United States Court of Appeals For the First Circuit

No. 16-2089

UNITED STATES OF AMERICA,

Appellee,

v.

JEFFRI DÁVILA-REYES,

Defendant, Appellant.

No. 16-2143

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ D. REYES-VALDIVIA,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Barron, Chief Judge, Lynch, Lipez, Howard, Thompson, Kayatta, Gelpí, Montecalvo, Circuit Judges.

Raymond L. Sánchez-Maceira, for appellant Jeffri Dávila- Reyes. Franco L. Pérez-Redondo, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero-Torres, Assistant Federal Public Defender, and Kevin E. Lerman, Research & Writing Attorney, were on brief, for appellant José Reyes-Valdivia. John M. Pellettieri, with whom Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Chief, Appellate Division, and David C. Bornstein, Assistant United States Attorney, were on brief, for appellee.

October 5, 2023

Opinion En Banc BARRON, Chief Judge. In these consolidated appeals,

Jeffri Dávila-Reyes and José Reyes-Valdivia challenge their 2016

convictions for violating the Maritime Drug Law Enforcement Act,

et seq. ("MDLEA"), despite their having pleaded

guilty unconditionally to the underlying charges. The charges

were set forth in a single indictment that was handed up in the

District of Puerto Rico in 2015. The indictment alleged that the

defendants, each of whom is a national of Costa Rica, had violated

the MDLEA by trafficking drugs "on the high seas . . . and within

the jurisdiction of this court" while on board a "covered vessel,"

(a), which includes any "vessel subject to the

jurisdiction of the United States,"

(e)(1). The

indictment alleged that the vessel was "subject to the jurisdiction

of the United States" because it was "without nationality."

(c)(1)(A).

A panel of this Court vacated the defendants'

convictions and ordered the underlying charges dismissed. The

panel did so based on the defendants' contention that Congress had

no power under the Felonies Clause of the U.S. Constitution to

criminalize their charged conduct because they were foreign

nationals who were aboard a foreign vessel on the high seas at the

time of that conduct. See U.S. Const. art. I, § 8, cl. 10 (granting

Congress the power "[t]o define and punish Piracies and Felonies

committed on the high Seas, and Offences against the Law of

- 3 - Nations"). The defendants based their contention that the vessel

was foreign on the ground that even if the vessel was "without

nationality,"

(c)(1)(A), for purposes of the

MDLEA it was not stateless for purposes of international law. See

United States v. Dávila-Reyes,

(1st Cir. 2022).

The government petitioned for rehearing en banc. We

granted the petition and vacated the panel's ruling. We now affirm

the defendants' convictions, albeit on narrow, record-based

grounds that bypass many of the broader questions of international

and federal constitutional law that the defendants ask us to

resolve. Because those questions touch on sensitive issues of

U.S. foreign relations and national power that have implications

far beyond this specific statutory context, it is prudent for us

to resolve them only in a case that, unlike this one, requires

that we do so.

We do address, however, a threshold legal question about

the MDLEA that itself has broad significance: Does

(e)(1), which establishes that a "vessel subject to the

jurisdiction of the United States" is a "covered vessel," limit

the subject matter jurisdiction of federal courts under Article

III of the Constitution? See U.S. Const. art. III, § 2, cl. 1.

We conclude, in accord with an earlier ruling of this Court, see

United States v. González,

(1st Cir. 2002), that

- 4 - § 70503(e)(1) does not set such a limit and that the provision

instead merely limits the substantive reach of the MDLEA.

I.

A.

The MDLEA applies to drug trafficking on the high seas

only if that conduct occurs aboard a "covered vessel."

(a). Section 70503(e)(1) provides that a "covered vessel"

includes a "vessel subject to the jurisdiction of the United

States."

A U.S. vessel is a "covered vessel." See

(e)(1). But § 70502(c)(1) provides in subsection (A) that

a vessel is also "subject to the jurisdiction of the United States"

if it is "without nationality." Section 70502(d)(1) then states

that:

the term "vessel without nationality" includes:

(A) a vessel aboard which the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed; (B) a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; (C) a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally

- 5 - assert that the vessel is of its nationality[.]1

B.

A criminal complaint from the District of Puerto Rico

was issued against the defendants on November 9, 2015. It stated

that the defendants were "in violation of Title

(a)(1), 70504(b)(1), and 70506(a) and (b)."2

An affidavit from a law enforcement officer attached to the

complaint recounted the following facts.

On or about October 29, 2015, a maritime patrol

aircraft's crew identified a "go fast" vessel in international

waters about 30 nautical miles southeast of San Andrés Island,

1

(d)(1) was amended on December 23, 2022. See James M. Inhofe National Defense Authorization Act for Fiscal Year 2023,

,

, 4142 (2022). That amendment, which added § 70502(d)(1)(D), is not relevant to this case. 2

(b)(1) states: "Venue. -- A person violating section 70503 . . . shall be tried in the district in which such offense was committed."

(a) states: "Violations. -- A person violating paragraph (1) of section 70503(a) of this title shall be punished as provided in section 1010 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 960). However, if the offense is a second or subsequent offense as provided in section 1012(b) of that Act (21 U.S.C. 962(b)), the person shall be punished as provided in section 1012 of that Act (21 U.S.C. 962)."

(b) states: "Attempts and conspiracies. -- A person attempting or conspiring to violate section 70503 of this title is subject to the same penalties as provided for violating section 70503."

- 6 - Colombia. The crew reported observing persons on the vessel

throwing packages and fuel barrels into the water.

The crew noted that a cloud of white powder was seen

escaping from one of the packages. The crew "also observed what

was believed to be a Costa Rica flag painted on the port bow of

the go fast" vessel.

The United States Coast Guard dispatched a Boarding Team

to intercept the vessel. The Boarding Team commenced "Right to

Approach" questioning of the vessel's crew.

The vessel's master claimed that the vessel was of Costa

Rican nationality. He did not provide the members of the Boarding

Team any Costa Rican registration documents,3 and the Boarding Team

did not identify any "further indicia of nationality."

The Boarding Team proceeded to contact the government of

Costa Rica to inquire about the vessel. The government of Costa

Rica was unable to "affirmatively and unequivocally assert,"

§ 70502(d)(1)(C), that the vessel was registered with that

country. The Boarding Team "determined" that the vessel was

"without nationality."

The Boarding Team found trace amounts of cocaine after

searching the vessel and arrested the three people on board --

specifically, the two defendants in these consolidated appeals,

The affidavit makes no reference to a "claim of registry" 3

having been made.

- 7 - Dávila-Reyes and Reyes-Valdivia, and a third crew member. The

three individuals were taken to the United States's military base

at Guantánamo Bay, Cuba before they were transported to Puerto

Rico, where they were held pending charges.

C.

Dávila-Reyes, Reyes-Valdivia, and the third member of

the vessel's crew were indicted in the District of Puerto Rico on

November 23, 2015. The indictment charged each of the three crew

members with two counts of violating the MDLEA while "on board a

vessel subject to the jurisdiction of the United States, as defined

in Title

(c)(1)(A)." The

indictment did not further specify the ground for so deeming the

vessel.

D.

Reyes-Valdivia moved on February 1, 2016, to dismiss the

charges. The motion relied on various constitutional grounds.

