BOUDIN, Circuit Judge.
This appeal by several defendants convicted of drug trafficking—Epifanio Matos-Luchi, Manolo Soto-Perez, and Ramon Carrasco-Carrasco—requires the interpretation of the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. § 70501 et seq. (2006), which inter alia delineates federal enforcement authority over drug crimes carried on at sea outside U.S. territorial limits. The factual background and proceedings in the district court are as follows.
In May 2007, Petty Officer Richard Young and a team of five other U.S. Coast Guard personnel were stationed on the HMS Ocean, a British aircraft carrier, to assist with law enforcement efforts in the Carribean Sea. On May 12, the Coast Guard team deployed in a helicopter to
A small boat waiting nearby—a twenty to twenty-five foot fishing "yola" propelled by an outboard motor and allegedly crewed by the three defendants—then approached the drop site and began to retrieve the bales. The officers suspected drug trafficking and descended in the helicopter. The boat crew jettisoned the bales and fled. After giving chase for nearly an hour, the Coast Guard helicopter returned to the drop site to retrieve the bales, which proved to contain packages of cocaine.
While the helicopter retrieved the drugs, a U.S. Customs and Border Protection airplane followed the yola as it proceeded north towards the Dominican Republic. The boat experienced engine problems and halted about twenty-five miles from the Dominican coast. At the request of the U.S. Customs officials, a Dominican Coast Guard cutter sailed out to retrieve the yola and its crew. The three crew members were taken on board the cutter and the yola was tied to its stern.
Later that evening, Young and two others traveled from the HMS Ocean to the Dominican cutter where, with the permission of the Dominican authorities, they questioned the three defendants who now were on board the cutter. Young later testified that when questioned, Matos, Soto and Carrasco declined to make a claim of nationality for the yola:
While Young interrogated the yola crew, another Coast Guard officer boarded the yola, now tied to the stern of the cutter. No ensign, flag, registration, or other evidence of the vessel's nationality was found on board. The U.S. Coast Guard crew were instructed by their superiors to detain the defendants, who were transferred to the HMS Ocean and then brought to Puerto Rico for prosecution in federal district court.
The defendants were charged by indictment with violations of the MDLEA: one count of possessing cocaine with the intent to distribute, 46 U.S.C. § 70503, and one count of aiding and abetting that crime, 18 U.S.C. § 2 (2006), all while on board a "vessel without nationality" and so within the enforcement authority of the United States, 46 U.S.C. §§ 70502(c)(1)(A), 70503(a)(1). The defendants moved to dismiss the indictment "for lack of jurisdiction," arguing that there was no proof that they were on board a "vessel without nationality" as alleged in the indictment. The district court held that motion in
When the government rested its case in chief, the defendants sought a judgment of acquittal from the court, repeating that there was no proof that they were on board a "vessel without nationality." The court denied the motion. The most extensive explanation given by the judge, provided in response to defense counsel's repeated efforts to have the jury instructed on the issue, was as follows:
Ultimately, the jury found the defendants guilty as charged of possession with intent to distribute the seized drugs. Conformably with the statute, the issue of whether the vessel was without nationality was not submitted to the jury. See 46 U.S.C. § 70504(a). Based on the weight of the cocaine recovered—which was 386 kilograms—the defendants were later each sentenced to 235 months' imprisonment. This appeal followed.
The most abstruse issue in the case, with which we begin, is whether the defendants' possession of the cocaine with intent to distribute occurred on board "a vessel subject to the jurisdiction of the United States," 46 U.S.C. § 70503(a)(1). To put the issue in context requires an understanding of the design and background of the MDLEA—a statute initially enacted in 1986 as 46 U.S.C.app. § 1903, see Pub.L. No. 99-570, § 3202, 100 Stat. 3207, 3207-95 to -97 (1986), and later relocated to its present code sections, 46 U.S.C. §§ 70501-70507, see Pub.L. No. 109-304, § 10(2), 120 Stat. 1485, 1685-89 (2006).
Invoking its constitutional power "[t]o define and punish Piracies and Felonies committed on the high Seas," U.S. Const. art. I, § 8, cl. 10, Congress in the MDLEA made it unlawful inter alia for anyone to
46 U.S.C. § 70503(a)-(b).
Underscoring its aim to reach broadly, Congress defined "a vessel subject to the jurisdiction of the United States" to include six categories of boats (listed in full in an appendix to this decision)—first among them "a vessel without nationality," 46 U.S.C. § 70502(c)(1)(A).
