United States v. Reyes-Valdivia

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
Howard, Chief Judge,
Lipez and Thompson, Circuit Judges.
Franco L. Pérez-Redondo, Research and Writing Specialist,
with whom Eric Alexander Vos, Federal Public Defender, Vivianne M.
Marrero, Assistant Federal Public Defender, and Liza L. Rosado-
Rodríguez, Research and Writing Specialist, were on brief, for
appellant José D. Reyes-Valdivia.
Raymond L. Sánchez-Maceira on brief for appellant Jeffri
Dávila-Reyes.
Thomas F. Klumper, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, John A. Mathews II, Assistant United States
Attorney, and David C. Bornstein, Assistant United States
Attorney, were on brief, for appellee.
January 20, 2022
LIPEZ, Circuit Judge. These consolidated appeals arise
from the U.S. Coast Guard's interdiction of a small speed boat in
the western Caribbean Sea and the subsequent arrest and indictment
of the three men on board for drug trafficking under the Maritime
Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. §§ 70501-08. In a
motion to dismiss the indictment, appellants José Reyes-Valdivia
and Jeffri Dávila-Reyes challenged the constitutionality of the
MDLEA in multiple respects. Most relevant here, they argued that
the statute, which in certain circumstances allows U.S. law
enforcement to arrest and prosecute foreign nationals for drug
crimes committed in international waters, exceeds Congress's
authority under Article I of the Constitution. The district court
denied the motion to dismiss. Both appellants then pleaded guilty
pursuant to plea agreements in which each waived his right to
appeal if sentenced in accordance with his agreement's sentencing
recommendation provision.
On appeal, appellants renew their constitutional
objections to their prosecution. In our original decision, we did
not reach appellants' "primary argument" -- that their prosecution
was unlawful because their vessel was not properly deemed stateless
-- on the ground that "our governing precedent concerning the
protective principle of international law . . . permit[ted]
prosecution under the MDLEA even of foreigners on foreign vessels."
United States v. Dávila-Reyes, 937 F.3d 57, 59 (1st Cir. 2019)
- 3 -
(withdrawn).1 That precedent, we concluded, required that we
affirm appellants' convictions.
Appellants then petitioned for panel rehearing and en
banc review. We held their requests in abeyance pending the en
banc decision in another drug-trafficking case involving a
constitutional challenge to the MDLEA. See United States v. Aybar-
Ulloa, 987 F.3d 1 (1st Cir. 2021) (en banc). Subsequently, based
on our view that the decision in Aybar-Ulloa "diminished the force
of this circuit's precedent on the protective principle," we
concluded that it would no longer be appropriate to rely on that
principle to uphold appellants' convictions. Order, Nos. 16-2089,
2143 (Mar. 17, 2021). We therefore granted panel rehearing to
address appellants' constitutional challenge to their prosecution
under the MDLEA.
We now hold that Congress exceeded its authority under
Article I of the Constitution in enacting § 70502(d)(1)(C) of the
MDLEA. That provision expands the definition of a "vessel without
nationality" beyond the bounds of international law and thus
unconstitutionally extends U.S. jurisdiction to foreigners on
foreign vessels. Hence, appellants' convictions must be vacated.
The protective principle of international law "permits a
1
nation 'to assert jurisdiction over a person whose conduct outside
the nation's territory threatens the nation's security.'" Dávila-
Reyes, 937 F.3d at 62 (quoting United States v. Cardales, 168 F.3d
548, 553 (1st Cir. 1999)).
- 4 -
I.
We draw the following facts primarily from appellants'
change of plea colloquies and the uncontested portions of their
Presentence Investigation Reports. See United States v. Vélez-
Luciano, 814 F.3d 553, 556 (1st Cir. 2016).2 In October 2015,
while patrolling waters approximately 30 nautical miles southeast
of San Andrés Island, Colombia,3 U.S. Coast Guard officers observed
a small vessel4 moving at a high rate of speed. When the occupants
of the vessel became aware of the Coast Guard boat nearby, they
began throwing packages and fuel barrels overboard. The Coast
Guard officers approached the boat and began to question its
occupants, the two appellants and a third co-defendant. Reyes-
Valdivia, as the "master"5 of the vessel, claimed Costa Rican
2 We also draw some facts from statements by Coast Guard
officials that were submitted to the district court as attachments
to the government's Motion in Limine and Memorandum of Law in
Support of Jurisdiction. See United States v. Reyes-Valdivia, No.
3:15-cr-00721-FAB (D.P.R. Mar. 25, 2016), ECF No. 46.
We note that all citations to the district court's electronic
docket in this case will hereafter be cited using the short-form
"Reyes-Valdivia, ECF No. __ (filing date)."
3 Although part of Colombia, San Andrés Island is located off
the coast of Nicaragua.
4 The government's Motion in Limine describes the vessel as a
35-foot "low profile, open hull, 'go-fast-type' vessel." Reyes-
Valdivia, ECF No. 46, at 3 (Mar. 25, 2016).
5 The term "master" is synonymous with "captain." It is a
legal term of art meaning the person "to whom are committed the
government, care, and direction of the vessel and cargo."
Kennerson v. Jane R., Inc., 274 F. Supp. 28, 30 (S.D. Tex. 1967).
The statement of facts attached to Reyes-Valdivia's plea agreement
- 5 -
nationality for the vessel but did not provide any documentation
to support that claim.6
The Coast Guard officers boarded and searched the vessel
pursuant to a provision of an agreement between the United States
and Costa Rica "Concerning Cooperation to Suppress Illicit
Traffic." See Reyes-Valdivia, ECF No. 46-2, at 1 (Mar. 25, 2016)
(Dep't of State Certification). The officers did not find any
contraband, but a chemical test detected traces of cocaine. Based
on that evidence, the Coast Guard detained the three men -- all
citizens of Costa Rica -- and took them to the U.S. Naval Base at
Guantánamo Bay, Cuba, and then eventually to Puerto Rico. At some
point, the United States contacted the government of Costa Rica
requesting confirmation of the vessel's registry or nationality,
and Costa Rica subsequently responded that it could not confirm
does not identify him as the "master" of the vessel, see Reyes-
Valdivia, ECF No. 68, at 11 (Apr. 4, 2016), but a statement from
a Coast Guard officer reports that Reyes-Valdivia identified
himself as such, see id., ECF No. 46-1, at 1 (Mar. 25, 2016)
(Statement of Officer Luis Rosado).
6The Coast Guard reported that Reyes-Valdivia initially
stated that "there was no nationality for the vessel" before
asserting Costa Rican nationality. Reyes-Valdivia, ECF No. 46-1,
at 1 (Mar. 25, 2016) (Statement of Officer Luis Rosado). However,
this statement was not cited in the U.S. Department of State
Certification as a basis for identifying the vessel as stateless.
The Certification reported only that "[t]he master made a claim of
Costa Rican nationality for the go fast vessel." Id., ECF No. 46-
2, at 1 (Mar. 25, 2016). Nor was the statement included in the
government's version of the facts in the appellants' plea
agreements. See infra.
- 6 -
the vessel's registry. The United States thus determined that,
pursuant to § 70502(d)(1)(C) of the MDLEA, the boat was "without
nationality" and subject to U.S. jurisdiction.7
All three defendants were charged with two counts of
trafficking cocaine in violation of the MDLEA. Reyes-Valdivia and
Dávila-Reyes moved to dismiss the indictment for lack of
jurisdiction,8 arguing that the MDLEA, particularly
§ 70502(d)(1)(C), is unconstitutional. In their view,
§ 70502(d)(1)(C) exceeds Congress's authority under Article I of
the Constitution, and it violates the Due Process Clause of the
Fifth Amendment because it is unconstitutionally vague, subject to
arbitrary enforcement, and criminalizes conduct that has no nexus
with the United States. The district court denied the motion.
Reyes-Valdivia and Dávila-Reyes both subsequently agreed
to plead guilty to one count of possession with intent to
distribute five or more kilograms of cocaine in violation of the
7Section 70502(c)(1)(A) of the MDLEA provides that "a vessel
without nationality" is "subject to the jurisdiction of the United
States." 46 U.S.C. § 70502(c)(1)(A). As explained below,
§ 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." Id. § 70502(d)(1)(C).
8Reyes-Valdivia filed the motion, and the district court
granted Dávila-Reyes's motion to join.
- 7 -
MDLEA. See 46 U.S.C. § 70503(a)(1).9 Both men agreed to waive
appellate review if sentenced in accordance with the sentencing
recommendation provisions in their plea agreements. Ultimately,
the district court sentenced Dávila-Reyes consistently with his
agreement (a 120-month term), but sentenced Reyes-Valdivia to a
term longer than proposed in his agreement (70 months instead of
57) because it found that he should be given a two-level
enhancement for being the "captain" of the vessel. See U.S.S.G.
§ 2D1.1(b)(3)(C).
Reyes-Valdivia's motion for reconsideration was denied.
Both Reyes-Valdivia and Dávila-Reyes then appealed. We affirmed
their convictions on the basis that the protective principle
permitted their prosecution.
II.
As noted, this court's en banc decision in United States
v. Aybar-Ulloa led us to withdraw our prior opinion and reconsider
appellants' claims. In Aybar-Ulloa, the en banc court held that
"international law accepts the criminal prosecution by the United
States of persons . . . who [are] seized by the United States while
trafficking cocaine on a stateless vessel on the high seas." 987
9The third defendant also pleaded guilty to this count and
was sentenced to a 57-month term of imprisonment. He did not file
an appeal.
- 8 -
F.3d at 3.10 In so holding, the court bypassed our circuit's
precedent on the protective principle, which could have provided
a straightforward basis for affirming the conviction, and instead
addressed a more complex issue of international law. Notably, the
en banc court did not achieve unanimity on the legal basis for
U.S. jurisdiction over foreign nationals apprehended on vessels
conceded to be stateless. See infra. The choice of a non-
unanimous analytical path over reliance on the protective
principle is one basis for our conclusion that Aybar-Ulloa weakened
our circuit's protective principle jurisprudence.
In addition, statements in both the majority and
concurring opinions in Aybar-Ulloa more directly suggest
skepticism about applying the protective principle to a foreign
vessel whose occupants are foreign nationals allegedly involved in
drug trafficking, at least absent acquiescence by the flag nation.
The majority observed that one of our primary precedents on the
protective principle -- United States v. Cardales, 168 F.3d 548(1st Cir. 1999) -- "can be read as applying only to the
circumstance where a foreign flag nation consents to the
application of United States law to persons found on that nation's
flagged vessel." Aybar-Ulloa, 987 F.3d at 3. In our prior opinion
Generally, there is a consensus that "high seas" denotes
10
areas outside any country's territorial waters. See, e.g., United
States v. Carvajal, 924 F. Supp. 2d 219, 234 (D.D.C. 2013), aff'd
sub nom. United States v. Miranda, 780 F.3d 1185 (D.C. Cir. 2015).
- 9 -
in this case, we assumed that appellants' vessel was Costa Rican,
as they had asserted, but we concluded that our precedent
nonetheless required us to uphold their prosecution based on the
protective principle. The Aybar-Ulloa majority's posited reading
of Cardales, however, would foreclose reliance on the protective
principle here because the record contains no consent from the
Costa Rican government to the prosecution.
The Aybar-Ulloa concurring opinion aired an even broader
uncertainty about the protective principle. In describing Aybar-
Ulloa's contentions, the concurrence noted the long-ago
observation by then-Judge Breyer that there is a "'forceful
argument' against application of [the] protective principle to
encompass drug trafficking on the high seas." Id. at 15 (Barron,
J., concurring) (quoting United States v. Robinson, 843 F.2d 1, 3
(1st Cir. 1988) (Breyer, J.)); see also id. at 20 (referencing the
same skepticism about the protective principle with a citation to
Robinson). Both Aybar-Ulloa opinions, then, caused the panel to
doubt its reliance on the protective principle to uphold Reyes-
Valdivia and Dávila-Reyes's prosecution under the MDLEA. See also
Aaron J. Casavant, In Defense of the U.S. Maritime Drug Law
Enforcement Act: A Justification for the Law's Extraterritorial
Reach, 8 Harv. Nat'l Sec. J. 191, 213 (2017) (noting that
commentators have rejected the protective principle to support
MDLEA prosecutions, "positing that 'the cases that see the MDLEA
- 10 -
as an exercise of protective jurisdiction fundamentally
misconceive the principle'" (quoting Eugene Kontorovich, Beyond
the Article I Horizon: Congress's Enumerated Powers and Universal
Jurisdiction Over Drug Crimes, 93 Minn. L. Rev. 1191, 1231 (2009)
(emphasis omitted))); but see id. at 222-23 (noting "a circuit
split over whether the crime of maritime drug trafficking warrants
the use of the protective principle"); id. at 225 (stating that
"the protective principle of international law is broad enough to
encompass maritime drug trafficking").
Apart from any reference to the protective principle,
both Aybar-Ulloa opinions include statements indicating that the
prosecution of a foreign national seized on the high seas under
U.S. drug-trafficking laws would not be proper unless the targeted
activity and seizure occurred on a stateless vessel. The majority,
for example, concludes a passage on the reasonable expectations of
"those who set out in stateless vessels" by noting: "Simply put,
if a person intent on drug trafficking on the high seas wants to
be prosecuted in his own country should he be caught, he should
sail under that country's flag." Aybar-Ulloa, 987 F.3d at 9. The
majority subsequently describes its holding as limited "to vessels
flouting order and custom on the high seas by eschewing the
responsibilities and protections of the flag-state system." Id.
at 13; see also id. at 8 (quoting United States v. Furlong, 18
U.S. (5 Wheat.) 184, 198 (1820), for the proposition that "the
- 11 -
distinction between foreign vessels and stateless vessels serves
to avoid 'offensive interference with the governments of other
nations'"). In the same vein, the concurring opinion in Aybar-
Ulloa notes the "fair amount of support" for the view that Congress
lacks authority under Article I's Define and Punish Clause "to
subject foreign nationals to our criminal laws" for acts occurring
on foreign vessels on the high seas. Id. at 15 (Barron, J.,
concurring).11
In sum, we see in Aybar-Ulloa multiple signals that the
majority of judges on our court do not view the protective
principle as supporting U.S. jurisdiction over drug-trafficking
11 Elsewhere, the Aybar-Ulloa concurrence notes that "the
application of the MDLEA to Aybar[-Ulloa]'s conduct in this case"
-- i.e., conduct aboard a stateless vessel -- would likely be
consistent with international law,
[e]ven if we were to assume that the law of
nations places limits on Congress's power
under the Define and Punish Clause to subject
foreign nationals on foreign vessels in
international waters to our domestic criminal
laws, and even if we were to assume that the
United States may not assert protective
jurisdiction over drug trafficking merely
because it occurs on stateless vessels in
international waters, see Robinson, 843 F.2d
at 3-4.
987 F.3d at 20. Although the Aybar-Ulloa concurrence does not
take a position on those hypotheticals, we view them -- and the
reiterated citation to Robinson -- to indicate a level of doubt
about the applicability of the protective principle, at a minimum,
to drug-trafficking activity by foreign nationals on foreign
vessels.
- 12 -
activity conducted on the high seas by foreign nationals on foreign
vessels.12 Hence, in light of Aybar-Ulloa, we decline to rely on
the protective principle to uphold appellants' convictions.
Rather, the question we must answer is whether -- as the United
States claims -- appellants' vessel was properly deemed stateless,
bringing the vessel and its occupants within the scope of the
holding in Aybar-Ulloa.
Before addressing that question, however, we review and
elaborate on our reasons, set forth in the withdrawn panel opinion,
for rejecting the government's argument that appellants waived
their claims of constitutional error. See Dávila-Reyes, 937 F.3d
at 60-61.
III.
The government contends that Reyes-Valdivia and Dávila-
Reyes waived their right to appeal in two distinct ways: by the
express appellate waiver provisions in their plea agreements and
by entry of unconditional guilty pleas to drug trafficking in
violation of the MDLEA. With respect to Reyes-Valdivia, the
government is wrong in arguing that his appeal is barred by his
plea agreement. As described above, the district court declined
Of course, consent by the flag nation changes the calculus,
12
as acknowledged by one commentator who has advocated for use of
the protective principle in the context of drug-trafficking on the
high seas. See Casavant, supra, at 223 (noting that "consent of
the flag or coastal state" is a "check on the exercise of U.S.
criminal jurisdiction").
- 13 -
to follow the parties' recommended term of 57 months and instead
sentenced him to a 70-month term of imprisonment. Because Reyes-
Valdivia's sentence exceeded the recommendation, the waiver
provision plainly does not apply.13
Dávila-Reyes, however, received a 120-month sentence
that aligns with the recommendation in his plea agreement. He
argues that, despite the enforceable waiver, we should exercise
our inherent authority to consider his claims to avoid "a
miscarriage of justice." United States v. Teeter, 257 F.3d 14,
25-26 (1st Cir. 2001). He contends that his appeal raises
"important questions of law and [of] first impression" -- including
the constitutionality of § 70502(d)(1)(C) of the MDLEA -- and that
preventing him from bringing his appeal would be unjust.
