Filed: Jun. 01, 2018
Latest Update: Mar. 03, 2020
Summary: Case: 17-11313 Date Filed: 06/01/2018 Page: 1 of 25 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 17-11202 _ D.C. Docket No. 1:16-cr-20962-FAM-3 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ALEXANDER OBANDO, Defendant - Appellant. _ No. 17-11276 _ D.C. Docket No. 1:16-cr-20962-FAM-2 UNITED STATES OF AMERICA Plaintiff - Appellee, versus LAUREANO ROBERTO QUIROZ-MENDOZA, Defendant - Appellant. Case: 17-11313 Date Filed: 06/01/2018 Page: 2 of 25 _ No. 17-
Summary: Case: 17-11313 Date Filed: 06/01/2018 Page: 1 of 25 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 17-11202 _ D.C. Docket No. 1:16-cr-20962-FAM-3 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ALEXANDER OBANDO, Defendant - Appellant. _ No. 17-11276 _ D.C. Docket No. 1:16-cr-20962-FAM-2 UNITED STATES OF AMERICA Plaintiff - Appellee, versus LAUREANO ROBERTO QUIROZ-MENDOZA, Defendant - Appellant. Case: 17-11313 Date Filed: 06/01/2018 Page: 2 of 25 _ No. 17-1..
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Case: 17-11313 Date Filed: 06/01/2018 Page: 1 of 25
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11202
________________________
D.C. Docket No. 1:16-cr-20962-FAM-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALEXANDER OBANDO,
Defendant - Appellant.
________________________
No. 17-11276
________________________
D.C. Docket No. 1:16-cr-20962-FAM-2
UNITED STATES OF AMERICA
Plaintiff - Appellee,
versus
LAUREANO ROBERTO QUIROZ-MENDOZA,
Defendant - Appellant.
Case: 17-11313 Date Filed: 06/01/2018 Page: 2 of 25
________________________
No. 17-11313
________________________
D.C. Docket No. 1:16-cr-20962-FAM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALFONSO BITALIANO MARCILLO-MERA,
Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(June 1, 2018)
Before WILLIAM PRYOR, JILL PRYOR, and BLACK, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
This appeal requires us to decide whether a flag painted on the side of a
vessel is “flying” for the purpose of making a “claim of nationality or registry”
under the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70502(e). When the
United States Coast Guard stopped the vessel Siempre Malgarita in international
waters on suspicion of drug trafficking, Alexander Obando, Laureano Roberto
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Quiroz-Mendoza, and Alfonso Bitaliano Marcillo-Mera were aboard the vessel, but
they failed to produce documents evidencing nationality or to make a verbal claim
of nationality or registry. Coast guardsmen spotted a Colombian flag painted on the
hull of the Siempra Malgarita, but the master of the vessel asserted that the flag
was Ecuadorian. The guardsmen did not ask Colombian officials whether the
vessel was registered in Colombia or whether Colombia consented to the Coast
Guard exercising jurisdiction. Guardsmen later boarded the vessel and arrested the
crew members. In the district court, the crew members argued that the United
States lacked jurisdiction because the painted Colombian flag constituted a claim
of nationality under section 70502(e)(2) that obliged the Coast Guard to ask
Colombian officials about the vessel. After the district court ruled that the vessel
was stateless and subject to the jurisdiction of the United States, the crew members
conditionally pleaded guilty. Because a painted flag does not fly, id. § 70502(e)(2),
we affirm.
I. BACKGROUND
On November 17, 2016, the United States Coast Guard Cutter Edmonton
spotted the Siempre Malgarita, a 32-foot “go-fast” vessel, in international waters
approximately 208 nautical miles off the coast of Guatemala. A Marine Patrol
Aircraft observed the crew of the Siempre Malgarita “jettison[ing] packages into
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the water,” and the Edmonton launched a small vessel to investigate these
packages, which tested positive for cocaine. The Edmonton also launched a second
small vessel that intercepted the Siempre Malgarita.
The parties stipulated to facts about the interception that we use to assess
jurisdiction. See United States v. Iguaran, 821 F.3d 1335, 1337 (11th Cir. 2016)
(“Parties may . . . stipulate to facts that bear on our jurisdictional inquiry.”
(emphasis omitted) (citation and internal quotation marks omitted)). The
guardsmen approached the Siempre Malgarita and identified her crew as
Alexander Obando, Laureano Roberto Quiroz-Mendoza, and Alfonso Bitaliano
Marcillo-Mera. The guardsmen also determined that Marcillo-Mera was the master
of the vessel. All three crew members are citizens of Ecuador.