Reyes-Valdivia's motion first contended that the charges

must be dismissed because Congress lacked the power under the

Felonies Clause to criminalize the underlying conduct. The motion

argued that the Felonies Clause does not empower Congress to make

it a crime for a foreign national to engage in drug trafficking

outside the "territorial jurisdiction" of the United States while

aboard a foreign vessel. The motion further contended that

§ 70502(d)(1)(C)'s definition of a "vessel without nationality"

- 8 - "extends jurisdiction over vessels that are not in fact stateless

under international law, where the claimed nation of registry fails

to unequivocally confirm registry." The motion then asserted that,

"[b]ecause the MDLEA's statelessness provision is significantly

broader than international law's concept of statelessness, the

statute's assertion of jurisdiction over stateless vessels is an

invalid exercise of Congress's Article I powers" in that it extends

the reach of the MDLEA to persons who are aboard vessels on the

high seas that are foreign rather than stateless for purposes of

international law.

The motion separately contended that the charges must be

dismissed pursuant to the Due Process Clause of the Fifth

Amendment. See U.S. Const. amend. V. The motion argued that

§ 70502(d)(1)(A) and § 70502(d)(1)(C) are void for vagueness

because neither provision explains the steps that a nation must

take either to "den[y]" or "affirmatively and unequivocally assert

that the vessel is of its nationality."

The motion also took aim at the charges for two

additional reasons under the Due Process Clause. First, the motion

contended that the indictment violated the Due Process Clause

because the MDLEA does not require the government to bear the

burden of affirmatively proving that the vessel in question was

stateless under international law. Second, the motion contended

that the indictment violated the Due Process Clause because it did

- 9 - not allege the drugs that the defendants were charged with

trafficking were "destined for the United States" and so did not

allege any "nexus" between the defendants' allegedly unlawful

conduct and the United States.4

Dávila-Reyes joined Reyes-Valdivia's motion. The

government opposed Dávila-Reyes and Reyes-Valdivia's joint motion

and attached to its brief in opposition decisions from the District

of Puerto Rico that had rejected challenges to the MDLEA like those

that the defendants' joint motion advanced.

The District Court denied the motion in a two-page order.

The District Court explained that it had "reviewed, considered and

analyzed the applicable statutes, case law and the opinions by

other judges" attached to the government's opposition to the motion

to dismiss the indictment and "agree[d] with their analyses and

conclusions."

E.

On March 25, 2016, the government filed a motion pursuant

to

(a), which provides: "Jurisdiction of the

United States with respect to a vessel subject to this chapter is

not an element of an offense. Jurisdictional issues arising under

this chapter are preliminary questions of law to be determined

4The motion also contended that the MDLEA charges could not be justified under the Treaties Clause, see U.S. Const. art. II, § 2, cl. 2, but neither the defendants nor the government address this argument on appeal and so we need not consider the issue.

- 10 - solely by the trial judge." The motion asked the District Court

to "find, as a matter of law, that the vessel in question was

subject to the jurisdiction of the United States, as defined in

Title

(c)(1)(A) and

(d)(1)(C)." The motion also requested that the District Court,

"prior to the beginning of testimony in this case, preliminarily

[instruct] the jury pursuant to Title 46, United States Code,

Section[s] 70502(c)(1)(A) and (d)(1)(C) that the suspect vessel

carrying the [d]efendants was a vessel [w]ithout [n]ationality and

therefore subject to the jurisdiction of the United States."

To support the motion, the government attached an

affidavit from the leader of the Boarding Team. The affidavit

stated that the master of the vessel initially "claimed . . . that

there was no nationality for the vessel," then "later tried to

change the claim [of the vessel's nationality] to Costa Rica."

The affidavit stated that "a Costa Rican flag [was] painted on the

bow" of the vessel. The motion itself asserted that there was no

"name, hailing port, or registration numbers on the [vessel's]

hull" and that "the vessel was not flying any flag."

In further support of the motion, the government

attached a certification from the United States Department of

State. Under

(d)(2), such a certification is in

and of itself conclusive proof as to the response of a country

that has been contacted for purposes of determining that a vessel

- 11 - is "without nationality" under § 70502(d)(1)(C). The

certification explained that the vessel was located by law

enforcement 30 nautical miles southeast of San Andrés Island,

Colombia; that law enforcement suspected the vessel of illicit

drug trafficking because the crew was jettisoning unknown packages

in an area where drug trafficking was common; that the master made

a claim of Costa Rican nationality; that no registration documents

were present on the vessel; and that Costa Rica, when contacted,

"could not confirm the vessel's registry." The certification

concluded that, "[a]ccordingly, the Government of the United

States determined the vessel was "without nationality in

accordance with

(d)(1)(C), rend[er]ing the vessel

subject to the jurisdiction of the United States, pursuant to

(c)(1)(A)."

F.

Before the defendants responded to the government's

§ 70504(a) motion or the District Court ruled on it, all three

defendants on April 4, 2016, pleaded guilty to violating the

MDLEA.5 Each defendant admitted in his respective plea agreement

to:

[k]nowingly and intentionally combining, conspiring, confederating and agreeing with others, to commit an offense defined in Title

5The third crew member entered into substantially the same plea agreement as Dávila-Reyes and Reyes-Valdivia but, because he did not appeal his conviction, his case is not before us.

- 12 -

, that is: to possess with intent to distribute five (5) kilograms or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II, Narcotic Drug Controlled Substance, on board a vessel subject to the jurisdiction of the United States, as defined in Title

(c)(1)(A).

Each defendant also "adopt[ed]" as part of his plea

agreement the Government's Version of the Facts, which was attached

to the plea agreement. Thus, by signing the plea agreement, each

defendant agreed that, as to the Government's Version of the Facts,

"the facts therein are accurate in every respect and, had the

matter proceeded to trial, that the United States would have proven

those facts beyond a reasonable doubt." The Government's Version

of the Facts stated in relevant part:

A U.S. Coast Guard . . . Boarding Team approached the vessel and commenced Right to Approach . . . questioning. The master claimed Costa Rican nationality for the vessel but provided no registration paperwork and there was no indicia of nationality on the vessel. The government of Costa Rica was approached and responded that it could neither confirm nor refute the registry of the suspect vessel. The vessel was determined to be one without nationality.

Dávila-Reyes was sentenced to 120 months of imprisonment

on August 2, 2016, and his judgment of conviction was entered that

same day. Reyes-Valdivia was sentenced to 70 months of

- 13 - imprisonment on August 5, 2016, and his judgment of conviction was

also entered that day.6

G.

Dávila-Reyes and Reyes-Valdivia each filed a timely

notice of appeal from the "judgment" that the District Court had

entered in each of their respective cases. Dávila-Reyes's and

Reyes-Valdivia's appeals were consolidated.

In the defendants' briefing to the panel, the defendants

challenged the judgments that the District Court had entered

against them under the Felonies Clause and the Due Process Clause.

In addition, Dávila-Reyes raised a new argument: Congress lacked

the power under the Constitution to criminalize his charged conduct

because the vessel that he was aboard was not on the high seas and

was instead within the territorial waters of Colombia.

The two defendants contended in their briefing to the

panel that they had not waived the constitutional claims that they

were raising on appeal by entering unconditional guilty pleas in

the District Court. They argued that § 70503(e)(1), in referencing

the "jurisdiction of the United States," establishes a limitation

6 Reyes-Valdivia also appealed his sentence. The panel affirmed his sentence in its original opinion. That holding was vacated when that opinion was withdrawn, so Reyes-Valdivia's sentencing appeal remains before us. United States v. Dávila- Reyes,

(1st Cir. 2019). But Reyes-Valdivia is no longer in custody, and so his sentencing challenge is now moot. See United States v. Suarez-Reyes,

(1st Cir. 2018).