We agree that the constitutional issue Dávila-Reyes
raises is significant and that the other factors allowing us to
exercise our discretion to disregard the appellate waiver also are
sufficiently present. See, e.g., United States v. Ortiz-Vega, 860
F.3d 20, 27-28 (1st Cir. 2017). Particularly important is the
lack of prejudice to the government, given Reyes-Valdivia's
The government contends that Reyes-Valdivia is nonetheless
13
bound by the waiver provision because he failed to explain in his
opening brief why it is inapplicable. However, it is apparent on
the face of the plea agreement that Reyes-Valdivia was not
sentenced in accordance with the sentencing recommendation
provision, and he was not obligated to make that obvious point in
his opening brief. See United States v. Colón-Rosario, 921 F.3d
306, 310-11 (1st Cir. 2019).
- 14 -
presentation of the same issues as Dávila-Reyes. See id. at 27.
Moreover, the potential for relief should not depend on the
happenstance that the district court added an enhancement to Reyes-
Valdivia's sentence. Thus, we exercise our discretion and decline
to enforce Dávila-Reyes's appellate waiver.
Nor do appellants' guilty pleas foreclose their right to
challenge the constitutionality of the MDLEA. The Supreme Court
held in Class v. United States that "a guilty plea by itself" does
not bar "a federal criminal defendant from challenging the
constitutionality of the statute of conviction on direct appeal."
138 S. Ct. 798, 803 (2018). In their briefing and oral argument,
appellants present claims that are permissible under Class.
Although they conceded through their guilty pleas that the MDLEA,
by its terms, allows the government to prosecute them under U.S.
law, they argue that Congress exceeded constitutional limits with
the enactment of the applicable provision. In other words,
appellants contend that their convictions were within the scope of
the statute but nonetheless unconstitutional. Such claims may
proceed notwithstanding an unconditional guilty plea. See id. at
805 (holding that a guilty plea does not bar claims that challenge
"the Government's power to criminalize [the defendant's]
(admitted) conduct" because "[t]hey thereby call into question the
Government's power to 'constitutionally prosecute him'" (quoting
United States v. Broce, 488 U.S. 563, 575 (1989))).
- 15 -
The government asserts that Class does not apply here
because appellants "admitted without qualification that their
vessel was one 'subject to the jurisdiction of the United States,'"
without limiting the basis for jurisdiction to § 70502(d)(1)(C)
(whose text is reproduced in footnote 7).14 Appellee's Supp. Br.
at 18-19. In making that assertion, the government cites to the
appellants' general acknowledgment of guilt at their change-of-
plea hearing but disregards their specific admissions. The
prosecution -- and, accordingly, appellants' admissions of guilt
-- was premised on their vessel's statelessness under
§ 70502(d)(1)(C). The indictment stated generally that
jurisdiction was based on appellants' vessel being one without
The statutory phrase "a vessel subject to the jurisdiction
14
of the United States" in the MDLEA concerns legislative
jurisdiction -- in other words, Congress's authority to enact
legislation "regulat[ing] drug trafficking on [] ships" -- rather
than the subject-matter jurisdiction of the federal courts.
United States v. González, 311 F.3d 440, 443 (1st Cir. 2002); see
also United States v. Prado, 933 F.3d 121, 130 (2d Cir. 2019)
(adopting and elaborating on this interpretation and rejecting the
alternative approach of other circuits). But see United States v.
Miranda, 780 F.3d 1185, 1192 (D.C. Cir. 2015) (agreeing with the
Fifth and Eleventh Circuits that "the question of whether a vessel
is 'subject to the jurisdiction of the United States' is a matter
of subject-matter jurisdiction"). "Unlike Congress's employment
in other statutes of one-factor jurisdictional elements such as
'by a Federal Reserve Bank,' or 'affect[ing] interstate commerce,'
the facts that may cause a vessel to be 'subject to the
jurisdiction of the United States' [under the MDLEA] involve
numerous complex alternatives, which are spelled out at length in
§ 70502 under 'Definitions.'" Prado, 933 F.3d at 149. Although
appellants assert that their challenge to their prosecution
implicates subject-matter jurisdiction, our precedent, as noted
above, holds otherwise.
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nationality, see 46 U.S.C. § 70502(c)(1)(A),15 but the Department
of State Certification that subsequently was filed specified that
"the Government of the United States determined the vessel was
without nationality in accordance with 46 U.S.C.
§ 70502(d)(1)(C)," Reyes-Valdivia, ECF No. 46-2, at 3 (Mar. 25,
2016) (Dep't of State Certification) (emphasis added).
Appellants' plea agreements also identified § 70502(c)(1)(A) --
i.e., the subsection referring to vessels "without nationality" -
- as the basis for U.S. jurisdiction, see id., ECF Nos. 68, 72,
at 1-2 (Apr. 4, 2016), and the "Government's Version of the Facts,"
incorporated into those agreements, set forth the facts concerning
the vessel's status in language tracking the requirements of
§ 70502(d)(1)(C): the master's claim of Costa Rican nationality
and the response from the government of Costa Rica "that it could
neither confirm nor refute the registry of the suspect vessel,"
id. at 11. The same facts were recounted by the government at the
change-of-plea hearing. See id., ECF No. 117, at 26 (Oct. 3,
2016).16 The government's Motion in Limine and Memorandum of Law
15As previously noted, § 70502(c)(1) lists "a vessel without
nationality" among the list of vessels that are "subject to the
jurisdiction of the United States." 46 U.S.C. § 70502(c)(1)(A).
Other types of vessels on the list include "a vessel registered in
a foreign nation if that nation has consented or waived objection
to the enforcement of United States law by the United States," id.§ 70502(c)(1)(C), and "a vessel in the customs waters of the United
States," id. § 70502(c)(1)(D).
16At the plea hearing, the government was asked to "give a
brief explanation of the theory to be presented to prove each
- 17 -
in Support of Jurisdiction17 likewise asked the district court to
"find, as a matter of law, that [appellants'] vessel was subject
to the jurisdiction of the United States, as defined in
. . . Sections 70502(c)(1)(A) and (d)(1)(C)." Id., ECF No. 46, at
4 (Mar. 25, 2016).18
Defendant guilty if a trial were to be held." Id. at 25. In
relevant part, the prosecutor stated:
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.
Id. at 25-26.
17 In a 1996 amendment to the MDLEA, Congress stated that
jurisdictional issues under the statute "are preliminary questions
of law to be determined solely by the trial judge." 46 U.S.C.
§ 70504(a); see also González, 311 F.3d at 442-43. Appellants
moved to change their pleas a week after the government filed the
Motion in Limine, and the district court therefore did not rule on
it. See Reyes-Valdivia, ECF Nos. 59, 63 (Apr. 1, 2016).
18 The government has continued to rely on § 70502(d)(1)(C)
before us. In its initial brief, the government quoted the
provision in full and then described appellants' admission
consistently with the provision's terms -- i.e., "that Costa Rica
did not confirm the registry of their vessel (which had no indicia
of nationality) and that their vessel was determined to be one
without nationality." Appellee's Br. at 36. In addition, in
asserting that the MDLEA provided sufficient and unambiguous
notice of the MDLEA's applicability to appellants, the government
- 18 -
Appellants thus pleaded guilty based on the government's
assertion of jurisdiction pursuant to § 70502(d)(1)(C), in
accordance with the facts stated in their plea agreements. In
other words, they admitted that they "did what the indictment
alleged" and that the government accurately described the facts
giving rise to U.S. jurisdiction under § 70502(d)(1)(C). Class,
138 S. Ct. at 804. Hence, their challenge to the constitutionality
of § 70502(d)(1)(C) does not "contradict the terms of the
indictment or the written plea agreement," and, as in Class, the
constitutional claim can "be 'resolved without any need to venture
beyond th[e] record.'" Id. (quoting Broce, 488 U.S. at 575).
Appellants' constitutional challenge is premised on the facts set
forth by the government and legal principles that, they claim,
invalidate § 70502(d)(1)(C)'s definition of a "vessel without
nationality" as a basis for subjecting them to U.S. jurisdiction.
We need not go outside the existing record to address that question
of law. Consequently, appellants' guilty pleas do not bar this
direct appeal. See id. at 805.
The government also appears to argue, however, that it
is entitled to sidestep appellants' claim that § 70502(d)(1)(C) is
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. at
38.
- 19 -
unconstitutional because, it says, their vessel could have been
deemed without nationality based on other jurisdictional theories
and other facts. In its supplemental brief, the government asserts
that Reyes-Valdivia's failure to produce registration paperwork or
otherwise substantiate his verbal claim of nationality would
suffice to "render[] the vessel stateless as a matter of domestic
and international law." Appellee's Supp. Br. at 9 (emphasis
omitted).19 The government further notes that the vessel could be
deemed stateless because it "had no indicia of nationality other
than the master's say-so, and even he presented conflicting
information, having initially stated the vessel had no
nationality." Id. at 11 (internal quotation marks omitted). But
these jurisdictional theories are not the basis on which the
government relied to arrest and prosecute appellants, and to obtain
their guilty pleas. The defendants therefore had no reason or
opportunity to consider those rationales for deeming their vessel
stateless before deciding to forgo their right to contest the MDLEA
charges,20 which relied on the undisputed facts establishing
This theory also plays a part in the government's defense
19
of § 70502(d)(1)(C), and we address it in that context in Section
V.C.
In his supplemental brief, Reyes-Valdivia challenges the
20
government's assertion that the vessel bore no indicia of
nationality. He contends 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," and he points out
that "the Costa Rica ensign was prominent enough for a Marine
Patrol Aircraft ['MPA'] to recognize it from overhead."
- 20 -
statelessness under § 70502(d)(1)(C).21 It is now simply too late
for the government to proffer alternative bases for jurisdiction.
Cf. United States v. Mitchell-Hunter, 663 F.3d 45, 50 n.7 (1st
Cir. 2011) (stating that jurisdiction under the MDLEA may be
established "any time prior to trial" (emphasis added)).
In sum, neither of the government's waiver-of-appeal
arguments has merit.
Appellants' Supp. Br. at 18 n.4. The assertion of visibility from
the air was based on the statement of Customs Officer Luis Rosado
recounting that the MPA had detected a go-fast vessel "with a Costa
Rican flag painted on the bow." Reyes-Valdivia, ECF No. 46-1, at
1 (Mar. 25, 2016). The government properly points out that
appellants admitted in their plea agreements to a version of the
facts stating that their vessel bore no indicia of nationality and
argues that appellants "may not pursue any contention on appeal
that 'would contradict' that admission." Appellee's Supp.
Response Br. at 5 (quoting United States v. Sarmiento-Palacios,
885 F.3d 1, 4 (1st Cir. 2018)). However, the government, too,
must abide by the facts on which it relied to obtain appellants'
pleas.
21 We also note that the government has argued, on the one
hand, that "[t]he MDLEA is . . . clear about how the United States
decides whether a vessel is stateless," citing 46 U.S.C.
§ 70502(d), Appellee's Br. at 35, but, on the other hand, has not
identified a statutory provision that matches its newly offered
theories of jurisdiction. As described more fully infra, the two
other circumstances for classifying a vessel as "without
nationality" expressly stated in § 70502(d)(1) -- the denial of a
claim by the named country and the master's refusal to make a claim
upon request -- do not apply here. See 46 U.S.C. § 70502(d)(1)(A),
(B). Although § 70502(d)(1)'s categories of stateless vessels are
non-exclusive (the provision states that "the term 'vessel without
nationality' includes" the three listed examples (emphasis
added)), the government cannot reasonably expect defendants to
assess their options if it invokes a particular statutory basis
for jurisdiction but reserves the right to shift
theories -- including to theories beyond the statute's express
language.
- 21 -
IV.
We must consider one last issue before reaching the
merits of appellants' claims. As our colleague notes in his
concurrence, the jurisdictional provision relied on by the
government to prosecute appellants, 46 U.S.C. § 70502(d)(1)(C),
refers to a vessel master's having made a claim of registry, but
Reyes-Valdivia claimed Costa Rican nationality, not registry. The
parties initially appeared to agree that § 70502(d)(1)(C)
nonetheless applies to the facts of this case. In a supplemental
brief submitted in response to questions from the court, however,
appellants argued for the first time that the provision is inapt
where the master of the vessel asserts only a nationality claim.
We are unpersuaded that this distinction between a claim
of registry and a claim of nationality provides a basis for
vacating appellants' convictions. Although the terms
"nationality" and "registry," in formal usage, are not
interchangeable,22 the MDLEA treats them as such throughout
22 In general, the "nationality" of a vessel refers to the
country that has certain "international rights and duties . . . in
connection with a given ship and its users." Herman Meyers, The
Nationality of Ships 129 (1967). The term "registration" refers
to the recording of nationality "on land and under the supervision
of a government body." Id.; see also id. at 129-30 ("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." (quoting The Mohawk, 70 U.S. (3 Wall.)
566, 571 (1865))).
- 22 -
§ 70502. Section 70502(e), for example, jointly defines a "claim
of nationality or registry" to "include[] only":
(1) possession on board the vessel and
production of documents evidencing the
vessel's nationality as provided in article 5
of the 1958 Convention on the High Seas;[23]
(2) flying its nation's ensign or flag; or
(3) a verbal claim of nationality or registry
by the master or individual in charge of the
vessel.
46 U.S.C. § 70502(e). By allowing the act of flying a national
flag or the possession of documents of nationality to suffice as
a claim to either nationality or registry, the MDLEA effectively
treats the distinction between nationality and registry as
irrelevant. Congress's use of the two terms interchangeably, or
at least inconsistently, is even more evident in § 70502(d)(1)(C),
where the rejection of a master's claim of registry is premised on
the named country's failure to confirm nationality.
Yet, this variation in terminology does not undermine
what is otherwise Congress's clear intention to require
verification when a master identifies a vessel as
"foreign" -- whether by claiming nationality or registry -- and
thereby seeks to avoid the jurisdiction possessed by the United
States (and all nations) over stateless vessels. As we shall
Article 5
23 states, in part, that "[e]ach State shall issue
to ships to which it has granted the right to fly its flag documents
to that effect." United Nations Convention on the High Seas art.
5, Apr. 29, 1958 ("1958 Convention on the High Seas"), 13 U.S.T.
2312.
- 23 -
explain, we think it evident that Congress used the term "claim of
registry" in the first part of § 70502(d)(1)(C) to also encompass
a "claim of nationality" -- a common, albeit imprecise, choice of
language.
More than fifty years ago, one scholar noted the tendency
to use the term registration to signify the broader concept of
nationality. See Herman Meyers, The Nationality of Ships 28 (1967)
(noting that "[t]he phrase 'registered in', and other word
combinations in which the term register is used," are sometimes
imprecisely "used as synonymous with nationality"); id. at 127
(noting that, because "in the great majority of cases" nationality
and registration, along with documentation and flying the flag,
"occur in combination," "the differences between the terms have
sometimes been neglected and a pars pro toto [a part taken for the
whole] use of the word registration . . . is by no means rare in
the doctrine or in the sources of international law"). Indeed, a
claim of registry is also a claim of nationality. See supra note
22. Thus, the variable word choice in § 70502(d)(1)(C) does not
have the import that it might have in other contexts. See
generally DePierre v. United States, 564 U.S. 70, 83 (2011) (noting
the usual assumption that a legislature intends different meanings
when it uses different words, but also recognizing that "Congress
sometimes uses slightly different language to convey the same
message").
- 24 -
Importantly, notwithstanding the prior reference to a
claim of registry in § 70502(d)(1)(C), Congress's ultimate demand
in that same provision is for confirmation of nationality. We can
detect no reason why Congress would require affirmative
confirmation when a vessel's master makes a claim of registry,
while allowing a claim of nationality to stand on its own.
Excluding claims of nationality from the provision's scope would
allow drug traffickers to evade the verification requirement
simply by asserting a claim of nationality. Appellants attribute
that glaring loophole to Congress's deference to foreign nations
and its intention to stay within the bounds of international law.
They note that a claim of nationality "presents a more complicated
scenario since not all national ships are registered," making it
more difficult for the claimed nation "to confirm or refute the
nationality claim." Appellants' Supp. Br. at 8-9. Appellants do
not explain, however, why that concern would prompt Congress, in
effect, to nullify the verification provision by encouraging
vessel masters to claim foreign nationality rather than registry.
Inescapably, then, the reference in the first part of
§ 70502(d)(1)(C) solely to "a claim of registry" must be
attributable to the not infrequent practice of treating a "claim
of registry" and a "claim of nationality" as essentially
synonymous, even though the former term is technically narrower
than the latter.
