United States v. Luis Munoz Miranda

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2014 Decided March 20, 2015

No. 13-3032

UNITED STATES OF AMERICA,
APPELLEE

v.

LUIS ALBERTO MUNOZ MIRANDA, ALSO KNOWN AS DAVID,
ALSO KNOWN AS EL GORDO,
APPELLANT

Consolidated with 13-3036

Appeals from the United States District Court
for the District of Columbia
(No. 1:10-cr-00106-5)
(No. 1:10-cr-00106-2)

Douglas J. Behr, appointed by the court, argued the cause
for appellants. With him on the briefs was Elita C. Amato,
appointed by the court.

John-Alex Romano, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee. David M.
Lieberman, Attorney, U.S. Department of Justice, entered an
appearance.
 2
Before: SRINIVASAN, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: Luis Alberto Munoz
Miranda and Francisco Jose Valderrama Carvajal, citizens of
Colombia, pleaded guilty to drug conspiracy charges under the
Maritime Drug Law Enforcement Act (MDLEA). They
contend on appeal that the MDLEA is unconstitutional as
applied to their conduct, that the MDLEA fails to reach
extraterritorially to encompass their conduct in Colombia, and
that the facts in the record fail to support acceptance of their
guilty pleas. We reject their challenges and affirm their
convictions.

Appellants waived all but one of the arguments they now
raise when they entered pleas of guilty without reserving any
right to appeal their convictions. With respect to their
remaining claim, concerning whether vessels used by the drug
conspiracy were “subject to the jurisdiction of the United
States” within the meaning of the MDLEA, that issue
implicates the district court’s subject-matter jurisdiction and
thus could not be waived by appellants’ guilty pleas. On the
merits of the issue, however, appellants’ statements of
stipulated facts fully support the district court’s conclusion that
the relevant vessels were subject to the jurisdiction of the
United States.

I.

On April 23, 2010, a federal grand jury indicted Munoz
Miranda and Valderrama Carvajal, along with others not
before us on appeal, for participating in an international drug
smuggling conspiracy in violation of the MDLEA, 46 U.S.C.
 3
§§ 70501 et seq. The indictment charged appellants with
conspiring to distribute a controlled substance on board
“vessel[s] subject to the jurisdiction of the United States.” Id.
§ 70503(a)(1). The drug smuggling operation used “go-fast”
boats (small boats capable of traveling undetected and at high
speeds) to move drugs from Colombia to various Central
American countries. From 2006 to 2010, the smuggling
organization transported large quantities of drugs in numerous
shipments.

Neither Munoz Miranda nor Valderrama Carvajal planned
to, or did, leave Colombia in furtherance of the conspiracy.
Valderrama Carvajal served as an organizer of the smuggling
operations, and Munoz Miranda provided logistical support.
In 2011, Colombian officials arrested Munoz Miranda and
Valderrama Carvajal. They were extradited to the United
States shortly thereafter.

In the district court, Munoz Miranda and Valderrama
Carvajal moved to dismiss their indictments on a number of
grounds. They claimed that the ships used by the conspiracy
did not satisfy the statutory definition of vessels “subject to the
jurisdiction of the United States,” 46 U.S.C. § 70502(c),
because the ships were in Colombian waters at the time of
capture. Appellants further contended that, because their
conspiratorial acts did not take place on board any vessel, the
MDLEA does not reach their conduct. They also challenged
the constitutionality of the MDLEA on two grounds, claiming
(i) that Congress lacks Article I authority to criminalize their
extraterritorial conduct, and (ii) that applying the statute
against them without demonstrating a nexus to the United
States violates their due process rights. On October 11, 2012,
the district court orally denied appellants’ motions to dismiss.
 4
The next day, appellants moved to enter guilty pleas under
Federal Rule of Criminal Procedure 11. Each appellant
executed an unconditional guilty plea agreement that did not
“reserve[] in writing the right to have an appellate court review
an adverse determination of a specified pretrial motion.” Fed.
R. Crim. P. 11(a)(2). Appellants entered joint statements of
stipulated facts in support of their respective guilty pleas.
They both stipulated that, from 2006-2010, they were
“co-conspirator[s] in a drug trafficking organization which . . .
transported narcotics from Colombia on stateless go-fast
vessels through international waters.” J.A. 93, 128.

Appellants’ statements of stipulated facts also differed in
certain respects. Munoz Miranda identified one particular
shipment as an example of the conspiracy’s use of stateless
vessels to transport drugs: a shipment intended to travel from
Colombia to Honduras “on board a go-fast boat” that was “not
registered in Colombia and did not fly a Colombian flag.”
J.A. 94. That shipment never left Colombia because it was
stolen before it could be moved. Valderrama Carvajal
identified the same shipment as an example of the conspiracy’s
actions, and also described a second shipment as an additional
example. The latter shipment departed Colombia on board a
go-fast boat that “was not registered in Colombia or any other
nation, and contained no registration identification.” J.A.
129. Colombian authorities intercepted that vessel when it
ran aground on Roncador Island, a remote Colombian island in
the Caribbean Sea.

