United States Court of Appeals
For the First Circuit
No. 16-2089
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFRI DÁVILA-REYES,
Defendant, Appellant.
No. 16-2143
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ D. REYES-VALDIVIA,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch, Lipez, Howard, Thompson, Kayatta, Gelpí, Montecalvo,
Circuit Judges.
Raymond L. Sánchez-Maceira, for appellant Jeffri Dávila-
Reyes.
Franco L. Pérez-Redondo, Assistant Federal Public Defender,
with whom Eric Alexander Vos, Federal Public Defender, Vivianne M.
Marrero-Torres, Assistant Federal Public Defender, and Kevin E.
Lerman, Research & Writing Attorney, were on brief, for appellant
José Reyes-Valdivia.
John M. Pellettieri, with whom Kenneth A. Polite, Jr.,
Assistant Attorney General, Lisa H. Miller, Deputy Assistant
Attorney General, W. Stephen Muldrow, United States Attorney,
Mariana E. Bauzá-Almonte, Chief, Appellate Division, and David C.
Bornstein, Assistant United States Attorney, were on brief, for
appellee.
October 5, 2023
Opinion En Banc
BARRON, Chief Judge. In these consolidated appeals,
Jeffri Dávila-Reyes and José Reyes-Valdivia challenge their 2016
convictions for violating the Maritime Drug Law Enforcement Act,
46 U.S.C. §§ 70501 et seq. ("MDLEA"), despite their having pleaded
guilty unconditionally to the underlying charges. The charges
were set forth in a single indictment that was handed up in the
District of Puerto Rico in 2015. The indictment alleged that the
defendants, each of whom is a national of Costa Rica, had violated
the MDLEA by trafficking drugs "on the high seas . . . and within
the jurisdiction of this court" while on board a "covered vessel,"
46 U.S.C. § 70503(a), which includes any "vessel subject to the
jurisdiction of the United States," 46 U.S.C. § 70503(e)(1). The
indictment alleged that the vessel was "subject to the jurisdiction
of the United States" because it was "without nationality." 46
U.S.C. § 70502(c)(1)(A).
A panel of this Court vacated the defendants'
convictions and ordered the underlying charges dismissed. The
panel did so based on the defendants' contention that Congress had
no power under the Felonies Clause of the U.S. Constitution to
criminalize their charged conduct because they were foreign
nationals who were aboard a foreign vessel on the high seas at the
time of that conduct. See U.S. Const. art. I, § 8, cl. 10 (granting
Congress the power "[t]o define and punish Piracies and Felonies
committed on the high Seas, and Offences against the Law of
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Nations"). The defendants based their contention that the vessel
was foreign on the ground that even if the vessel was "without
nationality," 46 U.S.C. § 70502(c)(1)(A), for purposes of the
MDLEA it was not stateless for purposes of international law. See
United States v. Dávila-Reyes, 23 F.4th 153, 195 (1st Cir. 2022).
The government petitioned for rehearing en banc. We
granted the petition and vacated the panel's ruling. We now affirm
the defendants' convictions, albeit on narrow, record-based
grounds that bypass many of the broader questions of international
and federal constitutional law that the defendants ask us to
resolve. Because those questions touch on sensitive issues of
U.S. foreign relations and national power that have implications
far beyond this specific statutory context, it is prudent for us
to resolve them only in a case that, unlike this one, requires
that we do so.
We do address, however, a threshold legal question about
the MDLEA that itself has broad significance: Does 46 U.S.C.
§ 70503(e)(1), which establishes that a "vessel subject to the
jurisdiction of the United States" is a "covered vessel," limit
the subject matter jurisdiction of federal courts under Article
III of the Constitution? See U.S. Const. art. III, § 2, cl. 1.
We conclude, in accord with an earlier ruling of this Court, see
United States v. González, 311 F.3d 440 (1st Cir. 2002), that
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§ 70503(e)(1) does not set such a limit and that the provision
instead merely limits the substantive reach of the MDLEA.
I.
A.
The MDLEA applies to drug trafficking on the high seas
only if that conduct occurs aboard a "covered vessel." 46 U.S.C.
§ 70503(a). Section 70503(e)(1) provides that a "covered vessel"
includes a "vessel subject to the jurisdiction of the United
States."
A U.S. vessel is a "covered vessel." See 46 U.S.C.
§ 70503(e)(1). But § 70502(c)(1) provides in subsection (A) that
a vessel is also "subject to the jurisdiction of the United States"
if it is "without nationality." Section 70502(d)(1) then states
that:
the term "vessel without nationality" includes:
(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;
(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
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assert that the vessel is of its
nationality[.]1
B.
A criminal complaint from the District of Puerto Rico
was issued against the defendants on November 9, 2015. It stated
that the defendants were "in violation of Title 46, United States
Code, Section 70503(a)(1), 70504(b)(1), and 70506(a) and (b)."2
An affidavit from a law enforcement officer attached to the
complaint recounted the following facts.
On or about October 29, 2015, a maritime patrol
aircraft's crew identified a "go fast" vessel in international
waters about 30 nautical miles southeast of San Andrés Island,
1 46 U.S.C. § 70502(d)(1) was amended on December 23, 2022.
See James M. Inhofe National Defense Authorization Act for Fiscal
Year 2023, Pub. L. No. 117-263, § 11519, 136 Stat. 2395, 4142
(2022). That amendment, which added § 70502(d)(1)(D), is not
relevant to this case.
2 46 U.S.C. § 70504(b)(1) states: "Venue. -- A person
violating section 70503 . . . shall be tried in the district in
which such offense was committed."
46 U.S.C. § 70506(a) states: "Violations. -- A person
violating paragraph (1) of section 70503(a) of this title shall be
punished as provided in section 1010 of the Comprehensive Drug
Abuse Prevention and Control Act of 1970 (21 U.S.C. 960). However,
if the offense is a second or subsequent offense as provided in
section 1012(b) of that Act (21 U.S.C. 962(b)), the person shall
be punished as provided in section 1012 of that Act (21 U.S.C.
962)."
46 U.S.C. § 70506(b) states: "Attempts and conspiracies. -- A
person attempting or conspiring to violate section 70503 of this
title is subject to the same penalties as provided for violating
section 70503."
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Colombia. The crew reported observing persons on the vessel
throwing packages and fuel barrels into the water.
The crew noted that a cloud of white powder was seen
escaping from one of the packages. The crew "also observed what
was believed to be a Costa Rica flag painted on the port bow of
the go fast" vessel.
The United States Coast Guard dispatched a Boarding Team
to intercept the vessel. The Boarding Team commenced "Right to
Approach" questioning of the vessel's crew.
The vessel's master claimed that the vessel was of Costa
Rican nationality. He did not provide the members of the Boarding
Team any Costa Rican registration documents,3 and the Boarding Team
did not identify any "further indicia of nationality."
The Boarding Team proceeded to contact the government of
Costa Rica to inquire about the vessel. The government of Costa
Rica was unable to "affirmatively and unequivocally assert,"
§ 70502(d)(1)(C), that the vessel was registered with that
country. The Boarding Team "determined" that the vessel was
"without nationality."
The Boarding Team found trace amounts of cocaine after
searching the vessel and arrested the three people on board --
specifically, the two defendants in these consolidated appeals,
The affidavit makes no reference to a "claim of registry"
3
having been made.
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Dávila-Reyes and Reyes-Valdivia, and a third crew member. The
three individuals were taken to the United States's military base
at Guantánamo Bay, Cuba before they were transported to Puerto
Rico, where they were held pending charges.
C.
Dávila-Reyes, Reyes-Valdivia, and the third member of
the vessel's crew were indicted in the District of Puerto Rico on
November 23, 2015. The indictment charged each of the three crew
members with two counts of violating the MDLEA while "on board a
vessel subject to the jurisdiction of the United States, as defined
in Title 46, United States Code, Section 70502(c)(1)(A)." The
indictment did not further specify the ground for so deeming the
vessel.
D.
Reyes-Valdivia moved on February 1, 2016, to dismiss the
charges. The motion relied on various constitutional grounds.
Reyes-Valdivia's motion first contended that the charges
must be dismissed because Congress lacked the power under the
Felonies Clause to criminalize the underlying conduct. The motion
argued that the Felonies Clause does not empower Congress to make
it a crime for a foreign national to engage in drug trafficking
outside the "territorial jurisdiction" of the United States while
aboard a foreign vessel. The motion further contended that
§ 70502(d)(1)(C)'s definition of a "vessel without nationality"
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"extends jurisdiction over vessels that are not in fact stateless
under international law, where the claimed nation of registry fails
to unequivocally confirm registry." The motion then asserted that,
"[b]ecause the MDLEA's statelessness provision is significantly
broader than international law's concept of statelessness, the
statute's assertion of jurisdiction over stateless vessels is an
invalid exercise of Congress's Article I powers" in that it extends
the reach of the MDLEA to persons who are aboard vessels on the
high seas that are foreign rather than stateless for purposes of
international law.
The motion separately contended that the charges must be
dismissed pursuant to the Due Process Clause of the Fifth
Amendment. See U.S. Const. amend. V. The motion argued that
§ 70502(d)(1)(A) and § 70502(d)(1)(C) are void for vagueness
because neither provision explains the steps that a nation must
take either to "den[y]" or "affirmatively and unequivocally assert
that the vessel is of its nationality."
The motion also took aim at the charges for two
additional reasons under the Due Process Clause. First, the motion
contended that the indictment violated the Due Process Clause
because the MDLEA does not require the government to bear the
burden of affirmatively proving that the vessel in question was
stateless under international law. Second, the motion contended
that the indictment violated the Due Process Clause because it did
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not allege the drugs that the defendants were charged with
trafficking were "destined for the United States" and so did not
allege any "nexus" between the defendants' allegedly unlawful
conduct and the United States.4
Dávila-Reyes joined Reyes-Valdivia's motion. The
government opposed Dávila-Reyes and Reyes-Valdivia's joint motion
and attached to its brief in opposition decisions from the District
of Puerto Rico that had rejected challenges to the MDLEA like those
that the defendants' joint motion advanced.
The District Court denied the motion in a two-page order.
The District Court explained that it had "reviewed, considered and
analyzed the applicable statutes, case law and the opinions by
other judges" attached to the government's opposition to the motion
to dismiss the indictment and "agree[d] with their analyses and
conclusions."
E.
On March 25, 2016, the government filed a motion pursuant
to 46 U.S.C. § 70504(a), which provides: "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 questions of law to be determined
4The motion also contended that the MDLEA charges could not
be justified under the Treaties Clause, see U.S. Const. art. II,
§ 2, cl. 2, but neither the defendants nor the government address
this argument on appeal and so we need not consider the issue.
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solely by the trial judge." The motion asked the District Court
to "find, as a matter of law, that the vessel in question was
subject to the jurisdiction of the United States, as defined in
Title 46, United States Code, Sections 70502(c)(1)(A) and
(d)(1)(C)." The motion also requested that the District Court,
"prior to the beginning of testimony in this case, preliminarily
[instruct] the jury pursuant to Title 46, United States Code,
Section[s] 70502(c)(1)(A) and (d)(1)(C) that the suspect vessel
carrying the [d]efendants was a vessel [w]ithout [n]ationality and
therefore subject to the jurisdiction of the United States."
To support the motion, the government attached an
affidavit from the leader of the Boarding Team. The affidavit
stated that the master of the vessel initially "claimed . . . that
there was no nationality for the vessel," then "later tried to
change the claim [of the vessel's nationality] to Costa Rica."
The affidavit stated that "a Costa Rican flag [was] painted on the
bow" of the vessel. The motion itself asserted that there was no
"name, hailing port, or registration numbers on the [vessel's]
hull" and that "the vessel was not flying any flag."
In further support of the motion, the government
attached a certification from the United States Department of
State. Under 46 U.S.C. § 70502(d)(2), such a certification is in
and of itself conclusive proof as to the response of a country
that has been contacted for purposes of determining that a vessel
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is "without nationality" under § 70502(d)(1)(C). The
certification explained that the vessel was located by law
enforcement 30 nautical miles southeast of San Andrés Island,
Colombia; that law enforcement suspected the vessel of illicit
drug trafficking because the crew was jettisoning unknown packages
in an area where drug trafficking was common; that the master made
a claim of Costa Rican nationality; that no registration documents
were present on the vessel; and that Costa Rica, when contacted,
"could not confirm the vessel's registry." The certification
concluded that, "[a]ccordingly, the Government of the United
States determined the vessel was "without nationality in
accordance with 46 U.S.C. § 70502(d)(1)(C), rend[er]ing the vessel
subject to the jurisdiction of the United States, pursuant to 46
U.S.C. § 70502(c)(1)(A)."
F.
Before the defendants responded to the government's
§ 70504(a) motion or the District Court ruled on it, all three
defendants on April 4, 2016, pleaded guilty to violating the
MDLEA.5 Each defendant admitted in his respective plea agreement
to:
[k]nowingly and intentionally combining,
conspiring, confederating and agreeing with
others, to commit an offense defined in Title
5The third crew member entered into substantially the same
plea agreement as Dávila-Reyes and Reyes-Valdivia but, because he
did not appeal his conviction, his case is not before us.
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46, United States Code, Section 70503, that
is: to possess with intent to distribute five
(5) kilograms or more of a mixture or
substance containing a detectable amount of
cocaine, a Schedule II, Narcotic Drug
Controlled Substance, on board a vessel
subject to the jurisdiction of the United
States, as defined in Title 46, United States
Code, Section 70502(c)(1)(A).
Each defendant also "adopt[ed]" as part of his plea
agreement the Government's Version of the Facts, which was attached
to the plea agreement. Thus, by signing the plea agreement, each
defendant agreed that, as to the Government's Version of the Facts,
"the facts therein are accurate in every respect and, had the
matter proceeded to trial, that the United States would have proven
those facts beyond a reasonable doubt." The Government's Version
of the Facts stated in relevant part:
A U.S. Coast Guard . . . Boarding Team
approached the vessel and commenced Right to
Approach . . . questioning. The master
claimed Costa Rican nationality for the vessel
but provided no registration paperwork and
there was no indicia of nationality on the
vessel. The government of Costa Rica was
approached and responded that it could neither
confirm nor refute the registry of the suspect
vessel. The vessel was determined to be one
without nationality.
Dávila-Reyes was sentenced to 120 months of imprisonment
on August 2, 2016, and his judgment of conviction was entered that
same day. Reyes-Valdivia was sentenced to 70 months of
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imprisonment on August 5, 2016, and his judgment of conviction was
also entered that day.6
G.
Dávila-Reyes and Reyes-Valdivia each filed a timely
notice of appeal from the "judgment" that the District Court had
entered in each of their respective cases. Dávila-Reyes's and
Reyes-Valdivia's appeals were consolidated.
In the defendants' briefing to the panel, the defendants
challenged the judgments that the District Court had entered
against them under the Felonies Clause and the Due Process Clause.