The guardsmen attempted to determine the nationality of the Siempre
Malgarita, but none of the vessel’s occupants made a verbal claim of nationality or
registry for the vessel. Marcillo-Mera also failed to produce documents evidencing
nationality or to identify the homeport of the vessel or its last port of call. Indeed,
when asked, Marcillo-Mera told the guardsmen that “he did not know” the vessel’s
nationality. See 46 U.S.C. § 70502(d)(1)(B).
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The guardsmen noticed a flag painted on the hull of the vessel, and they
“believed it was a Colombian flag.” But when they asked Marcillo-Mera about the
flag, he asserted that it was the flag of Ecuador.
The two national flags are similar in appearance. The flag of Ecuador
consists of horizontal bands of yellow, blue, and red and has a coat of arms in its
center.
The Flag of Ecuador
The flag of Colombia does not have a coat of arms but is otherwise identical.
The Flag of Colombia
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The Coast Guard sent a “Form 1: Action Request” to the government of
Ecuador to determine whether the Siempre Malgarita was registered in Ecuador.
On the form, the Coast Guard stated that the vessel lacked a “claimed nationality,”
but it acknowledged a “flag state claim via” “vessel markings.” Ecuadorian
officials could not confirm the nationality or registry of the vessel, and the Coast
Guard never communicated with Colombian officials. The Coast Guard
determined that the Siempre Malgarita was a vessel without nationality subject to
the jurisdiction of the United States under the Maritime Drug Law Enforcement
Act, see 46 U.S.C. § 70502(c)(1)(A), and the guardsmen arrested the crew
members.
After the government charged the crew members with drug offenses,
Marcillo-Mera moved to dismiss the charges on the basis that the United States
lacked jurisdiction. He asserted that the Colombian flag painted on the Siempre
Malgarita “was a claim of [Colombian] nationality in and of itself” and that “the
Coast Guard contacted the incorrect flag state” when it instead communicated with
Ecuadorian officials. A magistrate judge recommended that the district court deny
the motion. The magistrate judge determined that the vessel was stateless based on
the parties’ stipulation “that when the Coast Guard inquired as to the nationality of
the vessel,” Marcillo-Mera “either said nothing or said he did not know.” And the
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magistrate judge reasoned that the painted Colombian flag was not itself “a claim
of nationality or registry” because a painted flag cannot fly.
The district court adopted the report and recommendation. All three crew
members then conditionally pleaded guilty to conspiracy to possess with intent to
distribute a controlled substance in violation of the Act, see id. §§ 70503(a),
70506(b), but reserved the right to challenge the jurisdiction of the United States
on appeal.
II. STANDARD OF REVIEW
Whether the United States has extraterritorial jurisdiction under the Act is a
question of law that we review de novo. See Iguaran, 821 F.3d at 1336.
III. DISCUSSION
We divide our discussion in two parts. First, we explain that the United
States has jurisdiction over the Siempre Malgarita and its crew because the painted
Colombian flag on its hull was not “flying” for the purpose of making a “claim of
nationality or registry.” 46 U.S.C. § 70502(e). Second, we reject the crew
members’ alternative arguments about why the United States lacks jurisdiction.
A. A Flag Painted on a Vessel Does Not Fly.
The Maritime Drug Law Enforcement Act grants the United States
extraterritorial jurisdiction over “vessel[s] without nationality.” Id.
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§ 70502(c)(1)(A). The Act states that a vessel is without nationality if “the master
or individual in charge fails, on request of an officer of the United States . . ., to
make a claim of nationality or registry for that vessel.”
Id. § 70502(d)(1)(B). And
the Act provides three exclusive methods for the master or individual in charge to
make a “claim”:
(1) possession on board the vessel and production of documents
evidencing the vessel’s nationality as provided in article 5 of the 1958
Convention on the High Seas;
(2) flying its nation’s ensign or flag; or
(3) a verbal claim of nationality or registry by the master or individual
in charge of the vessel.
Id. § 70502(e). If the master of a vessel in international waters makes a claim of
foreign nationality that is affirmed by the asserted nation, see
id. § 70502(d)(1)(A)
& (C), the United States ordinarily must obtain “consent[]” from that nation before
exercising jurisdiction,
id. § 70502(c)(1)(C).