- 25 -
Our view that § 70502(d)(1)(C) is not reasonably
construed as limited to claims of registry is reinforced when the
provision is considered in the context of the MDLEA as a whole and
in light of its legislative history. See, e.g., Abramski v. United
States, 573 U.S. 169, 179 n.6 (2014) ("[A] court should not
interpret each word in a statute with blinders on, refusing to
look at the word's function within the broader statutory
context."); United Sav. Ass'n of Tex. v. Timbers of Inwood Forest
Assocs., Ltd., 484 U.S. 365, 371 (1988) ("Statutory construction
. . . is a holistic endeavor. A provision that may seem ambiguous
in isolation is often clarified by the remainder of the statutory
scheme -- because the same terminology is used elsewhere in a
context that makes its meaning clear, or because only one of the
permissible meanings produces a substantive effect that is
compatible with the rest of the law." (citations omitted)). The
MDLEA reflects Congress's intention to enable the aggressive
prosecution of maritime drug trafficking. See 46 U.S.C. § 70501("Congress finds and declares that . . . trafficking in controlled
substances aboard vessels is a serious international problem, is
universally condemned, and presents a specific threat to the
security and societal well-being of the United States . . . .").
Indeed, § 70502(d)(1)(C) was among several provisions added to the
MDLEA in 1996 to "expand the Government's prosecutorial
effectiveness in drug smuggling cases." H.R. Rep. No. 104-854, at
- 26 -
142 (1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N. 4292, 4337.
Given this statutory backdrop, the majority observed in United
States v. Matos-Luchi that "Congress did not expect courts to
render a cramped reading of the statute." 627 F.3d 1, 7 (1st Cir.
2010).
In addition, other portions of the MDLEA's legislative
history indicate that Congress's specific reference to a claim of
registry in subsections (A) and (C) of § 70502(d)(1) -- both
involving the claimed nation's response (or lack thereof)24 -- may
reflect the fact that registry claims appear to have been the
common way in which drug-trafficking defendants asserted their
foreign nationality. There are multiple references to the
difficulty faced by prosecutors in producing "judicially
admissible documentary evidence" of the foreign nation's "consent
[to board] or denial of a claim of registry." S. Rep. No. 99-530,
at 15 (1986) (emphasis added); see also, e.g., USCG Authorizations
and Load Lines: Hearing on H.R. 1362 Before the S. Subcomm. on
Merchant Marine of the Comm. on Commerce, Sci. & Transp., 99th
Cong. 39-40 (1986) (Responses of Adm. James Gracey to questions
24 Like § 70502(d)(1)(C), see supra note 7, subsection
(d)(1)(A) specifically references a claim of registry, stating
that a "vessel without nationality" includes any vessel "aboard
which the master or individual in charge makes a claim of registry
that is denied by the nation whose registry is claimed."
- 27 -
from Sen. Hollings).25 But whatever the exact explanation for the
chosen language, given the legislative background, together with
25This hearing, in May 1986, preceded the adoption that year
of the MDLEA. Asked to "describe the kinds of problems the Coast
Guard and federal prosecutors have encountered" in responding to
jurisdictional objections from accused drug traffickers at trial,
Admiral Gracey responded, in part, as follows:
The princip[al] problems that have arisen
involve the difficulty of proving vessel
status. For [e]xample, if upon inquiry by the
Coast Guard, a vessel makes a claim of
registry, the U.S. must confirm that registry
with the claimed flag state. If the flag state
denies registry, the vessel is stateless,
i.e., a "vessel subject to the jurisdiction of
the United States" . . . . At this point, the
U.S. may under international law take law
enforcement action against that vessel.
However, to prove the element of the offense
in court, the U.S. must obtain a formal
certification from the claimed flag state
attesting that the vessel is not registered in
that state. On the other hand, i[f] the
claimed state verifies registry, the U.S.
obtains that state's consent to take law
enforcement action. . . . However, to prove
the element of the offense in court, the
United States must obtain a formal
certification from the flag state verifying
registry and confirming its consent for the
U.S. to take law enforcement action. The
difficulties in obtaining these documents from
foreign governments in a timely manner, and in
a form acceptable to our courts under the
Federal Rules of Evidence, have been
considerable.
USCG Authorizations and Load Lines: Hearing on H.R. 1362 Before
the S. Subcomm. on Merchant Marine of the Comm. on Commerce, Sci.
& Transp., 99th Cong. 39-40.
A focus on registry as the common indicator of nationality
also appears in the legislative history of the MDLEA's predecessor,
the Marijuana on the High Seas Act, Pub. L. No. 96-350, 94 Stat.
- 28 -
Congress's blending of the concepts of nationality and registry
elsewhere in the MDLEA, a reading of § 70502(d)(1)(C) that excludes
claims of nationality would "produce[] a substantive effect that
is [in]compatible with the rest of the law." United Sav. Ass'n of
Tex., 484 U.S. at 371.
We note, in addition, that this court has treated claims
of registry and nationality synonymously in multiple cases. For
example, in Matos-Luchi, the majority cited § 70502(d)(1)(A) and
(C) -- both of which refer only to a claim of registry -- as
applicable to a "claim of nationality [that] is made but rejected
[(d)(1)(A)] or not backed up by the nation invoked [(d)(1)(C)]."
627 F.3d at 6; see also United States v. Cuevas-Esquivel, 905 F.2d
510, 513-14 (1st Cir. 1990) (noting the absence of a claim of
nationality but citing to a provision in an earlier codification
of the MDLEA that referenced only registry (46 U.S.C. App.
§ 1903(c)(2)(A))); United States v. Maynard, 888 F.2d 918, 925
(1st Cir. 1989) ("Since a 'claim of nationality' was made, the
1159 (1980). See, e.g., Stopping "Mother Ships" -- A Loophole in
Drug Enforcement: Hearing Before the S. Subcomm. to Investigate
Juvenile Delinquency of the Comm. on the Judiciary, 95th Cong., at
52 (1978) (Statement of Morris Busby, Acting Deputy Assistant Sec.
of State for Oceans and Fisheries Affairs) (noting the "well-
established principle under international law . . . that a country
may exercise jurisdiction on the high seas over a vessel without
nationality, one that is not registered in any foreign state");
id. at 53 (explaining that, when the master or crew make "a claim
of nationality," the Coast Guard's protocol involves contacting
the claimed flag state to "request[] that the government verify
the registry of the vessel").
- 29 -
[vessel] can be classified as a stateless vessel only if the 'claim
is denied by the flag nation whose registry is claimed.'" (quoting
§ 1903(c)(2)(A))).
Other courts have likewise used the terms
interchangeably. See United States v. Alarcon Sanchez, 972 F.3d
156, 162-63 (2d Cir. 2020) (stating that "[a] claim of registry
may be made" by "'a verbal claim of nationality or registry,'"
quoting 46 U.S.C. § 70502(e) and relying on § 70502(d)(1)(C) in
discussing the master's assertion of nationality); United States
v. Prado, 933 F.3d 121, 130 (2d Cir. 2019) ("[A] verbal assertion
of nationality by the master constitutes a claim, which is then
tested by a U.S. officer's inquiry of the nation's registry
authority."); United States v. Hills, 748 Fed. App'x 252, 253 (11th
Cir. 2018) (per curiam) (finding that the defendant's vessel was
without nationality based on § 70502(d)(1)(C) where the defendant
"told [the Coast Guard] that he was the master of the vessel and
identified the vessel as Costa Rican"); United States v. Rosero,
42 F.3d 166, 171 (3d Cir. 1994) (referring to "a false claim of
nationality or registry" even though the provision at issue, 46
U.S.C. App. § 1903(c)(2)(A), referred only to "a claim of
registry"); id. at 174 ("[T]he prosecution can establish that a
vessel is stateless by showing that the master or person in charge
- 30 -
made a claim of nationality or registry that was denied by the
flag nation whose registry was claimed.").26
We therefore see no basis for departing from our prior
understanding of § 70502(d)(1)(C)'s scope.27 Congress's reference
solely to claims of registry in the first part of § 70502(d)(1)(C)
is not reasonably construed to exclude from that subsection's
verification requirement claims of nationality that are phrased
without reference to registration.28
26The government in this case also blended the two concepts.
Despite the claim solely of nationality, the United States asked
Costa Rica to confirm "registry or nationality." Costa Rica then
"replied that it could not confirm [the] vessel's registry." See
Reyes-Valdivia, ECF No. 46-2, at 1 (Mar. 25, 2016) (Dep't of State
Certification).
27 In so concluding, we note that, contrary to appellants'
assertion, the statutory imprecision here is not an instance of
ambiguity requiring application of the rule of lenity. The rule
of lenity, which "requires that ambiguity in a criminal statute be
resolved in favor of the accused," United States v. Jimenez, 507
F.3d 13, 20 (1st Cir. 2007), "does not apply if the ambiguous
reading relied on is an implausible reading of the congressional
purpose," Caron v. United States, 524 U.S. 308, 316 (1998). As we
have described, Congress clearly intended to subject a claim of
nationality that is not premised on registry to the same
verification requirement as a claim of registry. Accordingly, the
rule of lenity does not come into play. See Moskal v. United
States, 498 U.S. 103, 108 (1990) ("[W]e have always reserved lenity
for those situations in which a reasonable doubt persists about a
statute's intended scope even after resort to the language and
structure, legislative history, and motivating policies of the
statute." (internal quotation marks omitted)).
28Although we do not rely on waiver in rejecting appellants'
belated argument that § 70502(d)(1)(C) does not apply to the facts
of this case, we note that a request for supplemental briefing
does not revive a claim that a party has failed to preserve. See
United States v. Galíndez, 999 F.3d 60, 69 n.10 (1st Cir. 2021).
- 31 -
V.
Having addressed these threshold issues, we turn to
appellants' constitutional challenge to 46 U.S.C.
§ 70502(d)(1)(C). As described above, we have construed that
provision to allow U.S. authorities to deem a vessel "without
nationality" -- i.e., stateless -- when a claim of either registry
or nationality asserted by the vessel's occupants is neither
confirmed nor denied by the claimed country. See, e.g., Matos-
Luchi, 627 F.3d at 6. Under Aybar-Ulloa, a determination of
statelessness has a significant consequence: it permits
prosecution under U.S. law of any foreign national aboard the
vessel. See 987 F.3d at 3. Appellants contend that
§ 70502(d)(1)(C) exceeds Congress's authority under the "Define
and Punish Clause" of Article I, which gives Congress the power
"[t]o define and punish Piracies and Felonies committed on the
high Seas, and Offences against the Law of Nations." U.S. Const.
art. I, § 8, cl. 10.
It is undisputed that the "vessel without nationality"
provisions of the MDLEA were enacted solely pursuant to Congress's
authority to "define and punish . . . Felonies committed on the
high Seas" ("the Felonies Clause").29 See United States v.
Although it may be more accurate to refer to the "Felonies
29
Clause" as the "Felonies Sub-Clause," given that it is contained
within the Define and Punish Clause, we use the "Felonies Clause"
designation for simplicity.
- 32 -
Cruickshank, 837 F.3d 1182, 1187 (11th Cir. 2016) (stating that
the MDLEA "was enacted under Congress's authority provided by the
Felonies Clause"). Appellants argue that the definition of "vessel
without nationality" in § 70502(d)(1)(C) conflicts with
international law and thus authorizes the arrest and prosecution
of foreign nationals aboard vessels on the high seas that the
Constitution does not permit. This assertion of U.S. jurisdiction
is incompatible with the Constitution, appellants contend, because
Congress's authority under the Felonies Clause is constrained by
international law. Put another way, appellants ask us to conclude
that, under longstanding principles of international law, their
vessel was not properly deemed stateless, and because Congress's
authority in this instance is limited by international law,
appellants' arrests and prosecution were unconstitutional.
We review appellants' challenge to the constitutionality
of a federal statute de novo. See United States v. Booker, 644
F.3d 12, 22 (1st Cir. 2011). We begin by describing existing law
on the MDLEA, and then consider the origins and meaning of the
Define and Punish Clause generally, and the Felonies Clause
specifically, before assessing whether § 70502(d)(1)(C) of the
MDLEA violates the jurisdictional limits imposed by the Felonies
Clause.
- 33 -
A. Statutory Background and Overview of Case Law on the MDLEA
The MDLEA makes it unlawful for persons "on board a
covered vessel . . . [to] knowingly or intentionally . . .
manufacture or distribute, or possess with intent to manufacture
or distribute, a controlled substance." 46 U.S.C. § 70503(a)(1).
The MDLEA's prohibitions apply "even though the act is committed
outside the territorial jurisdiction of the United States," id.§ 70503(b), and "a covered vessel" includes, inter alia, any
"vessel subject to the jurisdiction of the United States," id.
§ 70503(e)(1).30 As relevant here, the Act defines "vessel subject
to the jurisdiction of the United States" to include any "vessel
without nationality." Id. § 70502(c)(1)(A).
A vessel is expressly considered "without nationality"
-- or stateless -- under the MDLEA in three circumstances. First,
that label applies when "the master or individual in charge fails,"
when asked by U.S. law enforcement, "to make a claim of nationality
or registry for th[e] vessel." Id. § 70502(d)(1)(B). As noted
above, a claim of nationality or registry can be made by presenting
documents demonstrating nationality, "flying [the claimed]
nation's ensign or flag," or verbally asserting nationality or
30 Another subsection of the statute defines "covered vessel"
to include "any other vessel if the individual [allegedly engaged
in drug activity] is a citizen of the United States or a resident
alien of the United States." 46 U.S.C. § 70503(e)(2). At issue
in this case is U.S. jurisdiction over foreigners, and we therefore
do not consider the MDLEA's application to U.S. nationals.
- 34 -
registry. Id. § 70502(e)(1)-(3). Second, a vessel is considered
stateless if its master does make a claim of nationality or
registry, but the nation identified denies the claim when contacted
by U.S. officials. Id. § 70502(d)(1)(A). Third, a vessel is
considered stateless when the country whose nationality is claimed
"does not affirmatively and unequivocally assert that the vessel
is of its nationality." Id. § 70502(d)(1)(C). This last situation
-- the foundation for appellants' arrest and prosecution -- is the
focus of the constitutional challenge now before us.31
Despite the frequency with which MDLEA cases arise in
this circuit, waiver and other threshold procedural issues have
prevented us from fully addressing the merits of a challenge under
Article I to any portion of the MDLEA. See United States v.
Sarmiento-Palacios, 885 F.3d 1, 3-4 (1st Cir. 2018) (finding a
challenge to the constitutionality of the MDLEA waived where the
defendant failed to develop the argument and conceded that "the
MDLEA is a valid exercise of Congress's Article I powers"); United
States v. Díaz-Doncel, 811 F.3d 517, 518 (1st Cir. 2016) (holding,
before Class, that the defendant had waived the right to challenge
the constitutionality of the MDLEA on appeal by entering an
31A vessel also may be treated as stateless under the MDLEA
if it displays more than one country's flag "and us[es] them
according to convenience." 1958 Convention on the High Seas,
supra, art. 6 (incorporated into the MDLEA at 46 U.S.C.
§ 70502(c)(1)(B)).
- 35 -
unconditional guilty plea); United States v. Nueci-Pena, 711 F.3d
191, 196-98 (1st Cir. 2013) (addressing defendant's Article I
challenge to the MDLEA under plain error review because the
argument was not raised in the district court and concluding that
there was no plain error in light of the lack of First Circuit and
Supreme Court precedent addressing the constitutionality of the
MDLEA); United States v. Cardales-Luna, 632 F.3d 731, 737-38 (1st
Cir. 2011) (holding that, because the constitutionality of the
MDLEA did not implicate the court's subject matter jurisdiction,
it was not appropriate for the court to raise the issue sua
sponte).
In Aybar-Ulloa, the en banc court was presented with a
preserved constitutional challenge. The defendant argued that
Article I did not give Congress the authority to assert U.S.
jurisdiction over stateless vessels that have no nexus to the
United States, basing his argument on the asserted existence of a
nexus requirement in international law. See 987 F.3d at 15
(Barron, J., concurring) (elaborating Aybar-Ulloa's constitutional
claim). The en banc court did not address Congress's authority
under the Constitution, however, because it concluded that
international law permits the United States to prosecute foreign
nationals engaged in drug trafficking on any stateless vessel, at
least when U.S. authorities have boarded and seized the vessel
pursuant to the right of boarding recognized under international
- 36 -
law. Id. at 6, 14.32 The court expressly did not "reach the
question of whether the application of the MDLEA to Aybar[-Ulloa]
would be constitutional were international law otherwise." Id. at
3. Aybar-Ulloa does not govern this case. Unlike the defendant
there -- who admitted that his vessel was stateless -- Reyes-
Valdivia and Dávila-Reyes insist that their vessel was not properly
deemed "without nationality." They assert that the method of
determining statelessness in § 70502(d)(1)(C) expands U.S.
jurisdiction beyond the bounds permitted by the Constitution.
