conflict with international law. For

international law too treats the "stateless vessel" concept as

informed by the need for effective enforcement. Thus, a vessel may

be deemed "stateless," and subject to the enforcement jurisdiction of

any nation on the scene, if it fails to display or carry insignia of

nationality and seeks to avoid national identification. This occurs

if a "ship" repeatedly refuses, without
reasonable excuse, to reveal its allocation
[of nationality]. If no registration number
is visible and no other indicator [of
nationality] can be discerned, the
cognoscibility is already demonstrably
insufficient, and interference will then often
be justifiable. . . . From the basic design
of [the law of sea] and from the place the
institution here called allocation occupies in
it already it may be concluded that a "ship"
which obscures the cognoscibility of its
allocation repeatedly, deliberately, and
successfully may be treated as stateless.

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H. Meyers, The Nationality of Ships 322 (1967)(footnote omitted).

In sum, the instances specified by Congress--pertinently,

the refusal "aboard" the vessel to claim nationality, 46 U.S.C. §

70502(d)(1)(B)--are not departures from international law but merely

part of a pattern consistent with it; and when Congress used the word

"includes" in listing specific instances, it allowed for reasonable

extrapolation to functionally similar instances--including a refusal

by the crew to claim nationality that happens to occur aboard a

cutter which has the subject "vessel" in tow.

The MDLEA was responding to repeatedly frustrated efforts

to prosecute maritime drug trafficking. Anderson, supra note 6, at

325-27 (describing enforcement history). The statute's provisions

dovetail: a refusal to claim nationality renders the unflagged

vessel stateless and so within federal jurisdiction, while a

supportable claim of nationality allows the federal authorities to

seek jurisdiction by consent of the flag nation, e.g., 46 U.S.C. §

70502(c)(1)(C). Congress did not expect courts to render a cramped

reading of the statute.

Accordingly, we need not decide whether (in the

alternative) the transfer of the crew by the Dominican Coast Guard

constituted "consent" by the Dominican Republic to federal

enforcement. Consent would satisfy the MDLEA, 46 U.S.C. §

70502(c)(1)(C) (consent of flag state); id. § 70502(c)(1)(E) (consent

of state in whose territorial waters vessel is found), and accord

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with international law, United States v. Robinson, 843 F.2d 1, 4 (1st

Cir.), cert. denied, 488 U.S. 834 (1988). Whether such informal

consent is enough may be an open question. See id.

Matos, Soto and Carrasco also raise a host of other claims

on appeal--all requiring less discussion than the authority question.

Our decision has thus far assumed that--as the jury necessarily

found--the defendants were the crew first sighted by the helicopter

and seen to throw overboard bales that were recovered and found to

contain cocaine. The defendants say that the evidence for this

identification was insufficient.

The defendants stress that the Dominican cutter that

retrieved them had already intercepted and detained a second yola,

with a crew of two. The defendants argue that the government's

evidence was insufficient to prove that they were on the yola seen

gathering drugs rather than on this second, innocent yola, because

Officer Young testified at trial that the three defendants "could be"

the same three persons that he observed from his helicopter. The

argument was preserved in a motion for acquittal, so our review is de

novo. United States v. Potter, 463 F.3d 9, 13-14 (1st Cir. 2006).

Nevertheless, taking the evidence in the light most

favorable to the government, a rational jury could easily have found

the defendants guilty beyond a reasonable doubt. Although no single

witness had a continuous view of the yola from the time the boat was

first spotted until the moment it was apprehended by the Dominican

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cutter, there was abundant evidence from which to identify the

defendants as the crew-members and the evidence is not less powerful

because some of it rested upon reasonable inference rather than eye-

witness identification. See United States v. Santana-Rosa, 132 F.3d

860, 866 (1st Cir. 1998).

The evidence at trial included testimony from Officer

Young that the defendants' age and build matched the three persons

observed on the yola; multiple videos and photos of the yola from

which the jury could infer the same; ion scans of cocaine residue on

the skin and clothing of the defendants;8 and testimony from the

lieutenant of the Dominican cutter than the two-man yola crew and

three-man yola crew were segregated on his boat and thus unlikely to

be mixed up.

The defendants also raise two other arguments under the

heading of their identification challenge but which in truth present

different legal questions. First, they claim that the government

denied them a fair trial by failing to produce the only witness

allegedly in a position to settle the identification issue, a

Dominican official named Carmelo Matos Rodriguez. Government

interference in the production of witnesses helpful to the defendant

may in some circumstances preclude a fair trial, e.g., United States

8
The defendants argue on appeal that ion scans are unreliable
"[a]s a matter of law" and offend due process, but they provide no
citation or developed argument, so the objection is waived. United
States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.
1082 (1990).

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v. Castro, 129 F.3d 226, 232 (1st Cir. 1997), cert. denied, 523 U.S.

1100 (1998), but nothing like that is evident in this case.

A trial subpoena was issued at defendants' request for

Matos Rodriguez on March 27, 2008, and the government apparently

attempted to secure his presence at trial. But the defendants

incorrectly identified Matos Rodriguez as a member of the "Dominican

Coast Guard" when he was in fact with the Dominican equivalent of the

Drug Enforcement Agency. When the error was discovered and Matos

Rodriguez located, there was insufficient time to get him the

necessary documents to travel to the United States. The defendants

never sought a continuance.

Defendants seem to claim, at least at oral argument, that

they were affirmatively misled by the government into believing that

Matos Rodriguez would appear--only to be told the contrary on the

first day of trial. We ordered supplemental briefing from the

defendants on this specific issue after argument, instructing them to

"provide relevant transcript and record references." Instead, they

submitted a brief that relies entirely on alleged pretrial

conversations and affidavits from their own employees--none of which

is part of the record on appeal. Fed. R. App. P. 10(a).

Second, defendants assail the instructions given to the

jury on identification during deliberations, after the jury sent a

note requesting clarification on the issue; they complain that the

trial judge alluded to hypothetical testimony by a witness who looks

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at a lineup and says "I think it's number two." Their position is

that "I think" is too equivocal for proof beyond a reasonable doubt

and that the instruction would have misled the jury into thinking that

a doubtful identification was sufficient to convict.

No objection was made to the instruction at the time it

was made, so it is reviewed only for plain error, United States v.