At their plea hearing, appellants confirmed that they
knowingly and voluntarily entered pleas of guilty and waived
any right to appeal. On October 12, 2012, the district court
accepted both guilty pleas based on appellants’ joint statements
of stipulated facts. But before their sentencing could take
 5
place, appellants filed a joint motion for reconsideration of
their original motions to dismiss.

On February 20, 2013, the district court issued an opinion
denying reconsideration and memorializing the reasons for its
oral denial of the original motions to dismiss. The court first
explained that, as established by appellants’ factual
stipulations, the two vessels identified as examples of the
conspiracy’s use of stateless boats—the vessel intercepted off
of Roncador Island and the vessel intended to transport the
stolen shipment—were both “without nationality” under the
MDLEA’s definition and thus were “subject to the jurisdiction
of the United States.” 46 U.S.C. § 70502(c)(1), (d). With
respect to the extraterritorial reach of the statute, the court held
that the MDLEA’s conspiracy provision applies
extraterritorially to encompass appellants’ conduct. Finally,
the court determined that the MDLEA, as applied to appellants,
was a valid exercise of Congress’s authority to define and
punish “Felonies committed on the high Seas,” U.S. Const. art.
I, § 8, cl. 10, and that the MDLEA’s extraterritorial application
worked no infringement of appellants’ due process rights.

II.

Munoz Miranda and Valderrama Carvajal appeal the
district court’s denial of their motions to dismiss and their
related joint motion for reconsideration, as well as their
judgments of conviction. Appellants raise both constitutional
and statutory claims.

For each of appellants’ arguments, we must first determine
whether appellants’ unconditional guilty pleas waived their
right to appeal the issue. “It is well settled that a voluntary
and intelligent plea of guilty made by an accused person, who
has been advised by competent counsel, may not be collaterally
 6
attacked.” Bousley v. United States, 523 U.S. 614, 621 (1998)
(internal quotation marks omitted). A defendant who pleads
guilty can do so conditionally, reserving the ability to raise
particular challenges on appeal. See Fed. R. Crim. P.
11(a)(2). Here, though, appellants entered unconditional
guilty pleas, thereby waiving all challenges amenable to
waiver. See United States v. Delgado-Garcia, 374 F.3d 1337,
1341 (D.C. Cir. 2004). Appellants therefore make no claim
that their guilty pleas reserved their ability to press the
arguments they now present.

Appellants instead contend that their arguments are
immune from waiver. “There are two recognized exceptions”
to the rule that an unconditional guilty plea waives a
“defendant[’s] claims of error on appeal.” Id. First, a
challenge to the district court’s subject-matter jurisdiction—to
the court’s power to hear a given case—can never be waived or
forfeited. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514
(2006); United States v. Cotton, 535 U.S. 625, 630 (2002);
Delgado-Garcia, 374 F.3d at 1341. Second, certain
constitutional challenges asserting a “right not to be haled into
court at all” cannot be waived through a guilty plea.
Blackledge v. Perry, 417 U.S. 21, 31 (1974); see also Menna v.
New York, 423 U.S. 61, 62 (1975) (per curiam);
Delgado-Garcia, 374 F.3d at 1341.

Appellants contend that either the subject-matter
jurisdiction exception or the so-called Blackledge/Menna
exception insulates each of their arguments from waiver. For
the most part, we disagree. With regard to all but one of
appellants’ claims, we find that appellants’ unconditional
guilty pleas effected a waiver. One of their arguments,
however, goes to the district court’s subject-matter jurisdiction
and cannot be waived: the argument that the vessels in
question are not “subject to the jurisdiction of the United
 7
States” within the meaning of the MDLEA. 46 U.S.C.
§ 70502(c). While we thus reach the merits of that issue, we
conclude, contrary to appellants’ argument, that the vessels are
in fact “subject to the jurisdiction of the United States.”

A.

Appellants contend that the MDLEA is unconstitutional as
applied to their conduct in two respects. First, appellants
argue that Congress lacks power under the High Seas Clause of
Article I to criminalize their actions in furtherance of the
charged conspiracy because their conduct did not itself take
place on the high seas. See U.S. Const. art. I, § 8, cl. 10
(granting Congress authority to “define and punish . . .
Felonies committed on the high Seas”). Second, appellants
contend that application of the MDLEA to their extraterritorial
conduct violates their Fifth Amendment due process rights in
the absence of a demonstrated nexus between their actions and
the United States. Cf. United States v. Ali, 718 F.3d 929, 943
(D.C. Cir. 2013) (noting that “this Circuit has yet to speak
definitively” on whether “due process may impose limits on a
criminal law’s extraterritorial application”). We do not reach
the merits of those claims because we conclude they were
waived by appellants’ unconditional guilty pleas.