46 U.S.C. § 70502(d)(1).
That the listed examples do not exhaust the scope of section 70502(d) is confirmed by Congress' contrasting use of the phrase "includes only" in a related provision,
Congress' intent to reach broadly was reconfirmed in the Coast Guard Authorization Act of 1996, Pub.L. No. 104-324, § 1138, 110 Stat. 3901, 3988-89, which amended the MDLEA by providing that the "jurisdiction" of the United States over a vessel under the MDLEA was "not an element of the offense" but a matter to be determined "solely by the trial judge," id. § 1138(a)(5) (now codified at 46 U.S.C. § 70504(a)), and that a defendant had no standing to claim that enforcement violated "international law"—reserving such objections only to foreign nations, id. § 1138(a)(4) (now codified at 46 U.S.C. § 70505).
Against this background, the district court's determination that the defendants' yola was "a vessel without nationality" within the meaning of the MDLEA was correct. This is so regardless of whether that finding is to be made by a preponderance of the evidence—as one of our earlier decisions implies, Vilches-Navarrete, 523 F.3d at 20 (separate opinion of Lynch & Howard, JJ.)—or beyond a reasonable doubt. Indeed, virtually none of the raw facts bearing on the reach of the statute is disputed; the problem is primarily one of interpreting the statute.
Our reading—requiring proof only to a preponderance—is common to many judge-determined issues, e.g., United States v. Vanvliet, 542 F.3d 259, 264 (1st Cir.2008) (consent to search); United States v. Schussel, 291 Fed.Appx. 336, 343 (1st Cir.2008) (unpublished) (existence of privilege); United States v. Rojas-Tapia, 446 F.3d 1, 4 (1st Cir.) (voluntariness of confession), cert. denied, 549 U.S. 905, 127 S.Ct. 231, 166 L.Ed.2d 183 (2006); United States v. Garza, 435 F.3d 73, 77 (1st Cir.) (admissibility of evidence), cert. denied, 547 U.S. 1158, 126 S.Ct. 2313, 164 L.Ed.2d 832 (2006); United States v. Wiggin, 429 F.3d 31, 36-37 (1st Cir.2005) (competency to stand trial); United States v. Cordero, 668 F.2d 32, 44 n. 18 (1st Cir.1981) (propriety of venue), and it here comports with Congress' aim to facilitate enforcement. Defendants raise no constitutional objection on this issue, and we see none.
Turning now to the issue of the yola as a stateless vessel, viewed in part retrospectively, the boat had various links to the Dominican Republic. The crew members were Dominicans and the small vessel was likely headed there before its engine troubles and subsequent interception by the Dominican Coast Guard. At trial one defendant said that the vessel was registered there in some fashion. But neither the MDLEA nor international law limits U.S. enforcement authority merely because the vessel has associations with another state.
Under international law, every vessel must sail under the flag of one and only one state; those that sail under no flag or more than one flag enjoy no legal protection. 1 L. Oppenheim, International Law § 261, at 595-96 (H. Lauterpacht ed., 8th ed.1955); see also Convention on the High Seas art. 6, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82; United States v. Victoria, 876 F.2d 1009, 1010-11 (1st Cir.1989). By custom, a vessel claims nationality by flying the flag of the nation with which it is affiliated or carrying papers showing it to be registered with that nation. 1 Oppenheim, supra, §§ 260-261, at 594-96. Without a flag or papers, a vessel may also traditionally make an oral claim of nationality when a proper demand is made—a pattern the MDLEA follows. See supra note 3 (quoting 46 U.S.C. § 70502(e)).
Molvan v. Att'y-Gen. for Palestine, [1948] A.C. 351 (P.C.) 369-70; see also 1 Oppenheim, supra, § 261, at 595.
The MDLEA follows this approach, one might say, energetically. Section 70502(d) "includes" in the phrase "vessel without nationality" those ships for which a claim of nationality is made but rejected or not backed up by the nation invoked, 46 U.S.C. § 70502(d)(1)(A), (C), or those "aboard which the master of individual in charge" fails on request "to make a claim of nationality or registration" for the vessel, id. § 70502(d)(1)(B). In our case, the defendants when questioned by the U.S. Coast Guard refused to make a claim of nationality for the yola.
That questioning was aboard the Dominican cutter rather than the defendants' yola and so arguably does not fit within the language of section 70502(d)(1)(B)—at least if "aboard" is given its common meaning of "on board."
Practically every vessel, including the legendary Flying Dutchman, has links with some country; but the stateless vessel concept in the MDLEA and in international law is designed prudentially. The controlling question is whether at the point at which the authorities confront the vessel, it bears the insignia or papers of a national vessel or its master is prepared to make an affirmative and sustainable claim of nationality. To read the MDLEA more restrictively would mean that the master and crew need only carry no papers and jump overboard to avoid having their vessel classed as stateless. Cf. González, 311 F.3d at 449 (Torruella, J., concurring in the judgment).