In addition, Dávila-Reyes raised a new argument: Congress lacked
the power under the Constitution to criminalize his charged conduct
because the vessel that he was aboard was not on the high seas and
was instead within the territorial waters of Colombia.
The two defendants contended in their briefing to the
panel that they had not waived the constitutional claims that they
were raising on appeal by entering unconditional guilty pleas in
the District Court. They argued that § 70503(e)(1), in referencing
the "jurisdiction of the United States," establishes a limitation
6 Reyes-Valdivia also appealed his sentence. The panel
affirmed his sentence in its original opinion. That holding was
vacated when that opinion was withdrawn, so Reyes-Valdivia's
sentencing appeal remains before us. United States v. Dávila-
Reyes, 937 F.3d 57, 63-64 (1st Cir. 2019). But Reyes-Valdivia is
no longer in custody, and so his sentencing challenge is now moot.
See United States v. Suarez-Reyes, 910 F.3d 604, 606 (1st Cir.
2018).
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on the subject matter jurisdiction of courts. On that basis, they
contended that they were entitled to raise their various claims on
appeal despite their unconditional guilty pleas because the claims
implicated the question of whether the District Court had subject
matter jurisdiction under Article III to enter the judgments
against them.
After the parties filed their briefs with the panel, but
before oral argument to the panel, the government filed a letter
under Federal Rule of Appellate Procedure 28(j) about Class v.
United States, 138 S. Ct. 798 (2018). There, the Supreme Court of
the United States held that an unconditional guilty plea does not
necessarily waive a constitutional challenge to the defendant's
statute of conviction. The government argued in the letter that,
notwithstanding Class, the defendants were barred from raising
their challenges on appeal by their unconditional guilty pleas.
The defendants responded with their own Rule 28(j)
letter. They contended in their letter that Class established
that they had not waived their claims by entering their
unconditional guilty pleas.
The panel heard oral argument in the defendants' appeals
on March 7, 2018. Then, on January 15, 2019, the panel ordered
the parties to submit supplemental briefing to address two
questions:
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1. What is the basis for deeming appellants'
vessel "a Vessel without nationality" under
4[6] U.S.C. § 70502(d)(1) given that none of
the clauses of 46 U.S.C. § 70502(d)(1) appears
to apply by its terms? As background, we note
that the statements of fact presented in
appellants' plea agreements report that the
master of appellants' vessel declared Costa
Rican nationality, not Costa Rican registry.
That declaration renders § 70502(d)(1)(B)
inapplicable, and clauses (A) and (C) refer
only to claims of registry.
2. Assuming that the circumstances do not
permit deeming appellants' vessel one "without
nationality" pursuant to any clause of 46
U.S.C. § 70502(d)(1), what other
jurisdictional basis supports this
prosecution by United States authorities under
United States law against appellants --
citizens of Costa Rica who were detained in
international waters on a vessel claimed to be
of Costa Rican nationality?
The parties submitted briefing on the questions.
H.
In September 2019, the panel -- in its original opinion,
which the panel later withdrew when issuing its subsequent
opinion -- rejected the challenges that Dávila-Reyes and Reyes-
Valdivia had brought under the Felonies Clause and the Due Process
Clause to the "judgments" entered against them. See United States
v. Dávila-Reyes, 937 F.3d 57, 62-64 (1st Cir. 2019) (Dávila-Reyes
I). The panel relied on Class to hold that the defendants' guilty
pleas did not "foreclose their right to challenge the
constitutionality of the MDLEA." Id. at 61. But the panel ruled
against the defendants on the merits based on United States v.
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Cardales, 168 F.3d 548 (1st Cir. 1999), "and the cases reiterating
its approach." Dávila-Reyes I, 937 F.3d at 63.
The panel explained that those precedents established
that the MDLEA was a valid assertion of the United States's
protective jurisdiction under international law, given the United
States's interest in protecting itself from the baleful effects of
drug trafficking. Id. at 62-63. The panel explained that this
was so no matter the basis under § 70502(c)(1)(A) of the MDLEA for
determining that a defendant was on a "vessel without nationality"
on which the government was relying. Thus, the panel explained,
this was so notwithstanding the defendants' contention that the
MDLEA (per § 70502(d)(1)(C)) permitted a vessel to be so deemed
even when it was not stateless for purposes of international law.7
Id.
Dávila-Reyes and Reyes-Valdivia petitioned for rehearing
en banc from the panel's ruling in October 2019. The petition
contended that the defendants' convictions ran afoul of the
Felonies Clause and the Due Process Clause. The petition contended
on that basis that Cardales should be overruled.
The panel did not appear to address Dávila-Reyes' contention
7
that Congress lacked the power to criminalize his conduct because
the vessel that he was aboard was not on the high seas. The
defendants did not raise the contention in the petition for
rehearing en banc that they filed after the panel's original
opinion issued. Thus, the argument has been abandoned, and we
need not address it here.
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While the petition was pending, our court, sitting en
banc, decided United States v. Aybar-Ulloa, 987 F.3d 1 (1st Cir.
2021). In that case, we rejected the defendant's contention that
the Felonies Clause did not empower Congress to criminalize his
conduct, which involved alleged drug trafficking on the high seas
while aboard a vessel "without nationality" under
§ 70502(c)(1)(A).
Aybar-Ulloa did not rely in so holding, as Cardales and
the panel in Dávila-Reyes I had, on the United States's assertion
of protective jurisdiction under international law. Aybar-Ulloa
relied instead on the ground that Congress had the power under the
Felonies Clause to make it a crime for a foreign national to engage
in drug trafficking on the high seas while aboard a vessel that
was stateless under international law. Id. at 4-5. Aybar-Ulloa
explained that the MDLEA conviction at issue there did not exceed
Congress's Felonies Clause power because the defendant in that
case did not dispute that he was a foreign national who was aboard
a vessel at the time of his drug trafficking that was both on the
high seas and stateless for purposes of international law. Id. at
5-6.
Following our en banc decision in Aybar-Ulloa, the panel
in Dávila-Reyes's and Reyes-Valdivia's cases construed the pending
petition for rehearing en banc as a petition for panel rehearing,
granted the petition, and vacated the panel's September 2019
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opinion. The panel explained that it had "concluded that the en
banc decision in [Aybar-Ulloa] has diminished the force of this
circuit's precedent on the protective principle such that the
panel . . . deem[ed] it appropriate to address appellants'
contention that the government improperly deemed their vessel
stateless." United States v. Dávila-Reyes, No. 16-2089, 2021 WL
5276369 (1st Cir. Mar. 17, 2021).
The panel issued a new decision in January 2022 that
vacated the defendants' convictions and dismissed the charges
against them. See United States v. Dávila-Reyes, 23 F.4th 153
(1st Cir. 2022) (Dávila-Reyes II). A majority of the panel
explained that Class allowed the defendants to press their
constitutional claims despite their unconditional guilty pleas.
Id. at 162-164. Then, the majority turned to the merits.
The majority reasoned that Congress lacks the power
under the Felonies Clause to criminalize a foreign national's drug
trafficking in international waters unless the United States's
assertion of regulatory jurisdiction over that foreign national
would be permissible under international law. Id. at 173-83. The
majority then explained that, although Aybar-Ulloa held that
international law permits the United States to assert such
regulatory jurisdiction when the foreign national is aboard a
vessel on the high seas that is stateless under international law,
a vessel cannot be deemed stateless under international law merely
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because, as § 70502(d)(1)(C) provides, a foreign nation whose
nationality the vessel's master claims for the vessel "fail[s] to
supply an 'affirmative and unequivocal' confirmation of
nationality." Id. at 186-95 (cleaned up). And, the majority
concluded, the defendants' charges and convictions necessarily
depended on the application of § 70502(d)(1)(C) -- and on no other
basis -- to deem the vessel that they were aboard at the time of
their MDLEA violations to be "without nationality" under
§ 70502(c)(1)(A). Id. at 162-65.
In so holding, the majority acknowledged that the
government had argued in its supplemental briefing to the panel
that the defendants' vessel "could have been deemed without
nationality based on . . . jurisdictional theories" other than
application of § 70502(d)(1)(C). Id. at 164-65. These alternative
bases included that the vessel's master "fail[ed] to produce
registration paperwork or otherwise substantiate his verbal claim
of nationality." Id. at 164. But the majority concluded that "it
[was] simply too late for the government to proffer alternative
bases for jurisdiction" because those bases were "not the basis on
which the government relied to arrest and prosecute appellants,
and to obtain their guilty pleas." Id. at 164-65.
Thus, the majority explained, the defendants' charges
and convictions exceeded Congress's power, including under the
Felonies Clause, because a vessel deemed to be "without
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nationality" under § 70502(c)(1)(A) solely by application of
§ 70502(d)(1)(C) is not stateless under international law. Id. at
194-95. Accordingly, the panel ordered the defendants'
convictions vacated and the charges against them dismissed. Id.
at 195.
Then-Chief Judge Howard issued an opinion concurring in
the judgment. Id. at 195-96 (Howard, C.J., concurring in the
result). He explained that the MDLEA provides that a vessel is
"without nationality" under § 70502(c)(1)(A) when, as
§ 70502(d)(1)(C) provides, "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. But, he concluded, the master
of the vessel in question in Dávila-Reyes and Reyes-Valdivia's
cases had made a claim of Costa Rican "nationality" rather than
Costa Rican "registry." Id. Then-Chief Judge Howard explained
that as a result the conclusive presumption of a vessel being
"without nationality" that § 70502(d)(1)(C) sets forth had no
application in the defendants' cases and that, for that statutory
reason alone, the defendants' convictions must be vacated and the
charges against them in the indictment dismissed.8 Id. at 196.
8 Then-ChiefJudge Howard noted that the defendants' statutory
contention arguably was waived because the defendants did not brief
the statutory argument until ordered to by the panel. But he
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Following the panel's decision, the United States
petitioned for rehearing en banc. We granted the petition in July
2022; vacated the panel's February 2022 opinion; ordered
supplemental briefing, which the parties then supplied; and heard
oral argument.
II.
The defendants seek to challenge their convictions on
various grounds despite their unconditional guilty pleas. Thus,
we confront a threshold question: Did the defendants' guilty pleas
waive the various challenges that they seek to have us address?
Insofar as we conclude that the defendants' guilty pleas did not,
we then also confront one further threshold question: What standard
of review applies to each of the challenges that the defendants
bring on appeal?
The defendants contend to us, as they did to the panel,
that their unconditional guilty pleas did not waive their
challenges because the challenges concern whether their vessel was
"subject to the jurisdiction of the United States" under the MDLEA.
The defendants contend that this requirement in the MDLEA places
a limit on a federal court's subject matter jurisdiction and thus
a federal court's jurisdiction under Article III of the United
suggested that the supplemental briefing may have been sufficient
to "bypass [this] appellate waiver." Dávila-Reyes II, 23 F.4th at
196 n.65.
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States Constitution. In consequence, the defendants contend,
their challenges take aim at the Article III jurisdiction of the
District Court and so are both not waivable by an unconditional
guilty plea and subject to de novo (rather than plain error) review
whether their challenges were raised below or not.
The defendants also contend, in the alternative, that
their guilty pleas did not waive their challenges for a different
reason. Here, they rely on Class.
We explain in Part III why we reject the defendants'
Article III-based ground for both permitting their challenges to
their convictions to go forward despite their unconditional guilty
pleas and reviewing those challenges de novo even if the challenges
were not raised below. We then address in Part IV the defendants'
Class-based ground for permitting their challenges to go forward.
There, we explain that, even assuming that under Class the
defendants' challenges are not waived, we must reject them, either
because they have no merit under de novo review or because they
- 23 -
are subject to the plain error standard of review and cannot meet
it.9
III.
The defendants contend that their challenges take aim at
the subject matter jurisdiction of the District Court because the
challenges take aim at the basis for concluding that their vessel
was "subject to the jurisdiction of the United States" for purposes
of the MDLEA. This phrase appears in several sections of the
MDLEA, although the defendants and the government focus chiefly on
its use in § 70502(c)(1) and § 70504 of the MDLEA. The defendants'
and the government's contentions are best understood, however, to
be addressing the use of the phrase in § 70503(e)(1). That
provision is the operative one, as it provides that a "vessel
subject to the jurisdiction of the United States" is a "covered
The government separately contends that both Dávila-Reyes's
9
and Reyes-Valdivia's appeals are barred by the waiver of appeal
contained in each of their plea agreements. We note that Reyes-
Valdivia's appeal waiver was predicated on his receipt of a
sentence of no more than 57 months of imprisonment. Because he
received a 70-month prison sentence, that waiver appears to be
unenforceable. In any event, we may assume for present purposes
that neither waiver is a bar to these appeals because the
defendants' challenges to their indictment and convictions fail on
other grounds.
- 24 -
vessel" and so the type of vessel that a person must be "on board"
to violate the MDLEA under § 70503(a).10
We may assume that the defendants are right to contend
that their various challenges on appeal implicate § 70503(e)(1),
because we agree with the government that, even if the challenges
do, the challenges do not implicate the subject matter jurisdiction
of the District Court, because § 70503(e)(1) does not impose a
limitation on a court's subject matter jurisdiction. Accordingly,
we reject the defendants' Article III-based arguments as to both
whether their guilty pleas waived their challenges and why the
standard of review that applies to those challenges is de novo
regardless of whether the challenges were raised below.
A.
The defendants acknowledge up front that, in United
States v. González, 311 F.3d 440 (1st Cir. 2002), a panel of this
court held that § 70503(e)(1) does not establish a limitation on
a court's subject matter jurisdiction. But the defendants contend
that González was wrong to so hold -- as some other circuits have
also concluded, see United States v. Miranda, 780 F.3d 1185, 1191-
97 (D.C. Cir. 2015); United States v. Tinoco, 304 F.3d 1088, 1106
10 To be clear, our analysis would be no different if we
treated the parties as addressing § 70502(c)(1) or § 70504 rather
than § 70503(e)(1).
- 25 -
(11th Cir. 2002); United States v. Bustos-Useche, 273 F.3d 622,
626 (5th Cir. 2001) -- and that we should overrule that precedent.
The Second Circuit has comprehensively reviewed the
relevant post-González precedent, however, and sided with
González. See United States v. Prado, 933 F.3d 121, 132-51 (2nd
Cir. 2019). We conclude that the Second Circuit's reasoning is
persuasive.
1.
Congress vested "courts of the United States" (emphasis
added) with "original jurisdiction . . . of all offenses against
the laws of the United States" in 18 U.S.C. § 3231. Thus, the
defendants need to show that § 70503(e)(1) of the MDLEA, by
referring to the "jurisdiction of the United States" (emphasis
added), limits the otherwise operative grant of subject matter
jurisdiction to federal courts over federal criminal prosecutions
that 18 U.S.C. § 3231 sets forth. See Prado, 933 F.3d at 134-35.