Appellants contend that their constitutional challenges fall
within the subject-matter jurisdiction exception to waiver.
We disagree. While appellants point to decisions from our
sister circuits holding that certain facial challenges to the
constitutionality of a statute implicate subject-matter
jurisdiction, see, e.g., United States v. Saac, 632 F.3d 1203,
1208 (11th Cir. 2011), those decisions do not address whether
as-applied constitutional challenges can be waived, see United
States v. Phillips, 645 F.3d 859, 863 (7th Cir. 2011). Article
III vests federal courts with authority to decide cases “arising
 8
under . . . the Laws of the United States,” U.S. Const. art. III,
§ 2, cl. 1, and Congress has granted the district courts general
subject-matter jurisdiction over “all offenses against the laws
of the United States” under 18 U.S.C. § 3231. Appellants do
not dispute that the MDLEA was validly enacted and that it
constitutes a “law[] of the United States” for purposes of 18
U.S.C. § 3231. They instead argue that application of the
MDLEA to their particular conduct offends the Constitution in
two ways. But those arguments do not call into question the
district court’s subject-matter jurisdiction over this case
pursuant to Article III and 18 U.S.C. § 3231.

Our decision in Delgado-Garcia is controlling on this
score. There, the defendants raised precisely the same due
process challenge pressed by appellants here, contending that
their convictions violated the Fifth Amendment because the
government “did not prove a ‘nexus’ between [their] conduct
and the United States,” which “they claim[ed] the Fifth
Amendment’s due process clause requires.” Delgado-Garcia,
374 F.3d at 1341. We held that the defendants had waived
that constitutional claim by entering unconditional guilty pleas,
and we rejected the defendants’ argument that their challenge
fell within the subject-matter jurisdiction exception to the
waiver rule. Id. at 1342. The defendants’ “Fifth Amendment
claim,” we explained, “is irrelevant to the court’s Article III
subject matter jurisdiction. The Constitution by its terms
leaves it solely to Congress to allocate that power by statute,
and there is no claim in this case that this jurisdictional grant is
somehow independently unconstitutional.” Id.

That conclusion governs the resolution of appellants’
parallel Fifth Amendment claim here. And there is no reason
to reach any different conclusion with respect to appellants’
as-applied challenge concerning Congress’s Article I authority
under the High Seas Clause. For both challenges, the question
 9
whether the MDLEA can be constitutionally applied to
appellants’ conduct is a merits question within the district
court’s authority to decide, not an antecedent question going to
the district court’s subject-matter jurisdiction over the case.

It is equally clear that the Blackledge/Menna exception
fails to immunize appellants’ constitutional claims from
waiver. Together, Blackledge and Menna stand for the
proposition that certain constitutional challenges are immune
from waiver regardless of whether they raise issues of
subject-matter jurisdiction. In Blackledge, the Court held that
a due process challenge arising from repetitive, vindictive
prosecution for the same crime could not be waived by guilty
plea in a situation in which the alleged violation was apparent
on the face of the indictment. 417 U.S. at 30. In Menna, the
Court reached the same conclusion in the context of a double
jeopardy challenge to an “indictment [that] was facially
duplicative of [an] earlier offense of which the defendant had
been convicted and sentenced.” United States v. Broce, 488
U.S. 563, 575 (1989) (describing Menna); see Menna, 423 U.S.
at 62-63 & n.2. Blackledge and Menna involved
circumstances in which the defendant claimed a constitutional
“right not to be haled into court at all” as opposed to asserting a
“deprivation of constitutional rights that occurred prior to the
entry of the guilty plea.” Blackledge, 417 U.S. at 30 (internal
quotation marks omitted); see Broce, 488 U.S. at 574;
Delgado-Garcia, 374 F.3d at 1342-43.

Appellants contend that their due process and Article I
challenges fall within the Blackledge/Menna exception. Once
again, our decision in Delgado-Garcia forecloses their
argument. We held there that the Blackledge/Menna
exception did not encompass the same due process claim
advanced by appellants here. Such a challenge “is a claim that
the due process clause limits the substantive reach of the
 10
conduct elements” of the statute that the defendants were
charged with violating, “not a claim that the court lacks the
power to bring them to court at all.” 374 F.3d at 1343. As a
result, “[e]ven if the prosecution of [the defendants] violated
the Fifth Amendment for this reason, [they] would still need to
come to ‘court to answer the charge brought against’ them.”
Id. (quoting Blackledge, 417 U.S. at 30).