The defendants are not entitled to raise a violation of international law as an objection, see 46 U.S.C. § 70505, but in any case the MDLEA does not conflict with international law. For international law too treats the "stateless vessel" concept as informed by the need for effective enforcement. Thus, a vessel may be deemed "stateless," and subject to the enforcement jurisdiction of any nation on the scene, if it fails to display or carry insignia of nationality and seeks to avoid national identification. This occurs
H. Meyers, The Nationality of Ships 322 (1967)(footnote omitted).
In sum, the instances specified by Congress—pertinently, the refusal "aboard" the vessel to claim nationality, 46 U.S.C. § 70502(d)(1)(B)—are not departures from international law but merely part of a pattern consistent with it; and when Congress used the word "includes" in listing specific instances, it allowed for reasonable extrapolation to functionally similar instances—including a refusal by the crew to claim nationality that happens to occur aboard a cutter which has the subject "vessel" in tow.
The MDLEA was responding to repeatedly frustrated efforts to prosecute maritime drug trafficking. Anderson, supra note 6, at 325-27 (describing enforcement history). The statute's provisions dovetail: a refusal to claim nationality renders the unflagged vessel stateless and so within federal jurisdiction, while a supportable claim of nationality allows the federal authorities to seek jurisdiction by consent of the flag nation, e.g., 46 U.S.C. § 70502(c)(1)(C). Congress did not expect courts to render a cramped reading of the statute.
Accordingly, we need not decide whether (in the alternative) the transfer of the crew by the Dominican Coast Guard constituted "consent" by the Dominican Republic to federal enforcement. Consent would satisfy the MDLEA, 46 U.S.C. § 70502(c)(1)(C) (consent of flag state); id. § 70502(c)(1)(E) (consent of state in whose territorial waters vessel is found), and accord with international law, United States v. Robinson, 843 F.2d 1, 4 (1st Cir.), cert. denied, 488 U.S. 834, 109 S.Ct. 93, 102 L.Ed.2d 69 (1988). Whether such informal consent is enough may be an open question. See id.
Matos, Soto and Carrasco also raise a host of other claims on appeal—all requiring less discussion than the authority question. Our decision has thus far assumed that—as the jury necessarily found—the defendants were the crew first sighted by the helicopter and seen to throw overboard bales that were recovered and found to contain cocaine. The defendants say that the evidence for this identification was insufficient.
The defendants stress that the Dominican cutter that retrieved them had already intercepted and detained a second yola, with a crew of two. The defendants argue that the government's evidence was insufficient to prove that they were on the yola seen gathering drugs rather than on this second, innocent yola, because Officer Young testified at trial that the three defendants "could be" the same three persons that he observed from his helicopter. The argument was preserved in a motion for acquittal, so our review is de novo. United States v. Potter, 463 F.3d 9, 13-14 (1st Cir.2006).
Nevertheless, taking the evidence in the light most favorable to the government, a rational jury could easily have found the defendants guilty beyond a reasonable doubt. Although no single witness had a continuous view of the yola from the time
The evidence at trial included testimony from Officer Young that the defendants' age and build matched the three persons observed on the yola; multiple videos and photos of the yola from which the jury could infer the same; ion scans of cocaine residue on the skin and clothing of the defendants;
The defendants also raise two other arguments under the heading of their identification challenge but which in truth present different legal questions. First, they claim that the government denied them a fair trial by failing to produce the only witness allegedly in a position to settle the identification issue, a Dominican official named Carmelo Matos Rodriguez. Government interference in the production of witnesses helpful to the defendant may in some circumstances preclude a fair trial, e.g., United States v. Castro, 129 F.3d 226, 232 (1st Cir.1997), cert. denied, 523 U.S. 1100, 118 S.Ct. 1569, 140 L.Ed.2d 803 (1998), but nothing like that is evident in this case.
A trial subpoena was issued at defendants' request for Matos Rodriguez on March 27, 2008, and the government apparently attempted to secure his presence at trial. But the defendants incorrectly identified Matos Rodriguez as a member of the "Dominican Coast Guard" when he was in fact with the Dominican equivalent of the Drug Enforcement Agency. When the error was discovered and Matos Rodriguez located, there was insufficient time to get him the necessary documents to travel to the United States. The defendants never sought a continuance.
Defendants seem to claim, at least at oral argument, that they were affirmatively misled by the government into believing that Matos Rodriguez would appear—only to be told the contrary on the first day of trial. We ordered supplemental briefing from the defendants on this specific issue after argument, instructing them to "provide relevant transcript and record references." Instead, they submitted a brief that relies entirely on alleged pretrial conversations and affidavits from their own employees—none of which is part of the record on appeal. Fed. R.App. P. 10(a).