Whether the United States has extraterritorial jurisdiction over a vessel is a
“preliminary question[] of law” decided by the district court and “not an element of
[the] offense.” Id. § 70504(a); see also United States v. Campbell,
743 F.3d 802,
805 (11th Cir. 2014). The answer to this question determines whether the district
court may exercise subject matter jurisdiction, “for a district court . . . ha[s]
adjudicatory authority over a charge that a defendant conspired to violate the
substantive crime defined in the [Act]” only if “the conspira[tors’] vessel was,
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when apprehended, subject to the jurisdiction of the United States.” Iguaran, 821
F.3d at 1336 (alteration adopted) (quoting United States v. De La Garza,
516 F.3d
1266, 1272 (11th Cir. 2008)). “[T]he government bears the burden of establishing
. . . jurisdiction . . . .” United States v. Tinoco,
304 F.3d 1088, 1114 (11th Cir.
2002); see also
Iguaran, 821 F.3d at 1338.
The crew members stipulated that the master of the Siempre Malgarita failed
to produce documents evidencing the vessel’s nationality or to make a verbal
“claim of nationality or registry,” see 46 U.S.C. § 70502(e)(1) & (3), but they
contend that the painted flag on the side of the vessel constituted a claim of
Colombian nationality that obliged the Coast Guard to ask Colombian officials
whether the vessel was registered there and whether Colombia consented to the
exercise of jurisdiction by the United States. This argument fails if the Colombian
flag painted on the hull was not “flying.” Id. § 70502(e)(2). It was not.
The ordinary meaning of the word “flying” requires a flag to be capable of
freely moving in the air. See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 69 (2012) (“Words are to be understood in their
ordinary, everyday meanings . . . .”). For example, Webster’s New International
Dictionary defines “fly” as “[t]o cause to fly or to float in the air as a . . . flag,” and
it offers the illustrative phrase of “the ship flew the flag of Spain.” Fly, Webster’s
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New International Dictionary 976 (2d ed. 1961) (emphasis omitted). Webster’s
Third New International Dictionary gives a nearly identical definition. Fly,
Webster’s Third New International Dictionary 879 (3d ed. 1993) (“[T]o cause to
fly or float in the air (as a bird, a flag) . . . .”). And the Oxford English Dictionary
defines “fly” as, “[t]o set (a flag) flying; to carry at the mast-head; to hoist.” Fly,
Oxford English Dictionary (online ed.) (emphasis added). All of these definitions
entail the movement of a physical object in the air. Indeed, the Oxford English
Dictionary applies the same definition of “fly” to the act of “set[ting] (a sail)
loosely.” Id.
To be sure, the ordinary meaning of a term will yield when the term has “a
technical meaning” or is a “term[] of art,” see Scalia &
Garner, supra, at 73
(emphasis omitted), but the meaning that the phrase “flying a flag” carries in the
maritime context confirms that a vessel’s flag must be able to move freely in the
air. For example, the Oxford English Dictionary, in a section on “nautical phrases,”
defines “to keep the flag flying” as “to refuse to haul down one’s flag and
surrender.” Flag, Oxford English
Dictionary, supra. A painted flag cannot be
“haul[ed] down.”
Id.
A maritime treatise confirms that a vessel’s flag must be hoisted in the air.
See H. Meyers, The Nationality of Ships (1967). It refers to the physical “hoisting
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[of a] flag” to assert nationality, id. at 162, explains that “when [sea] traffic is
heavy . . . [a] flag will have to be flown from the stern,”
id. at 163 (emphasis
added), and cautions that a vessel’s flag may not always be a reliable “indicator” of
nationality because it can be “easily changed,”
id. at 140. It also explains that there
may be times “when flying the flag cannot reasonably be required,” such as in the
presence of “heavy gales” or if a “flag[] [is] blown overboard.”
Id. at 164–65.
Neither of these perils is relevant to painted flags. And the treatise presumes that
vessels that are physically incapable of hoisting flags are similarly unable to “fly”
flags when it discusses a hypothetical “deep sea research” submarine that, when
“under water at all events . . ., will not fly a flag.”
Id. at 166.