That conclusion not only governs appellants’ parallel due
process claim, but it also applies to appellants’ Article I
challenge. The latter argument amounts to a contention that
the High Seas Clause “limits the substantive reach of the
conduct elements” of the MDLEA. Id. Even if application
of the MDLEA to appellants’ conduct exceeded the legislative
power granted by the High Seas Clause, they “would still need
to come to ‘court to answer the charge brought against’ them.”
Id. (quoting Blackledge, 417 U.S. at 30). In Blackledge and
Menna, by contrast, the very act of haling the defendants into
court completed the constitutional violation. We therefore
conclude that neither of appellants’ constitutional claims
qualify for the Blackledge/Menna exception. As a result,
appellants cannot raise those claims in this court.

B.

In addition to their constitutional claims, appellants raise
two arguments under the terms of the MDLEA. First, they
contend that the MDLEA’s conspiracy provision, 46 U.S.C.
§ 70506(b), does not apply extraterritorially to encompass their
charged conduct in Colombia. Because the
Blackledge/Menna exception applies only to constitutional
challenges, appellants can avoid waiver only if their statutory
argument goes to the subject-matter jurisdiction of the court.
See Menna, 423 U.S. at 62 (“Where the State is precluded by
the United States Constitution from haling a defendant into
 11
court on a charge, federal law requires that a conviction on that
charge be set aside even if the conviction was entered pursuant
to a counseled plea of guilty.” (emphasis added)).

The extraterritorial reach of a statute ordinarily presents a
merits question, not a jurisdictional question. The Supreme
Court’s decision in Morrison v. National Australia Bank Ltd.,
561 U.S. 247 (2010), is illustrative. That case addressed
whether § 10(b) of the Securities Exchange Act of 1934, 15
U.S.C. § 78j(b), reaches extraterritorially to cover misconduct
in connection with securities traded on foreign exchanges.
The Court concluded that the statute failed to encompass the
alleged misconduct, but the Court first held that the question of
the statute’s extraterritorial reach is not an issue of
subject-matter jurisdiction. Id. at 253-54. “[T]o ask what
conduct § 10(b) reaches,” the Court explained, “is to ask what
conduct § 10(b) prohibits, which is a merits question.” Id. at
254. “Subject-matter jurisdiction, by contrast, refers to a
tribunal’s power to hear a case.” Id. (internal quotation marks
omitted). The district court in Morrison thus had
subject-matter jurisdiction “to adjudicate the question whether
§ 10(b) applies to [the defendant’s] conduct.” Id.

Appellants identify no reason for any different conclusion
here. Just as in Morrison, to ask “what conduct [the MDLEA]
reaches is to ask what conduct [the MDLEA] prohibits, which
is a merits question,” not a question of subject-matter
jurisdiction. Id. Nothing in the terms of the MDLEA
suggests any intention by Congress to depart from that
ordinary understanding. The district court therefore had
jurisdiction “to adjudicate the question whether [the MDLEA]
applies to [appellants’] conduct.” Id. It follows that the
subject-matter jurisdiction exception affords appellants no
relief from the waiver rule for unconditional guilty pleas.
 12
C.

In their second claim under the statute, appellants contend
that their charged offenses did not involve “vessel[s] subject to
the jurisdiction of the United States” as defined by the
MDLEA. 46 U.S.C. § 70502(c). Unlike appellants’ other
arguments, this one, we conclude, goes to the district court’s
subject-matter jurisdiction. Appellants therefore may raise
(and we must address) the issue notwithstanding their entry of
unconditional guilty pleas. On the merits, we affirm the
district court’s conclusion that the relevant vessels qualify as
“subject to the jurisdiction of the United States.” Id.

1.

The MDLEA prohibits manufacturing, distributing, or
possessing with intent to distribute drugs “on board” (i) a
“vessel of the United States,” (ii) a “vessel subject to the
jurisdiction of the United States,” or (iii) “any vessel if the
[defendant] is a citizen of the United States or a resident alien
of the United States.” 46 U.S.C. § 70503(a). The charges
against appellants solely involve the second category. The
statute’s definition of “vessel[s] subject to the jurisdiction of
the United States” encompasses certain non-United States
vessels, including “vessel[s] without nationality.” Id.
§ 70502(c)(1)(A).

The MDLEA prescribes that, in cases involving “vessels
subject to the jurisdiction of the United States,” the question
whether the vessels at issue qualify as “subject to the
jurisdiction of the United States” is a threshold question to be
resolved by the district court, not a question for the jury:
“Jurisdiction of the United States with respect to a vessel
subject to this chapter is not an element of an offense.
Jurisdictional issues arising under this chapter are preliminary
 13
questions of law to be determined solely by the trial judge.”
46 U.S.C. § 70504(a). If the “preliminary question” whether
the vessels in issue are “subject to the jurisdiction of the United
States” goes to the district court’s subject-matter jurisdiction, it
is immune from waiver.