Second, defendants assail the instructions given to the jury on identification during deliberations, after the jury sent a note requesting clarification on the issue; they complain that the trial judge alluded to hypothetical testimony by a witness who looks at a lineup and says "I think it's number two." Their position is that "I think" is too equivocal for proof beyond a reasonable doubt and that the instruction would have misled the jury into thinking that a doubtful identification was sufficient to convict.
No objection was made to the instruction at the time it was made, so it is reviewed only for plain error, United
Next, defendants argue that the evidence was insufficient as to mens rea; they claim that—even if they were the persons on board the yola observed retrieving the airdropped bales—there was insufficient evidence that they knew the bales contained contraband as opposed to innocent cargo. Again, the argument was preserved in a motion for acquittal, so our review is de novo, taking all facts and inferences in the light most favorable to the government. United States v. Guerrero, 114 F.3d 332, 339 (1st Cir.), cert. denied, 522 U.S. 870, 118 S.Ct. 184, 139 L.Ed.2d 124 (1997). But again the evidence here amply supports the verdict and is well within our precedents.
The defendants' yola was seen idling in the drop site before collecting the bales, cf. Guerrero, 114 F.3d at 343; the yola lacked fishing equipment, despite defendants' claim at trial to have been out fishing; the defendants jettisoned the bales and fled at the first sign of the Coast Guard, cf. United States v. Piedrahita-Santiago, 931 F.2d 127, 131 (1st Cir.1991); and the defendants and their clothing showed traces of the drug. Nor is it common for valuable cargo to be entrusted to persons unaware of its contents. United States v. Angulo-Hernández, 565 F.3d 2, 8 (1st Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 776, 175 L.Ed.2d 540 (2009).
Finally, at sentencing, defendants sought a reduction in the calculation of their offense level because they were minor participants in the crime, U.S.S.G. § 3B1.2(b) (2008)—an argument rejected by the sentencing judge—as well as a reduction under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its progeny. They never clearly articulated then or now why a sentence within the guidelines range would be unreasonable or unjust (except that it was long); instead, they argue on appeal that the sentencing judge failed to understand his discretion to depart downwards under Booker.
At one point, the sentencing judge stated that "[t]here is nothing before the Court that would allow [it] to make any meaningful exercise of any additional sentencing factor under [18 U.S.C. §] 3553(a), because nothing of the sort has been argued." In context, we see no indication that the judge misunderstood his authority; rather he simply thought that the defendants had offered no persuasive reason for a lower sentence. The latter judgment was his to make.
Affirmed.
46 U.S.C. § 70502(c) (2006) states in full:
LIPEZ, Circuit Judge, dissenting.
The Maritime Drug Law Enforcement Act (MDLEA) makes it unlawful for an individual to "knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board (1) a vessel of the United States or a vessel subject to the jurisdiction of the United States; or (2) any vessel if the individual is a citizen of the United States or a resident alien of the United States." 46 U.S.C. § 70503(a). The majority, after concluding that the government need only prove by a preponderance of the evidence that a vessel is "subject to the jurisdiction of the United States," holds that the government met its burden in this case because it established that the defendants' small fishing boat was a "vessel without nationality" within the meaning of the statute. See id. § 70502(c) (defining "vessel subject to the jurisdiction of the United States" to include "a vessel without nationality"). I disagree with both of those conclusions. Therefore, I respectfully dissent.
The MDLEA was one of a series of steps Congress took in the 1980s and 1990s to extend the reach of the federal drug laws beyond the territory of the United States. Because the function and meaning of the critical phrase "subject to the jurisdiction of the United States" is not self-evident, it is important to understand the MDLEA's design and background. I therefore begin by reviewing the legislative context giving rise to the statute and its jurisdictional requirement.