Rogers, 41 F.3d 25, 30-31 (1st Cir. 1994), cert. denied, 515 U.S. 1126

(1995), but on reading the instruction ourselves, we see no error at

all. The court correctly instructed the jury on the types of evidence

it could consider and reminded the jury--at defense counsel's request-

-that identification had to be proven beyond a reasonable doubt.

Nothing in the instructions suggested that a doubtful identification

was sufficient.

Next, defendants argue that the evidence was insufficient

as to mens rea; they claim that--even if they were the persons on

board the yola observed retrieving the airdropped bales--there was

insufficient evidence that they knew the bales contained contraband

as opposed to innocent cargo. Again, the argument was preserved in

a motion for acquittal, so our review is de novo, taking all facts and

inferences in the light most favorable to the government. United

States v. Guerrero, 114 F.3d 332, 339 (1st Cir.), cert. denied, 522

U.S. 870 (1997). But again the evidence here amply supports the

verdict and is well within our precedents.

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 The defendants' yola was seen idling in the drop site

before collecting the bales, cf. Guerrero, 114 F.3d at 343; the yola

lacked fishing equipment, despite defendants' claim at trial to have

been out fishing; the defendants jettisoned the bales and fled at the

first sign of the Coast Guard, cf. United States v. Piedrahita-

Santiago, 931 F.2d 127, 131 (1st Cir. 1991); and the defendants and

their clothing showed traces of the drug. Nor is it common for

valuable cargo to be entrusted to persons unaware of its contents.

United States v. Angulo-Hernández, 565 F.3d 2, 8 (1st Cir.), cert.

denied, 130 S. Ct. 776 (2009).

Finally, at sentencing, defendants sought a reduction in

the calculation of their offense level because they were minor

participants in the crime, U.S.S.G. § 3B1.2(b) (2008)--an argument

rejected by the sentencing judge--as well as a reduction under United

States v. Booker, 543 U.S. 220 (2005), and its progeny. They never

clearly articulated then or now why a sentence within the guidelines

range would be unreasonable or unjust (except that it was long);

instead, they argue on appeal that the sentencing judge failed to

understand his discretion to depart downwards under Booker.

At one point, the sentencing judge stated that "[t]here is

nothing before the Court that would allow [it] to make any meaningful

exercise of any additional sentencing factor under [18 U.S.C. §]

3553(a), because nothing of the sort has been argued." In context,

we see no indication that the judge misunderstood his authority;

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rather he simply thought that the defendants had offered no persuasive

reason for a lower sentence. The latter judgment was his to make.

Affirmed.

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 APPENDIX

46 U.S.C. § 70502(c) (2006) states in full:

(c) Vessel subject to the jurisdiction of the United States.--
(1) In general.--In this chapter, the term “vessel subject to the
jurisdiction of the United States” includes--
(A) a vessel without nationality;
(B) a vessel assimilated to a vessel without nationality under
paragraph (2) of article 6 of the 1958 Convention on the High
Seas;
(C) a vessel registered in a foreign nation if that nation has
consented or waived objection to the enforcement of United States
law by the United States;
(D) a vessel in the customs waters of the United States;
(E) a vessel in the territorial waters of a foreign nation if the
nation consents to the enforcement of United States law by the
United States; and
(F) a vessel in the contiguous zone of the United States, as
defined in Presidential Proclamation 7219 of September 2, 1999 (43
U.S.C. 1331 note), that--
(i) is entering the United States;
(ii) has departed the United States; or
(iii) is a hovering vessel as defined in section 401 of the Tariff
Act of 1930 (19 U.S.C. 1401).
(2) Consent or waiver of objection.--Consent or waiver of
objection by a foreign nation to the enforcement of United States
law by the United States under paragraph (1)(C) or (E)--
(A) may be obtained by radio, telephone, or similar oral or
electronic means; and
(B) is proved conclusively by certification of the Secretary of
State or the Secretary's designee.

-Dissenting Opinion Follows-

-21-
 LIPEZ, Circuit Judge, dissenting. The Maritime Drug Law

Enforcement Act (MDLEA) makes it unlawful for an individual to

"knowingly or intentionally manufacture or distribute, or possess with

intent to manufacture or distribute, a controlled substance on board

(1) a vessel of the United States or a vessel subject to the

jurisdiction of the United States; or (2) any vessel if the individual

is a citizen of the United States or a resident alien of the United

States." 46 U.S.C. § 70503(a). The majority, after concluding that

the government need only prove by a preponderance of the evidence that

a vessel is "subject to the jurisdiction of the United States," holds

that the government met its burden in this case because it established

that the defendants' small fishing boat was a "vessel without

nationality" within the meaning of the statute. See id. § 70502(c)

(defining "vessel subject to the jurisdiction of the United States"

to include "a vessel without nationality"). I disagree with both of

those conclusions. Therefore, I respectfully dissent.

I.

The MDLEA was one of a series of steps Congress took in

the 1980s and 1990s to extend the reach of the federal drug laws

beyond the territory of the United States. Because the function and

meaning of the critical phrase "subject to the jurisdiction of the

United States" is not self-evident, it is important to understand the

MDLEA's design and background. I therefore begin by reviewing the

-22-
legislative context giving rise to the statute and its jurisdictional

requirement.

A. Marijuana on the High Seas Act

Before 1980, maritime drug smugglers outside the

territorial waters of the United States generally had to be prosecuted

for conspiracy to import drugs into the United States. That regime

proved to be unsatisfactory, primarily because of the difficulty of

proving an intent to import. The problem was not that the Coast Guard

lacked the authority to interdict drug smugglers and seize contraband;

to the contrary, the Coast Guard has long enjoyed "'one of the most

sweeping grants of police authority ever to be written into U.S.

law.'" Note, High on the Seas: Drug Smuggling, the Fourth Amendment,

and Warrantless Searches at Sea, 93 Harv. L. Rev. 725, 726 (1980)

(quoting Stephen H. Evans, The United States Coast Guard 1790-1915 218

(1949)); see 14 U.S.C. § 89(a) (setting forth Coast Guard's

enforcement authority). Rather, the problem derived from the limited

substantive scope of the maritime drug laws: "in most cases the Coast

Guard [was] able to seize and confiscate the ship and the illegal

drugs, but the government [was] not able to prosecute the crew or

others involved in the smuggling operation." S. Rep. No. 96-855, at

2 (1980).