The courts of appeals that have addressed the issue
disagree on whether United States jurisdiction over a vessel
under § 70504(a) presents a question of subject-matter
jurisdiction. The Eleventh Circuit understands the MDLEA’s
“on board a vessel subject to the jurisdiction of the United
States” requirement to be a “congressionally imposed limit on
courts’ subject matter jurisdiction, akin to the
amount-in-controversy requirement contained in 28 U.S.C.
§ 1332.” United States v. De La Garza, 516 F.3d 1266, 1271
(11th Cir. 2008); see United States v. Tinoco, 304 F.3d 1088,
1107 (11th Cir. 2002). The Fifth Circuit agrees. See United
States v. Bustos-Useche, 273 F.3d 622, 626 (5th Cir. 2001).
The First Circuit has reached the opposite conclusion, holding
that Congress used the term “jurisdiction” in § 70504(a)
“loosely” to “describe its own assertion of authority to
regulate,” as it does “whenever it fixes an ‘affects interstate
commerce’ or ‘involved a federally insured bank’ as a
condition of the crime.” United States v. Gonzalez, 311 F.3d
440, 443 (1st Cir. 2002). Such issues, the First Circuit
reasoned, “have nothing whatever to do with the subject matter
jurisdiction of the federal district court,” but instead “are
routine questions as to the reach and application of a criminal
statute.” Id.

We agree with the Fifth and Eleventh Circuits and
conclude that, under § 70504(a), the question whether a vessel
is “subject to the jurisdiction of the United States” is a matter
of subject-matter jurisdiction. In a series of decisions, the
Supreme Court has addressed whether a threshold statutory
 14
condition like § 70504(a) speaks to the district courts’
subject-matter jurisdiction. See Henderson ex rel. Henderson
v. Shinseki, 131 S. Ct. 1197 (2011); Reed Elsevier, Inc. v.
Muchnick, 559 U.S. 154 (2010); Arbaugh, 546 U.S. 500;
Eberhart v. United States, 546 U.S. 12 (2005) (per curiam).
Those decisions contemplate “a ‘readily administrable bright
line’ rule for deciding such questions.” Henderson, 131 S. Ct.
at 1203 (quoting Arbaugh, 546 U.S. at 515-16). “If the
Legislature clearly states that a threshold limitation on a
statute’s scope shall count as jurisdictional, then courts will be
duly instructed and will not be left to wrestle with the issue.”
Arbaugh, 546 U.S. at 515-16 (footnote omitted). “But when
Congress does not rank a statutory limitation on coverage as
jurisdictional, courts should treat the restriction as
nonjurisdictional in character.” Id. at 516.

That approach indicates that the question whether a vessel
is “subject to the jurisdiction of the United States” goes to
subject-matter jurisdiction. The issue is framed as a
“threshold limitation on [the] statute’s scope,” and “the
Legislature clearly state[d] that” it should “count as
jurisdictional.” Arbaugh, 546 U.S. at 515. Congress
prescribed that the “[j]urisdiction of the United States with
respect to a vessel” is a “[j]urisdictional issue[].” 46 U.S.C.
§ 70504(a). Congress also deemed that “jurisdictional issue”
to be a “preliminary question[] of law . . . determined solely by
the trial judge.” Id. The “preliminary question” set out in
§ 70504(a) thus operates precisely in the nature of a condition
on subject-matter jurisdiction: subject-matter jurisdiction
presents a question of law for resolution by the court, and
courts have an “obligation to determine whether subject-matter
jurisdiction exists” as a preliminary matter. Arbaugh, 546
U.S. at 514. Congress not only specified that the “jurisdiction
of the United States with respect to a vessel” is a threshold
question determined by the court, but also that it is “not an
 15
element of the offense,” 46 U.S.C. § 70504(a), fortifying its
jurisdictional character. See Arbaugh, 546 U.S. at 514
(distinguishing statutory conditions that function as
“element[s] of a claim” from those that go to subject-matter
jurisdiction, and explaining that courts resolve the latter
whereas juries resolve the former).