Before 1980, maritime drug smugglers outside the territorial waters of the United States generally had to be prosecuted for conspiracy to import drugs into the United States. That regime proved to be unsatisfactory, primarily because of the difficulty of proving an intent to import. The problem was not that the Coast Guard lacked the authority to interdict drug smugglers and seize contraband; to the contrary, the Coast Guard has long enjoyed "`one of the most sweeping grants of police authority ever to be written into U.S. law.'" Note, High on the Seas: Drug Smuggling, the Fourth Amendment, and Warrantless Searches at Sea, 93 Harv. L.Rev. 725, 726 (1980) (quoting Stephen H. Evans, The United States Coast Guard 1790-1915 218 (1949)); see 14 U.S.C. § 89(a) (setting
Congress responded to the problem by enacting the Marijuana on the High Seas Act, Pub.L. No. 96-350, 94 Stat. 1159 (1980), which broadened the drug laws in a number of ways. Most importantly, the statute made it a crime for certain individuals on the high seas to possess drugs with the intent to distribute, which obviated the need to prove that the drugs were destined for the United States and opened the door for a much broader extraterritorial application of the federal drug laws. See 125 Cong. Rec. 20,083 (1979) (statement of Rep. Paul McCloskey) ("Where current law requires an intent to import a controlled substance into the United States as a necessary element of the crime[,] this bill essentially requires only knowledge or intent to distribute with no need to establish a U.S. destination. Such intent may be inferred from the presence of controlled substances that exceed normal consumption—and that are not entered as cargo on a vessel's manifest.").
The majority is correct that the Marijuana on the High Seas Act and its successor statutes manifest an intent to reach broadly. Congress was concerned about maritime drug trafficking and sought to "give the Justice Department the maximum prosecutorial authority permitted under international law." S. Rep. 96-855, at 2; see also 125 Cong. Rec. 20,083 (1979) (statement of Rep. Paul McCloskey) (stating that the bill authorizes prosecution "to the broadest extent possible under international law"). As the quoted legislative history makes clear, however, Congress also intended to stay within the boundaries of international law, which places limitations on a nation's power "to make its law applicable to the activities, relations, or status of persons." Restatement (Third) of Foreign Relations Law of the United States § 401(a) (1987). Those limitations, referred to under the heading "jurisdiction to prescribe," have traditionally permitted nations to legislate with respect to (1) their own nationals; (2) acts committed within, or having substantial effects within, their territory; and (3) acts directed at their national security.
On the high seas, there is an additional basis of jurisdiction to prescribe: vessel nationality.
Although the settled bases of prescriptive jurisdiction are broad, they are not limitless. A country must be able to point to one of those bases when extending its penal laws to an individual. If Congress had made it a federal crime for any person to possess drugs on board any vessel anywhere, it would have run afoul of the international legal limitations on its jurisdiction to prescribe.
By 1986, Congress had become convinced that the Marijuana on the High Seas Act was in need of revision. In Congress's view, "defendants in cases involving foreign or stateless vessel boardings and seizures [had] been relying heavily on international jurisdictional questions as legal technicalities to escape conviction." S.Rep. No. 99-530, at 15, 1986 U.S.C.C.A.N. 5986, 6000 (1986). Congress enacted the Maritime Drug Law Enforcement Act, Pub.L. 99-640, § 17, 100 Stat. 3545 (1986), with a view toward further expanding and strengthening the maritime drug laws. Its approach was measured, however. Although Congress extended the statute's coverage to several new categories of defendants—most notably, to individuals on board "a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States"
Congress amended the MDLEA again in 1996. See Coast Guard Authorization Act of 1996, Pub.L. No. 104-324, § 1138, 110 Stat. 3901, 3988-89 (1996). The intent, as before, was to "expand the Government's prosecutorial effectiveness in drug smuggling cases." H.R.Rep. No. 104-854, at 142, 1996 U.S.C.C.A.N. 4239, 4292 (1996) (Conf.Rep.). To that end, Congress further expanded the definition of "vessel without nationality," Pub.L. No. 104-324, § 1138(a)(1),
Id. § 1138(a)(5). Otherwise, the amendments left the substantive limitations on the MDLEA's scope unaltered.
With this background in mind, I turn to the majority's analysis.
The majority holds, as a threshold matter, that the government's proof that the defendants' vessel is covered by the MDLEA must be by a preponderance of the evidence rather than beyond a reasonable doubt. I do not agree. Like the majority, I do not believe the burden of proof affects the outcome of this case. Nevertheless, I wish to respond to the majority's analysis.
Prior to the 1996 amendments to the MDLEA, vessel status had to be proved to the jury beyond a reasonable doubt. See, e.g., United States v. Guerrero, 114 F.3d 332, 339 (1st Cir.1997).