Congress responded to the problem by enacting the

Marijuana on the High Seas Act, Pub. L. No. 96-350, 94 Stat. 1159

(1980), which broadened the drug laws in a number of ways. Most

-23-
importantly, the statute made it a crime for certain individuals on

the high seas to possess drugs with the intent to distribute, which

obviated the need to prove that the drugs were destined for the United

States and opened the door for a much broader extraterritorial

application of the federal drug laws. See 125 Cong. Rec. 20,083

(1979) (statement of Rep. Paul McCloskey) ("Where current law requires

an intent to import a controlled substance into the United States as

a necessary element of the crime[,] this bill essentially requires

only knowledge or intent to distribute with no need to establish a

U.S. destination. Such intent may be inferred from the presence of

controlled substances that exceed normal consumption –- and that are

not entered as cargo on a vessel's manifest.").

The majority is correct that the Marijuana on the High

Seas Act and its successor statutes manifest an intent to reach

broadly. Congress was concerned about maritime drug trafficking and

sought to "give the Justice Department the maximum prosecutorial

authority permitted under international law." S. Rep. 96-855, at 2;

see also 125 Cong. Rec. 20,083 (1979) (statement of Rep. Paul

McCloskey) (stating that the bill authorizes prosecution "to the

broadest extent possible under international law"). As the quoted

legislative history makes clear, however, Congress also intended to

stay within the boundaries of international law, which places

limitations on a nation's power "to make its law applicable to the

activities, relations, or status of persons." Restatement (Third) of

-24-
Foreign Relations Law of the United States § 401(a) (1987). Those

limitations, referred to under the heading "jurisdiction to

prescribe," have traditionally permitted nations to legislate with

respect to (1) their own nationals; (2) acts committed within, or

having substantial effects within, their territory; and (3) acts

directed at their national security.9 Id. § 402.

On the high seas, there is an additional basis of

jurisdiction to prescribe: vessel nationality.10 Vessels, like people,

are capable of having nationality, and a vessel on the high seas (and

those aboard it) may be subjected to the laws of the country whose

nationality she bears. See id. § 502(2). A Canadian vessel, for

example, may properly be subjected to the laws of Canada. The high

seas legal regime depends upon vessels having one, and only one,

nationality. Vessels without any nationality at all (also referred

to as stateless vessels) are subject to the prescriptive jurisdiction

9
Nations may also prescribe law with respect to a narrow class
of universally condemned activities, such as piracy. Restatement
(Third) § 404.
10
A number of sources say that vessel nationality provides the
exclusive basis for exercising prescriptive jurisdiction over a
vessel on the high seas. See Convention on the High Seas art. 6,
Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82; McCulloch v. Sociedad
Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963); R.R.
Churchill & A.V. Lowe, The Law of the Sea 208 (3d ed. 1999).
However, Congress, in enacting the Marijuana on the High Seas Act,
apparently viewed vessel nationality as a supplement to the
traditional bases of prescriptive jurisdiction. The Restatement
concurs in that view. See Restatement (Third) § 402 reporters' note
4 (characterizing vessel nationality as "an addition to the general
bases of jurisdiction set forth in this section").

-25-
of every nation. See United States v. Victoria, 876 F.2d 1009, 1010-

11 (1st Cir. 1989); United States v. Marino-Garcia, 679 F.2d 1373,

1380-83 (11th Cir. 1982).

Although the settled bases of prescriptive jurisdiction

are broad, they are not limitless. A country must be able to point

to one of those bases when extending its penal laws to an individual.

If Congress had made it a federal crime for any person to possess

drugs on board any vessel anywhere, it would have run afoul of the

international legal limitations on its jurisdiction to prescribe.11

Congress therefore limited the reach of the Marijuana on the High Seas

Act to five categories of persons: (1) United States citizens,

(2) individuals on board a vessel within the customs waters of the

United States, (3) individuals intending to import drugs into United

States territory or who know drugs will be imported into the United

States, (4) individuals on board a vessel with United States

nationality, and (5) individuals on board a U.S. vessel or a "vessel

subject to the jurisdiction of the United States on the high seas,"

which was defined to include a "vessel without nationality or a vessel

assimilated to a vessel without nationality." Pub. L. No. 96-350, 94

11
Although Congress could enact criminal laws that go beyond the
limitations of international law, see, e.g., Curtis A. Bradley,
Universal Jurisdiction and U.S. Law, 2001 U. Chi. Legal F. 323, 331
(2001), its intention at the time, as indicated above, apparently was
to stay within those limits. Cf. United States v. Hensel, 699 F.2d
18, 27 (1st Cir. 1983) ("Congress wished to authorize the search of
vessels on the high seas to the extent such searches conformed to
international law, but there is no indication that it wished to go
further.").

-26-
Stat. 1159. Each of those categories corresponds to one of the

traditional bases for exercising prescriptive jurisdiction --

nationality of the defendant, territoriality, national security,

nationality of the vessel, and statelessness. See H.R. Rep. No. 96-

323, at 10-11 (1979). The point made explicit in the legislative

history is thus apparent from the text of the statute as well:

Congress intended to extend the maritime drug laws to what it viewed

as the limits provided by international law, but no further.12

B. Maritime Drug Law Enforcement Act

By 1986, Congress had become convinced that the Marijuana

on the High Seas Act was in need of revision. In Congress's view,

"defendants in cases involving foreign or stateless vessel boardings

and seizures [had] been relying heavily on international

jurisdictional questions as legal technicalities to escape

conviction." S. Rep. No. 99-530, at 15 (1986). Congress enacted the

Maritime Drug Law Enforcement Act, Pub. L. 99-640, § 17, 100 Stat.

3545 (1986), with a view toward further expanding and strengthening

the maritime drug laws. Its approach was measured, however. Although

Congress extended the statute's coverage to several new categories of

defendants -- most notably, to individuals on board "a vessel

registered in a foreign nation where the flag nation has consented or

12
Other statutes criminalizing extraterritorial conduct have
followed a similar approach. See, e.g., 18 U.S.C. § 2237 (failure to
heave to, obstruction of boarding, providing false information); id.
§ 2339B (providing material support to designated foreign terrorist
organizations); id. § 2339C (financing terrorism).