- 14 - on the subject matter jurisdiction of courts. On that basis, they

contended that they were entitled to raise their various claims on

appeal despite their unconditional guilty pleas because the claims

implicated the question of whether the District Court had subject

matter jurisdiction under Article III to enter the judgments

against them.

After the parties filed their briefs with the panel, but

before oral argument to the panel, the government filed a letter

under Federal Rule of Appellate Procedure 28(j) about Class v.

United States,

(2018). There, the Supreme Court of

the United States held that an unconditional guilty plea does not

necessarily waive a constitutional challenge to the defendant's

statute of conviction. The government argued in the letter that,

notwithstanding Class, the defendants were barred from raising

their challenges on appeal by their unconditional guilty pleas.

The defendants responded with their own Rule 28(j)

letter. They contended in their letter that Class established

that they had not waived their claims by entering their

unconditional guilty pleas.

The panel heard oral argument in the defendants' appeals

on March 7, 2018. Then, on January 15, 2019, the panel ordered

the parties to submit supplemental briefing to address two

questions:

- 15 - 1. What is the basis for deeming appellants' vessel "a Vessel without nationality" under 4[6] U.S.C. § 70502(d)(1) given that none of the clauses of

(d)(1) appears to apply by its terms? As background, we note that the statements of fact presented in appellants' plea agreements report that the master of appellants' vessel declared Costa Rican nationality, not Costa Rican registry. That declaration renders § 70502(d)(1)(B) inapplicable, and clauses (A) and (C) refer only to claims of registry.

2. Assuming that the circumstances do not permit deeming appellants' vessel one "without nationality" pursuant to any clause of

(d)(1), what other jurisdictional basis supports this prosecution by United States authorities under United States law against appellants -- citizens of Costa Rica who were detained in international waters on a vessel claimed to be of Costa Rican nationality?

The parties submitted briefing on the questions.

H.

In September 2019, the panel -- in its original opinion,

which the panel later withdrew when issuing its subsequent

opinion -- rejected the challenges that Dávila-Reyes and Reyes-

Valdivia had brought under the Felonies Clause and the Due Process

Clause to the "judgments" entered against them. See United States

v. Dávila-Reyes,

(1st Cir. 2019) (Dávila-Reyes

I). The panel relied on Class to hold that the defendants' guilty

pleas did not "foreclose their right to challenge the

constitutionality of the MDLEA."

. But the panel ruled

against the defendants on the merits based on United States v.

- 16 - Cardales,

(1st Cir. 1999), "and the cases reiterating

its approach." Dávila-Reyes I,

.

The panel explained that those precedents established

that the MDLEA was a valid assertion of the United States's

protective jurisdiction under international law, given the United

States's interest in protecting itself from the baleful effects of

drug trafficking.

. The panel explained that this

was so no matter the basis under § 70502(c)(1)(A) of the MDLEA for

determining that a defendant was on a "vessel without nationality"

on which the government was relying. Thus, the panel explained,

this was so notwithstanding the defendants' contention that the

MDLEA (per § 70502(d)(1)(C)) permitted a vessel to be so deemed

even when it was not stateless for purposes of international law.7

Id.

Dávila-Reyes and Reyes-Valdivia petitioned for rehearing

en banc from the panel's ruling in October 2019. The petition

contended that the defendants' convictions ran afoul of the

Felonies Clause and the Due Process Clause. The petition contended

on that basis that Cardales should be overruled.

The panel did not appear to address Dávila-Reyes' contention 7

that Congress lacked the power to criminalize his conduct because the vessel that he was aboard was not on the high seas. The defendants did not raise the contention in the petition for rehearing en banc that they filed after the panel's original opinion issued. Thus, the argument has been abandoned, and we need not address it here.

- 17 - While the petition was pending, our court, sitting en

banc, decided United States v. Aybar-Ulloa,

(1st Cir.

2021). In that case, we rejected the defendant's contention that

the Felonies Clause did not empower Congress to criminalize his

conduct, which involved alleged drug trafficking on the high seas

while aboard a vessel "without nationality" under

§ 70502(c)(1)(A).

Aybar-Ulloa did not rely in so holding, as Cardales and

the panel in Dávila-Reyes I had, on the United States's assertion

of protective jurisdiction under international law. Aybar-Ulloa

relied instead on the ground that Congress had the power under the

Felonies Clause to make it a crime for a foreign national to engage

in drug trafficking on the high seas while aboard a vessel that

was stateless under international law. Id. at 4-5. Aybar-Ulloa

explained that the MDLEA conviction at issue there did not exceed

Congress's Felonies Clause power because the defendant in that

case did not dispute that he was a foreign national who was aboard

a vessel at the time of his drug trafficking that was both on the

high seas and stateless for purposes of international law. Id. at

5-6.

Following our en banc decision in Aybar-Ulloa, the panel

in Dávila-Reyes's and Reyes-Valdivia's cases construed the pending

petition for rehearing en banc as a petition for panel rehearing,

granted the petition, and vacated the panel's September 2019

- 18 - opinion. The panel explained that it had "concluded that the en

banc decision in [Aybar-Ulloa] has diminished the force of this

circuit's precedent on the protective principle such that the

panel . . . deem[ed] it appropriate to address appellants'

contention that the government improperly deemed their vessel

stateless." United States v. Dávila-Reyes, No. 16-2089,

(1st Cir. Mar. 17, 2021).

The panel issued a new decision in January 2022 that

vacated the defendants' convictions and dismissed the charges

against them. See United States v. Dávila-Reyes,

(1st Cir. 2022) (Dávila-Reyes II). A majority of the panel

explained that Class allowed the defendants to press their

constitutional claims despite their unconditional guilty pleas.

. Then, the majority turned to the merits.

The majority reasoned that Congress lacks the power

under the Felonies Clause to criminalize a foreign national's drug

trafficking in international waters unless the United States's

assertion of regulatory jurisdiction over that foreign national

would be permissible under international law.

. The

majority then explained that, although Aybar-Ulloa held that

international law permits the United States to assert such

regulatory jurisdiction when the foreign national is aboard a

vessel on the high seas that is stateless under international law,

a vessel cannot be deemed stateless under international law merely

- 19 - because, as § 70502(d)(1)(C) provides, a foreign nation whose

nationality the vessel's master claims for the vessel "fail[s] to

supply an 'affirmative and unequivocal' confirmation of

nationality." Id. at 186-95 (cleaned up). And, the majority

concluded, the defendants' charges and convictions necessarily

depended on the application of § 70502(d)(1)(C) -- and on no other

basis -- to deem the vessel that they were aboard at the time of

their MDLEA violations to be "without nationality" under

§ 70502(c)(1)(A). Id. at 162-65.

In so holding, the majority acknowledged that the

government had argued in its supplemental briefing to the panel

that the defendants' vessel "could have been deemed without

nationality based on . . . jurisdictional theories" other than

application of § 70502(d)(1)(C). Id. at 164-65. These alternative

bases included that the vessel's master "fail[ed] to produce

registration paperwork or otherwise substantiate his verbal claim

of nationality." Id. at 164. But the majority concluded that "it

[was] simply too late for the government to proffer alternative

bases for jurisdiction" because those bases were "not the basis on

which the government relied to arrest and prosecute appellants,

and to obtain their guilty pleas." Id. at 164-65.