The Supreme Court has explained in a case that post-
dates González that "[i]f the Legislature clearly states that a
threshold limitation on a statute's scope shall count as
jurisdictional," then the limitation concerns the Article III
subject matter jurisdiction of the courts. Arbaugh v. Y&H Corp.,
546 U.S. 500, 515 (2006). But the Court went on to say in that
case that "when Congress does not rank a statutory limitation on
coverage as jurisdictional," the limitation does not concern the
- 26 -
Article III subject matter jurisdiction of the courts. Id. at
516.
Here, of course, the provision in question does use the
word "jurisdiction." But, as Prado emphasized, 933 F.3d at 132,
and González itself noted, "[t]he term 'jurisdiction' is
notoriously malleable and is used in a variety of contexts . . .
that have nothing whatever to do with the court's subject matter
jurisdiction," 311 F.3d at 443 (emphasis removed). We therefore
find it telling that, as Arbaugh acknowledges, Congress knows how
to write statutes that provide for or limit the subject matter
jurisdiction of courts by expressly referring to cases or
controversies heard by the courts themselves. See, e.g., 28 U.S.C.
§ 1331 ("The district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties
of the United States."); 7 U.S.C. § 2707(e)(3) ("[T]he several
district courts of the United States are hereby vested with
jurisdiction to entertain such suits [that pertain to orders of
the Egg Board] regardless of the amount in controversy."); 16
U.S.C. § 814 ("United States district courts shall only have
jurisdiction of cases [concerning suits regarding the use of
eminent domain to obtain land to construct a dam or certain public
waterways] when the amount claimed by the owner of the property to
be condemned exceeds $3,000.").
- 27 -
This past legislative practice is telling because the
provision at issue here does not refer to courts having
"jurisdiction" over "actions," "suits," or their equivalent. It
refers only to a "vessel" being "subject to . . . jurisdiction"
and to "the United States" -- rather than a court -- having
"jurisdiction" over the vessel. Thus, § 70503(e)(1) does not by
using the term "jurisdiction" impose a limitation on the Article
III subject matter jurisdiction of courts. It instead defines the
scope of the regulatory jurisdiction that Congress is asserting
through the MDLEA.
Section 70503(b) supports the same understanding. That
section, titled "Extension beyond territorial jurisdiction,"
(emphasis added), clarifies that the substantive prohibition that
is set forth in § 70503(a) -- the provision that invokes the phrase
"covered vessel" -- "applies even though the act is committed
outside the territorial jurisdiction of the United States"
(emphasis added). Because the phrase "jurisdiction of the United
States" in § 70503(b) clearly is not referring to the jurisdiction
of a court, we see no reason to read that same phrase in
§ 70503(e)(1) to be doing so. See Prado, 933 F.3d at 142-44.
Other sections of Title 46 of the United States Code, we
note, also use the phrase "jurisdiction of the United States" in
contexts that make clear that those sections are not referring to
the power of courts to adjudicate disputes. See Prado, 933 F.3d
- 28 -
at 143 n.12 (collecting statutes). By contrast, § 70505 of the
MDLEA states 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." Given that § 70503(e)(1) refers
only to the "jurisdiction of the United States" over a "vessel,"
we see no basis for reading it as if it, like § 70505, were
referring to the "jurisdiction" of a "court" over a "proceeding."
In sum, the MDLEA's statutory text provides no support
for the conclusion that Congress intended the phrase "subject to
the jurisdiction of the United States" in § 70503(e)(1) to impose
a limitation on the subject matter jurisdiction of courts. Nor do
we see any basis for concluding that Congress's use of the phrase
constitutes the kind of clear statement required by Arbaugh to
impose such a limitation. Accordingly, we see no basis for
breaking with our ruling in González.
2.
We recognize that the D.C. Circuit, in concluding
otherwise in Miranda, noted that the phrase "[j]urisdiction of the
United States" also appears in § 70504(a) of the MDLEA, which is
titled "Jurisdiction and venue." 780 F.3d at 1196. The D.C.
Circuit concluded from the inclusion of that phrase in a provision
so titled that the phrase as it appears in § 70503(e)(1) must be
a limitation on the subject matter jurisdiction of courts,
- 29 -
notwithstanding that § 70503(e)(1) is not similarly titled.11 We
are not persuaded.
The precursor to § 70504(a), which bore the same title
to which the D.C. Circuit gave such interpretive weight, was 46
U.S.C. app. § 1903(f) (1996). That provision, however, had a
companion provision, 46 U.S.C. app. § 1903(d) (1996). And that
companion provision was titled "Claim of failure to comply with
international law; standing; jurisdiction of court." (emphasis
added).
Thus, the relevant statutory history reveals that the
"Jurisdiction and venue" title to which the D.C. Circuit gave such
import made no reference to the "jurisdiction of court" at a time
when the title to a companion provision expressly did. That makes
it difficult to conclude that the "Jurisdiction and venue" title
demonstrates that the phrase "jurisdiction of the United States"
was intended to set a limit on the "jurisdiction of court[s]."
Congress did later drop "jurisdiction of court" from the
title of the companion provision, which now appears in the MDLEA
as § 70505. But Congress made that title change as part of a 2006
effort to "reorganize[] and restate[]" the MDLEA and so to
"codif[y] existing law rather than creat[e] new law." Miranda,
11 Neither the Eleventh Circuit in Tinoco nor the Fifth Circuit
in Bustos-Useche presents any arguments that Miranda did not rely
on in determining that § 70503(e)(1) implicates the subject matter
jurisdiction of courts.
- 30 -
780 F.3d at 1196 (quoting H.R. Rep., No. 109-170, at 2 (2005)).
We thus do not see how we may infer from the change to the title
of § 70505 that Congress intended the phrase "jurisdiction of the
United States" in § 70503(e)(1) to set a subject matter limitation
on the jurisdiction of a court, given that § 70503(e)(1) itself
makes no mention of courts at all.
3.
The D.C. Circuit also concluded in Miranda that the
phrase "jurisdiction of the United States" in § 70503(e)(1) must
be construed to limit the Article III subject matter jurisdiction
of courts for another reason. The D.C. Circuit reasoned that
Congress would have wanted the question of whether a vessel was
"subject to the jurisdiction of the United States" to be non-
waivable "in order to minimize the extent to which the MDLEA's
application might otherwise cause friction with foreign nations"
by ensuring that the defendants were properly subject to
prosecution in the United States "in every case -- and at every
level of review." 780 F.3d at 1193-94.
But the relevant statutory text, as we have explained,
is to the contrary, and nothing in the legislative history shows
that the text does not mean what it appears to say. Prado, 933
F.3d at 139-40. In fact, § 70505 appears to reflect a contrary
congressional understanding to the one posited in Miranda: It
provides that "[a] failure to comply with international law does
- 31 -
not divest a court of jurisdiction and is not a defense to a
proceeding under this chapter."
4.
The D.C. Circuit did also imply that the constitutional
avoidance canon supports construing the provision of the MDLEA at
issue to limit the Article III subject matter jurisdiction of
courts. The D.C. Circuit explained that, if § 70503(e)(1)
establishes an element of the crime, rather than a limitation on
the subject matter jurisdiction of courts, then the statute may
run afoul of the Sixth Amendment to the United States Constitution.
See Miranda, 780 F.3d at 1195-96; see also González, 311 F.3d at
444.
The notion is that, if § 70503(e)(1) were not construed
to establish a limitation on the subject matter jurisdiction of a
court, then that provision of the MDLEA would establish an element
of the offense that would have to be proved to a jury beyond a
reasonable doubt. See Torres v. Lynch, 578 U.S. 452, 467 (2016)
("Both [the substantive and jurisdictional] elements [of a crime]
must be proved to a jury beyond a reasonable doubt.").
Section 70504(a), however, provides that the determination as to
whether a vessel is "subject to the jurisdiction of the United
States" need be made only by a court -- rather than a jury. And
this determination, we have held, need be made only by a
preponderance of the evidence rather than beyond a reasonable
- 32 -
doubt. United States v. Matos-Luchi, 627 F.3d 1, 5 (1st Cir. 2010)
(holding that a vessel may be shown to be "without nationality" by
"a preponderance of the evidence").
The defendants do not themselves invoke the
constitutional avoidance canon in pressing their Article III-based
arguments to us, however. And seemingly for good reason. The
canon applies only if there is an ambiguity in the relevant
respect, see Nielsen v. Preap, 139 S. Ct. 954, 972 (2019)
(constitutional avoidance is "irrelevant" if text of statute is
clear); Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018)
(cautioning that the canon of constitutional avoidance "comes into
play only when, after the application of ordinary textual analysis,
the statute is found to be susceptible of more than one
construction" (quoting Clark v. Martinez, 543 U.S. 371, 385
(2005))), and, as we have explained, there is none here.
Moreover, a majority of a panel of this court has held
that even if § 70503(e)(1) does not implicate the Article III
jurisdiction of a court, no Sixth Amendment issue arises. United
States v. Vilches-Navarrete, 523 F.3d 1, 19-23 (1st Cir. 2008)
(Lynch and Howard, JJ., concurring). And, despite the law of the
circuit established by that ruling, neither defendant makes any
argument to us as to why we should reconsider our precedent on
that score.
- 33 -
B.
For all these reasons, we decline to depart from our
holding in González that § 70503(e)(1) merely sets a limit on the
scope of the conduct that the MDLEA itself criminalizes. As a
result, we reject the defendants' Article III-jurisdiction-based
argument for contending both that their unconditional guilty pleas
did not waive the challenges to their convictions that they make
on appeal and that we must review all those challenges de novo
regardless of whether they were raised below.
IV.
The defendants separately contend that, in consequence
of Class, their unconditional guilty pleas did not waive the
challenges that they now advance on appeal. Class concerned a
defendant who had entered an unconditional guilty plea and then
appealed his conviction on the ground that the statute under which
he was convicted violated the Constitution. The Supreme Court
allowed the defendant's challenge to proceed, as against a claim
that the challenge had been waived by his unconditional guilty
plea, because the defendant was pressing a challenge to "'the very
power of the State' to prosecute" him. Class, 138 S. Ct. at 803
(quoting Blackledge v. Perry, 417 U.S. 21, 30 (1974)); see also
Menna v. New York, 423 U.S. 61 (1975).
Class made clear the limited nature of this exception to
the usual rule that an unconditional guilty plea waives challenges
- 34 -
to the defendant's conviction. It explained that the exception
applies only to a challenge to the "constitutionality of the
statute of conviction," 138 S. Ct. at 803, and then only when the
challenge "does not in any way deny that [the defendant] engaged
in the conduct to which he admitted" and does not "contradict the
terms of the indictment or the written plea agreement," id. at
804-05. Moreover, the Court explained the challenge must, "'judged
on its face' based upon the existing record," be of the sort that,
if successful, "would extinguish the government's power to
'constitutionally prosecute' the defendant." Id. at 806 (quoting
United States v. Broce, 488 U.S. 563, 575 (1989)).
Dávila-Reyes and Reyes-Valdivia contend that Class
encompasses their challenges on appeal, while the government
disagrees. The government contends that the defendants are
challenging the MDLEA's constitutionality only as it has been
applied to them in their specific cases and that such as-applied
constitutional challenges do not fall within Class. The government
further contends that Class does not apply here because the
defendants' challenges on appeal necessarily seek to deny what the
defendants admitted in pleading guilty unconditionally, given that
in so pleading the defendants admitted both that they were aboard
"a vessel subject to the jurisdiction of the United States" and to
certain facts that bear on that very determination. But, as we
will explain, even if we were to assume that Class permits the
- 35 -
defendants to raise any or all their challenges on appeal despite
their unconditional guilty pleas, the challenges still would fail
under the standard of review that we conclude applies to each of
those challenges.
A.
We begin with the defendants' constitutional claim that
Congress has no power under the Felonies Clause to criminalize
their charged conduct. The defendants do not spell out the claim
as clearly as they might, but we understand it to come to us in
two distinct variants.
The first variant tracks the Felonies Clause-based
challenge that the defendants made in their motion to dismiss the
indictment that they filed in the District Court. Like that
challenge, we understand this variant also to take aim at the
indictment and to do so on the ground that it sets forth charges
that are asserted to be beyond Congress's power to authorize under
the Felonies Clause.
The second variant, by contrast, does not depend on an
any assertion that the indictment itself is defective because it
sets forth charges that exceed Congress's power under the Felonies
Clause. This variant of the challenge contends instead that, even
if the indictment is unassailable, the convictions cannot stand
because the nature of the post-indictment record is such that it
- 36 -
shows that the convictions violate the Felonies Clause. We
consider each variant of the Felonies Clause-based claim in turn.
1.
The indictment-focused variant depends on the following
chain of logic. The Felonies Clause does not give Congress the
power to criminalize drug trafficking by persons on a vessel on
the high seas if the United States would not have regulatory
jurisdiction over those persons under international law. Because
international law does not permit the United States to exercise
regulatory jurisdiction over foreign nationals engaged in drug
trafficking on the high seas while aboard foreign vessels, the
United States could criminalize the defendants' charged conduct
under the Felonies Clause only if the defendants were aboard a
vessel on the high seas that was stateless under international
law. A vessel may not be deemed stateless under international
law, however, simply because the nation to which the vessel's
master has claimed that it belongs fails to "affirmatively and
unequivocally assert," § 70502(d)(1)(C), that the vessel is
registered with that nation. Yet, the indictment charged that the
vessel that the defendants were aboard was "without nationality"
under § 70502(c)(1)(A) solely based on the operation of
§ 70502(d)(1)(C). Thus, the indictment necessarily charged the
defendants with violating the MDLEA on a basis that is not
constitutional, given that § 70502(d)(1)(C) provides that "a
- 37 -
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" is a vessel that is "without nationality" for
the purposes of the MDLEA.
Because the defendants advanced this exact claim in
their motion to dismiss the indictment, it is preserved, such that
our review of the challenge is de novo. See United States v.
Savarese, 686 F.3d 1, 6 (1st. Cir 2012). But the government
contends that the challenge nonetheless fails, and we agree. The
reason is simple: The indictment cannot be read, even on de novo
review, to rely exclusively on § 70502(d)(1)(C) in charging the
defendants with having been aboard a "vessel without nationality"
under § 70502(c)(1)(A). Thus, the challenge rests on a faulty
premise about the basis for the indictment's charge that the
defendants were on a vessel that was "without nationality."
The indictment states with respect to whether the
defendants were aboard a "vessel subject to the jurisdiction of
the United States" only that they were aboard a vessel "as defined
in Title 46, United States Code, Section 70502(c)(1)(A)." The
indictment thus makes no reference to § 70502(d)(1)(C), let alone
solely to that provision. Nor does the indictment refer to any
other provision of the MDLEA that bears on the question of whether
- 38 -
the vessel was "subject to the jurisdiction of the United States"
because it was "without nationality."
In addition, the indictment alleges no facts that could
be understood to limit to § 70502(d)(1)(C) the permissible bases
for finding the vessel in question to be "without nationality"
under § 70502(c)(1)(A). For example, the indictment makes no
reference to any facts that implicate § 70502(d)(1)(C), such as to
the master of the vessel having made a "claim of registry" (or
even a "claim of nationality") or the United States having
attempted unsuccessfully to confirm the vessel's registration with
another country.