-27-
waived objection to the enforcement of United States law by the United

States"13 -- it otherwise retained the pre-existing restrictions on the

statute's substantive scope. Id. Congress also added a provision

partially defining the phrase "vessel without nationality," which had

been left undefined in the original statute.14

C. 1996 Amendments

Congress amended the MDLEA again in 1996. See Coast Guard

Authorization Act of 1996, Pub. L. No. 104-324, § 1138, 110 Stat.

3901, 3988-89 (1996). The intent, as before, was to "expand the

Government's prosecutorial effectiveness in drug smuggling cases."

H.R. Rep. No. 104-854, at 142 (1996) (Conf. Rep.). To that end,

Congress further expanded the definition of "vessel without

nationality," Pub. L. No. 104-324, § 1138(a)(1),15 added provisions

13
Consent is a well-established basis of jurisdiction to
prescribe under international law. See United States v. Robinson,
843 F.2d 1, 4 (1st Cir. 1988).
14
The statute provided that a "vessel without nationality"
includes:

(A) a vessel aboard which the master or person in charge
makes a claim of registry, which claim is denied by the
flag nation whose registry is claimed; and
(B) any vessel aboard which the master or person in charge
fails, upon request of an officer of the United States
empowered to enforce applicable provisions of United States
law, to make a claim of nationality or registry for that
vessel.

Pub. L. No. 99-640, 100 Stat. 3545.
15
The new provision added to the definition "a vessel aboard
which the master or person in charge makes a claim of registry and
the claimed nation of registry does not affirmatively and

-28-
making it easier for the government to prove that a foreign nation

consented to the prosecution, id. § 1138(a)(2)-(3), and declared that

MDLEA defendants "shall not have standing to raise the claim of

failure to comply with international law as a basis for a defense,"

id. § 1138(a)(4). Congress also enacted an unusual provision that has

assumed importance in this case:

Jurisdiction of the United States with
respect to vessels subject to this chapter is
not an element of any offense. All
jurisdictional issues arising under this
chapter are preliminary questions of law to
be determined solely by the trial judge.

Id. § 1138(a)(5). Otherwise, the amendments left the substantive

limitations on the MDLEA's scope unaltered.

With this background in mind, I turn to the majority's

analysis.

II.

The majority holds, as a threshold matter, that the

government's proof that the defendants' vessel is covered by the MDLEA

must be by a preponderance of the evidence rather than beyond a

reasonable doubt. I do not agree. Like the majority, I do not

believe the burden of proof affects the outcome of this case.

Nevertheless, I wish to respond to the majority's analysis.

Prior to the 1996 amendments to the MDLEA, vessel status

had to be proved to the jury beyond a reasonable doubt. See, e.g.,

unequivocally assert that the vessel is of its nationality."

-29-
United States v. Guerrero, 114 F.3d 332, 339 (1st Cir. 1997).16 The

1996 amendments expressly removed the vessel status issue from the

jury's consideration. See 46 U.S.C. § 70504(a). They did not address

the standard of proof, however. I would presume, in the absence of

any textual indication to the contrary, that Congress did not intend

to silently alter the longstanding rule that vessel status must be

proved beyond a reasonable doubt. See United States v. O'Brien, 130

S. Ct. 2169, 2178 (2010) ("Congress does not enact substantive changes

sub silentio.").

The majority offers several justifications for reading an

implied shift in the standard of proof into the 1996 amendments.

First, it says that Congress intended vessel status to be "a

preliminary issue, like venue and other judge-determined issues" that

are commonly proved by a preponderance of the evidence. See 46 U.S.C.

§ 70504(a) (characterizing "[j]urisdiction," i.e., vessel status, as

a "preliminary question[] of law"). But that rationale is in conflict

with our decision in United States v. González, 311 F.3d 440 (1st Cir.

2002), where we held that vessel status goes to "the substantive reach

of the statute – applying to some vessels but not others" – rather

16
Our court was not alone in that interpretation. "Prior to
1996, there was a consensus among the circuits that 'the
jurisdictional requirement . . . is an element of the crime charged
and therefore must be decided by the jury.'" United States v.
Moreno-Morillo, 334 F.3d 819, 828 (9th Cir. 2003) (quoting United
States v. Medjuck, 48 F.3d 1107, 1110 (9th Cir. 1995)); see also
United States v. Bustos-Useche, 273 F.3d 622, 626 (5th Cir. 2001);
United States v. Medina, 90 F.3d 459, 464 (11th Cir. 1996).

-30-
than to the threshold issue of the court's authority to hear the case.

Id. at 443 (emphasis omitted). Unlike venue and the other procedural

and evidentiary matters mentioned by the majority, a failure to prove

that defendants' conduct occurred on board a covered vessel amounts

to a failure to prove that the defendants violated the MDLEA. Compare

id. ("Congress asserted its own authority to regulate drug trafficking

on some ships but not all ships and, in this context, used the word

'jurisdiction' loosely to describe its own assertion of authority to

regulate; it does the same thing whenever it fixes an 'affects

interstate commerce' or 'involved a federally insured bank' as a

condition of the crime."), with Am. Dredging Co. v. Miller, 510 U.S.

443, 453 (1994) ("[V]enue is a matter that goes to process rather than

substantive rights – determining which among various competent courts

will decide the case.").17

It is equally unhelpful to suggest, as the majority does,

that Congress's allocation of decision-making authority to the judge

necessarily implies a shift in the standard of proof because "jury

fact-finding and the beyond-a-reasonable-doubt standard generally go

hand in hand." Although the two issues often go hand in hand, they

are not invariably linked. Venue, for instance, is established by a

preponderance of the evidence but must be submitted to the jury when

17
Although vessel status is a substantive issue in that it
relates to "the reach and application" of the statute, González, 311
F.3d at 443, it is not an element of the offense. See 46 U.S.C. §
70504(a); United States v. Vilches-Navarrete, 523 F.3d 1, 20 (1st
Cir. 2008).

-31-
put in issue. See United States v. Jackalow, 66 U.S. 484, 487-88

(1861); United States v. Perez, 280 F.3d 318, 330, 333-34 (3d Cir.

2002). Conversely, petty offenses are tried to the court but subject

to the beyond a reasonable doubt standard. See United States v.