We have passed upon some related questions, such as
whether another of the "without nationality" provisions of the
MDLEA is consistent with international law, see Matos-Luchi, 627
F.3d at 6-7 (noting that 46 U.S.C. § 70502(d)(1)(B) is consistent
The concurring judge in Aybar-Ulloa declined to join the
32
majority's approach, finding "no clear support in either case law
or commentary for the comparatively modest proposition that
persons on stateless vessels that a foreign country's officials
have seized and boarded pursuant to their recognized right to visit
it are subject to that country's territorial jurisdiction under
international law." 987 F.3d at 18 (emphasis added). More
particularly, the Aybar-Ulloa concurrence observed that
international law experts have "long noted the disagreement that
exists over" whether "the prevailing view of the law of nations is
that the interdicting country acquires the same territorial
jurisdiction over the vessel's occupants as it acquires over the
vessel itself." Id. at 17. Given this lack of support for the
majority's approach, and related concerns, see id. at 20-22, the
concurring opinion instead rejected Aybar-Ulloa's challenge based
on "the more than two-century-old precedent" addressing "the
United States' power to prosecute defendants of a range of
citizenships and circumstances" "for their felonious conduct on
stateless vessels in international waters." Id. at 22, 26 (relying
on United States v. Holmes, 18 U.S. (5 Wheat.) 412 (1820)).
- 37 -
with international law allowing a vessel to be deemed stateless if
the master refuses to claim a nationality),33 and whether the
MDLEA's flag-nation consent provisions provide due process, see
Cardales, 168 F.3d at 553 (holding that "due process is satisfied
when the foreign nation in which the vessel is registered
authorizes the application of United States law to the persons on
board the vessel"). Along with Aybar-Ulloa, these cases provide
a useful backdrop to our discussion of the constitutionality of
§ 70502(d)(1)(C), but they do not answer the question now before
us.
Although several of our sister circuits have addressed
whether the MDLEA is, in general, a constitutional exercise of
Congress's authority under the Felonies Clause, it appears that no
circuit has considered the specific authority for
§ 70502(d)(1)(C)'s definition of a "vessel without nationality."
Instead, courts have assumed that the MDLEA applies only to vessels
that would be subject to U.S. jurisdiction under international
In Matos-Luchi, the panel majority made the broad statement
33
that "the MDLEA is consistent with international law." 627 F.3d
at 6. Read in context, however, that statement refers only to the
jurisdictional provision at issue there -- § 70502(d)(1)(B). The
discussion that follows focuses on deeming a vessel stateless when
there is an attempt "to avoid national identification," and
concludes by asserting that "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." Id. at 7 (emphasis added).
- 38 -
law, i.e., U.S. vessels and those meeting the international law
definition of statelessness. See, e.g., United States v.
Ballestas, 795 F.3d 138, 146-47 (D.C. Cir. 2015) (holding that
Congress had authority under the Felonies Clause to punish a
defendant for conduct committed by his co-conspirators aboard a
stateless vessel on the high seas); United States v. Campbell, 743
F.3d 802, 810 (11th Cir. 2014) (stating that "we have long upheld
the authority of Congress to 'extend[] the criminal jurisdiction
of this country to any stateless vessel in international waters
engaged in the distribution of controlled substances'" (quoting
United States v. Marino-Garcia, 679 F.2d 1373, 1383 (11th Cir.
1982)) (alteration in original)); United States v. Estupinan, 453
F.3d 1336, 1338 (11th Cir. 2006) (holding that the MDLEA's
punishment of drug trafficking "on board a vessel subject to the
jurisdiction of the United States" is within Congress's
constitutional authority); United States v. Moreno-Morillo, 334
F.3d 819, 824 (9th Cir. 2003) (citing United States v. Davis, 905
F.2d 245, 248 (9th Cir. 1990), for the proposition that "this court
clearly has held that the MDLEA is constitutional" in a case where
the statelessness of the vessel was uncontested). We have thus
found no precedent squarely addressing the argument that
appellants make here: that the definition of a "vessel without
nationality" in § 70502(d)(1)(C) is broader than the definition of
- 39 -
a stateless vessel under international law and is therefore
unconstitutional.34
Thus, although we draw on prior cases addressing the
constitutionality of the MDLEA and its relationship with
international law, the issue before us appears to be one of first
impression for the federal courts.
B. Constitutional Limits on Congress's Authority to Define and
Punish Felonies
As described above, appellants contend that
§ 70502(d)(1)(C) of the MDLEA defines "vessel without nationality"
to encompass vessels -- including their own -- that are not in
fact without nationality under international law. A conflict
exists, they explain, because the provision treats a vessel as
Although the same MDLEA provision was at issue in United
34
States v. Bravo, the defendants argued only that their prosecution
was flawed because the government failed to satisfy a nexus
requirement -- i.e., "that the marijuana transported in the vessel
would affect the United States." 489 F.3d 1, 7 (1st Cir. 2007).
We rejected the challenge, stating that "[w]e do not read the MDLEA
to require a jurisdictional nexus." Id. Hence, we were not
confronted with the argument asserted here -- that Congress acted
beyond its constitutional authority in adopting § 70502(d)(1)(C).
We note that the author of Bravo subsequently rejected the position
taken in that case. See United States v. Trinidad, 839 F.3d 112,
116 (1st Cir. 2016) (Torruella, J., dissenting) ("I can no longer
support the approach taken by this and our sister circuits in
embracing the sweeping powers asserted by Congress and the
Executive under the [MDLEA.]"). Trinidad also involved
§ 70502(d)(1)(C), but the defendant there did not challenge the
government's determination that his vessel was "without
nationality" under that provision or argue that "his plea agreement
must be vacated because Congress exceeded its constitutional
authority under Article I in enacting the MDLEA." Id. at 113 n.1.
- 40 -
stateless despite a claim of nationality being made through a
method long acceptable under international law -- specifically, in
their case, the master's verbal claim -- if the named country does
not "affirmatively and unequivocally assert that the vessel is of
its nationality." 46 U.S.C. § 70502(d)(1)(C). In other words,
appellants maintain that § 70502(d)(1)(C) rejects a claim of
nationality in circumstances where international law accepts the
claim. According to appellants, because of this disconnect between
the MDLEA and international law, U.S. authorities who rely on the
definition of a "vessel without nationality" contained in
§ 70502(d)(1)(C) will impermissibly arrest and prosecute foreign
nationals on a foreign vessel -- which is what they say occurred
in this case.
Appellants' assertion of improper arrest and prosecution
depends on two propositions involving international law: first,
that Congress's authority to "define and punish . . . Felonies
committed on the high Seas," U.S. Const. art. I, § 8, cl. 10, is
limited by principles of international law and, second, that
§ 70502(d)(1)(C) allows the United States to deem vessels
stateless even when they would not be deemed stateless under
international law. If both propositions are correct,
§ 70502(d)(1)(C) would unconstitutionally permit U.S. authorities
to assert jurisdiction over vessels that would not be stateless
under international law. In that scenario, the United States would
- 41 -
be imposing its law on foreign individuals on foreign vessels --
an extension of jurisdiction that ordinarily is impermissible.
See, e.g., Aybar-Ulloa, 987 F.3d at 5 (noting that "the flag-state
system guarantees freedom of navigation in international waters,
as states generally may not interfere with the passage on the high
seas of ships lawfully flying the flag of another state" (citing
Richard A. Barnes, "Flag States," in The Oxford Handbook on the
Law of the Sea 313 (Rothwell et al. eds. 2015))); id. at 12 (noting
"the presumption of exclusive flag-state jurisdiction" over
vessels with identified nationality).
Hence, resolving this case requires us first to examine
the intersection between the Felonies Clause and international
law. To be clear, the claim here is not that international law
itself constrains Congress's authority to enact statutes.35
Rather, appellants contend that the Felonies Clause of the
Constitution, by original design, requires Congress to adhere to
the jurisdictional limits of international law with respect to
The MDLEA states that a person charged under the statute
35
"does not have standing to raise a claim of failure to comply with
international law as a basis for a defense." 46 U.S.C. § 70505.
The provision further states that "only . . . a foreign nation"
may raise such a claim and 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." Id. This bar
does not apply here precisely because defendants are not arguing
that international law itself constrains Congress's authority.
- 42 -
determining statelessness.36 We thus begin our discussion by
examining how the Framers would have understood the authority given
to Congress by the Felonies Clause.
1. The Constitution and International Law
The delegates who gathered to draft the Constitution had
a primary goal of improving the new nation's ability to meet its
obligations to other countries under international law. See Ryan
Goodman & Derek P. Jinks, Filartiga's Firm Footing: International
Human Rights and Federal Common Law, 66 Fordham L. Rev. 463, 464
(1997) ("[T]he Framers held the Constitutional Convention in large
part due to the perceived inability of the Confederation to uphold
American obligations under international law.").37 When the
Governor of Virginia, Edmund Randolph, introduced the "Virginia
Plan" that was to become the basis for the Constitution,38 he
36 Of course, where possible, we construe statutes to be
consistent with international law. See Murray v. The Schooner
Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804); Garcia v.
Sessions, 856 F.3d 27, 41 (1st Cir. 2017).
37 In Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980),
the Second Circuit held that plaintiffs could bring actions under
the Alien Tort Statute ("ATS") "based on modern human-rights laws
absent an express cause of action created by an additional
statute." Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1398 (2018).
The plaintiffs in Filartiga were the family members of a young man
who had been tortured and murdered by Paraguayan police officers,
one of whom was living in New York. The suit was filed in the
United States District Court for the Eastern District of New York,
and the appeals court found jurisdiction existed under the ATS.
38 The Virginia Plan was a set of fifteen "republican
Principles" introduced by Randolph for discussion at the
Constitutional Convention. 1 Records of the Federal Convention of
- 43 -
criticized the Articles of Confederation because they did not allow
the federal government to punish states that "act[] against a
foreign power contrary to the laws of nations or violate[] a
treaty" or to compel states to punish their citizens who violate
the law of nations by, for example, "invad[ing]" the rights of an
ambassador. 1 Records of the Federal Convention of 1787 24-25
(Max Farrand ed., 1911) (hereinafter "Farrand's Records").
Likewise, James Madison wrote to James Monroe in 1784 that
"[n]othing seems to be more difficult under [the Articles of
Confederation] than to impress on the attention of our [state]
Legislatures a due sense of those duties which spring from our
relations to foreign nations." Letter from James Madison to James
Monroe (Nov. 27, 1784), in 2 The Writings of James Madison 93
(Gaillard Hunt ed., 1901).
These statements reflect the Framers' concern that,
without the power to "enforce national treaties against
recalcitrant states, compel their compliance with the law of
1787 27-28 (Max Farrand ed., 1911). It described in general terms
the governmental structure that was later adopted in significant
part by the Constitution: a bicameral legislature, a national
executive (albeit one elected by the legislature), and a judiciary
with, among other powers, the authority to "determine Piracies,
Captures, [and] Disputes between Foreigners and Citizens." Id.Before introducing this plan, Randolph listed five ways in which
the Articles of Confederation did not fulfill "the objects for
which it was framed." Id. at 24. The first of these, as explained
above, was its failure to ensure compliance with international
law. Id. at 24-25.
- 44 -
nations, punish offenses against that law, regulate foreign
commerce, and so on, the new republic would be unable to obtain
commercial advantages and, given its military weakness and
perilous geographic situation, would face external threats."
David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The
Early American Constitution, the Law of Nations, and the Pursuit
of International Recognition, 85 N.Y.U. L. Rev. 932, 980 (2010);
see also id. at 934-35 (explaining that "[d]iplomatic frustrations
resulting from state violations of the Treaty of Peace [with
England], in particular, helped create the atmosphere of crisis
that motivated profederal forces to organize and write a
constitution").
In drafting a new constitution, the Framers thus aimed
"to provide a national monopoly of authority in order to assure
respect for international obligations." Stewart Jay, The Status
of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819,
829 (1989). The Framers were "commit[ted] to protecting sovereign
interests through rigorous enforcement of the law of nations."
Douglas J. Sylvester, International Law as Sword or Shield? Early
American Foreign Policy and the Law of Nations, 32 N.Y.U. J. Int'l
L. & Pol. 1, 9 (1999); see also Jesner v. Arab Bank, PLC, 138 S.
Ct. 1386, 1417 (2018) (Gorsuch, J., concurring) ("[W]hen the
framers gathered to write the Constitution they included among
their chief priorities endowing the national government with
- 45 -
sufficient power to ensure the country's compliance with the law
of nations."); Golove & Hulsebosch, supra, at 988 (stating that
the Framers "carefully designed the new Constitution to ensure
that the new nation would uphold its duties under the law of
nations"); Louis Henkin, Foreign Affairs and the United States
Constitution 234 (2d ed. 1996) ("The Framers assumed that the new
federal government would carry out the obligations of the United
States under international law."); Anthony J. Bellia Jr. & Bradford
R. Clark, The Law of Nations as Constitutional Law, 98 Va. L. Rev.
729, 751 (2012) ("Of all the rights that can belong to a nation,
sovereignty is, doubtless, the most precious, and that which others
ought the most scrupulously to respect, they would not do it an
injury." (quoting 1 Emmerich de Vattel, The Law of Nations, bk.
II, § 54, at 138 (London, J. Newberry et al., 1759), "the most
well-known work on the law of nations in England and America at
the time of the Founding," id. at 749)); Beth Stephens, The Law of
Our Land: Customary International Law as Federal Law after Erie,
66 Fordham L. Rev. 393, 397 (1997) (stating that "the intent of
the framers, incorporated into the Constitution, was to ensure
respect for international law by assigning responsibility for
enforcement of that law to the three branches of the federal
government"). Laws governing interactions on the high seas were
of particular concern: "The framers of the Constitution were
familiar with [the law of the sea] and proceeded with it in mind.
- 46 -
Their purpose was not to strike down or abrogate the system, but
to place the entire subject . . . under national control, because
of its intimate relation to navigation and to interstate and
foreign commerce." Panama R. Co. v. Johnson, 264 U.S. 375, 386
(1924).
The Framers' commitment to international law principles
was both pragmatic and ideological. See Jay, supra, at 822
(explaining that, "[i]n the eighteenth century a consensus existed
that the law of nations rested in large measure on natural law,"
and thus the Framers viewed following the law of nations as a moral
imperative); Beth Stephens, Federalism and Foreign Affairs:
Congress's Power to "Define and Punish . . . Offenses Against the
Law of Nations", 42 Wm. & Mary L. Rev. 447, 465 (2000) (describing
the Framers' belief that "[e]nforcement of international law norms
was . . . a moral obligation"). Indeed, the Framers believed that
to be a "nation," the United States must honor the law of nations.39
39 At the time of the founding, the phrase "law of nations"
was generally used to refer to customary international law (i.e.,
law established by universal practice rather than by agreement in
a treaty). See United States v. Bellaizac-Hurtado, 700 F.3d 1245,
1251 (11th Cir. 2012) (stating that "[w]e and our sister circuits
agree that the eighteenth-century phrase, the 'law of nations,' in
contemporary terms, means customary international law," and
collecting cases). However, it was also used as a broader term
for international law, including treaties. See Sarah H. Cleveland
& William S. Dodge, Defining and Punishing Offenses under Treaties,
124 Yale L.J. 2202, 2206-07 (2015) (arguing that "Offences against
the Law of Nations" includes treaty violations). In this case,
where no treaty is at issue, we need not consider the precise
meaning of the term "law of nations" as used by the Framers, and
- 47 -
See Chief Justice John Jay, Charge to the Grand Jury of the
District of New York (Apr. 4, 1790), reprinted in N.H. Gazette
(Portsmouth 1790) (stating, in a charge to a grand jury, that "[w]e
had become a nation -- as such, we were responsible to others for
the observance of the Laws of Nations"). Hence, as they embarked
on drafting a constitution, the Framers saw a federal system
capable of upholding international law as an imperative for the
United States to achieve equal status in the community of nations.
See Aybar-Ulloa, 987 F.3d at 26 (Barron, J., concurring) ("The
founding generation was attentive to the strictures of the law of
nations.").
With this backdrop, we think it apparent that the Framers
viewed international law as a restraint on Congress's enumerated
powers bearing on foreign relations. As John Quincy Adams
explained, "[t]he legislative powers of Congress are . . . limited
to specific grants contained in the Constitution itself, all
restricted on one side by the power of internal legislation within
the separate States, and on the other, by the laws of nations."
John Quincy Adams, The Jubilee of the Constitution 71 (1839)
(emphasis added).
we henceforth use the modern term "international law" to refer to
the body of law that includes both customary international law and
treaties.