Moreover, the defendants do not dispute that a vessel
may be shown to be a "vessel without nationality" under
§ 70502(c)(1)(A) -- the one "jurisdictional" provision of the
MDLEA that the indictment does mention -- through means other than
the application of § 70502(d)(1)(C). Nor do we see how the
defendants could do so.
As a panel of this court explained in Matos-Luchi, the
use of the word "includes" in § 70502(d)(1) makes clear that "the
listed examples" set forth in that section "do not exhaust the
scope of [§] 70502(d)" in defining a "vessel without nationality."
627 F.3d at 4. Moreover, Matos-Luchi explained that a vessel may
be determined to be "without nationality" under § 70502(c)(1)(A)
through a means other than application of any of the subsection of
- 39 -
§ 70502(d)(1) -- namely, when a vessel is not "entitled to fly[]
the flag of a State." 627 F.3d at 6 (quoting Molvan v. Att'y-Gen.
for Palestine, [1948] A.C. 351 (P.C.) 369-70) (cleaned up). And
Matos-Luchi also described that standard as a proper one for
determining whether a vessel is stateless for purposes of
international law. See id.; see also United States v. Rosero, 42
F.3d 166, 171 (3d Cir. 1994) ("Under international law, 'ships
have the nationality of the State whose flag they are entitled to
fly.'" (quoting Convention on the High Seas of 1958 art. 5(1),
Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 11) (cleaned up)).
Because the defendants do not contend that Matos-Luchi
was wrong on any of these counts, they fail to explain why the
indictment on its face would not permit the government to show
that the defendants' vessel was not authorized to fly the flag of
any state and so was "without nationality" under § 70502(c)(1)(A)
-- and stateless under international law -- for reasons independent
of the vessel being the kind of vessel that § 70502(d)(1)(C)
describes. See United States v. Stepanets, 879 F.3d 367, 372 (1st
Cir. 2018) ("[T]he government need not recite all of its evidence
in the indictment." (quoting United States v. Innamorati, 996 F.2d
456, 477 (1st Cir. 1993))). Thus, we conclude that, even on de
- 40 -
novo review, the first variant of the defendants' Felonies Clause-
based challenge fails.12
2.
We turn, then, to the other variant of the defendant's
Felonies Clause-based challenge. Here, the defendants contend
that, even if the indictment is not dependent on § 70502(d)(1)(C),
their convictions still violate the Felonies Clause. We are not
persuaded by this variant of the defendants' Felonies Clause-based
challenge, however, given the standard of review that we conclude
applies to it.
a.
The defendants do not dispute that, as we held in United
States v. Ríos-Rivera, 913 F.3d 38, 41-43 (1st Cir. 2019), a
constitutional claim that is raised on appeal pursuant to Class is
subject to review only for plain error if it was not raised below.
Thus, our review of the second variant of the defendants' Felonies
Clause-based claim is only for plain error if this variant is being
raised for the first time on appeal.
To determine whether this variant of the claim is being
newly raised, as the government contends it is, we must attend to
12 The dissent does not take issue with any aspect of the
description of the indictment that we have set forth above or with
the proposition that a vessel may be deemed to be "without
nationality" under § 70502(c)(1)(A) on a ground other than
§ 70502(d)(1)(C).
- 41 -
the fact that, in pressing this variant of the Felonies Clause-
based challenge, the defendants are necessarily taking issue with
the import that the government ascribes to the admissions that the
defendants made in pleading guilty. That is because the government
contends that those admissions provide a basis independent of
§ 70502(d)(1)(C) for deeming the defendants' vessel to be both
"without nationality" under § 70502(c)(1)(A) and stateless under
international law.
In particular, the government contends that under our
decision in Matos-Luchi the factual admissions that the defendants
made in pleading guilty in and of themselves suffice to show that
the defendants' vessel was not "entitled to fly[] the flag of a
State," 627 F.3d at 6, and so was both "without nationality" under
the MDLEA and stateless under international law for reasons
independent of the operation of § 70502(d)(1)(C). Those
admissions are that the sole basis for claiming the vessel had a
foreign nationality was the oral claim of that nationality made by
the vessel's master and that this oral claim of foreign nationality
for the vessel was wholly uncorroborated.
Thus, the government contends, to succeed on their
Felonies Clause-based challenge, the defendants need to do more
than show that § 70502(d)(1)(C) does not provide a basis for
deeming a vessel to be stateless under international law. The
government contends that the defendants also need to explain why
- 42 -
the factual admissions regarding the wholly uncorroborated nature
of the oral claim of the vessel's foreign nationality that the
defendants made in pleading guilty do not themselves provide an
independent basis under Matos-Luchi for deeming their vessel
"without nationality" as a statutory matter and stateless as an
international law matter. Otherwise, the government contends, the
defendants will have failed to show that the convictions violate
the Felonies Clause because the defendants will have failed to
show that the vessel was not in fact stateless under international
law.
But, in challenging the indictment in the District Court
under the Felonies Clause, the defendants obviously did not purport
to address the legal significance under Matos-Luchi of any of the
factual admissions that they made in their plea agreements
regarding the wholly uncorroborated nature of the oral claim of
the vessel's foreign nationality to which the government now
directs our attention. Indeed, at that time, those factual
admissions had not even been made by the defendants, as the
defendants had not at that time entered into any plea agreements.
Rather, at that time, the defendants were merely taking aim at the
indictment itself on the ground that the indictment was dependent
solely on § 70502(d)(1)(C) based on what the indictment alone
provided. Nor did the defendants at any other time or in any other
filing in the District Court make any argument as to the legal
- 43 -
import of the facts to which they admitted by entering into their
plea agreements.
For these reasons, we conclude that the government is
right that our review of the defendants' Felonies Clause-based
challenge to the merits of their convictions is only for plain
error insofar as that challenge does not take aim only at the
indictment and instead addresses the relevance under Matos-Luchi
of the defendants' post-indictment factual admissions. See Ríos-
Rivera, 913 F.3d at 41-43; cf. United States v. Caraballo–
Rodriguez, 480 F.3d 62, 68-76 (1st Cir. 2007) (applying plain error
review to a challenge to the factual basis for a plea predicated
on a challenge to the scope of the statute of conviction). And,
as we will explain, we conclude that the defendants have failed to
satisfy the second prong of the plain error standard with respect
to that aspect of the challenge, given our reasoning in Matos-
Luchi about when a vessel may be deemed to be "without nationality"
under the MDLEA and stateless for international law purposes. See
United States v. Pérez-Rodríguez, 13 F.4th 1, 16 (1st Cir. 2021)
(explaining that, to satisfy the plain error standard, the
defendant must show not only that "an error occurred" but also
that the error "was clear or obvious," "affected the[ir]
substantial rights" and "seriously impaired the fairness,
- 44 -
integrity, or public reputation of judicial proceedings" (quoting
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001))).
b.
We begin with the defendants' contention that the
government is wrong to contend based on Matos-Luchi that the
factual admissions in the plea agreements concerning the wholly
uncorroborated nature of the oral claim of the vessel's foreign
nationality provide a basis for deeming the defendants' vessel to
be "without nationality" under § 70502(c)(1)(A) other than by the
operation of § 70502(d)(1)(C). The government's contention on
that score proceeds as follows.
The government points out that the defendants, in
admitting to the Government's Version of the Facts through the
plea agreements, necessarily admitted both that their vessel had
no registration paperwork and that the vessel had no other indicia
of nationality on board.13 The government then contends that -- at
least when those factual admissions are considered alongside the
defendants' admission that Costa Rica could not confirm the
vessel's registry -- the post-indictment record shows that there
is a factual basis for finding under Matos-Luchi that the
The fact that the vessel's master originally claimed the
13
vessel had no nationality before asserting that it had Costa Rican
nationality does not appear in the Government's Version of the
Facts to which the defendants agreed when entering their guilty
pleas. We thus do not consider that fact in addressing the merits
of the defendants' challenges to their convictions.
- 45 -
defendants' vessel was "without nationality" under
§ 70502(c)(1)(A). It thus follows, according to the government,
that at the time of their pleas their vessel could have been deemed
to have been "without nationality" under § 70502(c)(1)(A) solely
based on § 70502(d)(1)(C).
The defendants' admissions in pleading guilty establish
that there is no corroboration whatsoever for the oral claim of
the vessel's foreign nationality, even though that oral claim
supplies the sole basis for the defendants' contention that the
vessel has such a nationality. In consequence, it is not clear or
obvious that on the record as it stood at the time of the pleas
the defendants' vessel could be deemed to have been "without
nationality" under § 70502(c)(1)(A) solely based on §
70502(d)(1)(C) and not also based on the rationale set forth in
Matos-Luchi.14
Matos-Luchi explained in relevant part that "[u]nder
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
14 The affidavits filed in support of the criminal complaint
and the government's motion requesting that the District Court
declare the vessel to be "subject to the jurisdiction of the United
States" both included references to a Costa Rican flag painted on
the vessel's hull. But the defendants cannot now assert that fact
to corroborate the claim that the vessel was of Costa Rican
nationality, because that assertion would contradict the statement
in the Government's Version of the Facts that "there was no indicia
of nationality on the vessel." See Class, 138 S. Ct. at 804.
- 46 -
flag enjoy no legal protection." 627 F.3d at 5. Matos-Luchi
further explained that "[b]y custom, a vessel claims nationality
by flying the flag of the nation with which it is affiliated or
carrying papers showing it to be registered with that nation."
Id.
True, Matos-Luchi did also explain that "[w]ithout a
flag or papers, a vessel may also traditionally make an oral claim
of nationality when a proper demand is made," while noting that
the MDLEA recognized as much in its provision defining what
constitutes a "vessel without nationality." Id. But Matos-Luchi
then went on to note that "[a]lthough enforcement jurisdiction
presumptively lies with the flag state, '[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.'" Id. at 6 (citation omitted) (emphasis
added) (quoting Andrew W. Anderson, Jurisdiction over Stateless
Vessels on the High Seas: An Appraisal Under Domestic and
International Law, 13 J. Mar. L. & Com. 323, 341 (1982)).
Moreover, Matos-Luchi added that the MDLEA follows this
approach "energetically." Id. at 6. It explained in that regard
that, because "[p]ractically every vessel, including the legendary
Flying Dutchman, has links with some country[,] . . . the
stateless vessel concept in the MDLEA and in international law is
designed prudentially." Id. And so, according to Matos-Luchi,
under both § 70502(c)(1)(A) and international law, "[t]he
- 47 -
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." Id. (emphasis
added); see also Miranda, 780 F.3d at 1197-98 (affirming finding
that a vessel was "without nationality" when factual admissions
accompanying guilty pleas included that the vessel was not
registered with a foreign nation, did not fly the flag of any
nation, and carried no registration paperwork).
The defendants do contend that these statements from
Matos-Luchi regarding the "controlling question" in determining
whether a vessel is "without nationality" under the MDLEA are
nonbinding dicta. But we do not see why that matters on plain
error review, at least given the well-considered nature of the
dicta. See United States v. Cortés–Medina, 819 F.3d 566, 570 (1st
Cir. 2016) (holding that a decision was not plainly erroneous when
it was supported by dicta in our circuit precedent).
The defendants separately contend that, in any event,
two precedents demonstrate that an oral claim of nationality is,
even when wholly uncorroborated, enough to ensure that a vessel
has a nationality and so is not "without nationality" under
- 48 -
§ 70502(c)(1)(A). But, in the face of Matos-Luchi, neither
precedent suffices to show that is clearly or obviously so.
The first case is Rosero, 42 F.3d 166, which the
defendants assert rejects the kind of "totality of the evidence"
test that they contend would have to be endorsed to deem their
vessel "without nationality" solely based on the uncorroborated
nature of the vessel's master's oral claim of nationality. But
Rosero is an out-of-circuit ruling that also pre-dates key changes
that were made to the MDLEA by the time of Matos-Luchi. Rosero
thus addressed only the validity of jury instructions15 that
permitted a finding beyond a reasonable doubt that a vessel is
"without nationality" under the MDLEA. Id. at 171–72. As a
result, it did not purport to address the question that we confront
here: Are the facts in question sufficient to show by a
preponderance of the evidence that the vessel at issue was a
"vessel without nationality" under § 70502(c)(1)(A)? See Matos-
Luchi, 627 F.3d at 5.
Moreover, Rosero concerned a challenge to jury
instructions that allowed the jury to engage in "an unstructured
weighing of the totality of the evidence." 42 F.3d at 172. Rosero
The version of the MDLEA under which Rosero was decided
15
made the question of whether a vessel was subject to the regulatory
jurisdiction of the United States an issue for the jury. 42 F.3d
at 171–72. The current version of the MDLEA makes regulatory
jurisdiction issues "preliminary questions of law to be determined
solely by the trial judge." 46 U.S.C. § 70504(a).
- 49 -
thus addressed whether a vessel may be deemed "without nationality"
under the MDLEA based on jury instructions that invited the jury
to consider all the evidence without instructing the jury about
what would make a vessel "without nationality." As a result,
Rosero did not address whether (as Matos-Luchi reasoned) a vessel
is "without nationality" because, insofar as a sustainable claim
of nationality cannot be made, the vessel is not authorized to fly
the flag of the nation to which it is claimed to belong.
The other precedent that the defendants point to is one
of our own: United States v. Potes, 880 F.2d 1475 (1st Cir. 1989).
But we do not agree with the defendants that Potes holds that,
contrary to Matos-Luchi's dicta, a bare claim of nationality in
and of itself suffices to demonstrate that a vessel is not a vessel
"without nationality" under § 70502(c)(1)(A), even absent the
application of a provision like § 70502(d)(1)(C). See Potes, 880
F.2d at 1478-79.
Like Rosero, Potes concerned only the earlier version of
the MDLEA. It thus addressed the standard for showing that a
vessel was "without nationality" beyond a reasonable doubt rather
than merely by a preponderance of the evidence. See Matos-Luchi,
627 F.3d at 5. Moreover, while Potes held that the record there
did not suffice to support a determination that sufficient proof
of the "vessel without nationality" requirement had been provided,
the vessel at issue in that case was flying a foreign flag. 880
- 50 -
F.2d at 1478. Potes thus does not address whether, per the
reasoning in Matos-Luchi, a vessel in circumstances like those
presented here may be deemed by a preponderance of the evidence to
be "without nationality" under § 70502(c)(1)(A) for reasons
independent of the application of § 70502(d)(1)(C).
c.
Of course, if it were clear or obvious that the Matos-
Luchi-based ground for deeming the defendants' vessel to be
"without nationality" under § 70502(c)(1)(A) of the MDLEA could
not suffice to show that the vessel was also stateless under
international law, then the defendants might still prevail in
challenging the constitutionality of their convictions under the
Felonies Clause. In that event, we would have to address how
§ 70502(d)(1)(C) fares under the Felonies Clause to determine
whether the challenge could succeed.