The majority offers several justifications for reading an implied shift in the standard of proof into the 1996 amendments. First, it says that Congress intended vessel status to be "a preliminary issue, like venue and other judge-determined issues" that are commonly proved by a preponderance of the evidence. See 46 U.S.C. § 70504(a) (characterizing "[j]urisdiction," i.e., vessel status, as a "preliminary question[] of law"). But that rationale is in conflict with our decision in United States v. González, 311 F.3d 440 (1st Cir.2002), where we held that vessel status goes to "the substantive reach of the statute— applying to some vessels but not others"— rather than to the threshold issue of the court's authority to hear the case. Id. at 443 (emphasis omitted). Unlike venue and the other procedural and evidentiary matters mentioned by the majority, a failure to prove that defendants' conduct occurred on board a covered vessel amounts to a failure to prove that the defendants violated the MDLEA. Compare id. ("Congress asserted its own authority to regulate drug trafficking on some ships but not all ships and, in this context, used the word `jurisdiction' loosely to describe its own assertion of authority to regulate; it does the same thing whenever it fixes an `affects interstate commerce' or `involved a federally insured bank' as a condition of the crime."), with Am. Dredging Co. v. Miller, 510 U.S. 443, 453, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) ("[V]enue is a matter that goes to process rather than substantive rights—determining which among various competent courts will decide the case.").
It is equally unhelpful to suggest, as the majority does, that Congress's allocation of decision-making authority to the judge necessarily implies a shift in the standard of proof because "jury fact-finding and the beyond-a-reasonable-doubt standard generally go hand in hand." Although the two issues often go hand in hand, they are not invariably linked. Venue, for instance, is established by a preponderance of the evidence but must be submitted to the jury when put in issue. See United States v. Jackalow, 66 U.S. (1 Black) 484, 487-88, 17 L.Ed. 225 (1861); United States v. Perez, 280 F.3d 318, 330, 333-34 (3d Cir.2002). Conversely, petty offenses are tried to the court but subject to the beyond a reasonable doubt standard. See United States v. McFarland, 445 F.3d 29, 30-31 (1st Cir. 2006).
Finally, the majority says that the preponderance of the evidence standard "comports with Congress' aim to facilitate enforcement." But, of course, the same could be said of every issue in a criminal case. Congress always and understandably wants criminals to be brought to justice. That fact is not a license to interpret every criminal statute as broadly as possible. Congress is also mindful of individual rights, international law, and the need for substantive and procedural limitations on the federal criminal power. The question in this case, as in every case, is where Congress struck the balance between those considerations and the desire to punish wrongdoers. The majority's unelaborated reference to Congress's "aim to facilitate enforcement" does not meaningfully advance that inquiry. To the contrary, it tends to obscure the nuanced approach that Congress took in the statute. Cf. Bd. of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 374, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986) ("Invocation of the `plain purpose' of legislation at the expense of the terms of the statute itself takes no account of the processes of compromise and, in the end, prevents the effectuation of congressional intent.").
Hence, in my view, Congress's silence is evidence that it did not intend to alter the standard of proof.
Even assuming that preponderance of the evidence is the correct standard, the government did not meet that standard in this case. It was the government's burden to prove that the defendants' yola was a "vessel without nationality." That statutory phrase dates to the original Marijuana on the High Seas Act, which left the term undefined. It was evidently meant to refer to vessels that would be considered stateless under international law. Congress subsequently added three specific examples of "vessel[s] without nationality" to the statute. See 46 U.S.C. § 70502(d)(1) (quoted infra.) As the majority correctly holds, Congress did not intend those three examples to be exhaustive. The MDLEA extends to vessels that are considered stateless under international law, even if those vessels do not fall within one of the specifically enumerated categories.
International law, in turn, largely leaves the allocation of vessel nationality to national
In some countries, the law provides that any ship meeting certain conditions (e.g., ownership by a national) is considered a national ship. See H. Meyers, The Nationality of Ships 147 (1967). In other countries, nationality must be bestowed through an affirmative act of the government. Id. Still other countries link nationality to registration, granting their nationality automatically to ships that are registered in accordance with the law. Id. Many countries, including the United States, combine elements of the different systems. See 46 U.S.C. § 70502(b); Ted L. McDorman, Stateless Fishing Vessels, International Law and the U.N. High Seas Fisheries Conference, 25 J. Mar. L. & Comm. 531, 533 (1994) ("Practice in the United States suggests that where a vessel is not registered, the nationality of the vessel can become that of the vessel's owner."); The Chiquita, 19 F.2d 417, 418 (5th Cir.1927) ("If [a vessel] is not properly registered, her nationality is still that of her owner.").
A vessel either has a given nationality or it does not. It is therefore incorrect to suggest, as the majority does, that whether a vessel is stateless depends upon the circumstances in which it is encountered. See Majority Opinion at 6 ("The controlling question is whether at the point at which the authorities confront the vessel, it bears the insignia or papers of a national vessel or its master is prepared to make an affirmative and sustainable claim of nationality." (emphasis added)). Under international law, a stateless vessel is simply one that does not have a valid grant of nationality from any country. See Rosero, 42 F.3d at 171. That may be the case if, for example, no country has ever granted the vessel nationality; if a country has canceled its grant of nationality; or if the political entity that granted the vessel nationality is not a recognized international person. Id.