Thus, the majority explained, the defendants' charges

and convictions exceeded Congress's power, including under the

Felonies Clause, because a vessel deemed to be "without

- 20 - nationality" under § 70502(c)(1)(A) solely by application of

§ 70502(d)(1)(C) is not stateless under international law. Id. at

194-95. Accordingly, the panel ordered the defendants'

convictions vacated and the charges against them dismissed. Id.

at 195.

Then-Chief Judge Howard issued an opinion concurring in

the judgment. Id. at 195-96 (Howard, C.J., concurring in the

result). He explained that the MDLEA provides that a vessel is

"without nationality" under § 70502(c)(1)(A) when, as

§ 70502(d)(1)(C) provides, "the master or individual in charge

makes a claim of registry and for which the claimed nation of

registry does not affirmatively and unequivocally assert that the

vessel is of its nationality." Id. But, he concluded, the master

of the vessel in question in Dávila-Reyes and Reyes-Valdivia's

cases had made a claim of Costa Rican "nationality" rather than

Costa Rican "registry." Id. Then-Chief Judge Howard explained

that as a result the conclusive presumption of a vessel being

"without nationality" that § 70502(d)(1)(C) sets forth had no

application in the defendants' cases and that, for that statutory

reason alone, the defendants' convictions must be vacated and the

charges against them in the indictment dismissed.8 Id. at 196.

8 Then-ChiefJudge Howard noted that the defendants' statutory contention arguably was waived because the defendants did not brief the statutory argument until ordered to by the panel. But he

- 21 - Following the panel's decision, the United States

petitioned for rehearing en banc. We granted the petition in July

2022; vacated the panel's February 2022 opinion; ordered

supplemental briefing, which the parties then supplied; and heard

oral argument.

II.

The defendants seek to challenge their convictions on

various grounds despite their unconditional guilty pleas. Thus,

we confront a threshold question: Did the defendants' guilty pleas

waive the various challenges that they seek to have us address?

Insofar as we conclude that the defendants' guilty pleas did not,

we then also confront one further threshold question: What standard

of review applies to each of the challenges that the defendants

bring on appeal?

The defendants contend to us, as they did to the panel,

that their unconditional guilty pleas did not waive their

challenges because the challenges concern whether their vessel was

"subject to the jurisdiction of the United States" under the MDLEA.

The defendants contend that this requirement in the MDLEA places

a limit on a federal court's subject matter jurisdiction and thus

a federal court's jurisdiction under Article III of the United

suggested that the supplemental briefing may have been sufficient to "bypass [this] appellate waiver." Dávila-Reyes II,

n.65.

- 22 - States Constitution. In consequence, the defendants contend,

their challenges take aim at the Article III jurisdiction of the

District Court and so are both not waivable by an unconditional

guilty plea and subject to de novo (rather than plain error) review

whether their challenges were raised below or not.

The defendants also contend, in the alternative, that

their guilty pleas did not waive their challenges for a different

reason. Here, they rely on Class.

We explain in Part III why we reject the defendants'

Article III-based ground for both permitting their challenges to

their convictions to go forward despite their unconditional guilty

pleas and reviewing those challenges de novo even if the challenges

were not raised below. We then address in Part IV the defendants'

Class-based ground for permitting their challenges to go forward.

There, we explain that, even assuming that under Class the

defendants' challenges are not waived, we must reject them, either

because they have no merit under de novo review or because they

- 23 - are subject to the plain error standard of review and cannot meet

it.9

III.

The defendants contend that their challenges take aim at

the subject matter jurisdiction of the District Court because the

challenges take aim at the basis for concluding that their vessel

was "subject to the jurisdiction of the United States" for purposes

of the MDLEA. This phrase appears in several sections of the

MDLEA, although the defendants and the government focus chiefly on

its use in § 70502(c)(1) and § 70504 of the MDLEA. The defendants'

and the government's contentions are best understood, however, to

be addressing the use of the phrase in § 70503(e)(1). That

provision is the operative one, as it provides that a "vessel

subject to the jurisdiction of the United States" is a "covered

The government separately contends that both Dávila-Reyes's 9

and Reyes-Valdivia's appeals are barred by the waiver of appeal contained in each of their plea agreements. We note that Reyes- Valdivia's appeal waiver was predicated on his receipt of a sentence of no more than 57 months of imprisonment. Because he received a 70-month prison sentence, that waiver appears to be unenforceable. In any event, we may assume for present purposes that neither waiver is a bar to these appeals because the defendants' challenges to their indictment and convictions fail on other grounds.

- 24 - vessel" and so the type of vessel that a person must be "on board"

to violate the MDLEA under § 70503(a).10

We may assume that the defendants are right to contend

that their various challenges on appeal implicate § 70503(e)(1),

because we agree with the government that, even if the challenges

do, the challenges do not implicate the subject matter jurisdiction

of the District Court, because § 70503(e)(1) does not impose a

limitation on a court's subject matter jurisdiction. Accordingly,

we reject the defendants' Article III-based arguments as to both

whether their guilty pleas waived their challenges and why the

standard of review that applies to those challenges is de novo

regardless of whether the challenges were raised below.

A.

The defendants acknowledge up front that, in United

States v. González,

(1st Cir. 2002), a panel of this

court held that § 70503(e)(1) does not establish a limitation on

a court's subject matter jurisdiction. But the defendants contend

that González was wrong to so hold -- as some other circuits have

also concluded, see United States v. Miranda,

, 1191-

97 (D.C. Cir. 2015); United States v. Tinoco,

, 1106

10 To be clear, our analysis would be no different if we treated the parties as addressing § 70502(c)(1) or § 70504 rather than § 70503(e)(1).

- 25 - (11th Cir. 2002); United States v. Bustos-Useche,

(5th Cir. 2001) -- and that we should overrule that precedent.

The Second Circuit has comprehensively reviewed the

relevant post-González precedent, however, and sided with

González. See United States v. Prado,

(2nd

Cir. 2019). We conclude that the Second Circuit's reasoning is

persuasive.

1.

Congress vested "courts of the United States" (emphasis

added) with "original jurisdiction . . . of all offenses against

the laws of the United States" in

. Thus, the

defendants need to show that § 70503(e)(1) of the MDLEA, by

referring to the "jurisdiction of the United States" (emphasis

added), limits the otherwise operative grant of subject matter

jurisdiction to federal courts over federal criminal prosecutions

that

sets forth. See Prado,

.

The Supreme Court has explained in a case that post-

dates González that "[i]f the Legislature clearly states that a

threshold limitation on a statute's scope shall count as

jurisdictional," then the limitation concerns the Article III

subject matter jurisdiction of the courts. Arbaugh v. Y&H Corp.,

(2006). But the Court went on to say in that

case that "when Congress does not rank a statutory limitation on

coverage as jurisdictional," the limitation does not concern the

- 26 - Article III subject matter jurisdiction of the courts.

.