But our review of whether the defendants' vessel is not
only "without nationality" for purposes of § 70502(c)(1)(A) under
Matos-Luchi but also stateless for purposes of international law
under that same precedent is itself only for plain error. After
all, in purporting to counter the government's reliance on Matos-
Luchi, the defendants are again necessarily challenging the legal
import of the factual admissions that they made in their guilty
pleas. Yet, the defendants made no argument below that the facts
that they admitted to in pleading guilty could not suffice under
- 51 -
Matos-Luchi to render their vessel stateless under international
law.
Moreover, Matos-Luchi is clear that its analysis is not
limited to the statutory question addressed above about when a
vessel is "without nationality" under § 70502(c)(1)(A) of the
MDLEA. That analysis also applies to the international law
question of when a vessel is stateless. Matos-Luchi, 627 F.3d at
6; see also Rosero, 42 F.3d at 171 (interpreting the predecessor
of § 70502(c)(1)(A) to describe vessels that are both "without
nationality" as a statutory matter and "stateless under
international law"). Thus, here, too, the defendants cannot show
that it is clear or obvious that the government's Matos-Luchi-
based defense of the convictions -- and thus the government's
defense of the convictions on a ground independent of
§ 70502(d)(1)(C) -- is mistaken. As a result, the Felonies Clause-
based challenge fails for that reason alone.
d.
As a fallback, the defendants contend that they need not
show that the government's Matos-Luchi-based theory is clearly or
obviously wrong to succeed on the Felonies Clause-based challenge
to their convictions, even assuming that the indictment itself is
sound. They contend that is so because the government is engaged
in impermissible "jurisdiction switching" in relying on the Matos-
Luchi theory to defend the convictions on appeal. The defendants
- 52 -
argue in that contention that § 70502(d)(1)(C) is the only
jurisdictional provision on which the government relied below.
For that reason, they contend, it is also the only jurisdictional
provision that the government may put in play on appeal.
The dissent then goes on to contend not only that the
defendants are right on this score but also that it follows that
the only Felonies Clause-based challenge before us is the
defendants' challenge to § 70502(d)(1)(C). And, the dissent
proceeds to argue, because the defendants also challenged that
provision below under the Felonies Clause in moving to dismiss the
indictment, the challenge is preserved, thereby making our review
of that challenge on appeal de novo rather than for plain error.16
16In making the claim of "jurisdiction switching," neither
the defendants nor the dissent contends that the defendants
reasonably but mistakenly thought in pleading guilty that their
vessel was being deemed stateless only based on § 70502(d)(1)(C).
The defendants and the dissent contend instead only that the plea
agreements must be construed to bar the government from arguing
that the defendants' vessel is "without nationality" under the
MDLEA and stateless under international law on any basis other
than § 70502(d)(1)(C). Thus, the aim of the contention is not to
explain why the pleas must be vacated for not having been knowingly
and voluntarily made, such that we need not resolve whether
§ 70502(d)(1)(C) comports with the Felonies Clause to overturn the
convictions. The aim instead is to show that we must decide
whether § 70502(d)(1)(C) comports with that Clause to resolve the
defendants' Felonies Clause-based challenge because the government
gave up reliance on any other jurisdictional theory.
- 53 -
For reasons that we will next explain, we do not find
this line of argument to be persuasive. And that is so even if we
were to excuse its late-breaking nature.17
To start, the only jurisdictional provision of the MDLEA
to which the plea agreements refer is § 70502(c)(1)(A), not
§ 70502(d)(1)(C). Yet that provision "includes" as a ground for
a vessel to be "without nationality" the one that is laid out in
Matos-Luchi: The person making the oral claim of nationality for
the vessel on which the vessel's claim to being foreign depends is
not "in a position to provide evidence" of its claimed nationality.
627 F.3d at 6 (quoting Andrew W. Anderson, Jurisdiction over
Stateless Vessels on the High Seas: An Appraisal Under Domestic
and International Law, 13 J. Mar. L. & Com. 323, 341 (1982)).
Moreover, the plea agreements incorporated the
Government's Version of the Facts, which included facts concerning
the lack of any indicia of nationality aboard the defendants'
vessel. Yet those facts are relevant only to the Matos-Luchi-
based ground that § 70502(c)(1)(A) includes and not to the
17As we will explain, the defendants raised this concern
about "jurisdiction switching" only in their briefing to the en
banc court, which they submitted only after the panel majority had
sua sponte raised and relied on the ground that the government
could not switch jurisdictional theories. See Dávila-Reyes II, 23
F.4th at 164-65.
- 54 -
§ 70502(d)(1)(C)-based ground that the plea agreements do not
mention.
These features of the plea agreements warrant attention
because, although we construe ambiguities in plea agreements in
favor of defendants, United States v. Newbert, 504 F.3d 180, 185
(1st Cir. 2007), we are not free to read the plea agreements "ex
silentio, to include a waiver by the government," United States v.
Anderson, 921 F.2d 335, 338 (1st Cir. 1990). For, "[w]hile the
government must be held to the promises it made in a plea
agreement, it will not be bound to those it did not make." Id.
(cleaned up) (quoting United States v. Fentress, 792 F.2d 461, 464
(4th Cir. 1986)). And, here, the nature of the plea agreements is
such that we could find the claimed waiver only by reading them
silently to include it.
Indeed, with respect to the MDLEA's jurisdictional
requirement, the plea agreements mirrored the indictment, which
itself referred only to § 70502(c)(1)(A) and alleged no facts that
impliedly made it dependent on § 70502(d)(1)(C) alone. Given that
even the dissent acknowledges that the indictment cannot be
construed to be predicated solely on § 70502(d)(1)(C), we find it
hard to see how the government may be understood to have
"intentional[ly] relinquished" or "affirmatively disclaimed"
reliance on any "jurisdictional" provision other than
§ 70502(d)(1)(C) merely by having entered into plea agreements
- 55 -
that reference only the same more encompassing "jurisdictional"
provision that the indictment itself did. United States v.
Carrasco-De-Jesús, 589 F.3d 22, 26 (1st Cir. 2009).
The dissent does make much of the criminal complaint
that preceded the indictment. But, like the indictment, the
complaint also does not refer to § 70502(d)(1)(C) or to facts that
bear only on its applicability. And, ultimately, the dissent
itself does not contend that the criminal complaint locked the
government into relying on that theory alone.
The dissent is right that the defendants chose to
"focus[]" on § 70502(d)(1)(C) in their motion to dismiss the
indictment. See dissent, infra, at 7. But the defendants
obviously cannot narrow the indictment -- and thereby preclude the
government from asserting a ground for determining the vessel's
nationality that the indictment on its face does not
exclude -- merely by choosing to challenge the indictment on a
limited ground.
So, in the end, the asserted waiver must be found in the
government's post-indictment filings. But we cannot agree that in
them the government waived any or all grounds for deeming the
vessel to be "without nationality" other than the one that
§ 70502(d)(1)(C) recognizes.
The government's brief in opposition to the defendants'
motion to dismiss the indictment did cite to § 70502(d)(1)(C).
- 56 -
But it did so only twice -- and then without at either point
identifying that provision as supplying the sole basis for deeming
the defendants' vessel stateless. The brief instead referred to
that provision in explaining Matos-Luchi's holding that "the
MDLEA's definition of a 'vessel without nationality' provided a
non-exhaustive list of possible circumstances that would qualify
a particular vessel, while acknowledging that customary
international law may encompass additional types of vessels"
(citing 627 F.3d at 7).18
The paragraph of the government's response to the motion
that directly followed that discussion, moreover, set out the same
facts that the defendants' plea agreements later included -- that
the vessel's master claimed their vessel had Costa Rican
nationality, that Costa Rica could not confirm that claim, that
the defendants did not present registration paperwork, and that
the vessel was devoid of indicia of nationality. And it was only
after having recounted all those facts -- the last two of which
concern the Matos-Luchi-based predicate rather than the
§ 70502(d)(1)(C)-based one -- that the government asserted without
The brief's other reference to § 70502(d)(1)(C) was made
18
in restating the defendant's contention that that provision was
unconstitutionally vague.
- 57 -
reference to any one jurisdictional theory that "[t]herefore, the
vessel was without nationality" (emphasis added).
The government thereafter filed a motion of its own in
which it requested that the District Court find that the
defendants' vessel was "subject to the jurisdiction of the United
States." But that filing, too, did not purport at any point to
commit the government to relying only on the § 70502(d)(1)(C)-
based theory for deeming the defendants' vessel "without
nationality" under the MDLEA, regardless of what the indictment
charged or the record showed in that regard.
True, the motion pointed to facts that would satisfy
§ 70502(d)(1)(C). But, in support of the conclusion that there
was "ample evidence" that the vessel was subject to the
jurisdiction of the United States "as defined in Title 46, United
States Code, Sections 70502(c)(1)(A) and (d)(1)(C)" (emphasis
added), the motion listed facts that bear on the Matos-Luchi-based
theory (which itself falls under § 70502(c)(1)(A)) no less than on
the § 70502(d)(1)(C)-based one. We therefore do not understand
the motion, in requesting that the District Court "find as a matter
of law that the vessel in question was subject to the jurisdiction
of the United States" on the statutory grounds, to have amounted
to a waiver by the government of its right to rely on a Matos-
- 58 -
Luchi-based ground for so finding insofar as § 70502(c)(1)(A)
encompasses that ground.
The dissent does contend that the State Department
Certification attached to the government's motion to establish
jurisdiction locked the government into proceeding on a
§ 70502(d)(1)(C)-based theory alone. The dissent emphasizes that
the certification states that "the Government of the United States
determined the vessel was without nationality in accordance with
46 U.S.C. § 70502(d)(1)(C), rendering the vessel subject to the
jurisdiction of the United States, pursuant to 46 U.S.C.
§ 70502(c)(1)(A)."
But the certification was only one of the evidentiary
attachments to the motion, and in purporting to support the
jurisdictional basis provided for in § 70502(d)(1)(C), the
certification does not purport to disclaim all others. Indeed, as
we have explained, the certification was attached to a motion that
itself recited facts elsewhere supported in the record that were
relevant not only to the § 70502(d)(1)(C)-based theory but also to
the Matos-Luchi-based one.
Nor is this a case in which a district court ruling
established that the only jurisdictional ground in play was
narrower than the grounds encompassed by the indictment and
supported by the admitted facts. The defendants pleaded guilty to
the charges set forth in the indictment before the District Court
- 59 -
had passed on the government's jurisdictional motion. And, in
doing so, they entered into plea agreements that, like the
indictment, conspicuously did not mention -- with respect to
whether the vessel was "subject to the jurisdiction of the United
States" -- § 70502(d)(1)(C). Instead, the plea agreements
mentioned only the facially more encompassing § 70502(c)(1)(A).
Finally, it is worth noting that, while the defendants
now press the "jurisdiction switching" point to fend off the
government's Matos-Luchi-based defense of the convictions, the
defendants did not make this point in their oral argument to the
panel, where the Matos-Luchi theory was raised, nor did they raise
it in their supplemental briefing to the panel. And that is so
even though the defendants submitted their supplemental brief
after the government had advanced the Matos-Luchi-based theory for
deeming their vessel "without nationality" in its own supplemental
brief. If indeed the parties to the plea agreements had agreed
that the government precluded itself from relying on a theory of
jurisdiction supported by the admitted facts, one would have
expected the defendants themselves -- rather than judges who were
not party to the agreement -- to have been the ones to raise that
interpretation of the agreements.
In fact, the defendants chose at that time to take on
the merits of the theory without asserting any waiver. And, they
argued, too, that in pleading guilty they were not making any
- 60 -
admissions at all regarding the legal basis for deeming their
vessel "without nationality" under the MDLEA precisely because
that question was reserved to the District Court by § 70504(a) of
the MDLEA. As the defendants put it, "the guilty plea conceding
factual guilt does not resolve the antecedent question of the
[United States'] ability to assert jurisdiction over appellants'
vessel."
Thus, it was only in the panel opinion -- and not in any
filing that the defendants themselves had made up to that
point -- that the notion first appeared of the government having
agreed in the plea agreements to be barred from relying on a Matos-
Luchi-based theory to defend the convictions even if the indictment
encompassed it and the record supported it. See Dávila-Reyes II,
23 F.4th at 164-65. So, while the dissent contends that our
conclusion that the Matos-Luchi theory of jurisdiction remained
available to the government after the plea agreements were struck
is "patently absurd," the dissent does not dispute that the
contention originated with the panel rather than the defendants
themselves. It would thus appear that what the dissent contends
is self-evident about the plea agreements was not self-evident to
the actual parties to those plea agreements. In our view, then,
if a gloss is being retroactively imposed on the record, it is the
gloss that would attribute to the government an intentional waiver
of the Matos-Luchi-based theory. But, as no authority establishes
- 61 -
that the government must be understood in these circumstances to
have intentionally (though silently) made such a waiver, cf.
Caraballo–Rodriguez, 480 F.3d at 75 (explaining that "a novel
interpretation of the [relevant] statute" advanced by the
government in response to a challenge to the factual basis of a
plea "cannot be said to be plainly erroneous" even when the court
had "found no . . . cases discussing the theory"), we cannot accept
the contention that one was made.
B.
Having explained that the defendants' Felonies Clause-
based claim fails in all its variants, we move on to the
defendants' remaining claims. The first of those claims is that
the indictment does not charge a crime that comports with the Due
Process Clause because a key aspect of § 70502(d)(1)(A) and
§ 70502(d)(1)(C) is void for vagueness.
But here, again, we are not persuaded that there is any
basis for concluding, even on de novo review, that the indictment
is dependent on the application of § 70502(d)(1)(C) in alleging
that the defendants violated the MDLEA while aboard a vessel
"without nationality" under § 70502(c)(1)(A). And, as we have
explained, there is no basis on plain error review for concluding
that the record at the time of the judgments of conviction was
such that § 70502(d)(1)(C) provided the sole means of determining
the defendants' vessel to have been "without nationality." Nor,
- 62 -
as we also have explained, can we conclude that the government
waived the Matos-Luchi-based theory that it advances in defending
the convictions. Thus, we must reject this constitutional claim
because it rests on the unfounded premise that § 70502(d)(1)(C)
supplies the sole basis for deeming the defendants' vessel to be
"without nationality" under § 70502(c)(1)(A). We add only that,
because the defendants at no point developed an argument below or
to us as to how § 70502(d)(1)(A) might apply to their case, we
must reject this challenge as it relates to that provision as well.
C.
We next must address the defendants' claim under the Due
Process Clause in which they target a supposed failure by the
government to establish any nexus between the defendants'
allegedly unlawful conduct and the United States. The defendants
have developed this challenge only insofar as they contend that
they were aboard a vessel with foreign nationality. They have not
developed any argument as to why there must be such a nexus even
if the vessel was stateless under international law.