- 48 -
There is a particular justification for interpreting the
Define and Punish Clause in relation to the Framers' understanding
of international law principles. The Define and Punish Clause, of
which the Felonies Clause is a part, refers to "Offences against
the Law of Nations," "Piracies," and "Felonies" -- all concepts
taken directly from international law. See Banco Nacional de Cuba
v. Sabbatino, 376 U.S. 398, 451 & n.13 (1964) (White, J.,
dissenting) (noting that the language of the Define and Punish
Clause shows the Framers' belief that "the law of nations is a
part of the law of the land"); Golove & Hulsebosch, supra, at 1009
(stating that "[t]his deliberate borrowing suggest[s] that the
established principles of the law of nations might define the scope
of the [congressional] powers themselves"). These phrases, found
in the leading international law treatises of the day, were
familiar shorthand for complex international law concepts. Their
use in the Constitution is thus strong evidence that the Framers
intended the Define and Punish Clause to align with the
international law understanding of those terms. See 3 Emmerich de
Vattel, The Law of Nations 295 (1758) (Charles G. Fenwick trans.,
1916) (referencing "offenses against the Law of Nations"); 4
William Blackstone, Commentaries *67-71 (discussing "offences
against the law of nations," and defining "piracy" as one such
offense); 3 Sir Edward Coke, The Institutes of the Laws of England
- 49 -
111 (1644) (describing "Piracies, and felonies . . . done on the
sea").
International law thus informs our inquiry into the
meaning of the Define and Punish Clause and, specifically, the
Felonies portion of the Clause.
2. The Meaning of the Felonies Clause
As noted above, the Define and Punish Clause grants
Congress the following authority: "To define and punish Piracies
and Felonies committed on the high Seas, and Offences against the
Law of Nations." U.S. Const. art. I, § 8, cl. 10. We discuss
below primarily the text that precedes the comma -- i.e., the
authority with respect to "Piracies and Felonies committed on the
high Seas." That is so because, as we have noted, it is undisputed
in this case that the MDLEA was enacted pursuant to Congress's
authority under the Felonies Clause. Although the reference to
"Piracies" -- a crime "committed on the high Seas" and appearing
alongside the term "Felonies" -- necessarily plays a role in our
analysis, the separate clause referencing "Offences against the
Law of Nations," which applies to crimes committed both on land
and at sea, sheds no light on the scope of U.S. jurisdiction on
the high seas. We therefore focus solely on the authority
specifically given to Congress over crimes "on the high Seas."
That focus requires us to determine what the Framers
intended by the words they chose. In so doing, we seek guidance
- 50 -
on the Framers' understanding of international law principles,
including international law terminology, from contemporaneous
sources. See U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S.
452, 461-62 & n.12 (1978) (explaining the Framers' separate use of
the terms "treaty," "compact," and "agreement" in Article I of the
Constitution by reference to treatises on international law with
which the Framers would have been familiar); Waring v. Clarke, 46
U.S. 441, 441 n.1 (1847) (stating that "[t]he Constitution . . .
refers to the law of nations for the meaning of" the terms
"admiralty" and "maritime," and thus interpreting those terms in
light of their meaning in international law); see also Zivotofsky
ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 12 (2015) (looking to
"prominent international scholars" from "the time of the founding"
to elucidate the meaning of the Reception Clause, Article II,
section 3, of the Constitution).
Just as it does today, at the time the Framers were
drafting the Constitution the term "Felonies" meant serious
crimes, such as treason, murder, arson, burglary, robbery, and
rape. See Blackstone, supra, at *94; 2 Timothy Cunningham, A New
and Complete Law Dictionary 23-28 (3d ed. 1783). Before the
Constitution became the governing law, all such crimes, whether
committed on land or at sea, were defined by state statutes or
state common law and punished in state courts. In the only
statement at the Constitutional Convention regarding the inclusion
- 51 -
of the term "Felonies," James Madison explained that, "[i]f the
laws of the states were to prevail on [the meaning of "Felonies"],
the citizens of different states would be subject to different
punishments for the same offence at sea. There would be neither
uniformity nor stability in the law." 5 Debates on the Federal
Constitution 437 (Jonathan Elliot ed., 2d ed. 1836). As voiced by
Madison, then, the constitutional drafters recognized the need to
create a uniform system of crimes and punishments on the high seas
that would apply to all U.S. citizens. There was no mention,
however, of conduct committed by foreigners on foreign vessels.
Nonetheless, the independent inclusion of "Piracies" in
the Define and Punish Clause provides a clue to the Framers' intent
regarding U.S. jurisdiction over felonies committed on foreign
vessels. The separate references to "Piracies" and "Felonies"
inescapably reflects the Framers' view that Congress's power over
each category was meant to be distinct. See generally The
Federalist No. 42, at 233 (James Madison) (E.M. Scott ed., 1898)
(discussing the necessity of defining each term). That distinction
has its origin in international law.
Piracy, as defined by international law -- i.e.,
"robbery upon the sea," United States v. Smith, 18 U.S. 153, 162
- 52 -
(1820)40 -- is a crime of "universal jurisdiction,"41 meaning that
it can be punished by any country no matter where it is committed
or by whom. At the time the Constitution was drafted, this feature
of piracy under international law was well established. See
40 A more expansive definition of the universal crime of
piracy, updated to include the realm of aviation, is as follows:
Piracy includes any illegal act of
violence, detention or depredation committed
for private ends by the crew or passengers of
a private ship (or aircraft) against another
ship (or aircraft) or persons or property on
board it, on (or over) the high seas[.]
R.R. Churchill & A.V. Lowe, The Law of the Sea 209-10 (3d ed.
1999).
41 As stated in modern international law, the doctrine of
universal jurisdiction provides that "a nation may prosecute
certain serious offenses even though they have no nexus to its
territory or its nationals, and no impact on its territory or its
citizens." Cardales-Luna, 632 F.3d at 740 (Torruella, J.,
dissenting); see also Restatement (Third) of Foreign Relations Law
of the United States § 404 (1987) (noting that "[a] state has
jurisdiction to define and prescribe punishment for certain
offenses recognized by the community of nations as of universal
concern," even where there is no nexus between the offense and the
state). Crimes may be universal jurisdiction offenses if they
are "contrary to a peremptory norm of international law" and are
"so serious and on such a scale that they can justly be regarded
as an attack on the international legal order." Kontorovich,
Beyond the Article I Horizon, supra, at 1224 n.228 (quoting
Universal Jurisdiction: National Courts and the Prosecution of
Serious Crimes under International Law 178-79 (Stephen Macedo ed.,
2004)). At present, in addition to piracy, the crimes generally
recognized as subject to universal jurisdiction are the "slave
trade, attacks on or hijacking of aircraft, genocide, war crimes,
and perhaps certain acts of terrorism." See Restatement (Third)
of Foreign Relations Law of the United States § 404. Drug
trafficking is not recognized as a universal jurisdiction crime.
Aybar-Ulloa, 987 F.3d at 14.
- 53 -
Blackstone, supra, at *71 (stating that "every community has a
right" to punish piracy because it "is an offense against the
universal law of society"); 1 James Kent, Commentaries on American
Law 174 (1826) (stating that "piracy, under the law of nations, is
an offence against all nations, and punishable by all"). As
Justice Story explained in an early piracy case:
Pirates may, without doubt, be lawfully
captured on the ocean by the public or private
ships of every nation; for they are, in truth,
the common enemies of all mankind, and, as
such, are liable to the extreme rights of war.
And a piratical aggression by an armed vessel
sailing under the regular flag of any nation
may be justly subjected to the penalty of
confiscation for such a gross breach of the
law of nations.
The Marianna Flora, 24 U.S. (11 Wheat.) 1, 40-41 (1825); see also
Cardales-Luna, 632 F.3d at 741 (Torruella, J., dissenting) ("Until
recently, piracy was the only crime which was punishable by all
nations . . . ."); United States v. Yousef, 327 F.3d 56, 104 (2d
Cir. 2003) ("The class of crimes subject to universal jurisdiction
traditionally included only piracy.").
That the Framers understood the term "Piracies" to refer
to the specific offense subject to universal jurisdiction is
supported by their statements describing piracy as a term borrowed
from international law. For example, at the Virginia Convention,
James Madison explained that "Piracies" was "[a] technical term of
the law of nations." 3 Farrand's Records, supra, at 332. Thus, by
- 54 -
separating the term "Piracies" from "Felonies," the Framers
plainly intended to refer to the specific crime that, under
international law, could be punished by Congress even when it was
committed by foreign nationals on foreign vessels.
Just as plainly, then, the phrase "Felonies committed on
the high Seas" was intended to reference other types of serious
crimes committed on vessels. At the time, it was a well-accepted
principle of international law that countries could enact statutes
criminalizing conduct on the high seas other than piracy, but only
as to a given country's own nationals or on vessels over which the
country could exercise jurisdiction pursuant to international law.
See Blackstone, supra, at *71 (describing acts that would be
punished as felonies only if committed by an English "subject" at
sea); Letter from Thomas Jefferson to Edmond Charles Genet (June
17, 1793) (explaining that a country's jurisdiction over crimes
such as murder "on the high seas . . . reaches its own citizens
only"); William Rawle, A View of the Constitution of the United
States of America 107 (2d ed. 1829) (explaining that Congress's
power to punish felonies applies to anyone "except the citizens or
subjects of a foreign state sailing under its flag," but that
piracy is "punishable in our courts, and in the courts of all
nations" (emphasis added)); Henry Wheaton, Elements of
International Law 164 (Richard Henry Dana, Jr., ed., 8th ed. 1866)
(observing that countries could enact laws punishing conduct at
- 55 -
sea, but such conduct could "only be tried by that State within
whose territorial jurisdiction" or "on board of whose vessels, the
offence thus created was committed").
Confusingly, these other serious crimes, which would be
denominated felonies if committed on land, were often referred to
as "piracies" when committed on the high seas, even though they
were not "Piracy" as defined by international law. See Wheaton,
supra, (explaining that "[t]here are certain acts which are
considered piracy by the internal laws of a State, to which the
law of nations does not attach the same signification"); Hon. John
Marshall, Speech Delivered in the House of Representatives (Mar.
7, 1800), at 10 ("A statute may make any offence piracy, committed
within the jurisdiction of the nation passing the statute, and
such offence will be punishable by that nation."); Kent, supra,
(explaining that, under international law, "[t]he statute of any
government may declare an offence committed on board its own
vessels to be piracy, and such an offence will be punishable
exclusively by the nation which passes the statute"). As one
scholar explains, the term piracy "had a popular meaning of serious
or capital offense on the high seas," Eugene Kontorovich, The
"Define and Punish" Clause and the Limits of Universal
Jurisdiction, 103 Nw. L. Rev. 149, 166 (2009), and the term was
thus used colloquially to refer to any felony committed at sea,
see John Marshall Speech at 10 ("It is by confounding general
- 56 -
piracy with piracy by statute, that indistinct ideas have been
produced, respecting the power to punish offences committed on the
high seas.").
The Framers' separation of "Piracies" and "Felonies" in
the Define and Punish Clause avoids this confusion and reserves
the precise meaning of "Piracy" under international law for that
specific crime. The Framers' use of the separate terms "Piracies"
and "Felonies" thus manifests an intent to distinguish between
crimes with different jurisdictional limits under international
law: classic piracy, which can be punished no matter where
committed or by whom, and Felonies, which can be punished only if
committed by U.S. nationals42 or on vessels subject to U.S.
jurisdiction under international law. As noted in the Aybar-Ulloa
concurrence, "the United States itself early on took the position
before the Supreme Court that the Define and Punish Clause" "is
As stated supra, we do not address here the MDLEA's
42
application to U.S. citizens and resident aliens. However, the
sources quoted above indicate that the Framers would have
understood the Felonies Clause to permit U.S. authorities to
exercise jurisdiction over U.S. nationals on foreign vessels in at
least some circumstances. See Skiriotes v. Florida, 313 U.S. 69,
73 (1941) (stating that "the United States is not debarred by any
rule of international law from governing the conduct of its own
citizens upon the high seas or even in foreign countries when the
rights of other nations or their nationals are not infringed");
United States v. Kaercher, 720 F.2d 5, 5 (1st Cir. 1983) (per
curiam) (quoting the Restatement of Foreign Relations Law of the
United States for the proposition that "[a] state has jurisdiction
to prescribe a rule of law . . . attaching legal consequences to
conduct of a national of the state wherever the conduct occurs"
(alteration and omission in original)).
- 57 -
impliedly limited by the law of nations in ways that constrain
Congress's authority to rely on that Clause to subject foreign
nationals to our criminal laws for conduct that they engage [in]
while they are on foreign vessels -- even when those vessels are
on the high seas." 987 F.3d at 16 n.7, 15 (Barron, J., concurring);
see id. at 16 n.7 (quoting the argument of Mr. Blake on behalf of
the United States in United States v. Palmer, 16 U.S. (3 Wheat.)
610, 620 (1818): "A felony, which is made piracy by municipal
statutes, and was not such by the law of nations, cannot be tried
by the courts of the United States, if committed by a foreigner on
board a foreign vessel, on the high seas; because the jurisdiction
of the United States, beyond their own territorial limits, only
extends to the punishment of crimes which are piracy by the law of
nations.").
3. Jurisdiction on the High Seas under International Law
Given the Framers' clear intention to draw a
jurisdictional distinction between "Piracies" and "Felonies," the
question of when a vessel sailing on the high seas may be subject
to U.S. jurisdiction under international law -- i.e., the question
at the heart of this case -- has constitutional significance. It
is a bedrock principle of the international law of the sea,
recognized long before the founding of this country, that "all
nations have an equal and untrammelled right to navigate on the
high seas." Marino-Garcia, 679 F.2d at 1380; see also United
- 58 -
States v. Maine, 475 U.S. 89, 96 n.11 (1986) (explaining that
"since the days of Grotius, the principle of the freedom of the
high seas found an ever wider currency" and "crystallized into a
universally accepted principle of international law" by "the
beginning of the nineteenth century" (quoting Yehuda Z. Blum,
Historic Titles in International Law § 61, at 242-43 (1965)));
Hugo Grotius, The Freedom of the Seas 44 (Ralph V.D. Magoffin
trans., 1916) ("It is clear . . . that he who prevents another
from navigating the sea has no support in law."); United Nations
Convention on the Law of the Sea ("UNCLOS") art. 90, Dec. 10, 1982,
1833 U.N.T.S. 397.43 To ensure this right of free navigation,
43 Although the Senate has not ratified the UNCLOS, it was
signed by the President and is generally recognized by the United
States as reflecting customary international law, i.e., universal
practice. See United States v. Alaska, 503 U.S. 569, 588 n.10
(1992) (acknowledging the U.S. government's position that the
UNCLOS provisions are part of customary international law); see
also Aybar-Ulloa, 987 F.3d at 5 n.2 (citing the UNCLOS "as evidence
of the customs and usages of international law"); United States v.
Hasan, 747 F. Supp. 2d 599, 635 (E.D. Va. 2010) ("[T]he United
States has consistently accepted UNCLOS as customary international
law for more than 25 years."). Moreover, "many of the provisions
of the [UNCLOS] follow closely provisions in the 1958 conventions
to which the United States is a party and which largely restated
customary law as of that time." Restatement (Third) of Foreign
Relations Law of the United States, Part V, Introductory Note; see
also Mayagüezanos por la Salud y el Ambiente v. United States, 198
F.3d 297, 304 n.14 (1st Cir. 1999) (referring to the "UNCLOS only
to the extent that it incorporates customary international law,"
and noting that, as a signatory, "the United States 'is obliged to
refrain from acts that would defeat the object and purpose of the
agreement'" (quoting Restatement (Third) of Foreign Relations Law
of the United States § 312(3))). The UNCLOS provisions defining
a stateless vessel discussed infra have long been part of the
international law of the sea and are largely identical to those in
- 59 -
"international law generally prohibits any country from asserting
jurisdiction over foreign vessels on the high seas," and "vessels
are normally considered within the exclusive jurisdiction of the
country whose flag they fly."44 Marino-Garcia, 679 F.2d at 1380;
see also Aybar-Ulloa, 987 F.3d at 5; John Marshall Speech at 5
(stating that "the opinion of the world is, that a fleet at sea,
is within the jurisdiction of the nation to which it belongs").
To preserve this system of flag-state jurisdiction,
"every vessel must sail under the flag of one and only one state;
those that sail under no flag . . . enjoy no legal protection."
Matos-Luchi, 627 F.3d at 5; see also, e.g., Aybar-Ulloa, 987 F.3d
at 6 (noting that "international law renders stateless vessels
'susceptible to the jurisdiction of any State'" (quoting Barnes,
supra, at 314)); United States v. Pinto-Mejia, 720 F.2d 248, 260
(2d Cir. 1983) (explaining that "a stateless vessel, which does
not sail under the flag of one state to whose jurisdiction it has
submitted, may not claim the protection of international law and
does not have the right to travel the high seas with impunity");
United States v. Rubies, 612 F.2d 397, 403 (9th Cir. 1979) ("'In
the 1958 Convention on the High Seas, which has been ratified by
the United States. See supra, arts. 5 & 6.