In addition, “context . . . is relevant to whether a statute
ranks a requirement as jurisdictional,” Reed Elsevier, 559 U.S.
at 168, and here, the context of § 70504(a) strongly suggests a
requirement of subject-matter jurisdiction. To understand
why, it is important first to recognize that “[b]randing a rule as
going to a court’s subject-matter jurisdiction” is “of
considerable practical importance for judges and litigants.”
Henderson, 131 S. Ct. at 1202. If the “jurisdiction of the
United States with respect to a vessel” presents a requirement
of subject-matter jurisdiction, the requirement would be
immune from waiver or forfeiture by a defendant, and courts
would bear an independent obligation in every case—and at
every level of appellate review—to assure its satisfaction,
regardless of whether a party were to raise it. See id.;
Arbaugh, 546 U.S. at 514. On the other hand, if the
requirement is non-jurisdictional, a court could forgo
addressing it unless it is timely advanced by a party, and a
defendant could either forfeit the issue by overlooking it or
waive it by electing not to press it. See Henderson, 131 S. Ct.
at 1202; Arbaugh, 546 U.S. at 514.

Those practical considerations ordinarily weigh in favor of
construing a threshold statutory condition to be
non-jurisdictional. See Henderson, 131 S. Ct. at 1202. Here,
however, there are strong reasons to conclude that Congress
intended the “jurisdiction of the United States with respect to a
vessel” to be non-waivable and non-forfeitable by a defendant
and to be independently confirmed by courts regardless of
 16
whether it is raised. In particular, Congress made the
requirement a jurisdictional one in order to minimize the extent
to which the MDLEA’s application might otherwise cause
friction with foreign nations.

The MDLEA defines certain non-United States vessels as
“subject to the jurisdiction of the United States,” including a
“vessel without nationality,” 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,” or 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.” 46 U.S.C. § 70502(c)(1)(A), (C), (E). With respect
to the first of those categories, the statute in turn defines a
“vessel without nationality” to include 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,” and 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.” Id. § 70502(d)(1)(A), (C). The
MDLEA goes on to set forth certain methods for ascertaining
the “[c]onsent or waiver of objection by a foreign nation to the
enforcement of United States law by the United States,” or the
“response of a foreign nation to a claim of registry.” Id.
§ 70502(c)(2), (d)(2). In short, a foreign nation’s “consent,”
“waiver,” or “response” plays a central role in determining
whether a vessel is “subject to the jurisdiction of the United
States” under the MDLEA.

In that setting, it is eminently understandable why
Congress would want the “[j]urisdiction of the United States
with respect to a vessel,” id. § 70504(a), to be insulated from
waiver or forfeiture by a defendant, and would also want courts
in every case—and at every level of review—to assure that the
 17
requirement is satisfied. The requirement aims to protect the
interests of foreign nations, not merely the interests of the
defendant. It therefore is not a requirement that the defendant
alone can waive by choice or forfeit by inadvertence. If a
defendant could waive or forfeit the requirement regardless of
the interests of a foreign nation whose prerogatives may be
directly at stake, application of the MDLEA could engender
considerable tensions in foreign relations.

Suppose, for instance, that a defendant wishes to plead
guilty and thus has no desire to dispute that a vessel is “subject
to the jurisdiction of the United States,” even though the vessel
is “registered in a foreign nation” and “that nation has [not]
consented or waived objection to the enforcement of United
States law by the United States.” Id. § 70502(c)(1)(C). Or
suppose that, in the same circumstances, the defendant
inadvertently fails to raise the issue in the district court. If a
court were to decline to address the issue on the theory that the
defendant had waived or forfeited any objection, application of
the MDLEA could cause substantial discord with a foreign
nation. Congress guarded against that risk by rendering the
“jurisdiction of the United States over a vessel” a condition on
subject-matter jurisdiction, thereby obligating courts to
examine the matter regardless of whether a defendant presses
or preserves it. Compare Cotton, 535 U.S. at 629-31 (holding
that a defendant’s protection against defective indictments is
waivable by the defendant and thus does not affect
subject-matter jurisdiction).

Notably, Congress demonstrated the same sensitivity to
the interests of affected foreign sovereigns in another provision
of the MDLEA—enacted contemporaneously with § 70504(a),
see Pub. L. 104-324, 110 Stat. 3901 (1996)—under which a
defendant lacks “standing to raise a claim of failure to comply
with international law as a basis for a defense” because the
 18
defense “may be made only by a foreign nation.” 46 U.S.C.
§ 70505. Under § 70504(a), similarly, a foreign nation’s
stake in the application of the MDLEA in cases involving a
non-United States vessel asserted to be subject to United States
jurisdiction means that a defendant effectively lacks
“standing” to waive or forfeit the issue of United States
jurisdiction over the vessel. Congress, moreover, cabined the
jurisdictional inquiry to MDLEA cases in which foreign
relations issues would most likely arise—viz., cases involving
non-United States “vessels subject to the jurisdiction of the
United States,” as opposed to cases involving “vessels of the
United States” or defendants who are United States citizens or
resident aliens. See id. §§ 70503(a), 70504(a). In the latter
situations, the determination whether the vessel is “of the
United States” or the defendant is a United States citizen or
resident alien would go to an element of the offense, and so
would be subject to waiver by a defendant who enters an
unconditional guilty plea.