As we have explained, however, we cannot conclude, even
on de novo review, that the indictment charged the defendants with
being on a vessel that could be deemed "subject to the jurisdiction
of the United States" only on grounds that would fail to show that
the vessel was stateless under international law. And, as we have
also explained, there is no basis, on plain error review, for
- 63 -
concluding that the record as it stood at the time of the
defendants' convictions only supports a ground for deeming their
vessel to have been "subject to the jurisdiction of the United
States" that clearly or obviously would not suffice to permit the
vessel to be deemed stateless under international law. Finally,
for the reasons given above, the government may not be understood
to have waived all jurisdictional theories save for the one based
on § 70502(d)(1)(C). Thus, this constitutional claim fails, too.
D.
There remains only to address the defendants' claim that
the government violated the Due Process Clause by failing to bear
the burden of showing that the defendants' vessel was stateless
under international law. But, as best we can tell, the premise
for this claim is that the sole basis for deeming the vessel to be
"without nationality" under § 70502(c)(1)(A) is by operation of
§ 70502(d)(1). Thus, this constitutional claim fails for the same
reasons that the other claims we have addressed fail -- it rests
on a premise that cannot be sustained as to the indictment, even
on de novo review, or as to the record at the time of the judgments
of conviction, under plain error review, and the government did
- 64 -
not intentionally relinquish reliance on all jurisdictional
theories save for the one based on § 70502(d)(1)(C).19
V.
For the reasons given above, the judgments of the
District Court are affirmed.
-Dissenting Opinion Follows-
19We note that we must also reject the defendants' sole,
purely statutory challenge -- that the government improperly
relied on § 70502(d)(1)(C) to establish that their vessel was
"without nationality" because § 70502(d)(1)(C) references only a
claim of "registry" and defendants made a claim of nationality.
The reason is by now familiar. The defendants cannot show, even
on de novo review, that the indictment is premised solely on
§ 70502(d)(1)(C), and they cannot show, on plain error review,
that it is clear or obvious from the state of the record at the
time that the defendants entered their guilty pleas that
§ 70502(d)(1)(C) provided the sole basis for deeming the vessel
"without nationality." Nor can the defendants show that the
government waived all "jurisdictional" theories other than the
§ 70502(d)(1)(C)-based one.
- 65 -
LIPEZ, THOMPSON, and MONTECALVO, Circuit Judges,
dissenting. It is a basic principle of plea agreements, derived
from contract law, that the parties' written agreement embodies
their commitments to each other and governs their expectations.
Today, in their effort to avoid important and complex issues
concerning the United States' authority to prosecute foreign
nationals encountered on vessels in international waters, our
colleagues in the majority have done serious damage to the
reliability of plea agreements. Stymied by the content of
appellants' agreements and the proceedings leading to their pleas,
the majority adopts a view of the record inappropriately favorable
to the government and justifies the analysis with an indefensible
application of the plain-error doctrine. We cannot accept the
resulting perversion of the plea process and, for that reason among
others, dissent from the majority's decision.
I.
Using the majority's terminology, we wish to make clear
that our disagreement with our colleagues' analysis does not arise
from their treatment of the so-called "first variant" of
appellants' constitutional claim, a dichotomy imposed by the
majority. We recognize that the indictment itself does not specify
the basis on which the government was alleging that the defendants
were on board a vessel without nationality. Nor are we saying
that the criminal complaint that initiated appellants' prosecution
- 66 -
necessarily fixed the boundaries for the indictment and confined
the government to showing that appellants' vessel was stateless
pursuant to 46 U.S.C. § 70502(d)(1)(C). However, we are saying
that when the government reduces the broad terms of an indictment
to a specific theory of prosecution and relies on that theory to
obtain guilty pleas, the government cannot later justify those
convictions with a different rationale when it discovers that its
chosen theory is flawed.
The majority's "second variant" analysis, however,
endorses just such an unfair substitution. As we shall describe,
appellants had no reason in the district court proceedings to
challenge any basis for deeming their vessel "without nationality"
other than by operation of § 70502(d)(1)(C). The majority
nonetheless latches onto the omission of any such challenge to
avoid appellants' claim that their convictions violate the
Felonies Clause because Congress lacked authority to deem their
vessel without nationality based on that provision. In other
words, the majority addresses appellants' challenge to their
convictions under the false pretense that, at the time appellants
signed plea agreements, the government was relying on alternative
theories for deeming their vessel stateless.
Put even more bluntly, the majority performs a sleight-
of-hand to allow the government to ambush appellants with a theory
of jurisdiction under the Maritime Drug Law Enforcement Act
- 67 -
("MDLEA") that was not the one used to secure their guilty pleas.
As set forth in detail in Section II below, the government
consistently premised its assertion that appellants' vessel was
stateless solely on the failure of Costa Rica to "affirmatively
and unequivocally" confirm nationality pursuant to 46 U.S.C.
§ 70502(d)(1)(C). Appellants, in turn, consistently argued that
§ 70502(d)(1)(C) is unconstitutional and in conflict with
international law. That same claim of constitutional invalidity
is at the forefront of this appeal from appellants' convictions.
Now, the government insists that we should uphold the
prosecution, regardless of the validity of § 70502(d)(1)(C),
because the facts included in appellants' plea agreements
establish that their vessel was "without nationality" apart from
§ 70502(d)(1)(C). The government thus asks us to treat the
litigation history and appellants' reasonable understanding of
their plea agreements as irrelevant. The majority condones that
strategy and dwells on one alternative theory in particular: that
Reyes-Valdivia's oral claim of Costa Rican nationality when
confronted on his vessel was ineffective because it was not
substantiated by other indicia of nationality.
Indefensibly, however, the majority contrives a
procedural default that does not exist. The government never
changed course in its theory of the prosecution from the time of
the criminal complaint through the entry of appellants' guilty
- 68 -
pleas; it invoked § 70502(d)(1)(C), implicitly or explicitly, at
every stage. Nor did any facts change during the course of the
proceedings. The affidavit attached to the Criminal Complaint
that preceded the indictment contained a "Summary of the
Investigation" that included the following information:
The master claimed Costa Rican nationality for
the vessel but provided no registration
paperwork. The Boarding Team reported no
further indicia of nationality. The
government of Costa Rica was approached to
either confirm or deny vessel registry. Costa
Rica responded that it could not confirm nor
refute the registry of the suspect vessel.
The vessel was determined to be one without
nationality.
Affidavit in Support of Criminal Complaint, United States v. Reyes-
Valdivia, No. 3:15-cr-00721-FAB (D.P.R. Nov. 9, 2015), ECF No. 1-
1, at 3-4.20 These facts, which also appear in the plea agreements,
give rise to jurisdiction under § 70502(d)(1)(C).21 The government
recited these same facts repeatedly throughout the subsequent
proceedings to support jurisdiction under § 70502(d)(1)(C). See
infra Section II. There was simply no new argument that appellants
All subsequent citations in this opinion to the district
20
court's docket will use the short-form "Reyes-Valdivia, ECF No. __
(filing date)."
21Section 70502(d)(1)(C) defines a "vessel without
nationality" to include any 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)(C).
- 69 -
failed to make, and the majority's plain-error analysis thus
depends on altering the assumptions underlying the plea
agreements, contrary to basic principles of plea bargaining and
contract law.
Of course, the majority's ability to rely on plain error
is essential to the decision to affirm appellants' convictions
without addressing their constitutional challenge to
§ 70502(d)(1)(C). That is so because the majority relies primarily
on dicta contained in a single decision of a divided panel of our
court -- which in turn cited only a single authority -- for the
proposition that Reyes-Valdivia's oral claim of nationality was
inadequate on its own to establish that appellants' vessel was not
stateless. See United States v. Matos-Luchi, 627 F.3d 1, 5 (1st
Cir. 2010). The adequacy of an oral claim of nationality under
international law is one of the issues at the heart of the merits
of this case -- relevant to the constitutionality of
§ 70502(d)(1)(C) -- and a subject the majority desperately wants
to avoid. See United States v. Dávila-Reyes (Dávila-Reyes II), 23
F.4th 153, 187-93 (1st Cir. 2022). Only plain-error review allows
the majority to give Matos-Luchi's dicta dispositive effect
without considering its correctness and, hence, to avoid dealing
with the difficult constitutional questions posed by this appeal.
It is no surprise that, to establish MDLEA jurisdiction,
the government chose to rely on the government of Costa Rica's
- 70 -
statement that it could neither confirm nor refute Reyes-
Valdivia's claim of nationality -- a straightforward method under
the MDLEA for deeming a vessel stateless. Now what the government
wants us to do, and what the majority has agreed to do, is to
uphold the convictions based on a different rationale anchored
only in the dicta from Matos-Luchi. That retroactive change-of-
course is unfair to appellants and harmful to the plea-bargaining
process.
II.
The en banc majority's analysis rests on the view that
the government never relinquished any theory for deeming
appellants' vessel "without nationality" that could be supported
by the facts incorporated into appellants' plea agreements.
Brushing aside the well-established law that ambiguities in plea
agreements must be construed in favor of defendants, see infra,
the majority instead credits the government with silently
preserving a theory of jurisdiction appellants had no reason to
contemplate during the plea-bargaining process -- thereby
condoning the government's introduction of a new construction of
the plea agreements.
In fact, a fair reading of the record shows that, from
the outset of appellants' prosecutions, and consistently
throughout, the government relied exclusively on 46 U.S.C.
§ 70502(d)(1)(C) to support jurisdiction over appellants and their
- 71 -
vessel. As recounted above, that approach was previewed in the
affidavit attached to the Criminal Complaint, which stated that
the "vessel was determined to be one without nationality" after
the master claimed Costa Rican nationality and that "Costa Rica
responded that it could not confirm nor refute the registry of the
suspect vessel." Reyes-Valdivia, ECF No. 1-1, at 3-4. Although
-- as we have acknowledged -- the theory of statelessness reflected
in the pre-indictment affidavit did not prevent the government
from developing other jurisdictional rationales post-indictment,
the government's version of the facts and theory of jurisdiction
did not change.
Each time the government defended the jurisdictional
foundation for the prosecution -- in its response to appellants'
motion to dismiss the indictment (dated Feb. 16, 2016), in its own
motion in support of jurisdiction (dated Mar. 25, 2016), at the
change-of-plea hearing (held on Apr. 4, 2016), and in the plea
agreements themselves (filed on Apr. 4, 2016) -- the government
presented the same facts originally set forth in the Criminal
Complaint (filed in Nov. 2015) and never stated that it was
proceeding on alternative theories of jurisdiction, one statutory
and one non-statutory. Appellants focused on § 70502(d)(1)(C) in
their motion to dismiss the indictment. In that motion, after
noting that the MDLEA prohibits drug activity by individuals on a
vessel subject to U.S. jurisdiction, appellants stated: "As
- 72 -
relevant here, a 'vessel subject to the jurisdiction of the United
States' includes . . . '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(c)(1)(A), (d)(1)(C)." Reyes-Valdivia, ECF No. 29,
at 3 (Feb. 1, 2016) (emphasis added).
In its response, the government did not contest
appellants' assumption that the "relevant" provision was
§ 70502(d)(1)(C). The response addressed appellants' multiple
statutory-based arguments by asserting, inter alia, that the MDLEA
is within Congress's authority under the Constitution; that "drug
trafficking, as criminalized by the MDLEA, is properly within the
scope of the Felonies Clause"; that the MDLEA does not require a
nexus between the drug activity and the United States; that the
MDLEA is consistent with international law; and that § 70502(d)(1)
is not unconstitutionally vague. See Reyes-Valdivia, ECF No. 38,
at 3-8, 11-13 (Feb. 16, 2016). The government also noted the
applicability of the protective principle of international law.
See id. at 17. The government repeated, nearly verbatim, the facts
that had appeared in the Criminal Complaint:
In this case, the Defendants made a claim
of Costa Rican nationality over the vessel.
The United States approached the government of
Costa Rica and they responded that they could
not confirm or deny the nationality of the
- 73 -
vessel. Furthermore, the Defendants failed to
present any registration paperwork supporting
their claim and there were no other indicators
of nationality, such as a flag, on the vessel.
Therefore, the vessel was without nationality.
Id. at 11.
Although the response cited Matos-Luchi seven times,
none of those references invoked the dicta on the need to
substantiate an oral claim of nationality. See id. at 8, 11, 12,
15, 16. Indeed, the government distinguished appellants' case
from one cited by appellants in which "the [g]overnment [had]
attempted to proceed on two theories of jurisdiction" and had
"failed to provide any evidence that . . . the alleged flagging
nation" had denied the claim of registry. Id. at 16 (discussing
United States v. Potes, 880 F.2d 1475 (1st Cir. 1989)). The
government asserted that, by contrast, in this case it "ha[d] been
consistent in its theory of jurisdiction and provided all
[d]efendants in discovery statements by the boarding team and
pilots that prove the master's claim of Costa Rican nationality,
the lack of other indicia of nationality, and the fact that the
U.S. Coast Guard Seventh District Commander permitted the vessel
to be treated as one without nationality." Id. The government,
in other words, emphasized that it had provided appellants with
the facts, first reported in the Criminal Complaint and now
reproduced in their response to the motion to dismiss, that
appellants understood as premising jurisdiction solely on
- 74 -
§ 70502(d)(1)(C) -- an understanding the government did not
dispute in its response to the motion to dismiss.
But even if the government's response left ambiguity in
its theory of jurisdiction, any lack of clarity was dispelled when
the government later filed its motion in support of jurisdiction.
The connection between the government's consistently reported
facts and § 70502(d)(1)(C) was drawn explicitly in the Department
of State Certification that was submitted as an attachment to the
government's motion. The Certification, signed by a U.S. Coast
Guard Commander, reported that the master of the vessel "made a
claim of Costa Rican nationality," that the United States
government "requested that the [g]overnment of the Republic of
Costa Rica confirm the registry or nationality of the suspect
vessel," and that "the [g]overnment of the Republic of Costa Rica
replied that it could not confirm [the] vessel's registry." Reyes-
Valdivia, ECF No. 46-2, at 1 (Mar. 25, 2016). The Certification
then expressly linked those facts to the assertion of jurisdiction:
"Accordingly, the [g]overnment of the United States determined the
vessel was without nationality in accordance with 46 U.S.C.
§ 70502(d)(1)(C), rendering the vessel subject to the jurisdiction
of the United States, pursuant to 46 U.S.C. § 70502(c)(1)(A)."
Id. (emphases added). Significantly, this motion, with its
attached Certification, also gives important context for the
government's earlier reference, in its response to appellants'
- 75 -
motion to dismiss, to "the fact that the U.S. Coast Guard Seventh
District Commander permitted the vessel to be treated as one
without nationality." Reyes-Valdivia, ECF No. 38, at 16. The
Certification specifies that the U.S. Coast Guard Commander gave
that permission "in accordance with 46 U.S.C. § 70502(d)(1)(C)."