44 Although the nationality of a vessel is often referred to
as its "flag," there is no requirement that a vessel fly a physical
flag to maintain its nationality. See Matos-Luchi, 627 F.3d at 5.
Rather, "[s]hips have the nationality of the State whose flag they
are entitled to fly." UNCLOS art. 91, § 1 (emphasis added).
- 60 -
the interest of order on the open sea, a vessel not sailing under
the maritime flag of a State enjoys no protection whatever, for
the freedom of navigation on the open sea is freedom for such
vessels only as sail under the flag of a State.'" (quoting Lassa
Oppenheim, International Law 546 (7th ed. 1948))). Therefore, it
has long been understood that the United States -- and any other
country -- may exercise jurisdiction over vessels that are
considered stateless under international law. We confirmed that
understanding in Aybar-Ulloa. See, e.g., 987 F.3d at 12
("[S]tateless vessels are treated as subject to the exercise of
authority by any nation."); see also, e.g., Matos-Luchi, 627 F.3d
at 6 (noting that "international law . . . treats the 'stateless
vessel' concept as informed by the need for effective enforcement,"
and, hence, "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"); Andrew W. Anderson, Jurisdiction
over Stateless Vessels on the High Seas: an Appraisal Under
Domestic and International Law, 13 J. Mar. L. & Com. 323, 337
(1982) ("[T]he extension of United States jurisdiction over
stateless vessels seems not only to be a reasonable claim but
completely consistent with both customary and treaty international
law.").
- 61 -
These general principles of jurisdiction on the high
seas are not disputed in this case, and, indeed, the Supreme Court
applied these principles in the decades immediately following the
Constitution's adoption. In 1790, Congress passed a law making
murder and robbery committed by "any person" on the high seas
punishable under U.S. law. See Palmer, 16 U.S. (3 Wheat.) at 626.
It was an open question, however, whether the statute extended to
conduct by foreigners on foreign vessels. When he was a
congressman, John Marshall argued that the Define and Punish Clause
can never be construed to make to the
government a grant of power, which the people
making it, did not themselves possess. It has
already been shown that the people of the
United States have no jurisdiction over
offences, committed on board a foreign ship,
against a foreign nation. Of consequence, in
framing a government for themselves, they
cannot have passed this jurisdiction to that
government.
John Marshall Speech at 24-25.
Not surprisingly, then, the Supreme Court in United
States v. Palmer, in an opinion written by now Chief Justice
Marshall, held that the statute did not extend U.S. jurisdiction
to foreigners on foreign vessels for the common law form of
robbery, as distinguished from classic piracy. See 16 U.S. (3
Wheat.) at 630-34. The Court reiterated its holding on the
statute's reach two years later, concluding that it did not
criminalize the murder of a foreigner on a foreign vessel on the
- 62 -
high seas because Congress knew it "had no right to interfere" in
such cases. Furlong, 18 U.S. (5 Wheat.) at 198; see also id. at
197 (observing that "punishing [murder] when committed within the
jurisdiction, or, (what is the same thing,) in the vessel of
another nation, has not been acknowledged as a right, much less an
obligation"). By contrast, the Supreme Court recognized the
classic form of piracy as "a crime within the acknowledged reach
of the punishing power of Congress" even when "committed by a
foreigner upon a foreigner in a foreign ship," id. at 197, and
noted in other cases that "[m]urders committed by and against
foreigners on stateless vessels . . . could be prosecuted in the
United States," Aybar-Ulloa, 987 F.3d at 7 (citing United States
v. Klintock, 18 U.S. (5 Wheat.) 144, 151 (1820) and United States
v. Holmes, 18 U.S. (5 Wheat.) 412, 417-18 (1820)).45
Thus, in light of these well-established limitations on
Congress's ability to criminalize the conduct of foreign nationals
45As noted above, the concurring opinion in Aybar-Ulloa also
reports the historical support, in caselaw and commentary, for the
contention that Congress lacks authority under the Define and
Punish Clause to punish foreign nationals for conduct committed on
foreign vessels, "even when those vessels are on the high seas."
987 F.3d at 15-16 & n.7 (Barron, J., concurring); see also id. at
22-26 (discussing the cases "decided just decades after the
Constitution's ratification" that "dealt with the United States'
power to prosecute defendants of a range of citizenships and
circumstances who shared the attribute of having been indicted in
our country pursuant to our criminal justice system for murder,
robbery, or other wrongdoing on the high seas").
- 63 -
aboard foreign vessels on the high seas,46 the question that arises
when the United States seeks to impose its law on foreigners on
the high seas is how to identify a vessel that is not within any
other country's jurisdiction -- potentially exposing those aboard
to every country's jurisdiction.47 In other words, when may a
vessel be characterized as stateless? Stateless vessels do not
appear to have been a primary focus at the time of the Framers,
and we have found no explicit statements in their deliberations on
when a vessel should be deemed stateless. That silence, of course,
is unsurprising, given the focus on avoiding improper intrusions
into the affairs of foreign nations.
As we have concluded, however, there can be no doubt
that the Constitution's drafters intended that Congress's
There are, of course, exceptions to the broad principle
46
that Congress cannot extend U.S. criminal jurisdiction to crimes
like common law robbery or murder committed by foreigners against
foreigners on foreign vessels. For example, a country may
prosecute such crimes with the consent of the foreign nation. See
Matos-Luchi, 627 F.3d at 7; see also 46 U.S.C. § 70502(c)(1)(C).
But these exceptions are not pertinent here.
We use the word "potentially" because we declined in Aybar-
47
Ulloa to decide "whether the United States may prosecute a foreign
citizen engaged in drug trafficking on a stateless vessel where
the United States never boarded and seized the vessel." 987 F.3d
at 14. We note, in addition, the observation in the Aybar-Ulloa
concurrence that the Third and Fourth Restatements of Foreign
Relations Law of the United States do not "establish that the
prevailing view of the law of nations is that the interdicting
country acquires the same territorial jurisdiction over the
[stateless] vessel's occupants as it acquires over the vessel
itself." Id. at 17 (Barron, J., concurring).
- 64 -
authority under the Define and Punish Clause, including the
Felonies portion of it, be constrained by currently applicable
international law whenever Congress invokes that Clause to assert
its authority over foreign nationals and their vessels on the high
seas. The Framers sought to ensure that Congress would respect
the sovereignty of other nations, and the limits placed on the
prosecution of other countries' nationals is an essential
component of the international system of mutual respect.
Necessarily, then, that constraint applies when Congress passes
legislation deeming vessels on the high seas stateless. If the
Constitution instead permitted Congress to define a vessel as
stateless in any way it wished, there would be a risk that Congress
could contravene international norms determining when a country
may prosecute felonies committed by foreign nationals on the high
seas. It therefore follows that the Felonies Clause requires
Congress to abide by international law principles in defining
statelessness. We thus review those principles.
4. Statelessness under International Law
International law allows each nation to decide for
itself the process through which it will grant its nationality to
a vessel. See Lauritzen v. Larsen, 345 U.S. 571, 584 (1953) ("Each
state under international law may determine for itself the
conditions on which it will grant its nationality to a merchant
ship, thereby accepting responsibility for it and acquiring
- 65 -
authority over it."); UNCLOS art. 91, § 1 ("Every State shall fix
the conditions for the grant of its nationality to ships, for the
registration of ships in its territory, and for the right to fly
its flag."); 5 J.H.W. Verzijl, International Law in Historical
Perspective 146 (1972) (describing an 1801 proclamation by the
King of England regarding the conditions under which merchant ships
may fly the British flag, and noting "[t]he general principle
. . . that it is within the domestic jurisdiction of any State
. . . to determine on what conditions it will allow a sea-going
vessel to fly its flag and thus grant her its 'nationality'").
The simplest definition of a stateless vessel under international
law is thus a vessel that has not been granted nationality by any
state. Pursuant to that definition, a vessel will lack
nationality, for example, "if no state has ever authorized [the
vessel] to fly its flag, if a state has cancelled its
authorization, or if the political entity that authorized a ship
to fly its flag is not recognized as an international person."
Rosero, 42 F.3d at 171; see also id. ("[A] vessel is without
nationality if it is not authorized to fly the flag of any
state."); Matos-Luchi, 627 F.3d at 16 (Lipez, J., dissenting)
("Under international law, a stateless vessel is simply one that
does not have a valid grant of nationality from any country.").
Authorities encountering a vessel on the high seas would
not be aware of some of these circumstances -- e.g., if a state
- 66 -
has cancelled a vessel's registration -- and thus will be unable
to definitively determine nationality by sight even if a vessel is
flying a flag. Nonetheless, international law recognizes a
presumption of nationality in the flag-flying situation, among
others. We have noted 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." Matos-Luchi, 627 F.3d at 5 (citing Lassa Oppenheim,
International Law § 261, at 594-96 (H. Lauterpacht ed., 8th ed.
1955)); see also United States v. Bustos-Guzman, 685 F.2d 1278,
1280 (11th Cir. 1982) (per curiam) (noting that flying a flag is
generally "prima facie proof" of nationality under international
law); The Chiquita, 19 F.2d 417, 418 (5th Cir. 1927) ("The flag
under which a merchant ship sails is prima facie proof of her
nationality.").
Absent a flag or papers, "a vessel may also traditionally
make an oral claim of nationality when a proper demand is made."
Matos-Luchi, 627 F.3d at 5; see also Aybar-Ulloa, 987 F.3d at 5
(quoting Matos-Luchi, 627 F.3d at 5); United States v. Obando, 891
F.3d 929, 939 (11th Cir. 2018) (Black, J., specially concurring)
(noting that, under "longstanding principles of admiralty law,"
the master "speak[s] on behalf of the ship" and must be the one to
make a verbal claim of nationality); The Little Charles, 26 F.
Cas. 979, 982 (Marshall, Circuit Justice, C.C. Va. 1818) ("The
- 67 -
vessel acts and speaks by the master."); Anderson, supra, at 341
(noting that a vessel may claim nationality "by showing its flag,
presenting its documents, or making some other outward or oral
claim to a nationality" (emphasis added)). The MDLEA itself
recognizes this form of asserting nationality, stating that "[a]
claim of nationality or registry under this section includes
. . . a verbal claim of nationality or registry by the master or
individual in charge of the vessel." 46 U.S.C. § 70502(e)(3).
International law also recognizes two specific
circumstances in which a vessel may be deemed stateless regardless
of its actual status and absent any effort to determine its
nationality: when the vessel refuses to claim any nationality or
when it claims more than one nationality. See Matos-Luchi, 627
F.3d at 6-7 (stating that "a vessel may be deemed 'stateless' . . .
if it fails to display or carry insignia of nationality and seeks
to avoid national identification" by "refus[ing], without
reasonable excuse, to reveal its" nationality (quoting Meyers,
supra, at 322) (internal quotation marks omitted)); UNCLOS art.
92, § 2 (stating that "[a] ship which sails under the flags of two
or more States . . . may be assimilated to a ship without
nationality"); The Commander's Handbook on the Law of Naval
Operations ¶ 3.11.2.4 (2017),
https://www.gc.noaa.gov/pdfs/CDRs_HB_on_Law_of_Naval_Operations_
AUG17.pdf (stating that "[a] vessel may be assimilated to a vessel
- 68 -
without nationality," inter alia, "when the vessel makes multiple
claims of nationality . . . or the master's claim of nationality
differs from the vessel's papers").48
Hence, whether authorities are seeking to ascertain
nationality in the first place -- by examining documents or
eliciting a verbal claim -- or to resolve a concern about
nationality that was declared by means of a flag, they may need
close contact with the vessel and its master. It is therefore
48The 2017 version of the Commander's Handbook -- applicable
to the U.S. Navy, Marine Corps, and Coast Guard -- also states
that a vessel may be "treated as one without nationality" when,
among other factors, it displays no "identifying characteristics,"
when -- consistent with § 70502(d)(1) -- the master makes no claim
of nationality or registry, or when "[t]he claim of registry or
the vessel's display of registry is either denied or not
affirmatively and unequivocally confirmed by the State whose
registry is claimed." Commander's Handbook ¶ 3.11.2.3 (2017),
supra; see also id., References 4 (listing MDLEA, 46 U.S.C.
§§ 70501-70507). Interestingly, the Handbook's previous version,
in effect when appellants were detained, did not include the
failure-to-verify scenario that mirrors § 70502(d)(1)(C) of the
MDLEA. Rather, its list of characteristics of a stateless vessel
all relied on inconsistencies in a vessel's presentation of
nationality to observers or the absence of, or refusal to provide,
identification. See Commander's Handbook ¶ 3.11.2.4 (2007),
https://www.marines.mil/Portals/1/Publications/MCTP%2011-
10B%20(%20Formerly%20MCWP%205-12.1).pdf?ver=2017-07-11-151548-
683 (providing "a partial list of factors that should be considered
in determining whether a vessel is appropriately assimilated to
stateless status: (1) No claim of nationality; (2) Multiple claims
of nationality; (3) Contradictory claims or inconsistent
indicators of nationality (e.g. master's claim differs from
vessel's papers; homeport does not match nationality of flag); (4)
Changing flags during a voyage; (5) Removable signboards showing
different vessel names and/or homeport; (6) Absence of anyone
admitting to be the master; displaying no name, flag, or other
identifying characteristics; and (7) Refusal to claim
nationality").
- 69 -
understood that international law's so-called "right of visit"
permits authorities to inquire, board, and conduct a limited search
"designed to elicit information about the vessel's identification
and registration." Cuevas-Esquivel, 905 F.2d at 513; see also
Aybar-Ulloa, 987 F.3d at 6 (recognizing that a "clearly-marked law
enforcement ship of any state may board [a private ship] . . . if
there is reason to suspect that the ship . . . is without
nationality" (quoting Restatement (Third) of Foreign Relations Law
of the United States § 522(2)(b) (1987)) (omissions in original));
United States v. Cortes, 588 F.2d 106, 109 (5th Cir. 1979) (stating
that, under international law, "stateless vessels are subject to
this type of examination").49 The question in this appeal,
addressed in Section V.C infra, is whether international law
The "right of visit" under international law allows a
49
"warship" (which would include a law enforcement ship like the
Coast Guard vessel here) to stop and question a foreign ship if
"there is reasonable ground for suspecting that the ship is engaged
in piracy," slave trading, or illegal broadcasting, "is without
nationality," or, although flying a foreign flag, is actually of
the same nationality as the warship. UNCLOS art. 110, § 1.
However, the right of visit does not provide an independent ground
for exercising jurisdiction over a vessel, and certainly does not
allow a state to apply its domestic laws to those aboard that
vessel. Rather, it is simply a mechanism for a state to
investigate suspected wrongdoing and then take actions within its
authority under international law. See, e.g., Penelope Mathew,
Address - Legal Issues Concerning Interception, 17 Geo. Immigr.
L.J. 221, 224-25 (2003) (discussing the limited nature of the right
of visit and noting that "a State would have to rely on some
positive basis of jurisdiction . . . to exercise jurisdiction over
persons on a stateless ship").
- 70 -
permits Congress to dictate the results of such an inquiry as
provided in § 70502(d)(1)(C) of the MDLEA.
5. Summary: The Felonies Clause and Stateless Vessels
Our review of the law governing jurisdiction on the high
seas thus reveals clear signs in multiple sources -- the historical
record, the well-established perspective in the late eighteenth
century on the role of individual nations in the international
sphere, and contemporaneous legal precedent -- that the Framers'
invocation of international law terminology in the Define and
Punish Clause was deliberate. Seeking to ensure their new nation's
compliance with international law, the Framers invoked principles
drawn from that law in drafting the Define and Punish Clause
generally and the Felonies Clause specifically. In particular,
they knew the distinction in international law between "Piracies,"
which can be punished by any country wherever they occur, and other
serious crimes on the high seas, which can be punished by a country
only when committed by individuals subject to its jurisdiction.
The Framers' goal of incorporating respect for international norms
into the federal system thus makes clear that, under the Felonies
Clause, Congress's authority to set the boundaries of domestic law
on the high seas must be consistent with international law
principles. Pursuant to those principles, the key to determining
whether Congress can apply domestic law to foreign nationals on a
non-U.S. vessel on the high seas ordinarily will depend on whether
- 71 -
international law would deem the vessel to be "without nationality"
-- i.e., stateless. Finally, international law recognizes that an
oral claim by the vessel's master constitutes prima facie proof of
the vessel's nationality.
With that understanding of the applicable law, we turn
to the question of whether Congress exceeded its power to "define
and punish . . . Felonies committed on the high Seas" in the
challenged provision of the MDLEA.