Here, of course, the provision in question does use the

word "jurisdiction." But, as Prado emphasized,

,

and González itself noted, "[t]he term 'jurisdiction' is

notoriously malleable and is used in a variety of contexts . . .

that have nothing whatever to do with the court's subject matter

jurisdiction,"

(emphasis removed). We therefore

find it telling that, as Arbaugh acknowledges, Congress knows how

to write statutes that provide for or limit the subject matter

jurisdiction of courts by expressly referring to cases or

controversies heard by the courts themselves. See, e.g.,

("The district courts shall have original jurisdiction of

all civil actions arising under the Constitution, laws, or treaties

of the United States.");

(e)(3) ("[T]he several

district courts of the United States are hereby vested with

jurisdiction to entertain such suits [that pertain to orders of

the Egg Board] regardless of the amount in controversy.");

("United States district courts shall only have

jurisdiction of cases [concerning suits regarding the use of

eminent domain to obtain land to construct a dam or certain public

waterways] when the amount claimed by the owner of the property to

be condemned exceeds $3,000.").

- 27 - This past legislative practice is telling because the

provision at issue here does not refer to courts having

"jurisdiction" over "actions," "suits," or their equivalent. It

refers only to a "vessel" being "subject to . . . jurisdiction"

and to "the United States" -- rather than a court -- having

"jurisdiction" over the vessel. Thus, § 70503(e)(1) does not by

using the term "jurisdiction" impose a limitation on the Article

III subject matter jurisdiction of courts. It instead defines the

scope of the regulatory jurisdiction that Congress is asserting

through the MDLEA.

Section 70503(b) supports the same understanding. That

section, titled "Extension beyond territorial jurisdiction,"

(emphasis added), clarifies that the substantive prohibition that

is set forth in § 70503(a) -- the provision that invokes the phrase

"covered vessel" -- "applies even though the act is committed

outside the territorial jurisdiction of the United States"

(emphasis added). Because the phrase "jurisdiction of the United

States" in § 70503(b) clearly is not referring to the jurisdiction

of a court, we see no reason to read that same phrase in

§ 70503(e)(1) to be doing so. See Prado,

.

Other sections of Title 46 of the United States Code, we

note, also use the phrase "jurisdiction of the United States" in

contexts that make clear that those sections are not referring to

the power of courts to adjudicate disputes. See Prado, 933 F.3d

- 28 - at 143 n.12 (collecting statutes). By contrast, § 70505 of the

MDLEA states that "[a] failure to comply with international law

does not divest a court of jurisdiction and is not a defense to a

proceeding under this chapter." Given that § 70503(e)(1) refers

only to the "jurisdiction of the United States" over a "vessel,"

we see no basis for reading it as if it, like § 70505, were

referring to the "jurisdiction" of a "court" over a "proceeding."

In sum, the MDLEA's statutory text provides no support

for the conclusion that Congress intended the phrase "subject to

the jurisdiction of the United States" in § 70503(e)(1) to impose

a limitation on the subject matter jurisdiction of courts. Nor do

we see any basis for concluding that Congress's use of the phrase

constitutes the kind of clear statement required by Arbaugh to

impose such a limitation. Accordingly, we see no basis for

breaking with our ruling in González.

2.

We recognize that the D.C. Circuit, in concluding

otherwise in Miranda, noted that the phrase "[j]urisdiction of the

United States" also appears in § 70504(a) of the MDLEA, which is

titled "Jurisdiction and venue."

. The D.C.

Circuit concluded from the inclusion of that phrase in a provision

so titled that the phrase as it appears in § 70503(e)(1) must be

a limitation on the subject matter jurisdiction of courts,

- 29 - notwithstanding that § 70503(e)(1) is not similarly titled.11 We

are not persuaded.

The precursor to § 70504(a), which bore the same title

to which the D.C. Circuit gave such interpretive weight, was 46

U.S.C. app. § 1903(f) (1996). That provision, however, had a

companion provision, 46 U.S.C. app. § 1903(d) (1996). And that

companion provision was titled "Claim of failure to comply with

international law; standing; jurisdiction of court." (emphasis

added).

Thus, the relevant statutory history reveals that the

"Jurisdiction and venue" title to which the D.C. Circuit gave such

import made no reference to the "jurisdiction of court" at a time

when the title to a companion provision expressly did. That makes

it difficult to conclude that the "Jurisdiction and venue" title

demonstrates that the phrase "jurisdiction of the United States"

was intended to set a limit on the "jurisdiction of court[s]."

Congress did later drop "jurisdiction of court" from the

title of the companion provision, which now appears in the MDLEA

as § 70505. But Congress made that title change as part of a 2006

effort to "reorganize[] and restate[]" the MDLEA and so to

"codif[y] existing law rather than creat[e] new law." Miranda,

11 Neither the Eleventh Circuit in Tinoco nor the Fifth Circuit

in Bustos-Useche presents any arguments that Miranda did not rely on in determining that § 70503(e)(1) implicates the subject matter jurisdiction of courts.

- 30 -

(quoting H.R. Rep., No. 109-170, at 2 (2005)).

We thus do not see how we may infer from the change to the title

of § 70505 that Congress intended the phrase "jurisdiction of the

United States" in § 70503(e)(1) to set a subject matter limitation

on the jurisdiction of a court, given that § 70503(e)(1) itself

makes no mention of courts at all.

3.

The D.C. Circuit also concluded in Miranda that the

phrase "jurisdiction of the United States" in § 70503(e)(1) must

be construed to limit the Article III subject matter jurisdiction

of courts for another reason. The D.C. Circuit reasoned that

Congress would have wanted the question of whether a vessel was

"subject to the jurisdiction of the United States" to be non-

waivable "in order to minimize the extent to which the MDLEA's

application might otherwise cause friction with foreign nations"

by ensuring that the defendants were properly subject to

prosecution in the United States "in every case -- and at every

level of review."

.

But the relevant statutory text, as we have explained,

is to the contrary, and nothing in the legislative history shows

that the text does not mean what it appears to say. Prado,

. In fact, § 70505 appears to reflect a contrary

congressional understanding to the one posited in Miranda: It

provides that "[a] failure to comply with international law does

- 31 - not divest a court of jurisdiction and is not a defense to a

proceeding under this chapter."

4.

The D.C. Circuit did also imply that the constitutional

avoidance canon supports construing the provision of the MDLEA at

issue to limit the Article III subject matter jurisdiction of

courts. The D.C. Circuit explained that, if § 70503(e)(1)

establishes an element of the crime, rather than a limitation on

the subject matter jurisdiction of courts, then the statute may

run afoul of the Sixth Amendment to the United States Constitution.

See Miranda,

; see also González,

.

The notion is that, if § 70503(e)(1) were not construed

to establish a limitation on the subject matter jurisdiction of a

court, then that provision of the MDLEA would establish an element

of the offense that would have to be proved to a jury beyond a

reasonable doubt. See Torres v. Lynch,

(2016)

("Both [the substantive and jurisdictional] elements [of a crime]

must be proved to a jury beyond a reasonable doubt.").

Section 70504(a), however, provides that the determination as to

whether a vessel is "subject to the jurisdiction of the United

States" need be made only by a court -- rather than a jury. And

this determination, we have held, need be made only by a

preponderance of the evidence rather than beyond a reasonable

- 32 - doubt. United States v. Matos-Luchi,

(1st Cir. 2010)

(holding that a vessel may be shown to be "without nationality" by

"a preponderance of the evidence").

The defendants do not themselves invoke the

constitutional avoidance canon in pressing their Article III-based

arguments to us, however. And seemingly for good reason. The

canon applies only if there is an ambiguity in the relevant

respect, see Nielsen v. Preap,

(2019)

(constitutional avoidance is "irrelevant" if text of statute is

clear); Jennings v. Rodriguez,

(2018)

(cautioning that the canon of constitutional avoidance "comes into

play only when, after the application of ordinary textual analysis,

the statute is found to be susceptible of more than one

construction" (quoting Clark v. Martinez,

(2005))), and, as we have explained, there is none here.