The Certification language also reveals a significant
flaw in the government's attempt to obscure its chosen theory of
jurisdiction by insisting that it always relied on
§ 70502(c)(1)(A) separately from § 70502(d)(1)(C), thereby giving
notice that it was contemplating other rationales for deeming the
vessel "without nationality." Section 70502(c)(1)(A) of the MDLEA
states generally that "a vessel without nationality" is "subject
to the jurisdiction of the United States." 46 U.S.C.
§ 70502(c)(1)(A). Section 70502(d)(1)(C) specifies one way in
which the United States may deem a "vessel without
nationality" -- namely, if the master "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)(C). These two provisions plainly operate
in tandem when cited together, as the government consistently did
in this case. And, when those provisions were combined with the
facts offered by the government, the general allegations of the
indictment concerning jurisdiction -- that appellants' vessel was
"subject to the jurisdiction of the United States" because it was
- 76 -
"without nationality" -- were reduced to the specific version of
the crime the government was charging.
The Certification sets forth that specific theory in
unambiguous terms: appellants' boat was subject to United States
jurisdiction as a "vessel without nationality" under
§ 70502(c)(1)(A) because the circumstances satisfied the
requirements of § 70502(d)(1)(C).22 As noted above, the government
had emphasized in its response to appellants' motion to dismiss
that it "ha[d] been consistent in its theory of jurisdiction,"
thus giving appellants no reason to believe that it was invoking
any theory of statelessness other than § 70502(d)(1)(C). Put
simply, the unmistakable import of the government's
representations in the district court is that the government relied
consistently -- and exclusively -- on the theory of statelessness
that appellants have consistently challenged.
The government attempts to step away from that
acknowledgment by pointing out that it had no opportunity to press
22As the panel majority opinion explained, it does not matter
that § 70502(d)(1)(C) by its terms applies when there has been a
"claim of registry" but, in this case, Reyes-Valdivia made a claim
of Costa Rican nationality. See Dávila-Reyes II, 23 F.4th at 165-
69. Both the government and appellants assumed that
§ 70502(d)(1)(C) applied to Reyes-Valdivia's claim of nationality
until the panel suggested otherwise in a request for supplemental
briefing. Whether § 70502(d)(1)(C) covers claims of nationality
is a distinct question from whether, in the particular
circumstances of this case, that provision was the basis on which
the government asserted MDLEA jurisdiction.
- 77 -
other theories of statelessness because appellants pleaded guilty
before the district court ruled on its motion in support of
jurisdiction. Nowhere in that motion, however, does the government
indicate that it was planning to argue that the vessel could be
deemed "without nationality" on the ground that appellants did not
substantiate Reyes-Valdivia's oral assertion of Costa Rican
nationality with documentary or visual indicia of nationality.
There is no reference in the motion to the Matos-Luchi dicta on
which the majority relies. Indeed, as described above, the motion
included the Certification as an attachment and, referring to the
Certification's contents, the government asserted that the Coast
Guard Commander "certified that the Government of Costa Rica was
approached and could neither confirm nor deny registry of the go-
fast vessel, thereby enabling the United States to treat the vessel
as one without nationality pursuant to Section 70502(d)[(1)](C)."
Reyes-Valdivia, ECF No. 46, at 4 (emphasis added). It is clear
from this motion -- filed a week before appellants moved to change
their pleas -- that the government was adhering to its "consistent"
reliance on § 70502(d)(1)(C).
Critical, of course, is what admissions appellants
understood they were making at the time they signed their plea
agreements. We have recognized that, in construing plea
agreements, "[t]he touchstone is the 'defendant's reasonable
understanding.'" United States v. Gardner, 5 F.4th 110, 114 (1st
- 78 -
Cir. 2021) (quoting United States v. Conway, 81 F.3d 15, 17 (1st
Cir. 1996)); see generally United States v. Gall, 829 F.3d 64, 72
n.6 (1st Cir. 2016) (citing cases for the general proposition that
a court's construction of a plea agreement should align with the
reasonable expectations of the parties). If there is any
uncertainty about the scope of defendants' pleas, the consequence
of the imprecision "must fall upon the government," United States
v. Newbert, 504 F.3d 180, 185 (1st Cir. 2007), "not only because
ambiguities in contracts are traditionally interpreted against the
drafter, but also because plea agreements implicate broader
societal interests, some of constitutional magnitude," id. at 185
n.3 (citation omitted).
At the change-of-plea hearing, when asked to "give a
brief explanation of the theory to be presented to prove each
Defendant guilty if a trial were to be held," the prosecutor
stated, in relevant part:
The vessel was tracked by aircraft and
eventually came to a stop. The U.S. Coast
Guard boarding team approached the vessel and
commenced right of approach questioning.
The master claimed Costa Rican
nationality for the vessel but provided no
registration[] paperwork, and there was no
indicia of nationality on the vessel.
The Government of Costa Rica was
approached. They responded they could neither
confirm nor refute the registry of [the]
suspect vessel.
The vessel was determined to be one
without nationality.
- 79 -
Reyes-Valdivia, ECF No. 117, at 25-26 (Oct. 3, 2016). These same
facts -- reiterating Reyes-Valdivia's claim of nationality and
Costa Rica's failure to confirm or deny his claim -- were
incorporated into the plea agreements themselves. Hence, a
reasonable defendant would conclude that the plea agreements'
inclusion of the same facts used consistently by the government to
support jurisdiction based solely on § 70502(d)(1)(C) meant that
the government was relying solely on that provision as the
jurisdictional foundation for their guilty pleas. It is not
reasonable to attribute to appellants an awareness of a different
theory of statelessness that they also needed to challenge. Given
the government's handling of the case from inception to pleas, the
majority's resort to plain-error review of a different
jurisdictional rationale is unfathomable.23
The majority makes much of the fact that the government's
version of the relevant events includes information that is not
part of the § 70502(d)(1)(C) requirements, specifically that the
vessel had no registration paperwork or other indicia of Costa
The government also makes a somewhat different plain-error
23
argument in its en banc briefing, asserting that appellants failed
to argue that their guilty pleas lacked a factual foundation.
However, putting aside the statutory-language problem first noted
by the panel, see supra, Reyes-Valdivia and Dávila-Reyes have not
contested that the facts stated by the government satisfy the
requirements of § 70502(d)(1)(C) and thus provide a statutory
foundation for their guilty pleas. Their claim challenges the
authority of the government to rely on § 70502(d)(1)(C).
- 80 -
Rican nationality on board. However, the government's report that
no evidence of nationality was found on the vessel -- in the same
sentence reporting the master's oral claim of nationality -- does
not indicate, or even suggest, that the government was setting
forth a theory of jurisdiction independent of § 70502(d)(1)(C).
The factual statement does not declare that the vessel was
determined to be without nationality because no corroborating
evidence was found. Nor does the government preface the report of
its inquiry to Costa Rica with language -- such as "In addition"
-- to indicate that § 70502(d)(1)(C) was a second, independent
basis for deeming the vessel "without nationality." Rather, the
sequence of facts in the statement confirms that the vessel was
determined to be without nationality, per the Certification, "in
accordance with 46 U.S.C. § 70502(d)(1)(C)."
The majority's use of the government's reference to the
lack of corroboration to infer an unarticulated alternative theory
of statelessness is thus unjustified from a commonsense reading of
the factual statement. That approach is especially unacceptable
given our obligation to impose the burden of any ambiguity in plea
agreements on the government. Absent some explicitly stated
connection between those non-essential facts and a non-statutory
theory of jurisdiction, the inclusion in the plea agreements of
the same facts that had informed every phase of the prosecution
simply does not show -- or even suggest -- that the government is
- 81 -
relying on any basis other than § 70502(d)(1)(C) to deem
appellants' vessel without nationality. We do not know why the
government placed those facts in the plea agreements. Perhaps the
government wanted to eliminate any possibility that appellants
could reassert their earlier claim that the vessel bore indicia of
nationality.24 What we do know, however, is that the government
did not communicate a connection between those facts and the non-
statutory theory of statelessness attributable to the dicta in
Matos-Luchi.
There is not even a hint in the provisions of the plea
agreements that the government was relying on multiple theories of
jurisdiction. It is irrelevant that the agreements do not
expressly cite to § 70502(d)(1)(C). As explained above, the
unelaborated reference in the agreements to § 70502(c)(1)(A)
serves to identify the pertinent category of vessels "subject to
United States jurisdiction" -- i.e., vessels "without nationality"
24 Appellants argued to us that "[p]hotos of the vessel clearly
show the civil ensign of Costa Rica painted, albeit vertically, on
the port and starboard sides of the ship's bow." See Dávila-Reyes
II, 23 F.4th at 164 n.20 (quoting Appellants' Supp. Br. at 18 n.4).
That assertion is supported by a statement attached as an exhibit
to the government's motion in support of jurisdiction, in which a
U.S. Customs Boarding Officer reported that a marine patrol had
spotted a vessel "with a Costa Rican flag painted on the bow."
Id. As the panel majority observed, however, appellants
necessarily gave up the claim that their vessel bore indicia of
Costa Rican nationality when they pled guilty based on the
"Government's Version of the Facts" incorporated into their plea
agreements. Id.
- 82 -
-- but it does not identify the specific basis on which appellants'
vessel fit within that category. Id. It is the factual statement
incorporated into the plea agreements, detailing the government's
compliance with § 70502(d)(1)(C) in the same way the government
had been doing throughout the proceedings, that provides the
necessary, specific basis for that finding. There is simply no
room for debate about the theory of jurisdiction on which the plea
agreements -- and thus the guilty pleas -- rested.
On appeal, too, the government maintained its focus on
§ 70502(d)(1)(C). See Dávila-Reyes II, 23 F.4th at 163 n.18. Its
appellate brief linked § 70502(c)(1)(A) and § 70502(d)(1)(C) in
the way we have emphasized -- i.e., citing them as a single
invocation of jurisdiction -- when it stated: "The absence of an
assertion by the Costa Rican government rendered the Appellants'
boat a 'vessel without nationality,' [46 U.S.C.] § 70502(d)(1),
and thus a 'vessel subject to the jurisdiction of the United
States,' id. § 70502(c)(1)(A)." Id. (alteration in original)
(emphases added). This framing again clearly reveals the
government's view that appellants' vessel was subject to United
States jurisdiction because the circumstances matched one of the
definitions of a stateless vessel listed in § 70502(d)(1).
In its supplemental en banc brief, the government argues
at length that the examples of vessels without nationality listed
in § 70502(d)(1)(A)-(C) are "non-exhaustive" and that the
- 83 -
government can establish that a vessel is "without nationality" in
various ways.25 The government asserts that, if appellants had not
pleaded guilty, it "would have been prepared" to prove that the
vessel both fell within § 70502(d)(1)(C) and "otherwise qualified
as a stateless vessel under international law." But the question
here is not what theory the government could have used; the
question is what rationale it did use to secure the guilty pleas.26
Notably, even in its motion on jurisdiction, when the
government was required to make clear to the court the
jurisdictional basis for the prosecution, the government
25In December 2022, a fourth type of vessel was added to the
list in § 70502(d)(1): "a vessel aboard which no individual
. . . claims to be the master or is identified as the individual
in charge, and that has no other claim of nationality or registry
under paragraph (1) or (2) of subsection (e)." 46 U.S.C.
§ 70502(d)(1)(D). The pertinent paragraphs of subsection (e)
refer to documents "evidencing the vessel's nationality" and
"flying [a] nation's ensign or flag." Id. § 70502(e)(1), (2).
26 Unsurprisingly, the government's assertion that it could
have demonstrated that appellants' vessel "otherwise qualified" as
"without nationality" relies, in part, on a report that Reyes-
Valdivia initially told a Coast Guard Boarding Officer that
appellants' vessel had no nationality. In other words, the
government highlights that Reyes-Valdivia had admitted a fact that
would be decisive in establishing that the vessel was "without
nationality" apart from the requirements of § 70502(d)(1)(C). But
that fact was not in the Criminal Complaint or the Department of
State's official attestation of jurisdiction. And, critically, it
was not in the government's recitation of facts at appellants'
change of plea hearing, in the "Government's Version of the Facts"
incorporated into their plea agreements, or in appellants'
Presentence Investigation Reports. As the majority also
recognizes, at least implicitly, the government cannot now
retrieve a fact it plainly chose to abandon.
- 84 -
ultimately and only asked the district court to make a finding and
instruct the jury "pursuant to Title 46, United States Code,
Section 70502(c)(1)(A) and (d)(1)(C) that the suspect vessel
carrying the Defendants was a vessel Without Nationality and
therefore subject to the jurisdiction of the United States."
Reyes-Valdivia, ECF No. 46, at 5 (emphasis added). There was no
alternative request for the court to instruct the jury or make a
finding of jurisdiction under general principles of international
law based on the lack of corroboration of Reyes-Valdivia's oral
claim. Given the definitive pronouncements by the government
seeking court validation of § 70502(d)(1)(C) as the basis for its
assertion of jurisdiction over the vessel, it is absurd for the
majority to validate the government's contention that it was
proceeding under alternative theories. And it is simply
preposterous to say that appellants should have understood that
their plea agreements left the door open to theories of
statelessness other than § 70502(d)(1)(C).
Indeed, the majority's view of the record depends on
drawing meaning from what the government did not say. In effect,
the majority holds that, because the government did not promise to
rely only on § 70502(d)(1)(C), any theory of jurisdiction that
could be supported by the facts in appellants' plea agreements
remained on the table -- regardless of whether the government had
specifically invoked such alternatives during the proceedings that
- 85 -
culminated with appellants' guilty pleas. As we have described,
the government never told appellants or the district court that it
was relying on the Matos-Luchi dicta as a basis for jurisdiction
over appellants' vessel, while it repeatedly relied expressly on
§ 70502(d)(1)(C). For the majority, the government's singular
reliance on that statutory provision does not matter. Our
colleagues, for example, discount the State Department's
certification that appellants' vessel was determined to be without
nationality "in accordance with 46 U.S.C. § 70502(d)(1)(C)" by
observing that "the certification does not purport to disclaim all
other[]" theories of jurisdiction. In other words, the government
may retroactively introduce the non-statutory Matos-Luchi
rationale because it never promised not to do so.
We cannot emphasize enough that the question at this
juncture is not what theories the government could have offered to
support jurisdiction, but what theory informed appellants'
decision to plead guilty. As should be clear by now, the plea
agreements incorporated the facts consistently cited by the
government to establish that appellants' vessel was "without
nationality" pursuant to § 70502(d)(1)(C): the claim of
nationality and the failure of Costa Rica to "affirmatively and
unequivocally" confirm nationality. That theory of jurisdiction,
and that theory alone, should determine the validity of appellants'
convictions.
- 86 -
III.
The majority acknowledges that appellants argued in
their motion to dismiss the indictment that the government had
deemed their vessel to be "without nationality" based solely, and
unconstitutionally, on § 70502(d)(1)(C).27 Our colleagues thus
realize that they cannot say that appellants failed to preserve
the argument that their convictions must be vacated because
§ 70502(d)(1)(C) is unconstitutional. Hence, needing to find a
rationale for the application of plain error, the majority contends
that appellants failed to timely argue against theories for deeming
their vessel stateless that are not based on § 70502(d)(1)(C).