McFarland, 445 F.3d 29, 30-31 (1st Cir. 2006).18 Even in

constitutional law, the judge/jury issue can be separated from the

standard of proof issue. For example, there is no federal

constitutional right to a jury trial in juvenile delinquency

proceedings, see McKeiver v. Pennsylvania, 403 U.S. 528, 547 (1971),

yet the charges in such proceedings must nevertheless be proved beyond

a reasonable doubt, see In re Winship, 397 U.S. 358, 364 (1970). As

these authorities indicate, Congress's decision to "remove from the

jury and confide to the judge" the question of vessel status,

González, 311 F.3d at 443, does not necessarily imply that Congress

intended to lower the government's burden of proof as well. The two

issues, though "interrelated," Sullivan v. Louisiana, 508 U.S. 275,

278 (1993), are ultimately separate.

Finally, the majority says that the preponderance of the

evidence standard "comports with Congress' aim to facilitate

18
Other judge-determined issues are subject to higher and
lower standards of proof. See, e.g., Huddleston v. United States,
485 U.S. 681, 690 (1988) (noting that a court resolves a question of
relevancy conditioned on fact by deciding "whether the jury could
reasonably find the conditional fact"); United States v.
Ruiz-Gaxiola, No. 08-10378, 2010 WL 3720211, at *5 (9th Cir. Sep. 24,
2010) (holding that facts justifying forced administration of
antipsychotic medication must be established by clear and convincing
evidence).

-32-
enforcement." But, of course, the same could be said of every issue

in a criminal case. Congress always and understandably wants

criminals to be brought to justice. That fact is not a license to

interpret every criminal statute as broadly as possible. Congress is

also mindful of individual rights, international law, and the need for

substantive and procedural limitations on the federal criminal power.

The question in this case, as in every case, is where Congress struck

the balance between those considerations and the desire to punish

wrongdoers. The majority's unelaborated reference to Congress's "aim

to facilitate enforcement" does not meaningfully advance that inquiry.

To the contrary, it tends to obscure the nuanced approach that

Congress took in the statute. Cf. Bd. of Governors of the Fed.

Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 374 (1986)

("Invocation of the 'plain purpose' of legislation at the expense of

the terms of the statute itself takes no account of the processes of

compromise and, in the end, prevents the effectuation of congressional

intent.").

Hence, in my view, Congress's silence is evidence that it

did not intend to alter the standard of proof.

III.

Even assuming that preponderance of the evidence is the

correct standard, the government did not meet that standard in this

case. It was the government's burden to prove that the defendants'

yola was a "vessel without nationality." That statutory phrase dates

-33-
to the original Marijuana on the High Seas Act, which left the term

undefined. It was evidently meant to refer to vessels that would be

considered stateless under international law. Congress subsequently

added three specific examples of "vessel[s] without nationality" to

the statute. See 46 U.S.C. § 70502(d)(1) (quoted infra). As the

majority correctly holds, Congress did not intend those three examples

to be exhaustive. The MDLEA extends to vessels that are considered

stateless under international law, even if those vessels do not fall

within one of the specifically enumerated categories.19 See United

States v. Rosero, 42 F.3d 166, 171 (3d Cir. 1994) (Alito, J.).

International law, in turn, largely leaves the allocation

of vessel nationality to national law. Each country "may determine

for itself the conditions on which it will grant its nationality to

a merchant ship, thereby accepting responsibility for it and acquiring

authority over it."20 Lauritzen v. Larsen, 345 U.S. 571, 584 (1953);

19
The MDLEA provides that "[a] failure to comply with
international law does not divest a court of jurisdiction and is not
a defense to a proceeding under this chapter." 46 U.S.C. § 70505.
That provision simply means that international law does not supply an
independent basis for defending against an MDLEA prosecution. To the
extent that international law informs the scope of the statute
itself, it must necessarily be considered in determining whether a
defendant's conduct falls within the statute. Cf. United States v.
Alvarez-Machain, 504 U.S. 655, 666 (1992) (distinguishing between the
invocation of international law as "an independent basis for the
right respondent asserts not to be tried in the United States" and
the invocation of international law to "inform the interpretation of
the Treaty terms").
20
A vessel that has been granted the nationality of a
particular country is often said to sail "under the flag" of that
country (the "flag state") or to be entitled to "fly the flag" of

-34-
see also Purchase of Ships of Belligerents by Neutrals, 6 Op. Att'y

Gen. 638, 640 (1854) ("The law of nations and common sense combine to

require that every ship shall have a nationality, defined and

evidenced in each case according to the municipal law of the

particular nation to which the ship appertains.").

In some countries, the law provides that any ship meeting

certain conditions (e.g., ownership by a national) is considered a

national ship. See H. Meyers, The Nationality of Ships 147 (1967).

In other countries, nationality must be bestowed through an

affirmative act of the government. Id. Still other countries link

nationality to registration, granting their nationality automatically

to ships that are registered in accordance with the law. Id. Many

countries, including the United States, combine elements of the

different systems. See 46 U.S.C. § 70502(b); Ted L. McDorman,

Stateless Fishing Vessels, International Law and the U.N. High Seas

Fisheries Conference, 25 J. Mar. L. & Comm. 531, 533 (1994) ("Practice

in the United States suggests that where a vessel is not registered,

the nationality of the vessel can become that of the vessel's

owner."); The Chiquita, 19 F.2d 417, 418 (5th Cir. 1927) ("If [a

vessel] is not properly registered, her nationality is still that of

her owner.").

that country. See, e.g., Convention on the High Seas art. 5, Apr.
29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82. To prevent confusion with
the national flag that is often flown from the stern of a ship, I
avoid those metaphors in favor of the term "nationality."

-35-
 A vessel either has a given nationality or it does not.

It is therefore incorrect to suggest, as the majority does, that

whether a vessel is stateless depends upon the circumstances in which

it is encountered. See Majority Opinion at 13 ("The controlling

question is whether at the point at which the authorities confront the

vessel, it bears the insignia or papers of a national vessel or its

master is prepared to make an affirmative and sustainable claim of

nationality." (emphasis added)). Under international law, a stateless

vessel is simply one that does not have a valid grant of nationality

from any country. See Rosero, 42 F.3d at 171. That may be the case

if, for example, no country has ever granted the vessel nationality;

if a country has canceled its grant of nationality; or if the

political entity that granted the vessel nationality is not a

recognized international person. Id.