Moreover, a majority of a panel of this court has held

that even if § 70503(e)(1) does not implicate the Article III

jurisdiction of a court, no Sixth Amendment issue arises. United

States v. Vilches-Navarrete,

(1st Cir. 2008)

(Lynch and Howard, JJ., concurring). And, despite the law of the

circuit established by that ruling, neither defendant makes any

argument to us as to why we should reconsider our precedent on

that score.

- 33 - B.

For all these reasons, we decline to depart from our

holding in González that § 70503(e)(1) merely sets a limit on the

scope of the conduct that the MDLEA itself criminalizes. As a

result, we reject the defendants' Article III-jurisdiction-based

argument for contending both that their unconditional guilty pleas

did not waive the challenges to their convictions that they make

on appeal and that we must review all those challenges de novo

regardless of whether they were raised below.

IV.

The defendants separately contend that, in consequence

of Class, their unconditional guilty pleas did not waive the

challenges that they now advance on appeal. Class concerned a

defendant who had entered an unconditional guilty plea and then

appealed his conviction on the ground that the statute under which

he was convicted violated the Constitution. The Supreme Court

allowed the defendant's challenge to proceed, as against a claim

that the challenge had been waived by his unconditional guilty

plea, because the defendant was pressing a challenge to "'the very

power of the State' to prosecute" him. Class,

(quoting Blackledge v. Perry,

(1974)); see also

Menna v. New York,

(1975).

Class made clear the limited nature of this exception to

the usual rule that an unconditional guilty plea waives challenges

- 34 - to the defendant's conviction. It explained that the exception

applies only to a challenge to the "constitutionality of the

statute of conviction," 138 S. Ct. at 803, and then only when the

challenge "does not in any way deny that [the defendant] engaged

in the conduct to which he admitted" and does not "contradict the

terms of the indictment or the written plea agreement," id. at

804-05. Moreover, the Court explained the challenge must, "'judged

on its face' based upon the existing record," be of the sort that,

if successful, "would extinguish the government's power to

'constitutionally prosecute' the defendant." Id. at 806 (quoting

United States v. Broce,

(1989)).

Dávila-Reyes and Reyes-Valdivia contend that Class

encompasses their challenges on appeal, while the government

disagrees. The government contends that the defendants are

challenging the MDLEA's constitutionality only as it has been

applied to them in their specific cases and that such as-applied

constitutional challenges do not fall within Class. The government

further contends that Class does not apply here because the

defendants' challenges on appeal necessarily seek to deny what the

defendants admitted in pleading guilty unconditionally, given that

in so pleading the defendants admitted both that they were aboard

"a vessel subject to the jurisdiction of the United States" and to

certain facts that bear on that very determination. But, as we

will explain, even if we were to assume that Class permits the

- 35 - defendants to raise any or all their challenges on appeal despite

their unconditional guilty pleas, the challenges still would fail

under the standard of review that we conclude applies to each of

those challenges.

A.

We begin with the defendants' constitutional claim that

Congress has no power under the Felonies Clause to criminalize

their charged conduct. The defendants do not spell out the claim

as clearly as they might, but we understand it to come to us in

two distinct variants.

The first variant tracks the Felonies Clause-based

challenge that the defendants made in their motion to dismiss the

indictment that they filed in the District Court. Like that

challenge, we understand this variant also to take aim at the

indictment and to do so on the ground that it sets forth charges

that are asserted to be beyond Congress's power to authorize under

the Felonies Clause.

The second variant, by contrast, does not depend on an

any assertion that the indictment itself is defective because it

sets forth charges that exceed Congress's power under the Felonies

Clause. This variant of the challenge contends instead that, even

if the indictment is unassailable, the convictions cannot stand

because the nature of the post-indictment record is such that it

- 36 - shows that the convictions violate the Felonies Clause. We

consider each variant of the Felonies Clause-based claim in turn.

1.

The indictment-focused variant depends on the following

chain of logic. The Felonies Clause does not give Congress the

power to criminalize drug trafficking by persons on a vessel on

the high seas if the United States would not have regulatory

jurisdiction over those persons under international law. Because

international law does not permit the United States to exercise

regulatory jurisdiction over foreign nationals engaged in drug

trafficking on the high seas while aboard foreign vessels, the

United States could criminalize the defendants' charged conduct

under the Felonies Clause only if the defendants were aboard a

vessel on the high seas that was stateless under international

law. A vessel may not be deemed stateless under international

law, however, simply because the nation to which the vessel's

master has claimed that it belongs fails to "affirmatively and

unequivocally assert," § 70502(d)(1)(C), that the vessel is

registered with that nation. Yet, the indictment charged that the

vessel that the defendants were aboard was "without nationality"

under § 70502(c)(1)(A) solely based on the operation of

§ 70502(d)(1)(C). Thus, the indictment necessarily charged the

defendants with violating the MDLEA on a basis that is not

constitutional, given that § 70502(d)(1)(C) provides that "a

- 37 - vessel aboard which the master or individual in charge makes a

claim of registry and for which the claimed nation of registry

does not affirmatively and unequivocally assert that the vessel is

of its nationality" is a vessel that is "without nationality" for

the purposes of the MDLEA.

Because the defendants advanced this exact claim in

their motion to dismiss the indictment, it is preserved, such that

our review of the challenge is de novo. See United States v.

Savarese,

(1st. Cir 2012). But the government

contends that the challenge nonetheless fails, and we agree. The

reason is simple: The indictment cannot be read, even on de novo

review, to rely exclusively on § 70502(d)(1)(C) in charging the

defendants with having been aboard a "vessel without nationality"

under § 70502(c)(1)(A). Thus, the challenge rests on a faulty

premise about the basis for the indictment's charge that the

defendants were on a vessel that was "without nationality."

The indictment states with respect to whether the

defendants were aboard a "vessel subject to the jurisdiction of

the United States" only that they were aboard a vessel "as defined

in Title

(c)(1)(A)." The

indictment thus makes no reference to § 70502(d)(1)(C), let alone

solely to that provision. Nor does the indictment refer to any

other provision of the MDLEA that bears on the question of whether

- 38 - the vessel was "subject to the jurisdiction of the United States"

because it was "without nationality."

In addition, the indictment alleges no facts that could

be understood to limit to § 70502(d)(1)(C) the permissible bases

for finding the vessel in question to be "without nationality"

under § 70502(c)(1)(A). For example, the indictment makes no

reference to any facts that implicate § 70502(d)(1)(C), such as to

the master of the vessel having made a "claim of registry" (or

even a "claim of nationality") or the United States having

attempted unsuccessfully to confirm the vessel's registration with

another country.

Moreover, the defendants do not dispute that a vessel

may be shown to be a "vessel without nationality" under

§ 70502(c)(1)(A) -- the one "jurisdictional" provision of the

MDLEA that the indictment does mention -- through means other than

the application of § 70502(d)(1)(C). Nor do we see how the

defendants could do so.

As a panel of this court explained in Matos-Luchi, the

use of the word "includes" in § 70502(d)(1) makes clear that "the

listed examples" set forth in that section "do not exhaust the

scope of [§] 70502(d)" in defining a "vessel without nationality."