Because statelessness is the absence of nationality, the task of establishing that a vessel is genuinely stateless can "present the difficulties often associated with proving a negative." Rosero, 42 F.3d at 171. International law deals with this problem by permitting nations to deem a vessel that "repeatedly, deliberately, and successfully" obscures its nationality to be stateless, irrespective of whether the vessel is genuinely stateless. Meyers, supra, at 322. In a similar vein, a vessel that claims the nationality of two or more countries according to convenience is "assimilated to" (in the sense of "rendered similar to" or "deemed to be") a vessel without nationality, even if it legitimately possesses a nationality. Convention on the High Seas art. 6(2). These rules operate as sanctions, effectively penalizing vessels that attempt
Congress took this notion of "deemed" statelessness a step further in the MDLEA. Under the statute, three additional categories of vessels that make false or evasive claims of nationality are deemed to be stateless:
46 U.S.C. § 70502(d)(1).
To summarize, international law and the MDLEA recognize two basic categories of vessels without nationality. In the first category are vessels that are genuinely stateless under international law, in the sense that they do not have a valid grant of nationality from any country. In the second category are vessels that are deemed to be stateless because they have attempted to obscure their nationality. I will discuss each of these categories in explaining why I do not believe the government carried its burden of proving that the defendants' yola fell within the scope of the MDLEA.
The government argues that the yola was genuinely stateless because the defendants "were not flying a flag, carried no documentation, and never claimed to the Coast Guard that their ship was registered in the Dominican Republic or flew a Dominican flag." Insofar as the government means to suggest that any vessel that fails to affirmatively signal its nationality through a flag, documents, or an oral claim of registry becomes stateless under international law, it is mistaken. Registration, documentation, and the flag are "indicators" of vessel nationality, but they are not sources of vessel nationality. See Meyers, supra, at 138-140; see also Lauritzen, 345 U.S. at 584, 73 S.Ct. 921 ("Nationality is evidenced to the world by the ship's papers and its flag." (emphasis added)); The Mohawk, 70 U.S. (3 Wall) 566, 571, 18 L.Ed. 67 (1865) ("The purpose of a register is to declare the nationality of a vessel engaged in trade with foreign nations, and to enable her to assert that nationality wherever found."); Henry Wheaton, Elements of International Law 425 n. 163 (Richard Henry Dana, Jr., ed., 8th ed. 1866) (distinguishing between a vessel's "ostensible nationality," which is indicated by its flag and documents, and its "actual nationality, which depends on the domicile of the owner and other facts").
Under international law, "[a] vessel may be considered as possessing the nationality of a State even though she is unregistered, possesses no documents evidencing that nationality, nor even flies the flag of that State."
There is a separate question of whether the absence of a flag and documentation, though not directly affecting a vessel's nationality, can provide circumstantial evidence of statelessness. I believe it can. Common sense suggests that a vessel that lacks the usual indicators of nationality is more likely to be stateless than an equivalently situated vessel possessing such indicators. Cf. Fed.R.Evid. 401. But even acknowledging that to be so, it does not mean that proof that a vessel lacks the usual indicators of nationality is alone sufficient to justify the inferential conclusion that the vessel is, in fact, stateless. The reasonableness of such a conclusion will depend on other factors that are particular to each case.
It is not necessary to enumerate those factors comprehensively to see that such an inference is not warranted here. The yola in question was a small wooden boat equipped with an outboard motor. It undisputedly originated in the Dominican Republic and was carrying Dominican crew members. It was sighted just outside Dominican territorial waters (within the Dominican Republic's Exclusive Economic Zone) and was obviously incapable of making long international voyages. Although the vessel was not carrying documentation, "[m]any states ... do not issue documents to ships with a tonnage below a given figure." Meyers, supra, at 160; see also R.R. Churchill & A.V. Lowe, The Law of the Sea 213 n. 19 (3d ed.1999) (noting that "a State may not require, or permit, the registration of ships below a certain size, for example, but may nonetheless regard such ships as having its nationality if they are owned by its nationals"). Defendant Soto-Pérez testified at trial that the yola was owned by a Dominican man and was registered in some fashion with the Dominican government.
All of this evidence points strongly toward Dominican nationality. The government, which bore the burden of proving that the yola was stateless, offered nothing to rebut or undermine that conclusion. It submitted no evidence regarding Dominican law on nationality, presented no statement from a Dominican official, and generally made no attempt to eliminate the Dominican Republic as the most plausible candidate for nationality. Nor did the government obtain the Dominican Republic's consent to prosecution, see 46 U.S.C. § 70502(c)(1)(C), which could have provided a fallback position in the event that the evidence of statelessness proved deficient.