Maritime etiquette supports the same definition. For example, a procedural
guide published by the United States Navy offers extensive instructions for
“hoisting and lowering” the flag. Department of the Navy, NTP 13(B), Flags,
Pennants & Customs 3-1 (1986). It also explains that a vessel’s crew must “haul[]
[the ensign] down” after sunset, id. at 3-1, and that a vessel may “dip” its flag to
salute another vessel,
id. at 3-1 to 3-2. But the guide never suggests that a flag may
be painted on a vessel. On the contrary, its discussion of painted symbols is limited
to non-flag “emblems,” such as the medical cross.
Id. at 17-11. It also specifically
forbids service members from “paint[ing]” “[s]tars or replicas of personal flags . . .
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on vehicles,” id. at 14-1 (emphasis added), which suggests that real flags consist of
more than paint. A Navy protocol handbook explains that “[t]he national ensign
shall be displayed during daylight from the gaff (or from the triatic stay . . .)” and
speaks in dynamic terms of “the hoisting, lowering[,] or flying of the ensign.”
Department of the Navy, 1710.7A, Social Usage and Protocol Handbook J-19
(2001); see also
id. at J-20 (discussing “[d]ipping the national ensign” and “[h]alf-
masting the national ensign”). The guide also fails to mention painted flags, and it
distinguishes flags from the more general category of “distinctive mark[s].”
Id. at
J-19. And a flag guide published by a civilian group provides that even motorboats
without a mast or rigging should still have a means of hoisting a flag. See United
States Power Squadrons, Flag Etiquette, http://www.usps.org/f_stuff/etiquett.html
(last visited May 31, 2018) (discussing the “United States Ensign”).
Other federal statutes about the display of flags clearly imply that a flag flies
only when hoisted in the air, and “laws dealing with the same subject . . . should if
possible be interpreted harmoniously.” Scalia & Garner, supra, at 252. For
example, one statute provides that “[w]hen flags of two or more nations are
displayed, they are to be flown from separate staffs of the same height,” 4 U.S.C.
§ 7(g) (emphasis added), that when “flags are flown from adjacent staffs, the flag
of the United States should be hoisted first and lowered last,”
id. § 7(f) (emphases
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added), and that “[t]he flag, when flown at half-staff, should be first hoisted to the
peak,” id. § 7(m) (emphases added). And the statute does not use the term “flying”
to refer to the display of flags that are not hoisted in the air. It instead uses different
verbs like “drap[ing],”
id. § 7(b), “display[ing],”
id. § 7(i) & (k), and “cover[ing],”
id. § 7(n), to describe that kind of use. And a related statute explains that the “flag
patch” worn by military and emergency personnel should be “affixed to the[ir]
uniform[s].”
Id. § 8(j) (emphasis added). “Flying” refers to a particular method of
displaying a flag, and the Maritime Drug Law Enforcement Act uses this specific
word instead of the more general term “displaying.”
The crew members contend that the phrase “flying a flag” refers to any kind
of visual depiction of a flag that suggests the nationality of the vessel, and they
highlight that the “Form 1” template used by the Coast Guard to communicate with
foreign governments in this kind of maritime interception suggests the possibility
of a “flag state claim via” a “flag painted on [the] stern” of the vessel. But whether
the Coast Guard considers a painted flag to be an assertion of national affiliation is
not the same question as whether that flag is “flying” under the Act.
That the Coast Guard may embrace a functionalist interpretation of how the
master of a vessel may assert nationality in the interest of diplomatic caution
cannot change the ordinary meaning of the statutory text. Indeed, the form permits
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a “flag state claim” by means not included in the exclusive list provided in the Act,
such as by a “homeport [marked] on [the] stern” or a “verbal” claim by a “non-
master.” See 46 U.S.C. § 70502(e) (explaining that “[a] claim of nationality or
registry . . . includes only . . . (1) possession . . . and production of documents . . .;
(2) flying [a] . . . flag; or (3) a verbal claim . . . by the master or individual in
charge” (emphasis added)). The form also offers no suggestion that the Coast
Guard has adopted a definitive or consistent interpretation of the phrase “flying a
flag” worthy of any kind of administrative deference. Cf. Reno v. Koray, 515 U.S.
50, 61 (1995) (explaining that an “internal agency guideline . . . is still entitled to
some deference” when “it is a permissible construction of the statute” (citations
and internal quotation marks omitted)). Indeed, the Coast Guard did not even
check the “painted” flag box on the “Form 1” that it submitted to Ecuadorian
officials after stopping the Siempre Malgarita, despite the stipulation that the
guardsmen saw the painted flag. And the crew members offer no additional
evidence that the Coast Guard credits painted flags as claims of nationality.