Because statelessness is the absence of nationality, the

task of establishing that a vessel is genuinely stateless can "present

the difficulties often associated with proving a negative." Rosero,

42 F.3d at 171. International law deals with this problem by

permitting nations to deem a vessel that "repeatedly, deliberately,

and successfully" obscures its nationality to be stateless,

irrespective of whether the vessel is genuinely stateless. Meyers,

supra, at 322. In a similar vein, a vessel that claims the

nationality of two or more countries according to convenience is

"assimilated to" (in the sense of "rendered similar to" or "deemed to

-36-
be") a vessel without nationality, even if it legitimately possesses

a nationality. Convention on the High Seas art. 6(2). These rules

operate as sanctions, effectively penalizing vessels that attempt to

evade law enforcement authority on the high seas.

Congress took this notion of "deemed" statelessness a step

further in the MDLEA. Under the statute, three additional categories

of vessels that make false or evasive claims of nationality are deemed

to be stateless:

(A) a vessel aboard which the master or
individual in charge makes a claim of
registry that is denied by the nation
whose registry is claimed;

(B) a vessel aboard which the master or
individual in charge fails, on request of
an officer of the United States
authorized to enforce applicable
provisions of United States law, to make
a claim of nationality or registry for
that vessel; and

(C) a vessel aboard which the master or
individual in charge makes a claim of
registry and for which the claimed nation
of registry does not affirmatively and
unequivocally assert that the vessel is
of its nationality.

46 U.S.C. § 70502(d)(1).

To summarize, international law and the MDLEA recognize

two basic categories of vessels without nationality. In the first

category are vessels that are genuinely stateless under international

law, in the sense that they do not have a valid grant of nationality

from any country. In the second category are vessels that are deemed

-37-
to be stateless because they have attempted to obscure their

nationality. I will discuss each of these categories in explaining

why I do not believe the government carried its burden of proving that

the defendants' yola fell within the scope of the MDLEA.

A. Genuine Statelessness

The government argues that the yola was genuinely

stateless because the defendants "were not flying a flag, carried no

documentation, and never claimed to the Coast Guard that their ship

was registered in the Dominican Republic or flew a Dominican flag."

Insofar as the government means to suggest that any vessel that fails

to affirmatively signal its nationality through a flag, documents, or

an oral claim of registry becomes stateless under international law,

it is mistaken. Registration, documentation, and the flag are

"indicators" of vessel nationality, but they are not sources of vessel

nationality. See Meyers, supra, at 138-140; see also Lauritzen, 345

U.S. at 584 ("Nationality is evidenced to the world by the ship's

papers and its flag." (emphasis added)); The Mohawk, 70 U.S. 566, 571

(1865) ("The purpose of a register is to declare the nationality of

a vessel engaged in trade with foreign nations, and to enable her to

assert that nationality wherever found."); Henry Wheaton, Elements of

International Law 425 n.163 (Richard Henry Dana, Jr., ed., 8th ed.

1866) (distinguishing between a vessel's "ostensible nationality,"

which is indicated by its flag and documents, and its "actual

-38-
nationality, which depends on the domicile of the owner and other

facts").

Under international law, "[a] vessel may be considered as

possessing the nationality of a State even though she is unregistered,

possesses no documents evidencing that nationality, nor even flies the

flag of that State."21 N.P. Ready, Ship Registration 3 (3d ed. 1998);

see also McDorman, supra, at 533 ("Determining vessel

nationality . . . is not just a question of documentation of the

vessel[,] and a vessel literally without a flag, not being a vessel

registered in a country, is not necessarily stateless or without

nationality."); Rosero, 42 F.3d at 172-73 (holding that it was error

to instruct the jury that it could find a vessel genuinely stateless

"based on an unstructured weighing of the totality of the evidence,"

including various indicators of nationality). Even pirate ships

possessing no documents and flying the flag of an unrecognized

insurrectionary movement do not necessarily lose their nationality.

See Convention on the High Seas art. 18 ("A ship or aircraft may

retain its nationality although it has become a pirate ship or

aircraft. The retention or loss of nationality is determined by the

law of the State from which such nationality was derived."); United

21
One commentator colorfully illustrates this principle:
"According to international law the flying of the national flag was
never the cause of -- or the condition for -- [nationality]. When
the last bunting on board was blown to tatters, this never had
radical legal consequences, nor had the hoisting of the flag."
Meyers, supra, at 162.

-39-
Nations Convention on the Law of the Sea art. 104, Dec. 10, 1982, S.

Treaty Doc. No. 103-39, 1833 U.N.T.S. 3 (same). The question in every

case turns on national law.

There is a separate question of whether the absence of a

flag and documentation, though not directly affecting a vessel's

nationality, can provide circumstantial evidence of statelessness.

I believe it can. Common sense suggests that a vessel that lacks the

usual indicators of nationality is more likely to be stateless than

an equivalently situated vessel possessing such indicators. Cf. Fed.

R. Evid. 401. But even acknowledging that to be so, it does not mean

that proof that a vessel lacks the usual indicators of nationality is

alone sufficient to justify the inferential conclusion that the vessel

is, in fact, stateless. The reasonableness of such a conclusion will

depend on other factors that are particular to each case.

It is not necessary to enumerate those factors

comprehensively to see that such an inference is not warranted here.

The yola in question was a small wooden boat equipped with an outboard

motor. It undisputedly originated in the Dominican Republic and was

carrying Dominican crew members. It was sighted just outside

Dominican territorial waters (within the Dominican Republic's

Exclusive Economic Zone) and was obviously incapable of making long

international voyages. Although the vessel was not carrying

documentation, "[m]any states . . . do not issue documents to ships

with a tonnage below a given figure." Meyers, supra, at 160; see also

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R.R. Churchill & A.V. Lowe, The Law of the Sea 213 n.19 (3d ed. 1999)

(noting that "a State may not require, or permit, the registration of

ships below a certain size, for example, but may nonetheless regard

such ships as having its nationality if they are owned by its

nationals"). Defendant Soto-Pérez testified at trial that the yola

was owned by a Dominican man and was registered in some fashion with

the Dominican government.