C. Constitutionality of § 70502(d)(1)(C)
The MDLEA reflects Congress's objective of addressing,
to the full extent of its authority, the scourge of drugs entering
the United States from abroad. See Matos-Luchi, 627 F.3d at 11(Lipez, J., dissenting) (noting that the MDLEA and its predecessor,
the Marijuana on the High Seas Act, Pub. L. No. 96-350, 94 Stat.
1159 (1980), manifest Congress's objective to "give the Justice
Department the maximum prosecutorial authority permitted under
international law" (quoting S. Rep. 96-855, at 2 (1980))); id. at
7 ("The MDLEA was responding to repeatedly frustrated efforts to
prosecute maritime drug trafficking."). Undoubtedly mindful of
the prohibition against applying domestic law to foreigners
traveling on foreign vessels on the high seas, Congress plainly
sought in the MDLEA provision defining a stateless vessel to reach
as broadly as possible through an expansive definition of
statelessness. The statute, however, can reach no farther than
- 72 -
the authority granted to Congress by the Felonies Clause, which,
as we have determined, is constrained by the norms of international
law.
As detailed above, the MDLEA provides three descriptions
for a "vessel without nationality" in § 70502(d)(1). See 46 U.S.C.
§ 70502(d)(1).50 Two are clearly consistent with international
law: when the nation whose registry is claimed denies the claim,
id. § 70502(d)(1)(A), and when the individual in charge of a vessel
fails to make a claim of nationality or registry for the vessel
upon request of an authorized United States officer, id.
§ 70502(d)(1)(B); see, e.g., Matos-Luchi, 627 F.3d at 6 (involving
For convenience,
50 we provide here the full text of
§ 70502(d)(1):
In this chapter, 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; and
(C) a vessel aboard which the master or
individual in charge makes a claim of registry
and for which the claimed nation of registry
does not affirmatively and unequivocally
assert that the vessel is of its nationality.
46 U.S.C. § 70502(d)(1).
- 73 -
a refusal to make a claim of nationality). The third definition,
however -- the one at issue here -- allows a vessel to be treated
as stateless where there is a claim of nationality recognized by
international law but the identified country neither confirms nor
denies that claim. See 46 U.S.C. § 70502(d)(1)(C).
This provision thus treats a response that reports only
that the named country is unable to confirm nationality -- or the
country's failure to respond at all to U.S. inquiry -- as evidence
that is equivalent to an outright denial of a master's claim of
nationality or registry. In other words, § 70502(d)(1)(C)
displaces the prima facie showing of nationality that arises from
an oral assertion of nationality or registry -- made in accordance
with international law -- without any affirmative evidence to the
contrary. See Bustos-Guzman, 685 F.2d at 1280 (referring to the
"prima facie proof" of nationality that arises from flying a flag);
The Chiquita, 19 F.2d at 418 (same); 46 U.S.C. § 70502(e) (listing
flying a flag and a verbal claim as alternative methods of making
a claim of nationality). In so doing, § 70502(d)(1)(C) adds a new
category to the limited circumstances in which international law
deems a vessel stateless (the refusal to claim a nationality,
claiming more than one nationality, and disavowal of a claim of
nationality by the named country). A response stating only that
the country is unable to confirm nationality, or the country's
failure to provide any response, suffices to nullify even an
- 74 -
unequivocal claim of nationality or registry made by the person in
charge of the vessel.
The government contends that this variation on deeming
a vessel stateless is implicitly, if not explicitly, recognized in
international law. The government asserts that international law
requires a vessel not only to make a claim of nationality, but
also to "'be in a position to provide evidence of [nationality].'"
Appellee's Br. at 29 (quoting Matos-Luchi, 627 F.3d at 6).
Consequently, the government proposes, an absence of
"affirmative[] and unequivocal[]" confirmation from the claimed
country may properly be relied upon in deeming the vessel
stateless. Id. at 36.
In making this assertion, the government relies heavily
on dicta in Matos-Luchi, a case in which the defendants had
declined to make a claim of nationality in response to a request
from Coast Guard personnel. See 627 F.3d at 2.51 As we have
described, avoiding national identification is a well-established
basis for deeming a vessel stateless, and it is incorporated into
the MDLEA in § 70502(d)(1)(B). See supra note 50; see also, e.g.,
Meyers, supra, at 322 ("[A] ship which obscures the cognoscibility
of its allocation repeatedly, deliberately, and successfully may
51 In Matos-Luchi, when the Coast Guard approached a small
vessel whose crew members were suspected of drug trafficking, the
crew initially fled and, when subsequently apprehended, "declined
to make a claim of nationality" for their vessel. 627 F.3d at 2.
- 75 -
be treated as stateless." (internal quotation marks omitted)).
However, the Matos-Luchi majority went beyond that indisputable
basis for deeming a vessel stateless -- and the facts before it -
- to suggest that an oral declaration of nationality is inadequate
if the vessel's master provides no other evidence of the claimed
nationality. See 627 F.3d at 6. Stated without examination of
the issue, the majority's dicta, which is not binding on another
panel, does not support the government's contention that
international law allows a vessel to be deemed stateless based
solely on the absence of confirming evidence of the master's verbal
claim. As the government acknowledges, the MDLEA recognizes "a
verbal claim of nationality or registry by the master" as a "claim
of nationality or registry" equivalent to flying a flag or
producing "documents evidencing the vessel's nationality." 46
U.S.C. § 70502(e). Rejecting a verbal claim of nationality based
solely on a lack of substantiating evidence effectively negates
that distinct method for claiming nationality recognized both by
the MDLEA and by international law.
The government also directly invokes international law
to support its position. In its supplemental brief, the government
cites articles 17(1) and (2) of the United Nations Convention
against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, Dec. 20, 1988, 1582 U.N.T.S. 95 ("UN Narcotics
Convention"), and article 5(2) of the 1958 Convention on the High
- 76 -
Seas, supra, in arguing that the United States may deem a vessel
stateless if neither its master nor the claimed nation
substantiates a verbal claim of nationality. Neither of these
sources supports that proposition. The first cited provision of
the UN Narcotics Convention calls for cooperation "to suppress
illicit traffic by sea, in conformity with the international law
of the sea," id. art. 17(1), and the second states that a party
with "reasonable grounds to suspect that a vessel flying its flag
or not displaying a flag or marks of registry is engaged in illicit
traffic may request the assistance of other [p]arties in
suppressing its use for that purpose," id. at 17(2). These
principles of cooperation do not speak to the circumstances in
which international law deems a vessel stateless.
The provision of the 1958 Convention on the High Seas
cited by the government provides that "each state shall issue to
ships to which it has granted the right to fly its flag documents
to that effect." The UNCLOS contains a nearly identical provision,
see UNCLOS art. 91, § 2, and another UNCLOS provision specifically
addresses registration, requiring states to "maintain a register
of ships containing the names and particulars of ships flying its
flag, except those which are excluded from generally accepted
international regulations on account of their small size," id.
art. 94, § 2(a). The government suggests that such provisions
create an expectation that all vessels will carry documents and
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that, if a vessel's master does not substantiate a verbal claim
with documents or other evidence, the claimed country of
nationality "has accepted through its international treaty
obligations that the vessel may be deemed stateless." Appellee's
Supp. Br. at 16.
However, these treaty provisions demanding that
countries issue documents evidencing vessel nationality say
nothing about when a vessel may be deemed stateless. Nor can the
provisions reasonably be construed to provide consent to the
exercise of jurisdiction over a signatory's vessel by all other
signatories based solely on the master's failure to produce
documents in support of a claim of nationality. Indeed, as we
have noted, consent by the country whose nationality is claimed
provides a separate basis for jurisdiction under the MDLEA, see 46
U.S.C. § 70502(c)(1)(C), and the statute specifies that consent
"may be obtained by radio, telephone, or similar oral or electronic
means," id. § 70502(c)(2)(A). The government's theory of implicit
consent is at odds with this scheme.
The government also attempts to infer from treaty
provisions a principle of international law that when a country
both fails to confirm a claim of registration or nationality and
the vessel carries no registration or other identifying documents
the vessel may be deemed stateless. This theory conflates two
discrete international law issues. Even accepting documentation
- 78 -
requirements as within customary international law, it does not
follow that a country's failure to issue identifying documents or
"maintain a register" renders a vessel stateless when its master
has verbally claimed that country's nationality. The relevant
question is not whether the claimed country has satisfied its
obligations under international law. Rather, the question is what
type of inquiry and response suffices to permit the United States
to deem a vessel stateless despite a claim of nationality
recognized by international law. On that question, the government
cites no source of international law expressly recognizing a lack
of documents, or the claimed country's failure to confirm
nationality (instead of an outright denial), as a basis for
overcoming the prima facie showing of nationality arising from the
master's oral declaration.
That lack of support for the government's proposition is
unsurprising. As we have explained, the master's oral declaration
has long sufficed under international law to establish a
presumption of nationality. See, e.g., N.P. Ready, Ship
Registrations 3 (3d ed. 1998) ("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."); see also Aybar-Ulloa,
987 F.3d at 5 (observing that, "[w]ithout a flag or papers, a
vessel may also traditionally make an oral claim of nationality
- 79 -
when a proper demand is made" (quoting Matos-Luchi, 627 F.3d at
5)).52 That presumption is sensibly overcome by the named country's
express denial of the claim, a scenario long embedded in
international law.
However, a response stating that the country can neither
confirm nor deny the claim, or the named country's failure to
respond at all, may say very little about the veracity of the
master's assertion of nationality. Indeed, the inability to
confirm the claim may have more to do with the responding country's
bureaucracy than with the vessel's status. The facts in United
States v. Hernandez, 864 F.3d 1292 (11th Cir. 2017), graphically
illustrate the problem with § 70502(d)(1)(C). The captain of a
vessel told Coast Guard officers that his boat was registered in
Guatemala -- a truthful claim -- and he and the other three crew
52 In addition to the traditional methods of claiming
nationality discussed above -- flying the flag, presenting
documents, and oral declaration -- authorities may in some
instances look to the nationality of the vessel's owner. See,
e.g., The Chiquita, 19 F.2d at 418 ("If [a vessel] is not properly
registered, her nationality is still that of her owner.").
However, whether the owner's nationality establishes that of the
vessel will depend on the practice of the particular country. As
discussed above, "a State is absolutely independent in framing the
rules concerning the claim of vessels to its flag." Oppenheim
(8th ed.), supra, at 595; see also id. (noting that Great Britain
"allow[s] only such vessels to sail under [Great Britain's] flags
as are the exclusive property of their citizens or corporations
established on their territory," while "[o]ther [countries] allow
vessels which are the property of foreigners" to do so); Churchill
& Lowe, supra, at 213 n.19 (noting that a country may not register
small ships but may "regard such ships as having its nationality
if they are owned by its nationals").
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members all identified themselves as Guatemalan citizens. Id. at
1297. Indeed, at some point, Guatemalan registration documents
were found on the vessel. Id. Nonetheless, when asked by the
Coast Guard to confirm the registry claim, the government of
Guatemala responded that it could neither confirm nor deny it.
Id. Although the vessel plainly was not stateless, the court
rejected the defendants' challenge to their convictions under the
MDLEA because Guatemala had not "'affirmatively and unequivocally
assert[ed]' the ship's registry." Id. at 1299 (quoting
§ 70502(d)(1)(C)).53 In other words, the vessel was deemed
53The defendants in Hernandez contended that jurisdiction
under the MDLEA was improper because their vessel was in fact
registered and because the Coast Guard had identifying information
about their vessel "that would easily have confirmed its registry,"
but "failed in bad faith to convey that information" to the
Guatemalan government. 864 F.3d at 1299. In rejecting those
contentions, the court observed that "[t]he MDLEA does not state
what information the United States must convey to the foreign
government during its communication, and it does not state that
actual registry overrides the [Department of State]
certification's proof of statutory statelessness." Id. "MDLEA
statelessness," the court explained, "does not turn on actual
statelessness, but rather on the response of the foreign
government." Id. The court further observed that, given the
MDLEA's "clear terms" deeming their vessel stateless, "any
diplomatic consequences of the criminal prosecution" -- including
any violation of international law -- were the responsibility of
the executive branch and not a basis for undoing the convictions.
864 F.3d at 1297.
One defendant in Hernandez also argued "that the MDLEA is an
unconstitutional assertion of Congressional power because it
reaches stateless vessels on the high seas without a proven nexus
to the United States" -- an argument rejected there as foreclosed
by Eleventh Circuit precedent. 864 F.3d at 1303. The Hernandez
defendants did not make the argument asserted here that
§ 70502(d)(1)(C) is unconstitutional because Congress acted beyond
- 81 -
"stateless" even when verification of its nationality should have
been easily accomplished.
Moreover, where -- as in Hernandez and here -- the
master's oral declaration of nationality is consistent with the
citizenship or nationality of all individuals aboard the vessel,
the declaration is particularly forceful. To reject the master's
declaration of nationality in such circumstances based solely on
the claimed country's failure to provide affirmative and
unequivocal confirmation -- or its failure to respond at all --
would eviscerate a method long accepted for identifying a vessel's
nationality under international law. We cannot infer displacement
of that method merely based on treaty provisions imposing
obligations on signatory countries to register vessels or issue
other documents.54
That is not to say that the government's emphasis on
registration or documentary evidence of nationality is wholly
misplaced. International law does, in general, promote a system
its authority under the Felonies Clause in defining a vessel
without nationality to include a vessel whose master makes a verbal
claim of nationality that is not affirmatively and unequivocally
confirmed by the identified country.
Importantly, § 70502(d)(1)(C) on its face applies not only
54
to verbal claims of nationality, but to any claim of registration
or nationality, even one based on documentation. By its terms,
therefore, it allows the United States to reject a claim of
registration or nationality that is supported by documentary
evidence based solely on an equivocal response, or no response at
all, from the identified country.
- 82 -
of registration.55 It is reasonable to expect that registered
vessels would have documents onboard, and, if not, that the claimed
country of nationality would be able to easily confirm a legitimate
claim by checking its registry. However, not all vessels must be
registered. Small vessels are excluded from the UNCLOS registry
requirement, see UNCLOS art. 94, § 2(a), perhaps because some
countries typically do not register small vessels -- whether
defined by length or by tonnage. In the United States, for
example, the registration of smaller boats is generally left to
individual states. See 46 U.S.C. § 12102(b) (providing that "[a]
vessel of less than 5 net tons may engage in a trade without being
55As we recognized in Aybar-Ulloa, it is important that some
country exercise jurisdiction over a vessel. See 987 F.3d at 5.
A flag state
has several responsibilities [under
international law], including the
responsibility to ensure that its ships comply
with domestic and international law and
regulations. . . . Most notably, a state
must exercise "jurisdiction and control [over
its fleet] in administrative, technical, and
social matters." Control includes ensuring
that ships are seaworthy and comply with
relevant labor regulations and criminal laws.
Allyson Bennett, Note, That Sinking Feeling: Stateless Ships,
Universal Jurisdiction, and the Drug Trafficking Vessel
Interdiction Act, 37 Yale J. Int'l L. 433, 439 (2012) (second
alteration in original) (footnotes omitted) (citing various
provisions of the UNCLOS); see also Purchase of Ships of
Belligerents by Neutrals, 6 Op. U.S. Att'y Gen. 638, 640 (1854)
("The law of nations and common sense combine to require that every
ship shall have a nationality[.]").
- 83 -
documented"); id. § 12301 (providing that "[a]n undocumented
vessel equipped with propulsion machinery of any kind shall have
a number issued by the proper issuing authority in the State in
which the vessel principally is operated"); see also U.K. Mar. &
Coastguard Agency, Guidance: Vessel Classification and
Certification (2018), https://www.gov.uk/guidance/vessel-
classification-and-certification#certification-requirements-for-
uk-vessels (stating that, in the United Kingdom, a certificate of
registry is optional for "small commercial vessel[s]," defined as
vessels under 24 meters (roughly 79 feet)); 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"); Meyers, supra, at 160 ("Many states . . . do not
issue documents to ships with a tonnage below a given figure.").56
56 We note that 24 meters (roughly 79 feet) is a cutoff point
for the applicability of several major international conventions.
See, e.g., International Convention on Tonnage Measurement of
Ships art. 4, June 23, 1969, 1291 U.N.T.S. 4 (exempting "ships of
less than 24 metres (79 feet) in length"); International Convention
on Load Lines art. 5, Apr. 5, 1966, 9159 U.N.T.S. 134 (same); see
also Gudrun Petursdottir, Olafur Hannibalsson & Jeremy M.M.
Turner, Part II: International Conventions and Guidelines on
Safety at Sea, in Safety at Sea as an Integral Part of Fisheries
Management, Food & Agric. Org. of the United Nations (2001),
available at https://www.fao.org/3/X9656E/X9656E01.htm (stating
that recommendations and conventions developed by the
International Maritime Organization and International Labor
Organization "are aimed at large vessels, primarily the merchant
fleet on international voyages" and observing that "[s]ome
conventions explicitly exempt fishing vessels, and most do not
apply to vessels under 24m thus leaving out the majority of fishing
vessels and transport boats in the developing countries").