The crew members cite idioms that suggest that the phrase “[f]lying the
flag” refers to a general invocation of a vessel’s “association with a nation,” but we
are unpersuaded. They cite the Cambridge Idioms Dictionary, which defines
“fly/show/wave the flag” as “to support or to represent [one’s] country,” Flag,
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Cambridge Idioms Dictionary 145 (2006), and the Farlex Dictionary of Idioms,
which defines the phrase “fly the flag” as to “represent or demonstrate support for
[one’s] country,” Fly the Flag, Farlex Dictionary of Idioms,
https://idioms.thefreedictionary.com/Flying+the+Flag (last visited May 31, 2018).
And they cite the Oxford Living Dictionaries, which defines “fly the flag” “of a
ship” as to “be registered in a particular country and sail under its flag.” Fly the
Flag, Oxford Living Dictionaries, https://en.oxforddictionaries.com/definition/
fly_the_flag (last visited May 31, 2018). But were we to interpret the phrase
“flying the flag” broadly to include a wide array of methods of signaling that a
vessel is “registered in a particular country and sail[ing] under its flag,” id., we
would render superfluous the other two specific methods of claiming nationality
provided in the Act: the “possession . . . and production of documents evidencing
the vessel’s nationality,” 46 U.S.C. § 70502(e)(1), and “a verbal claim of
nationality . . . by the master,”
id. § 70502(e)(3). And the presumption against
surplusage directs us to give effect to “every word and every provision” of a statute
and not “giv[e] an interpretation [to one provision] that causes it to duplicate” other
provisions. Scalia &
Garner, supra, at 174. To be sure, the crew members modestly
limit their definition of “flying a flag” to a visual “display [of] a flag” sufficient “to
put [the] United States . . . on notice of another country’s interests.” But their
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preferred idiomatic definitions encompass a wider range of expressive conduct that
would swallow the three specific and exclusive methods outlined in the Act. See 46
U.S.C. § 70502(e)(1)–(3). In any event, extensive authorities on maritime practices
trump the broader definitions cited by the crew members and confirm that “flying
[a] . . . flag” is a distinct act that requires a flag to be hoisted in the air. Id.
§ 70502(e)(2).
The crew members also contend that statements in our precedents that
addressed other questions about the Act suggest that the definition of “flag”
includes any kind of visual symbol, but we disagree. For example, in Campbell we
mentioned that a “vessel lacked all indicia of nationality: it displayed no flag, port,
or registration number.” 743 F.3d at 804. And in United States v. de la Cruz we
explained that the stateless “vessel in question flew no flag, carried no registration
paperwork, and bore no markings indicating its nationality.”
443 F.3d 830, 832
(11th Cir. 2006). According to the crew members, this language suggests that any
visual depiction of a flag is enough. But even if these statements addressed the
question whether a painted flag can “fly,” they would cut the other way. Our
separate mentions of whether a vessel “flew [a] flag” or “bore . . . markings
indicating its nationality,”
id., imply that a flying flag is distinct from other visual
displays that also suggest nationality.
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To be sure, the only other decision to address this question assumed, for the
sake of argument, the opposite conclusion. In United States v. Prado, 143 F. Supp.
3d 94 (S.D.N.Y. 2015), the Southern District of New York ruled that a “small
emblem of what appear[ed] to be an Ecuadorian flag . . . affixed to [a] boat[],”
id.
at 97, was not “flying . . . within the meaning of the [Act],”
id. at 101 (citation and
internal quotation marks omitted). The district court declined to adopt the
argument of the government “that a piece of fabric must wave in the air.”
Id. at
100. Instead, it explained that the phrase “‘flying a nation’s ensign or flag’ . . . at a
minimum refer[s] to a display sufficiently prominent as to put a United States
official on notice of another country’s interests” before it concluded that the
particular emblem in question was “not remotely large or prominent enough.”
Id.
(alteration adopted) (citation omitted).