All of this evidence points strongly toward Dominican

nationality. The government, which bore the burden of proving that

the yola was stateless, offered nothing to rebut or undermine that

conclusion. It submitted no evidence regarding Dominican law on

nationality, presented no statement from a Dominican official, and

generally made no attempt to eliminate the Dominican Republic as the

most plausible candidate for nationality. Nor did the government

obtain the Dominican Republic's consent to prosecution, see 46 U.S.C.

§ 70502(c)(1)(C), which could have provided a fallback position in the

event that the evidence of statelessness proved deficient.22 The

district court, for its part, appears to have shifted the burden of

proof to the defendants. At one point, the judge told defense

counsel: "You could have brought the owner of the boat to testify.

You could have done that. He would have told you yes, this was my

22
The majority's suggestion that the transfer of the crew by
the Dominican Coast Guard may have constituted informal consent is
interesting, but it is not an appropriate basis for affirming the
judgment in this case. Consent was not charged in the indictment,
argued below, or raised on appeal.

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boat. I bought it. I have pictures of the boat. Here they are. I

have it registered. Brought certified papers of the registry. All

those things could have been done." Needless to say, it was not the

defendants' burden to prove that their boat fell outside the scope of

the statute.

Given all the circumstances, I believe it was erroneous

for the district court to conclude, based solely on the lack of a flag

and documentation, that the defendants' vessel was genuinely

stateless. Those factors would almost certainly have justified the

detention and boarding of the yola, which may be based on a

"reasonable suspicion" that a vessel is stateless.23 See United States

v. Williams, 617 F.2d 1063, 1082 (5th Cir. 1980) (en banc); Proposed

Interdiction of Haitian Flag Vessels, 5 Op. O.L.C. 242, 243 n.4 (1981)

("Ships flying no flag may also be stopped to determine if they are

stateless."). But the question of whether there are reasonable

grounds for detaining and searching a vessel is "separate" from the

question of whether the vessel is truly stateless and, as such, falls

within the ambit of the MDLEA. United States v. Potes, 880 F.2d 1475,

23
As it happens, the Dominican Republic has given the United
States blanket authorization to board and search any Dominican vessel
on the high seas "suspected of illicit traffic" in drugs. Agreement
Between the Government of the United States of America and the
Government of the Dominican Republic Concerning Maritime Counter-Drug
Operations, U.S.-Dom. Rep., art. 10, Mar. 23, 1995, T.I.A.S. No.
12620. However, the Dominican Republic has retained the "primary
right" to prosecute the individuals on board such a vessel. Id. art.
11.

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1478 (1st Cir. 1989). On the facts of this case, I do not believe the

government satisfied its burden of proving the latter.

B. Deemed Statelessness

The question, then, is whether the yola can be deemed to

be stateless. The majority concludes that it can. My colleagues rely

primarily on the provision extending the MDLEA to "a vessel aboard

which the master or individual in charge fails, on request of an

officer of the United States authorized to enforce applicable

provisions of United States law, to make a claim of nationality or

registry for that vessel." 46 U.S.C. § 70502(d)(1)(B).24 Pursuant

to the text of that provision, the failure to claim nationality has

legal consequences only in specific circumstances: when a specified

individual aboard the vessel fails to respond to a federal law

enforcement officer's request for a claim of nationality.

Here, however, no federal officer requested the yola's

nationality while the defendants were still on board the vessel.

Officer Young questioned the defendants after they were picked up by

the Dominican Coast Guard. Among other things, he asked "if anybody

would like to speak for the boat and give [him] a claim of

nationality." The defendants "shook their heads no, and actually did

24
The majority also suggests that the defendants' failure to
make an "affirmative claim of nationality" is on its own enough to
bring them within the scope of the MDLEA. That suggestion finds no
support in the statute, which addresses the failure to claim
nationality in a separate section that is inapplicable here. See 46
U.S.C. § 70502(b)(2)(B).

-43-
not give [him] a full response."25 I will assume that this exchange

would ordinarily constitute a request for, and a failure to make, a

claim of nationality under the MDLEA. The issue remaining is whether

the statute's requirement that the questioning take place "aboard" the

suspect vessel includes within its scope questioning that took place

"aboard" the Dominican cutter.

The majority concludes that "aboard" as used in section

70502(d)(1)(B) is sufficiently elastic to embrace the questioning that

took place here, despite my colleagues' recognition that the

circumstances fall outside the MDLEA if "aboard" is given its common

meaning of "on board."26 In essence, the majority concludes that

"near" the yola is close enough to "aboard" the yola in light of the

other indicators of statelessness, including the absence of a flag or

registry papers and the crew's failure to make an affirmative claim

of nationality.

But a court does not have license to expand the scope of

a criminal statute merely because it believes that doing so is

25
Officer Young further testified: "I asked who was the captain
of the vessel they were on or the senior person, and they responded
that there was no single person in charge. . . . Because I could not
get one individual to make a claim for the vessel, I then questioned
what was the nationality of the personnel. And they had all told me
and informed me that they were from the Dominican Republic. I asked
if the boat had come from the Dominican Republic as well, and they,
in turn, agreed."
26
The majority observes in a footnote that the dictionary
definitions of "aboard" include "alongside of." As described infra,
however, the international law context leaves no doubt that Congress
had the ordinary usage of the word in mind. See infra.

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consistent with Congress's law enforcement objectives. In enacting

the MDLEA, Congress was acting against the backdrop of international

law. As noted earlier, the international standard for deeming

statelessness requires proof that a vessel "repeatedly, deliberately,

and successfully" obscured its nationality. Meyers, supra, at 322.

The MDLEA criteria for deeming statelessness, allowing such a

determination based on a single failure to respond, are significantly

less demanding and may in fact overstep international norms. See

Eugene Kontorovich, Beyond the Article I Horizon: Congress's

Enumerated Powers and Universal Jurisdiction over Drug Crimes, 93

Minn. L. Rev. 1191, 1228 (2009) ("[T]he MDLEA's definition of

statelessness goes far beyond what is recognized by international

custom or convention."). Although Congress has the prerogative to go

beyond the limits of international law, see, e.g., Bradley, supra, at

331 ("Congress is free to override the limitations of international

law, including the international law of prescriptive jurisdiction,

when enacting a criminal statute."), we exceed our authority if we go

beyond Congress in this sensitive realm.