And, because the government's oft-repeated version of the facts
supports a determination of statelessness pursuant to the dicta in
Matos-Luchi, the majority concludes that there is no clear or
obvious error and that appellants' convictions are properly
affirmed.
This contrived use of plain error -- i.e., the disregard
of the government's singular reliance on § 70502(d)(1)(C) -- is
The majority notes that appellants argued that "[a] vessel
27
may not be deemed stateless under international law . . . simply
because the nation to which the vessel's master has claimed that
it belongs fails to 'affirmatively and unequivocally assert,'
§ 70502(d)(1)(C), that the vessel is registered with that nation."
The majority further observes that appellants construed the
indictment to "charge[] that the vessel that the defendants were
aboard was 'without nationality' under § 70502(c)(1)(A) solely
based on the operation of § 70502(d)(1)(C)." (Emphasis added.)
- 87 -
contrary to our obligation to "hold prosecutors . . . to 'the most
meticulous standards of both promise and performance'" in
effectuating a plea agreement. United States v. Lessard, 35 F.4th
37, 42 (1st Cir. 2022) (quoting United States v. Clark, 55 F.3d 9,
12 (1st Cir. 1995)). As we indicated above, our colleagues'
reasoning permits the government to retroactively expand the
jurisdictional foundation for appellants' guilty pleas. That is
not the way ordinary contracts work, and it is the principles of
contract law that govern plea agreements. See generally Garza v.
Idaho, 139 S. Ct. 738, 744 (2019) ("[P]lea bargains are essentially
contracts." (quoting Puckett v. United States, 556 U.S. 129, 137
(2009))); see also United States v. Brown, 31 F.4th 39, 50 (1st
Cir. 2022) ("Traditional principles of contract law guide our
interpretation of the terms and performance of a plea agreement.").
We find especially troubling the unilateral revision of a
contractual agreement when the result is to disfavor the party who
gave up "a panoply of constitutional rights." United States v.
Tanco-Pizarro, 873 F.3d 61, 65 (1st Cir. 2017) (quoting United
States v. Almonte-Nunez, 771 F.3d 84, 89 (1st Cir. 2014)).
As we have demonstrated, at the time they negotiated and
signed their plea agreements, appellants had no reason to evaluate
whether to plead guilty based on theories of MDLEA jurisdiction
other than § 70502(d)(1)(C). The facts giving rise to jurisdiction
under that provision were undisputed. But there were factual and
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legal issues relevant to the Matos-Luchi dicta on which the
majority relies to affirm appellants' convictions. Indeed,
appellants gave up the contention that their vessel bore indicia
of nationality when they signed plea agreements that included the
fact that the vessel lacked any such display. See supra note 24.
If the government was not relying solely on jurisdiction under
§ 70502(d)(1)(C), surely appellants were entitled to explicit
notice of such other theory or theories before agreeing to give up
competing facts and arguments, and ultimately pleading guilty.
To justify appellants' prosecutions based on
jurisdictional theories unspecified when they agreed to admit
guilt is not only unfair in this case but also troubling as a
precedent for plea agreements more generally. If the government
is permitted to support convictions by superimposing a new
rationale on plea agreements that were so clearly premised on
different understandings, the concept of plea agreements as
contracts -- whose linchpin is the reasonable expectations of the
parties -- will be grievously eroded.
The government made its choice to rely on
§ 70502(d)(1)(C) when it obtained appellants' acquiescence to
facts the government had consistently invoked to deem their vessel
"without nationality" under that specific provision. The panel
majority concluded that the government's chosen theory is
unconstitutional. Hence, in effect, the en banc majority is
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holding that the government may unilaterally renegotiate the deal
it struck with a defendant when flaws are identified in the
original agreement. The majority's approach is not restricted to
proceedings under the MDLEA and thus could be used to the
government's advantage whenever it chooses. The harm to the plea-
bargaining process from the majority's holding is severe and
indefensible.
As described above, however, the majority maintains that
appellants should have realized that the facts in the plea
agreements, along with citation to the MDLEA provision that
generally authorizes jurisdiction over vessels "without
nationality," preserved jurisdictional theories that the
government never specifically invoked. In other words, according
to the majority, appellants should have challenged theories on
which the government did not rely because the government never
pledged to forego reliance on them at a later juncture. To bolster
their position that plain error thus applies to the Matos-Luchi-
based theory, our colleagues repeatedly and pointedly say that the
claim of "jurisdiction switching" -- their term -- was voiced by
appellants "only in their briefing to the en banc court, which
they submitted only after the panel majority had raised and relied
on the theory sua sponte." Hence, our colleagues say, "if a gloss
is being retroactively imposed on the record, it is the gloss that
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would attribute to the government an intentional waiver of the
Matos-Luchi-based theory."
But we are not arguing that the government waived
reliance on Matos-Luchi. Rather, the government is precluded from
switching jurisdictional gears because of ordinary contract
principles and the particular importance of adhering to those
principles in the context of plea-bargaining. As explained above,
appellants have focused on the validity of their prosecutions based
on § 70502(d)(1)(C) because that was the sole jurisdictional
rationale specifically relied upon by the government throughout
the proceedings in the district court. The panel majority's
statement that the government could not reconceive the plea
agreements retroactively was -- and is -- merely an inescapable
conclusion based on contract law and our obligation to honor a
defendant's reasonable understanding of his plea agreement. Even
if appellants in their en banc briefs had not repeated the panel's
objection to new theories of jurisdiction, it would be wrong for
us to ignore the government's attempt to ambush appellants with an
alternative basis for deeming their vessel "without nationality."
To the extent this contractual constraint on the
government's ability to change course operates like a waiver, that
limitation is simply a function of the way contracts and plea-
bargaining work. The inclusion of facts extraneous to
§ 70502(d)(1)(C) in the plea agreements cannot, without some
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linkage to a specified jurisdictional theory, open the door to the
government's permissible reliance on such an alternative to
validate an otherwise impermissible prosecution. At most, those
stray facts create an ambiguity that precedent tells us must be
resolved in appellants' favor. Certainly, the obligation to deal
forthrightly with defendants who will be giving up important
constitutional rights cannot be met with plea agreements that sub
silentio -- at best -- or deceptively -- at worst -- enlarge the
government's end of the bargain.
Yet, our colleagues attempt to justify their choice to
rely on a contrived plain-error analysis by discrediting the ways
in which appellants responded to the government's shift in
strategy. First, the majority notes that appellants have not
sought to vacate their pleas as unknowing and involuntary in light
of the government's assertion that the plea agreements covered
rationales for deeming their vessel "without nationality" other
than § 70502(d)(1)(C). Second, the majority observes that, in the
supplemental brief requested by the panel in early 2019, appellants
responded to the government's Matos-Luchi-based argument on its
merits rather than asserting that the argument had been waived.
This turning of the tables on appellants is another
example of the remarkable lengths the majority is traveling to
justify avoiding appellants' constitutional challenge to
§ 70502(d)(1)(C). Appellants admitted that the government's facts
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establish their vessel's statelessness pursuant to
§ 70502(d)(1)(C), and they necessarily concede that, if
§ 70502(d)(1)(C) is constitutional, their pleas and convictions
would stand (assuming their other challenges to the MDLEA also
failed).28 In other words, appellants do not dispute that their
pleas were knowing and voluntary based on the only ground relied
upon by the government to secure them. It is patently absurd to
suggest that, rather than challenging the constitutional
legitimacy of the government's actual theory of jurisdiction, they
should be seeking to undo their pleas -- more than seven years
later and after Reyes-Valdivia served his entire sentence -- based
on a counterfactual version of the record.
The majority also suggests that, by arguing against the
merits of the Matos-Luchi alternative, appellants gave up the
argument that their plea agreements were reasonably understood to
establish their vessel's statelessness only via § 70502(d)(1)(C).
But the majority ignores and thereby distorts the significance of
appellants' substantive rebuttal to the Matos-Luchi dicta.
Appellants addressed Matos-Luchi on the merits only when
responding to a series of questions posed to both parties by the
panel, including whether there were other possible theories of
28 As described in the majority opinion, appellants also
presented multiple arguments alleging violations of the Due
Process Clause of the Constitution.
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jurisdiction to support the prosecution given that, by its terms,
§ 70502(d)(1)(C) refers only to claims of registry, not -- as
occurred here -- to claims of nationality. See supra note 22.
The government relied heavily on Matos-Luchi in its response, even
asserting -- contrary to the reality described in Section II above
-- that "[b]efore the Appellants pleaded guilty, the Government's
primary basis for determining that their vessel was 'subject to
the jurisdiction of the United States' under 46 U.S.C.
§ 70502(c)(1) was that it bore no indicia of nationality and its
master did not support his verbal claim of Costa Rican
nationality." Appellants' response sensibly covered the
possibility that our court would allow a post-conviction switch in
jurisdictional theory based on Matos-Luchi in disregard of
appellants' reasonable understanding of the plea agreements -- a
step the majority has, in fact, lamentably taken.29
The majority's plain-error analysis relying on Matos-Luchi
29
is disturbing beyond the disregard of appellants' understanding of
their plea agreements. At a minimum, the en banc court should be
considering whether Matos-Luchi's dicta aligns with international
law. If international law does require corroboration of an oral
claim of nationality to establish a vessel's foreign status,
appellants' prosecutions at least would be within Congress's
authority under the Felonies Clause, even if improper given the
government's sole reliance on § 70502(d)(1)(C) to obtain the
guilty pleas. If Matos-Luchi is wrong, however, the prosecutions
would be unconstitutional unless sustainable under
§ 70502(d)(1)(C) or our court's precedent on the protective
principle -- issues the majority also refuses to address.
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IV.
Under Class v. United States, 138 S. Ct. 798 (2018),
Reyes-Valdivia and Dávila-Reyes are entitled to challenge their
convictions on the ground that Congress exceeded its
constitutional authority when it enacted § 70502(d)(1)(C) as a
basis for designating a vessel "without nationality." As the panel
majority opinion shows, that challenge is legally complex --
requiring us to examine, inter alia, the Constitution's language,
the Founding generation's understanding of that language, the
legislative history of the MDLEA, our circuit's precedent on the
protective principle, and the principles of international law
governing vessels traveling on the high seas. Indeed, our court
is now ruling on appellants' challenge for the third time,
reflecting the difficulty of the issues and the undeveloped nature
of our precedent. Twice, the panel confronted the merits of
appellants' claims, once after a pause of more than a year for
completion of the en banc proceedings in United States v. Aybar-
Ulloa, 987 F.3d 1 (1st Cir. 2021) (en banc), a case that presented
overlapping issues concerning the United States' authority to
prosecute foreign nationals accused of drug-trafficking on the
high seas. Now, for the first time, the court's dispositive ruling
avoids seriously engaging with any aspect of the merits of
appellants' claim.
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The majority's justification for that avoidance depends
on a non-existent plain-error scenario and a deeply problematic
misuse of the plain-error standard. The plain-error doctrine sets
a high threshold for remedying errors on appeal to "keep[] parties
from hiding problems below" that could have "been fixed then and
there." United States v. Romero, 906 F.3d 196, 205 n.4 (1st Cir.
2018); see also Puckett, 556 U.S. at 134 ("[T]he contemporaneous-
objection rule prevents a litigant from 'sandbagging' the
court -- remaining silent about his objection and belatedly raising
the error only if the case does not conclude in his favor."
(quoting Wainwright v. Sykes, 433 U.S. 72, 89 (1977))). Ignoring
that rationale for the plain-error doctrine, the majority uses
plain error as a convenient off-ramp. The government consistently
relied on § 70502(d)(1)(C) to support the prosecutions, and
appellants have consistently challenged the prosecutions as
unconstitutional based on the government's reliance on that
provision. Appellants never hid the ball, leaving no justification
for invoking the plain-error rubric to avoid their claims. It is
the government, abetted by the majority, that seeks to change the
terms of the plea bargain.
The majority's sidestepping of substantial issues of
great import based on a contrived procedural ground is particularly
disconcerting at this late stage of the case. At no point during
the case's lengthy history in our court was there a suggestion
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that the case should end because of a procedural default. Of
course, that history would not justify ignoring a true procedural
impediment to the en banc court's reaching the merits. But the
procedural impediment on which the majority relies is an artifice
in the name of constitutional avoidance with severe consequences
for the practice of plea-bargaining. Nor should we forget the
impact on the two individuals directly affected by the majority's
dogged avoidance of the merits. Reyes-Valdivia and Dávila-Reyes,
Costa Rican nationals who plausibly claimed Costa Rican
nationality for their vessel, have vigorously pressed their
constitutional challenge to § 70502(d)(1)(C), and they deserve to
know -- after more than seven years -- whether they were lawfully
prosecuted. Although Reyes-Valdivia completed his sentence,
Dávila-Reyes remains incarcerated.
Constitutional avoidance is an important principle. But
it is not properly used here to escape confronting appellants'
challenge to § 70502(d)(1)(C). Indeed, as an intermediate
appellate court, we could perform an important service by exploring
"the broader questions of international and constitutional law"
acknowledged by the majority and attempting to crystalize the
issues in a way that would be useful to the Supreme Court if it
chose to review our decision. We do not minimize the "sensitive
issues of U.S. foreign relations and national power" implicated by
appellants' challenge to § 70502(d)(1)(C), but we cannot sidestep
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such questions because of their sensitivity and import when properly
raised. If we answer them incorrectly, the Supreme Court will tell
us. In addition, with their avoidance, our colleagues forsake their
obligation to address and clarify multiple unresolved issues in our
own law on MDLEA prosecutions, including the role of the protective
principle and the validity of the Matos-Luchi dicta as a basis for
deeming a vessel "without nationality." These recurring issues
deserve our attention now.
Moreover, the dance the majority performs to avoid
appellants' serious constitutional challenge undermines the Supreme
Court's decision in Class to forgo the usual finality of unconditional
guilty pleas to protect criminal defendants from prosecutions -- and,
perhaps most importantly, imprisonments -- that the United States
lacks authority to pursue. See Class, 138 S. Ct. at 805 (holding that
an unconditional guilty plea does not bar a direct appeal where the
defendant's claims "call into question the [g]overnment's power to
'constitutionally prosecute' him" (quoting United States v. Broce,
488 U.S. 563, 575 (1989))). Accordingly, we dissent and, based on
the analysis set forth in the panel majority opinion, see Appendix,
conclude that appellants' convictions should be reversed.30
The majority suggests that, if appellants' contentions did
30
not otherwise fail, their claims may be waived. The panel majority
explained why appellants' plea agreements do not bar their appeals
and why, pursuant to Class, their guilty pleas do not foreclose
their constitutional claims. Those explanations are contained in
Section III of the panel majority opinion. See Appendix.
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