The government, relying on the First Circuit’s divided
decision in Gonzalez, argues that the term “jurisdiction” in
§ 70504(a) refers to the legislative “jurisdiction” of Congress
in the sense of a so-called “jurisdictional element,” not to the
subject-matter jurisdiction of the federal courts. The
government observes that § 70504(a) speaks in terms of the
“jurisdiction of the United States,” rather than—as with other
statutes that define subject-matter jurisdiction—the
jurisdiction of the “district courts.” E.g., 18 U.S.C. § 3231; 28
U.S.C. §§ 1331, 1332. For several reasons, we are
unpersuaded by the government’s argument.

First, the government fails to account for the strong
reasons to understand § 70504(a) to establish a requirement of
subject-matter jurisdiction as a means of protecting the
interests of foreign sovereigns. Construing § 70504(a) only to
 19
pertain to Congress’s legislative “jurisdiction,” for the reasons
explained, would potentially give rise to foreign relations
concerns in the application of the MDLEA. It is entirely
understandable that Congress would define the subject-matter
jurisdiction of district courts in a manner sensitive to the
interests of another sovereign. Cf. 18 U.S.C. § 1152
(establishing an exception from general jurisdiction over
federal crimes in certain circumstances for “offenses
committed by one Indian against . . . another Indian” or by an
Indian “in the Indian country who has been punished by the
local law of the tribe”); 28 U.S.C. § 1604 (Foreign Sovereign
Immunities Act).

In addition, when Congress establishes a so-called
“jurisdictional element” addressing the reach of its legislative
authority, Congress does not use the term “jurisdiction” in the
statute. See, e.g., 18 U.S.C. § 656 (criminalizing certain
conduct by an individual who is “an officer, director, agent or
employee of, or connected in any capacity with any Federal
Reserve bank”); id. § 922(q)(2)(A) (making it “unlawful for
any individual knowingly to possess a firearm that has moved
in or that otherwise affects interstate or foreign commerce at a
place that the individual knows . . . is a school zone”). Rather,
“jurisdictional element” is a “colloquialism” used by
“[l]awyers and judges.” Hugi v. United States, 164 F.3d 378,
380 (7th Cir. 1999).

Statutes that establish “jurisdictional elements” not only
contain no use of the term “jurisdiction,” but, consistent with
the description “jurisdictional element,” treat the relevant
condition as an element of the offense to be found by a jury.
In that sense, “proof of [a jurisdictional element] is no different
from proof of any other element of a federal crime.” Id. at
381. By contrast, § 70504(a) specifically provides that the
“jurisdiction of the United States with respect to a vessel” is
 20
not an element of the offense and is to be determined by the
court rather than by the jury, signifying that Congress did not
intend to establish a “jurisdictional element.” To be sure,
allocation of the issue to the court rather than the jury gives rise
to a possible Sixth Amendment claim (regardless of whether
the issue goes to subject-matter jurisdiction), see Gonzalez,
311 F.3d at 444, but appellants raise no such claim here.

Additionally, a provision’s “placement within” the statute
can “indicat[e] that Congress wanted that provision to be
treated as having jurisdictional attributes.” Henderson, 131 S.
Ct. at 1205; see also Reed Elsevier, 559 U.S. at 164-65;
Arbaugh, 546 U.S. at 514-15. The placement of § 70504(a)
reinforces that it pertains to the subject-matter jurisdiction of
district courts rather than the legislative “jurisdiction” of
Congress. Congress situated § 70504(a) within a provision
addressing, per its title, “Jurisdiction and venue.” 46 U.S.C.
§ 70504; see INS v. Nat’l Cent. for Immigrants’ Rights, Inc.,
502 U.S. 183, 189 (1991) (“[T]he title of a statue or section can
aid in resolving an ambiguity in the legislation’s text.”). The
subject of “venue,” addressed in § 70504(b), by nature speaks
to the authority of a district court to hear a case. The subject
of “jurisdiction,” addressed in § 70504(a), is best understood
likewise to address the authority of district courts to hear a case
rather than Congress’s own authority to regulate. In other
instances in which Congress uses the term “jurisdiction and
venue,” the statute indisputably pertains to the jurisdiction of
the courts. See, e.g., 7 U.S.C. § 941; 29 U.S.C. § 1370; 40
U.S.C. § 123. Congress did the same in § 70504.

That is particularly evident in light of the history of
§ 70504. Before 2006, the language of § 70504(a) addressing
jurisdiction and the language of § 70504(b) addressing venue
were combined in one statutory subsection. See 46 App.
U.S.C. § 1903(f) (2000). The provision read:
 21
Any person who violates this section shall be
tried in the United States district court at the
point of entry where that person enters the
United States, or in the United States District
Court of the District of Columbia. 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. That entire provision, including the references to
“jurisdiction,” self-evidently concerned the authority of district
courts, not the legislative authority of Congress.