. Moreover, Matos-Luchi explained that a vessel may

be determined to be "without nationality" under § 70502(c)(1)(A)

through a means other than application of any of the subsection of

- 39 - § 70502(d)(1) -- namely, when a vessel is not "entitled to fly[]

the flag of a State."

(quoting Molvan v. Att'y-Gen.

for Palestine, [1948] A.C. 351 (P.C.) 369-70) (cleaned up). And

Matos-Luchi also described that standard as a proper one for

determining whether a vessel is stateless for purposes of

international law. See id.; see also United States v. Rosero,

(3d Cir. 1994) ("Under international law, 'ships

have the nationality of the State whose flag they are entitled to

fly.'" (quoting Convention on the High Seas of 1958 art. 5(1),

Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 11) (cleaned up)).

Because the defendants do not contend that Matos-Luchi

was wrong on any of these counts, they fail to explain why the

indictment on its face would not permit the government to show

that the defendants' vessel was not authorized to fly the flag of

any state and so was "without nationality" under § 70502(c)(1)(A)

-- and stateless under international law -- for reasons independent

of the vessel being the kind of vessel that § 70502(d)(1)(C)

describes. See United States v. Stepanets,

(1st

Cir. 2018) ("[T]he government need not recite all of its evidence

in the indictment." (quoting United States v. Innamorati,

(1st Cir. 1993))). Thus, we conclude that, even on de

- 40 - novo review, the first variant of the defendants' Felonies Clause-

based challenge fails.12

2.

We turn, then, to the other variant of the defendant's

Felonies Clause-based challenge. Here, the defendants contend

that, even if the indictment is not dependent on § 70502(d)(1)(C),

their convictions still violate the Felonies Clause. We are not

persuaded by this variant of the defendants' Felonies Clause-based

challenge, however, given the standard of review that we conclude

applies to it.

a.

The defendants do not dispute that, as we held in United

States v. Ríos-Rivera,

(1st Cir. 2019), a

constitutional claim that is raised on appeal pursuant to Class is

subject to review only for plain error if it was not raised below.

Thus, our review of the second variant of the defendants' Felonies

Clause-based claim is only for plain error if this variant is being

raised for the first time on appeal.

To determine whether this variant of the claim is being

newly raised, as the government contends it is, we must attend to

12 The dissent does not take issue with any aspect of the description of the indictment that we have set forth above or with the proposition that a vessel may be deemed to be "without nationality" under § 70502(c)(1)(A) on a ground other than § 70502(d)(1)(C).

- 41 - the fact that, in pressing this variant of the Felonies Clause-

based challenge, the defendants are necessarily taking issue with

the import that the government ascribes to the admissions that the

defendants made in pleading guilty. That is because the government

contends that those admissions provide a basis independent of

§ 70502(d)(1)(C) for deeming the defendants' vessel to be both

"without nationality" under § 70502(c)(1)(A) and stateless under

international law.

In particular, the government contends that under our

decision in Matos-Luchi the factual admissions that the defendants

made in pleading guilty in and of themselves suffice to show that

the defendants' vessel was not "entitled to fly[] the flag of a

State,"

, and so was both "without nationality" under

the MDLEA and stateless under international law for reasons

independent of the operation of § 70502(d)(1)(C). Those

admissions are that the sole basis for claiming the vessel had a

foreign nationality was the oral claim of that nationality made by

the vessel's master and that this oral claim of foreign nationality

for the vessel was wholly uncorroborated.

Thus, the government contends, to succeed on their

Felonies Clause-based challenge, the defendants need to do more

than show that § 70502(d)(1)(C) does not provide a basis for

deeming a vessel to be stateless under international law. The

government contends that the defendants also need to explain why

- 42 - the factual admissions regarding the wholly uncorroborated nature

of the oral claim of the vessel's foreign nationality that the

defendants made in pleading guilty do not themselves provide an

independent basis under Matos-Luchi for deeming their vessel

"without nationality" as a statutory matter and stateless as an

international law matter. Otherwise, the government contends, the

defendants will have failed to show that the convictions violate

the Felonies Clause because the defendants will have failed to

show that the vessel was not in fact stateless under international

law.

But, in challenging the indictment in the District Court

under the Felonies Clause, the defendants obviously did not purport

to address the legal significance under Matos-Luchi of any of the

factual admissions that they made in their plea agreements

regarding the wholly uncorroborated nature of the oral claim of

the vessel's foreign nationality to which the government now

directs our attention. Indeed, at that time, those factual

admissions had not even been made by the defendants, as the

defendants had not at that time entered into any plea agreements.

Rather, at that time, the defendants were merely taking aim at the

indictment itself on the ground that the indictment was dependent

solely on § 70502(d)(1)(C) based on what the indictment alone

provided. Nor did the defendants at any other time or in any other

filing in the District Court make any argument as to the legal

- 43 - import of the facts to which they admitted by entering into their

plea agreements.

For these reasons, we conclude that the government is

right that our review of the defendants' Felonies Clause-based

challenge to the merits of their convictions is only for plain

error insofar as that challenge does not take aim only at the

indictment and instead addresses the relevance under Matos-Luchi

of the defendants' post-indictment factual admissions. See Ríos-

Rivera,

; cf. United States v. Caraballo–

Rodriguez,

(1st Cir. 2007) (applying plain error

review to a challenge to the factual basis for a plea predicated

on a challenge to the scope of the statute of conviction). And,

as we will explain, we conclude that the defendants have failed to

satisfy the second prong of the plain error standard with respect

to that aspect of the challenge, given our reasoning in Matos-

Luchi about when a vessel may be deemed to be "without nationality"

under the MDLEA and stateless for international law purposes. See

United States v. Pérez-Rodríguez,

(1st Cir. 2021)

(explaining that, to satisfy the plain error standard, the

defendant must show not only that "an error occurred" but also

that the error "was clear or obvious," "affected the[ir]

substantial rights" and "seriously impaired the fairness,

- 44 - integrity, or public reputation of judicial proceedings" (quoting

United States v. Duarte,

(1st Cir. 2001))).

b.

We begin with the defendants' contention that the

government is wrong to contend based on Matos-Luchi that the

factual admissions in the plea agreements concerning the wholly

uncorroborated nature of the oral claim of the vessel's foreign

nationality provide a basis for deeming the defendants' vessel to

be "without nationality" under § 70502(c)(1)(A) other than by the

operation of § 70502(d)(1)(C). The government's contention on

that score proceeds as follows.

The government points out that the defendants, in

admitting to the Government's Version of the Facts through the

plea agreements, necessarily admitted both that their vessel had

no registration paperwork and that the vessel had no other indicia

of nationality on board.13 The government then contends that -- at

least when those factual admissions are considered alongside the

defendants' admission that Costa Rica could not confirm the

vessel's registry -- the post-indictment record shows that there

is a factual basis for finding under Matos-Luchi that the

The fact that the vessel's master originally claimed the 13

vessel had no nationality before asserting that it had Costa Rican nationality does not appear in the Government's Version of the Facts to which the defendants agreed when entering their guilty pleas. We thus do not consider that fact in addressing the merits of the defendants' challenges to their convictions.

- 45 - defendants' vessel was "without nationality" under

§ 70502(c)(1)(A). It thus follows, according to the government,

that at the time of their pleas their vessel could have been deemed

to have been "without nationality" under § 70502(c)(1)(A) solely

based on § 70502(d)(1)(C).