Given all the circumstances, I believe it was erroneous for the district court to conclude, based solely on the lack of a flag and documentation, that the defendants' vessel was genuinely stateless. Those factors would almost certainly have justified the detention and boarding of the yola, which may be based on a "reasonable suspicion" that a vessel is stateless.
The question, then, is whether the yola can be deemed to be stateless. The majority concludes that it can. My colleagues rely primarily on the provision extending the MDLEA to "a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel." 46 U.S.C. § 70502(d)(1)(B).
Here, however, no federal officer requested the yola's nationality while the defendants were still on board the vessel. Officer Young questioned the defendants after they were picked up by the Dominican Coast Guard. Among other things, he asked "if anybody would like to speak for the boat and give [him] a claim of nationality." The defendants "shook their heads no, and actually did not give [him] a full
The majority concludes that "aboard" as used in section 70502(d)(1)(B) is sufficiently elastic to embrace the questioning that took place here, despite my colleagues' recognition that the circumstances fall outside the MDLEA if "aboard" is given its common meaning of "on board."
But a court does not have license to expand the scope of a criminal statute merely because it believes that doing so is consistent with Congress's law enforcement objectives. In enacting the MDLEA, Congress was acting against the backdrop of international law. As noted earlier, the international standard for deeming statelessness requires proof that a vessel "repeatedly, deliberately, and successfully" obscured its nationality. Meyers, supra, at 322. The MDLEA criteria for deeming statelessness, allowing such a determination based on a single failure to respond, are significantly less demanding and may in fact overstep international norms. See Eugene Kontorovich, Beyond the Article I Horizon: Congress's Enumerated Powers and Universal Jurisdiction over Drug Crimes, 93 Minn. L.Rev. 1191, 1228 (2009) ("[T]he MDLEA's definition of statelessness goes far beyond what is recognized by international custom or convention."). Although Congress has the prerogative to go beyond the limits of international law, see, e.g., Bradley, supra, at 331 ("Congress is free to override the limitations of international law, including the international law of prescriptive jurisdiction, when enacting a criminal statute."), we exceed our authority if we go beyond Congress in this sensitive realm.
There is every reason to conclude that Congress did not include the word "aboard" in section 70502(d)(1)(B) casually. To the contrary, the boarding of vessels by law enforcement officials is a significant step, and allowing authorities to board for limited investigatory purposes is a traditional "exception to the principle of noninterference on the high seas." United States v. Postal, 589 F.2d 862, 870 (5th Cir.1979); see also United States v. Ricardo, 619 F.2d 1124, 1130 n. 4 (5th Cir.1980). The doctrine of international common law known as the "right of visit," or the "right of approach," permits scrutiny of the conduct or nationality of suspicious vessels through inquiry that culminates in an "examination on board the ship." Convention
Section 70502(d)(1)(B) thus exists within a larger context of maritime law in which officers are given limited authority to board vessels to complete their investigations. As I have noted, the authority conferred by that provision's language is, arguably, already beyond the bounds of international law. I can see no justification for broadening the statute's scope even further by ignoring its literal terms. If the majority were correct that failure to respond to questioning on an adjacent vessel is equivalent to questioning "aboard" the target vessel, what principle would distinguish inquiry at a Coast Guard station located just ashore? In such circumstances, the limited "right to visit" becomes a license to conduct questioning of a ship's crew wherever convenient for the authorities. In my view, neither scenario falls within a provision that deems a vessel stateless based on a specific interaction that occurs "aboard" that vessel.
Abiding by the plain language of the statute need not frustrate Congress's objective to prosecute maritime drug trafficking nor undermine law enforcement efforts.
The issues raised in this appeal are difficult, and I respect the majority's thoughtful attempt to resolve them. In the end, however, I fear that the majority's focus on Congress's "aim to facilitate enforcement" has overshadowed the considerations of fairness and international law that counsel restraint in interpreting the MDLEA. The majority's interpretation extends United States drug laws to circumstances that Congress did not contemplate and that likely exceed the bounds of international law as well. In addition, the majority has lowered the traditional standard of proof for finding guilt. I would not reach either of those results in the absence of a clear statement that Congress intended its penal laws to reach so broadly.
For these reasons, I respectfully dissent.
46 U.S.C. § 70502(e).
Pub.L. No. 99-640, 100 Stat. 3545.
A Coast Guard cutter is considered a "warship" for purposes of this provision. Postal, 589 F.2d at 871 n. 13 (citing Convention on the High Seas art. 8(2)); United States v. Cortes, 588 F.2d 106, 110 (5th Cir.1979).