There is every reason to conclude that Congress did not

include the word "aboard" in section 70502(d)(1)(B) casually. To the

contrary, the boarding of vessels by law enforcement officials is a

significant step, and allowing authorities to board for limited

investigatory purposes is a traditional "exception to the principle

of noninterference on the high seas." United States v. Postal, 589

-45-
F.2d 862, 870 (5th Cir. 1979); see also United States v. Ricardo, 619

F.2d 1124, 1130 n.4 (5th Cir. 1980). The doctrine of international

common law known as the "right of visit," or the "right of approach,"

permits scrutiny of the conduct or nationality of suspicious vessels

through inquiry that culminates in an "examination on board the ship."

Convention on the High Seas art. 22;27 see also, e.g., United States

v. Romero-Galue, 757 F.2d 1147, 1149 n.3 (11th Cir. 1985) ("The 'right

of approach' is a doctrine of international maritime common law that

bestows a nation's warship with the authority to hail and board an

unidentified vessel to ascertain its nationality."); United States v.

27
Article 22 of the Convention codifies the common law doctrine
and states, in part:

1. Except where acts of interference derive from powers
conferred by treaty, a warship which encounters a foreign
merchant ship on the high seas is not justified in boarding
her unless there is reasonable ground for suspecting:

(a) That the ship is engaged in piracy; or
(b) That the ship is engaged in the slave trade; or
(c) That, though flying a foreign flag or refusing to show
its flag, the ship is, in reality, of the same nationality
as the warship.

2. In the cases provided for in sub-paragraphs (a), (b)
and (c) above, the warship may proceed to verify the ship's
right to fly its flag. To this end, it may send a boat
under the command of an officer to the suspected ship. If
suspicion remains after the documents have been checked, it
may proceed to a further examination on board the ship,
which must be carried out with all possible consideration.

A Coast Guard cutter is considered a "warship" for purposes of this
provision. Postal, 589 F.2d at 871 n.13 (citing Convention on the
High Seas art. 8(2)); United States v. Cortes, 588 F.2d 106, 110 (5th
Cir. 1979).

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Petrulla, 457 F. Supp. 1367, 1372 n.1 (M.D. Fla. 1978) ("[T]he right

of approach to determine nationality has long been recognized.").28

Likewise, 14 U.S.C. § 89(a) gives the Coast Guard authority to board

any vessel subject to the jurisdiction of the United States to

"address inquiries to those on board, examine the ship's documents and

papers, and examine, inspect, and search the vessel." See Williams,

617 F.2d at 1076-77 ("Congress, in enacting section 89(a), created an

exception to the principle of non interference that is analogous to

the exceptions contained in article 22.").

Section 70502(d)(1)(B) thus exists within a larger context

of maritime law in which officers are given limited authority to board

vessels to complete their investigations. As I have noted, the

authority conferred by that provision's language is, arguably, already

beyond the bounds of international law. I can see no justification

for broadening the statute's scope even further by ignoring its

literal terms. If the majority were correct that failure to respond

to questioning on an adjacent vessel is equivalent to questioning

"aboard" the target vessel, what principle would distinguish inquiry

at a Coast Guard station located just ashore? In such circumstances,

the limited "right to visit" becomes a license to conduct questioning

of a ship's crew wherever convenient for the authorities. In my view,

neither scenario falls within a provision that deems a vessel

28
Officer Young testified that the yola was boarded pursuant
to a right of visit.

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stateless based on a specific interaction that occurs "aboard" that

vessel.29

Abiding by the plain language of the statute need not

frustrate Congress's objective to prosecute maritime drug trafficking

nor undermine law enforcement efforts. In this case, for example, the

Coast Guard could likely have brought the defendants within the scope

of the MDLEA by obtaining the consent of the Dominican Republic, the

yola's apparent country of nationality. See 46 U.S.C.

§ 70502(c)(1)(C). Alternatively, the government could have alleged

that the yola was either a Dominican vessel or a stateless vessel and

further investigated its nationality after the defendants' arrest.

Cf. United States v. Greer, 285 F.3d 158, 175 (2d Cir. 2002) (holding

that the MDLEA's jurisdictional element may be satisfied by consent

obtained "any time before trial"); United States v. Bustos-Useche, 273

F.3d 622, 627 (5th Cir. 2001) (same); United States v. Cardales, 168

F.3d 548, 552 (1st Cir. 1999) (finding jurisdictional requirement met

where consent provided after Coast Guard's boarding of ship).30 That

29
The majority's observation that Congress used the word
"includes" when it listed specific instances of deemed statelessness
does not help its argument that section 70502(d)(1) reaches the
circumstances here. To construe the word "aboard" as the majority
proposes is effectively to nullify a limitation on the scope of the
statute as enacted. The rules of statutory construction do not
permit us to rewrite the statute by ignoring a word chosen by
Congress. See Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)
("In construing a statute we are obliged to give effect, if possible,
to every word Congress used.").
30
Indeed, as noted supra, the United States has authority to
search any Dominican vessel on the high seas suspected of involvement

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the government failed to pursue those avenues in this case does not

justify extending the scope of a criminal statute beyond its plain

terms.31

IV.

The issues raised in this appeal are difficult, and I

respect the majority's thoughtful attempt to resolve them. In the

end, however, I fear that the majority's focus on Congress's "aim to

facilitate enforcement" has overshadowed the considerations of

fairness and international law that counsel restraint in interpreting

the MDLEA. The majority's interpretation extends United States drug

laws to circumstances that Congress did not contemplate and that

likely exceed the bounds of international law as well. In addition,

the majority has lowered the traditional standard of proof for finding

guilt. I would not reach either of those results in the absence of

a clear statement that Congress intended its penal laws to reach so

broadly.

For these reasons, I respectfully dissent.

in drug trafficking. Because the Dominican Republic retains the
right to prosecute individuals for such crimes, the United States
presumably would transfer the custody of any arrested persons upon
request from the Dominican government if the vessel were determined
to be Dominican.
31
Of course, federal officers may encounter scenarios in which
an overly rigid reading of the statute would truly frustrate
congressional purposes. See, e.g., Rosero, 42 F.3d at 174 ("By clear
implication, . . . [the failure to claim nationality] provision
applies when the master of a ship flees and leaves no one in
charge . . . ."). This case does not present such a situation.

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