- 84 -
Hence, proof of a vessel's nationality via a centralized registry
or other evidence of registration may be unavailable, and a country
whose citizens have properly claimed nationality on behalf of their
vessels thus may be unable either to confirm or deny those claims
when contacted by the U.S. Coast Guard or other authorities.57
Importantly, we do not suggest that international law
requires the United States to accept a bare assertion of
nationality where there is conflicting evidence and attempts to
resolve the conflict prove fruitless. Although the master's oral
declaration constitutes prima facie proof of nationality, that
verbal assertion can be undermined by contrary evidence, as is the
case for any prima facie showing. For example, if the vessel's
claimed nationality differs from the nationality of most crew
According to the government, appellants' boat was 35 feet in
length. See supra note 4.
57That may be what occurred in this case. The Department of
State's Certification, which describes the measures taken to
verify the master's claim of nationality, indicates that, on the
day the Coast Guard encountered the vessel -- October 29, 2015 --
U.S. officials "requested that the Government of the Republic of
Costa Rica confirm the registry or nationality of the suspect
vessel, and, if confirmed, provide disposition instructions."
Reyes-Valdivia, ECF No. 46-2, at 1 (Mar. 25, 2016) (emphasis
added). The Certification reports that, nearly three months later,
"the Government of Costa Rica replied that it could not confirm
[the] vessel's registry." Id. (emphasis added). Separately,
although not presented as an issue on appeal, the time lag between
the defendants' initial detention and Costa Rica's response to the
verification request strikes us as problematic, given that the
status of a vessel determines whether U.S. law enforcement
officials may proceed with prosecuting the crew members under the
MDLEA.
- 85 -
members, or if a small vessel is interdicted far from the claimed
country,58 U.S. authorities could properly seek verification of the
master's claim. In other words, where surrounding facts provide
legitimate reason to doubt an oral claim of nationality,
international law would permit the United States to treat the
vessel as stateless absent the sort of confirmation required by
§ 70502(d)(1)(C). See, e.g., Commander's Handbook (2017), supra,
¶ 3.11.2.4 (stating that "[a] vessel may be assimilated to a vessel
without nationality" if, inter alia, there are contradictory or
inconsistent indicators of nationality).
Put differently, when U.S. authorities are presented
with mixed signals about the nationality of a vessel, it would be
permissible under international law for the United States to seek
confirmation from the country of asserted nationality and, if none
is forthcoming, to treat the vessel as stateless. As we have
described, a vessel may be deemed stateless under international
law both when it "seeks to avoid national identification," Matos-
Luchi, 627 F.3d at 6, and when it "sails under the flags of two or
58 The government posits such a scenario, asserting that it
would be absurd to require countries to accept unconfirmed verbal
claims of nationality because "[d]rug traffickers . . . could
falsely claim their vessels are the nationals of a small
Micronesian island or, more perplexingly, a country like North
Korea with limited diplomatic contacts." Appellee's Supp. Br. at
15. We do not disagree. Our analysis permits further inquiry
when a vessel's master claims a nationality that is at odds with
surrounding circumstances, including the vessel's location or the
nationality of the master and crew.
- 86 -
more States," UNCLOS art. 92, § 2 -- two situations that produce
ambiguity concerning the vessel's nationality.59 International
law, by inference, likewise permits treating a vessel as stateless
when its master makes a verbal claim of nationality that is both
unsubstantiated and inconsistent with other relevant indicators of
the vessel's nationality. As when the master of a vessel avoids
claiming a nationality or when a vessel indicates that it is
attempting to claim multiple nationalities, conflicting signals of
nationality create an ambiguity that properly gives rise to inquiry
and, absent confirmation, permits designation of the vessel as
"without nationality."60
59 These two circumstances are reflected in the MDLEA's
provisions addressing vessels without nationality. As we have
described, § 70502(d)(1)(B) covers the avoidance scenario,
defining a "vessel without nationality" to include one for which
the master fails "to make a claim of nationality or registry" upon
inquiry. The scenario of multiple identities is covered in
§ 70502(c)(1)(B), which states that a "vessel subject to the
jurisdiction of the United States" includes "a vessel assimilated
to a vessel without nationality under paragraph (2) of article 6
of the 1958 Convention on the High Seas." Paragraph (2) of the
Convention states: "A ship which sails under the flags of two or
more States, using them according to convenience, may not claim
any of the nationalities in question with respect to any other
State, and may be assimilated to a ship without nationality." 1958
Convention on the High Seas, supra, art. 6.
60 As described above, the government in its supplemental
briefing suggests that the circumstances here involved mixed
signals because, according to a Coast Guard officer's statement,
Reyes-Valdivia initially stated that the vessel lacked a
nationality. Although the government noted the reported
disclaimer of nationality in its Motion in Limine in support of
jurisdiction, it chose for whatever reason not to include that
fact in the version of the facts presented at appellants' change-
of-plea hearing or in appellants' plea agreements. See supra.
- 87 -
However, that conflicting-signals limitation is not part
of § 70502(d)(1)(C) as currently enacted. Rather, as we have
described, even where the circumstances offer no rationale for
displacing the prima facie showing of nationality established
through a verbal claim, § 70502(d)(1)(C) treats a vessel as
stateless based solely on the named country's failure to respond
"affirmatively and unequivocally" to U.S. inquiry. The statute on
its face is thus inconsistent with international law,61 and we have
no license to rewrite it to satisfy constitutional requirements.
See Iancu v. Brunetti, 139 S. Ct. 2294, 2301 (2019) (stating that,
although the Court "may interpret 'ambiguous statutory language'
Accordingly, as indicated in our discussion of the government's
Class argument, see Section III supra, it may not rely now on that
untested fact. Moreover, any attempt to raise a new theory of
prosecution at this juncture would raise serious due process
questions.
61 Although the government in its briefing at times depicts
appellants' claim that § 70502(d)(1)(C) is unconstitutional as an
as-applied challenge, that characterization is inapt. The
classification of a vessel as stateless based solely on the named
country's indecisive response to inquiry, or its failure to
respond, is a "constitutional flaw evident in the statutory terms
themselves." Marc E. Isserles, Overcoming Overbreadth: Facial
Challenges and the Valid Rule Requirement, 48 Am. U.L. Rev. 359,
365 (1998); cf. Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 449-50 (2008) ("In determining whether a law is
facially invalid, we must be careful not to go beyond the statute's
facial requirements and speculate about 'hypothetical' or
'imaginary' cases."). The mere fact that a cognizable legal
challenge by necessity concerns the application of a statute to
individuals does not transform a facial challenge into an as-
applied challenge. See generally Richard H. Fallon, Jr., As-
Applied and Facial Challenges and Third-Party Standing, 113 Harv.
L. Rev. 1321 (2000).
- 88 -
to 'avoid serious constitutional doubts,' . . . '[w]e will not
rewrite a law to conform it to constitutional requirements'" (first
quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516
(2009), and then quoting United States v. Stevens, 559 U.S. 460,
481 (2010))); see also Jennings v. Rodriguez, 138 S. Ct. 830, 843
(2018) ("Spotting a constitutional issue does not give a court the
authority to rewrite a statute as it pleases."). It is up to
Congress to narrow the language of § 70502(d)(1)(C) if it so
chooses.62
Even the absence of conflicting evidence of nationality,
however, does not mean that foreign nationals engaged in drug
trafficking on the high seas can evade prosecution based solely on
a verbal claim -- whether true or false -- of a vessel's
nationality. The Coast Guard and other countries' authorities can
always ask the claimed country of nationality for consent to arrest
and prosecute the individuals onboard. See 46 U.S.C.
§ 70502(c)(1)(C) (stating that a "vessel subject to the
jurisdiction of the United States" includes "a vessel registered
62We recognize that the three examples of vessels without
nationality listed in § 70502(d)(1) are not exclusive, and the
government might argue in future cases -- as the government
belatedly argued in this case -- that a vessel may be properly
deemed without nationality under the MDLEA based solely on mixed
signals, without the need to make any inquiry of the sort required
by § 70502(d)(1)(C). We need not, and therefore do not, consider
the viability of such an argument, including whether reliance on
a rationale for deeming a vessel without nationality that is not
expressly described in the MDLEA would raise due process concerns.
- 89 -
in a foreign nation if that nation has consented or waived
objection to the enforcement of United States law by the United
States"); see also, e.g., Cardales-Luna, 632 F.3d at 736 (noting
that the United States obtained consent from the government of
Bolivia, which "waived objection to the enforcement of U.S. laws
by the United States with respect to the vessel . . . , including
its cargo and all persons onboard" (quoting State Department
certification)); Matos-Luchi, 627 F.3d at 18 (Lipez, J.,
dissenting) (noting that the government in that case had failed to
obtain consent from the likely country of nationality, "which could
have provided a fallback position in the event that the evidence
of statelessness proved deficient").
Indeed, it is common practice for countries, including
the United States, to negotiate bilateral and multi-lateral
agreements to facilitate the apprehension of drug traffickers
operating on the high seas. See, e.g., Casavant, supra, at 205
(stating that the United States has entered into twenty-seven such
agreements, including with countries in South America, Central
America, and the Caribbean, providing a "process by which the two
[or more] nations can operate to suppress drug trafficking while
also respecting flag state jurisdiction").63 The United States
As previously noted, the United States relied on such an
63
agreement to board appellants' vessel. The State Department's
Certification reports that "United States law enforcement
personnel boarded the vessel" "pursuant to Article V of the
- 90 -
also can address its concerns about maritime drug trafficking by
seeking to persuade other countries to take enforcement action
against their own vessels and nationals. See generally James
Kraska, Broken Taillight at Sea: The Peacetime International Law
of Visit, Board, Search, and Seizure, 16 Ocean & Coastal L.J. 1,
11 (2010) ("Nowhere is collaboration [among countries] so
ingrained than in counter-drug operations at sea."). In this
regard, a 2021 report by the U.S. Department of State noted that
the Coast Guard of Costa Rica -- the claimed flag-state here --
"is a successful regional partner with the United States for
maritime interdiction." See U.S. Dep't of State, Bureau of Int'l
Narcotics & Law Enforcement Affairs, Int'l Narcotics Control
Strategy Report, Vol. 1, Mar. 2021, at 117; see also id. at 119("[A] bilateral agreement between the United States and Costa Rica
is regularly used in maritime drug interdiction operations[.]").
What the United States cannot do consistently with the
Constitution, however, is arrest and prosecute foreigners on
foreign vessels by relying on a concept of statelessness that
conflicts with international law. And that is what
§ 70502(d)(1)(C) allows. It overrides international law by
treating a country's failure to supply an "affirmative[] and
Agreement between the Government of the United States of America
and the Government of the Republic of Costa Rica Concerning
Cooperation to Suppress Illicit Traffic." Reyes-Valdivia, ECF No.
46-2, at 1 (Mar. 25, 2016).
- 91 -
unequivocal[]" confirmation of nationality -- including a failure
to respond at all -- as evidence sufficient to invalidate an oral
claim of foreign nationality even when there are no mixed signals
that would call the claim into doubt. That is, the MDLEA treats
as stateless a vessel that, under international law, would be a
vessel with nationality. Accordingly, the prosecution of foreign
nationals traveling on such a vessel for a violation of U.S. law
is impermissible under the Felonies Clause of the Constitution,
the only source of authority asserted for Congress's adoption of
the MDLEA. See Aybar-Ulloa, 987 F.3d at 4 (referring to
"Congress's power under Article I '[t]o define and punish Piracies
and Felonies committed on the high Seas'" (quoting U.S. Const.
art. 1, § 8, cl.10)); Mitchell-Hunter, 663 F.3d at 49 n.3
(explicitly stating that "[t]he MDLEA is derived from Congress'
power to 'define and punish Piracies and Felonies committed on the
high Seas'" (quoting U.S. Const. art. 1, § 8, cl.10)); Cruickshank,
837 F.3d at 1187 (same).
VI.
The Framers intended international law to be a
constraint on Congress's authority "[t]o define and punish . . .
Felonies committed on the high Seas." Two centuries ago, the
Supreme Court held that Congress lacked authority under the
Felonies Clause to extend U.S. jurisdiction to felonies committed
by foreign nationals on foreign vessels. See Furlong, 18 U.S. (5
- 92 -
Wheat.) at 198; Palmer, 16 U.S. (3 Wheat.) at 632-34. With
§ 70502(d)(1)(C), Congress violated this principle, extending U.S.
jurisdiction beyond the limits of international law and, hence,
beyond the authority conferred by the Felonies Clause.
In this case, relying on the authority provided by
§ 70502(d)(1)(C), the Coast Guard treated a vessel whose master
made a claim of Costa Rican nationality cognizable under
international law as a "vessel without nationality." The United
States government improperly relied on that classification -- in
violation of constitutional limits -- to arrest and prosecute Costa
Rican citizens, Reyes-Valdivia and Dávila-Reyes. We therefore
vacate their convictions and remand the case to the district court
with instructions to dismiss the MDLEA charges against them.64
So ordered.
-CONCURRING OPINION FOLLOWS-
Because we vacate appellants' convictions based on their
64
Felonies Clause argument, we do not reach their due process
challenges to the MDLEA or Reyes-Valdivia's appeal from the
district court's application of the "captain" sentencing
enhancement.
- 93 -
HOWARD, Chief Judge, concurring in the result. As noted
in the majority opinion, we withdrew our prior panel opinion and
granted panel rehearing after the en banc court issued its opinion
in Aybar-Ulloa. In Aybar-Ulloa, the en banc court did not address
arguments raised by the parties about the protective principle.
In light of the now uncertain status of our protective principle
precedent, like my colleagues I am reluctant to unquestioningly
rely on the protective principle to affirm the convictions
underlying these appeals. Unlike my colleagues, I would not decide
these appeals on constitutional grounds.
I would instead reverse these convictions on the basis
that the agreed facts do not support the statelessness claim
charged by the government.65 The government claims the vessel is
stateless per 46 U.S.C. § 70502(d)(1)(C), which provides that
'vessels without nationality' include:
Although this ground for reversal of the convictions was
65
not initially raised in the appeals, the panel was concerned enough
about the mismatch that we requested that the parties brief the
issue, and they complied. That the issue was addressed by the
parties through supplemental briefing may not by itself be reason
enough for us to bypass appellate waiver -- including not only the
failure to raise the issue on appeal but also, in the case of
Dávila-Reyes, the affirmative waiver of appeal contained in the
plea agreement. But the majority's constitutional analysis
depends in part on an equivalency between "nationality" and
"registry" that it finds in § 70502(d)(1)(C). My disagreement
about whether that equivalency exists is consequential, such that
it should not be relegated to a dicta detour along the way to
finding waiver. At this stage of the proceedings, the gap in the
statelessness determination under § 70502(d)(1)(C) is stark enough
for me to join the majority, albeit in result only.
- 94 -
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.
The majority asserts that the facts here meet the criteria
described above in § 70502(d)(1)(C) because § 70502 treats
"registry" and "nationality" synonymously. But I find no support
for that observation in the text of § 70502 or in our cases.
To reach its conclusion that "registry" and
"nationality" are used interchangeably in the statute, the
majority argues that interpreting these terms to have independent
meanings would leave an incongruous hole in statutory coverage;
how, the majority wonders, could Congress have intended to cover
a situation in which a master asserts Costa Rican registration,
but not Costa Rican nationality?
The answer becomes apparent when we examine the overall
legal terrain. Section 70502(d)(1) establishes three avenues to
find statelessness. But this list is not exclusive, and leaves in
place other ways in which the government can establish lack of
nationality. See United States v. Matos-Luchi, 627 F.3d 1, 4 (1st
Cir. 2010); id. at 15 (Lipez, J., dissenting) ("As the majority
correctly holds, Congress did not intend those three examples [in
§ 70502(d)(1)] 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
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enumerated categories."); see also United States v. Miranda, 780
F.3d 1185, 1197 (D.C. Cir. 2015) ("[T]he statute contains three
nonexclusive examples of 'vessels without nationality,' each of
which turns on the 'registry' of the vessel."); United States v.
Rosero, 42 F.3d 166, 171 (3d Cir. 1994) (Alito, J.). Thus, giving
meaning to all the terms in § 70502(d)(1) does not immunize vessel
masters who claim foreign nationality rather than registry.
Here, the master asserted Costa Rican nationality for
the vessel; at no point did he assert Costa Rican registry.
Accordingly, by its terms, § 70502(d)(1)(C) is not applicable, nor
did the government assert an alternative basis for finding
statelessness when prosecuting appellants. I would reverse the
convictions on that ground and go no further.
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