In 2006, Congress relocated the MDLEA, and in doing so
separated what was § 1903(f) into two neighboring subsections
within the new § 70504, without any material change to the
text. There is no reason to conclude that Congress, despite
making no relevant adjustment to the text, meant to
fundamentally transform the “jurisdictional” portion so that it
now speaks to legislative rather than judicial authority. See
H.R. Rep. 109-170, at 2 (2005) (“The purpose of H.R. 1442 is
to complete the codification of title 46 . . . . It does so by
reorganizing and restating the laws currently in the appendix to
title 46. It codifies existing law rather than creating new
law.”). Rather, both halves of a provision addressing
“jurisdiction and venue” continue to pertain to the authority of
courts.

For those reasons, we conclude that § 70504(a) relates to
the subject-matter jurisdiction of the district courts.
Appellants’ entry of unconditional guilty pleas thus could not
waive the question whether the pertinent vessels are “subject to
 22
the jurisdiction of the United States” within the meaning of the
MDLEA.
2.

Proceeding to the merits, we reject appellants’ argument
that the vessels described in their stipulated facts were not
“subject to the jurisdiction of the United States.” The district
court concluded that appellants’ charged conduct involved
“vessels without nationality,” one type of vessel “subject to the
jurisdiction of the United States.” 46 U.S.C.
§ 70502(c)(1)(A). While we review de novo the district
court’s legal conclusion that the vessels in this case meet the
statutory definition, we review any predicate factual
determinations for clear error. See Herbert v. Nat’l Acad. of
Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). We find no
error—clear or otherwise—in the district court’s decision.

There is no basis for overturning the district court’s
finding that appellants were both involved with “vessels
without nationality.” In their factual stipulations, each
appellant acknowledged that he “was a co-conspirator in a drug
trafficking organization which, from in or about 2006 and
continuing until August 25, 2010, transported narcotics from
Colombia on stateless go-fast vessels through international
waters to other countries.” J.A. 93, 128 (emphasis added).
Appellants do not dispute that “stateless” vessels are vessels
“without nationality.”

Additionally, appellants each gave a “particular” example
of the conspiracy’s plans to transport drugs from Colombia on
board “stateless” vessels. J.A. 94, 129. Munoz Miranda
stipulated that, “[i]n particular,” he and others “planned to
transport more than 500 grams of cocaine on board a go-fast
boat leaving from the north coast of Colombia” in November
2006, and further stipulated that the “boat was not registered in
 23
Colombia and did not fly a Colombian flag.” J.A. 93-94.
Valderrama Carvajal identified the same example, and also
described an additional example that involved a “go-fast boat”
that “did not fly a flag, was not registered in Colombia or any
other nation, and contained no registration identification.”
J.A. 128-29. “No one in the crew, including the captain,
claimed that the go-fast boat was registered in Colombia.”
J.A. 129. Those stipulations gave the district court an ample
basis for its determination that appellants’ conspiratorial acts
involved “vessels without nationality.”

Appellants contend that neither of the vessels highlighted
as examples in their factual stipulations can count as “vessels
without nationality” because both boats were in Colombian
waters when captured. According to appellants, a vessel is
“without nationality” only when on the high seas, and it ceases
to qualify as stateless when within any nation’s—here,
Colombia’s—territorial waters. The district court correctly
rejected that argument. The statute describes “vessels without
nationality” in a manner that makes no reference to the situs of
a vessel when seized. See 46 U.S.C. § 70502(d)(1). Instead,
the statute contains three nonexclusive examples of “vessels
without nationality,” each of which turns on the “registry” of
the vessel. Id. § 70502(d)(1)(A)-(C). That is consistent with
the general understanding of a stateless vessel under
international law. See United States v. Rosero, 42 F.3d 166,
171 (3d Cir. 1994) (“Under international law, ‘[s]hips have the
nationality of the State whose flag they are entitled to fly.’”)
(quoting Convention on the High Seas of 1958, 13 U.S.T.
2312, T.I.A.S. No. 5200, art. 5(1)). If a vessel in fact ventured
in and out of statelessness depending on where it happened to
be located when seized, the statute would create a perverse
incentive for vessels to race to a foreign nation’s territorial
waters before submitting to interdiction. Congress
established no such regime under the MDLEA, and the vessels
 24
in this case thus qualify as “without nationality” even though
they were located in Colombian waters when seized.

* * * * *

For the foregoing reasons, we affirm the district court’s
denial of appellants’ motions to dismiss and for
reconsideration. We also affirm the district court’s
acceptance of appellants’ guilty pleas.

So ordered.