Not only was this functionalist analysis unnecessary in the light of the
ordinary meaning of the phrase “flying a flag,” but the opinion in Prado also
highlighted the inherent difficulty of dispensing with the requirement of a hoisted
flag when it grappled with the question whether the “emblem” on the vessel in
question was “enough to put a reasonable official on notice that [another country’s]
interests might be affected.” Id. The district court began its analysis by “assuming”
that the emblem was “an image of an Ecuadorian flag,”
id., and it acknowledged
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that the emblem, “[u]nlike a prominently displayed flag, . . . [is] easily confused
with ornamentation . . . [and] difficult to see in any waters, not to mention . . . in
the large waves of the high seas,” id. at 100–01; see also
id. at 97 (“[A] small
emblem of what appear[ed] to be an Ecuadorian flag had been affixed to the boat’s
rear starboard side.” (emphasis added)). It also underscored that “[t]he emblem
[was] very much smaller than . . . nearby . . . images running the length of the
boat’s side,”
id. at 101, in concluding that this particular emblem was not
“enough,”
id. at 100. In contrast, a flag hoisted in the air avoids these line-drawing
problems and provides certainty to both American officials on the high seas and
the courts that second-guess their decisions.
The ambiguities posed by painted flags also rebut the crew members’
practical complaint that the requirement of a physical flag will “lead to absurd
results” because “a postage-stamp size . . . flag hoisted on a ship’s mast could
constitute a claim of nationality but a flag several feet long by several feet wide
painted on the . . . hull of a boat could not.” Indeed, the Act has good reason to
require an actual flag of any size instead of a painted representation. Consider a
vessel painted with horizontal red, white, and blue stripes. Is this vessel flying the
flag of the Netherlands? Or is it instead owned by a captain who only likes those
colors? And as illustrated by Prado, static “emblems” require fact-intensive
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inquiries into the size, location, and intended meaning of such markings. See id. at
100–01. A flag hoisted in the air avoids these questions and unambiguously asserts
nationality.
The crew members also assert that our interpretation may create conflicts
within international law because vessels registered in countries that permit painted
flags will be “deemed stateless by American [vessels] and boarded,” but this fear
about miscommunications on the high seas overlooks that the Act provides
alternative methods of claiming nationality, including a simple “verbal claim of
nationality or registry.” 46 U.S.C. § 70502(e)(3) (emphasis added). Indeed, “the
flying of the national flag [has] never [been] the cause of—or the condition for—
allocation [of nationality].” Meyers, supra, at 162; see also
id. at 140. The
requirement that a vessel hoist a flag in the air will not render helpless foreign
vessels that have only painted flags.
Finally, the crew members argue that we should invoke the rule of lenity
because the statute is ambiguous, but the rule of lenity applies only when
“traditional canons of statutory construction . . . [leave us] with an ambiguous
statute.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 16
(2011) (quoting United States v. Shabani,
513 U.S. 10, 17 (1994)). We have
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already explained that the ordinary meaning of the term “flying” requires a flag to
be hoisted in the air.
B. The Crew Members’ Alternative Arguments Are Unpersuasive.
The crew members also assert several alternative and fact-bound reasons
why we should hold that the United States lacks jurisdiction. None are persuasive.
We reject each in turn.
The crew members contend that we should overlook the stipulation that no
crew member made a claim of nationality and instead determine that Marcillo-
Mera’s “statement that the vessel’s flag was ‘Ecuadorian’ . . . [was] tantamount to
a claim of nationality” that obligated “the Coast Guard to contact the government
of Colombia,” but this reasoning is wholly unpersuasive. Parties may “stipulate to
facts that bear on our jurisdictional inquiry.” Iguaran, 821 F.3d at 1337 (emphasis
omitted) (citation and internal quotation marks omitted). And because the parties
stipulated that no crewmember made a claim of nationality, we refuse to ignore
this stipulation on appeal and act as a factfinder in the first instance.
The crew members also contend that the government is estopped from
asserting “that there was never any claim of nationality” because the “Coast
Guard’s [decision to] contact[] . . . Ecuador” suggests that guardsmen thought that
the defendants had asserted nationality, but this logic suffers from two flaws. First,
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that the Coast Guard elected to communicate with Ecuadorian officials does not
necessarily imply that the guardsmen thought that the defendants had satisfied their
burden of asserting nationality under the Act. Indeed, the guardsmen may have
acted out of an abundance of caution, and we see no reason to punish the
government for doing more than the Act requires. Second, the crew members
voluntarily stipulated to the fact that they made no verbal claim of nationality, and
there is no suggestion that the government dishonestly induced this stipulation or
changed its position mid-litigation.
Finally, the crew members contend that the guardsmen acted in bad faith
because they “purposely chose not to contact the Colombian government” despite
knowing that the flag painted on the vessel was Colombian. But this appeal to the
subjective knowledge of the guardsmen again overlooks the stipulations that the
crew members failed to make a verbal claim of nationality and that the only verbal
suggestion of nationality was Marcillo-Mera’s statement that the flag was
Ecuadorian. As the master of the vessel, he owed the obligation to claim
nationality. See 46 U.S.C. § 70502(d)(1)(A)–(C). And because the guardsmen
knew that Marcillo-Mera was Ecuadorian, they had good reason to conclude that
Ecuador was the correct target for their inquiry.
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IV. CONCLUSION
We AFFIRM the judgments of conviction against Obando, Quiroz-
Mendoza, and Marcillo-Mera.
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BLACK, Circuit Judge, specially concurring:
I concur in the Court’s opinion, but I write separately because there is an
additional ground for affirmance. Section 70502(d) of the Act places the burden of
claiming a vessel’s nationality on “the master or individual in charge.” See 46
U.S.C. § 70502(d)(1); United States v. Rosero, 42 F.3d 166, 171 (3d Cir. 1994).
As the Court’s opinion notes, the parties stipulated that the Siempre Malgarita’s
master made no such claim. USDC Doc. 31 at ¶ 4 (“Neither the defendant
Marcillo-Mera, as the master of the vessel, nor the co-defendants, Quiroz-Mendoza
and Obando, as the crew members, made a claim of nationality or registry for the
vessel.”);
id. at ¶ 5 (“When the boarding team asked about the vessel’s nationality,
the defendant Marcillo-Mera stated that he did not know . . . .”);
id. at ¶ 6 (“The
USCG Edmonton communicated the master’s failure to make a claim of nationality
or registry of vessel . . . .”). Thus, because “the master or individual in charge” did
not make a claim of nationality or registry for the ship, the Siempre Malgarita was
a “vessel without nationality” under the plain language of § 70502(d)(1). See 46
U.S.C. § 70502(d)(1).
The Act’s focus on the words and actions of a vessel’s master is consistent
with longstanding principles of admiralty law. As Chief Justice John Marshall
stated in 1818, “[t]he mere wood, iron, and sails of the ship, cannot, of themselves,
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violate the law. But this body is animated and put in action by the crew who are
guided by the master. The vessel acts and speaks by the master. She reports
herself by the master.” United States v. The Little Charles, 26 F. Cas. 979, 982
(Marshall, Circuit Justice, D. Va. 1818) (No. 15,612) (emphasis added); see also
Dobbins’s Distillery v. United States,
96 U.S. 395, 402 (1877) (same); United
States v. Cargo of the Brig Malek Adhel, 43 U.S. (2 How.) 210, 234 (1844) (same).
Requiring the master to speak on behalf of the ship also makes sense for practical
reasons. See
Rosero, 42 F.3d at 171 (noting that by placing the burden of claiming
nationality on the vessel’s master, Congress alleviated the practical difficulties
associated with requiring the Coast Guard to disprove all possible claims of
nationality).
It was incumbent upon the Siempre Malgarita’s master to assert a claim of
nationality on behalf of the ship. He did not, and Appellants’ contention that the
Siempre Malgarita spoke for itself1 is contrary to both the statute’s plain language
1
See Br. of Appellant Marcillo-Mera at 11 (“The Colombian flag painted on the side of
the Siempre Malgarita put the Coast Guard on notice that the vessel claimed Colombian
nationality . . . . [T]he Siempre Malgarita never claimed to be Ecuadorian . . . .” (second
emphasis added)); USDC Doc. 20 at 7 (“[E]ffectively, the Siempre Malgarita, speaking for
herself, told the boarding team she was Colombian.” (emphasis added)).
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and established principles of admiralty law. Given the stipulated facts, 2 I would
affirm the district court on the additional basis that there was no claim of
Colombian nationality or registry attributable to the vessel’s master under
§ 70502(d)(1), regardless of whether the painted Colombian flag could otherwise
support a claim of nationality or registry under § 70502(e).
2
Appellants attempt to contradict the stipulated facts on appeal and argue that, to the
extent an act attributable to the vessel’s master is necessary, the master asserted a claim of
Colombian nationality by setting out to sea in a vessel bearing the Colombian flag. The master,
however, stated he believed the flag was Ecuadorian. Thus, even if we allowed Appellants to
contradict the stipulated facts on appeal, the vessel’s master could not have intentionally asserted
a claim of Colombian nationality based on a flag he believed to be Ecuadorian, and it would be
unreasonable to suggest he could have made such a claim accidentally.
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