The defendants' admissions in pleading guilty establish

that there is no corroboration whatsoever for the oral claim of

the vessel's foreign nationality, even though that oral claim

supplies the sole basis for the defendants' contention that the

vessel has such a nationality. In consequence, it is not clear or

obvious that on the record as it stood at the time of the pleas

the defendants' vessel could be deemed to have been "without

nationality" under § 70502(c)(1)(A) solely based on §

70502(d)(1)(C) and not also based on the rationale set forth in

Matos-Luchi.14

Matos-Luchi explained in relevant part that "[u]nder

international law, every vessel must sail under the flag of one

and only one state; those that sail under no flag or more than one

14 The affidavits filed in support of the criminal complaint and the government's motion requesting that the District Court declare the vessel to be "subject to the jurisdiction of the United States" both included references to a Costa Rican flag painted on the vessel's hull. But the defendants cannot now assert that fact to corroborate the claim that the vessel was of Costa Rican nationality, because that assertion would contradict the statement in the Government's Version of the Facts that "there was no indicia of nationality on the vessel." See Class,

.

- 46 - flag enjoy no legal protection."

. Matos-Luchi

further explained that "[b]y custom, a vessel claims nationality

by flying the flag of the nation with which it is affiliated or

carrying papers showing it to be registered with that nation."

True, Matos-Luchi did also explain that "[w]ithout a

flag or papers, a vessel may also traditionally make an oral claim

of nationality when a proper demand is made," while noting that

the MDLEA recognized as much in its provision defining what

constitutes a "vessel without nationality."

But Matos-Luchi

then went on to note that "[a]lthough enforcement jurisdiction

presumptively lies with the flag state, '[i]t is not enough that

a vessel have a nationality; she must claim it and be in a position

to provide evidence of it.'"

(citation omitted) (emphasis

added) (quoting Andrew W. Anderson, Jurisdiction over Stateless

Vessels on the High Seas: An Appraisal Under Domestic and

International Law,

, 341 (1982)).

Moreover, Matos-Luchi added that the MDLEA follows this

approach "energetically."

. It explained in that regard

that, because "[p]ractically every vessel, including the legendary

Flying Dutchman, has links with some country[,] . . . the

stateless vessel concept in the MDLEA and in international law is

designed prudentially."

And so, according to Matos-Luchi,

under both § 70502(c)(1)(A) and international law, "[t]he

- 47 - controlling question is whether at the point at which the

authorities confront the vessel, it bears the insignia or papers

of a national vessel or its master is prepared to make an

affirmative and sustainable claim of nationality." Id. (emphasis

added); see also Miranda,

(affirming finding

that a vessel was "without nationality" when factual admissions

accompanying guilty pleas included that the vessel was not

registered with a foreign nation, did not fly the flag of any

nation, and carried no registration paperwork).

The defendants do contend that these statements from

Matos-Luchi regarding the "controlling question" in determining

whether a vessel is "without nationality" under the MDLEA are

nonbinding dicta. But we do not see why that matters on plain

error review, at least given the well-considered nature of the

dicta. See United States v. Cortés–Medina,

(1st

Cir. 2016) (holding that a decision was not plainly erroneous when

it was supported by dicta in our circuit precedent).

The defendants separately contend that, in any event,

two precedents demonstrate that an oral claim of nationality is,

even when wholly uncorroborated, enough to ensure that a vessel

has a nationality and so is not "without nationality" under

- 48 - § 70502(c)(1)(A). But, in the face of Matos-Luchi, neither

precedent suffices to show that is clearly or obviously so.

The first case is Rosero,

, which the

defendants assert rejects the kind of "totality of the evidence"

test that they contend would have to be endorsed to deem their

vessel "without nationality" solely based on the uncorroborated

nature of the vessel's master's oral claim of nationality. But

Rosero is an out-of-circuit ruling that also pre-dates key changes

that were made to the MDLEA by the time of Matos-Luchi. Rosero

thus addressed only the validity of jury instructions15 that

permitted a finding beyond a reasonable doubt that a vessel is

"without nationality" under the MDLEA.

at 171–72. As a

result, it did not purport to address the question that we confront

here: Are the facts in question sufficient to show by a

preponderance of the evidence that the vessel at issue was a

"vessel without nationality" under § 70502(c)(1)(A)? See Matos-

Luchi,

.

Moreover, Rosero concerned a challenge to jury

instructions that allowed the jury to engage in "an unstructured

weighing of the totality of the evidence."

. Rosero

The version of the MDLEA under which Rosero was decided 15

made the question of whether a vessel was subject to the regulatory jurisdiction of the United States an issue for the jury. 42 F.3d at 171–72. The current version of the MDLEA makes regulatory jurisdiction issues "preliminary questions of law to be determined solely by the trial judge."

(a).

- 49 - thus addressed whether a vessel may be deemed "without nationality"

under the MDLEA based on jury instructions that invited the jury

to consider all the evidence without instructing the jury about

what would make a vessel "without nationality." As a result,

Rosero did not address whether (as Matos-Luchi reasoned) a vessel

is "without nationality" because, insofar as a sustainable claim

of nationality cannot be made, the vessel is not authorized to fly

the flag of the nation to which it is claimed to belong.

The other precedent that the defendants point to is one

of our own: United States v. Potes,

(1st Cir. 1989).

But we do not agree with the defendants that Potes holds that,

contrary to Matos-Luchi's dicta, a bare claim of nationality in

and of itself suffices to demonstrate that a vessel is not a vessel

"without nationality" under § 70502(c)(1)(A), even absent the

application of a provision like § 70502(d)(1)(C). See Potes,

.

Like Rosero, Potes concerned only the earlier version of

the MDLEA. It thus addressed the standard for showing that a

vessel was "without nationality" beyond a reasonable doubt rather

than merely by a preponderance of the evidence. See Matos-Luchi,

. Moreover, while Potes held that the record there

did not suffice to support a determination that sufficient proof

of the "vessel without nationality" requirement had been provided,

the vessel at issue in that case was flying a foreign flag. 880

- 50 - F.2d at 1478. Potes thus does not address whether, per the

reasoning in Matos-Luchi, a vessel in circumstances like those

presented here may be deemed by a preponderance of the evidence to

be "without nationality" under § 70502(c)(1)(A) for reasons

independent of the application of § 70502(d)(1)(C).

c.

Of course, if it were clear or obvious that the Matos-

Luchi-based ground for deeming the defendants' vessel to be

"without nationality" under § 70502(c)(1)(A) of the MDLEA could

not suffice to show that the vessel was also stateless under

international law, then the defendants might still prevail in

challenging the constitutionality of their convictions under the

Felonies Clause. In that event, we would have to address how

§ 70502(d)(1)(C) fares under the Felonies Clause to determine

whether the challenge could succeed.

But our review of whether the defendants' vessel is not

only "without nationality" for purposes of § 70502(c)(1)(A) under

Matos-Luchi but also stateless for purposes of international law

under that same precedent is itself only for plain error. After

all, in purporting to counter the government's reliance on Matos-

Luchi, the defendants are again necessarily challenging the legal

import of the factual admissions that they made in their guilty

pleas. Yet, the defendants made no argument below that the facts

that they admitted to in pleading guilty could not suffice under

- 51 - Matos-Luchi to render their vessel stateless under international

law.

Moreover, Matos-Luchi is clear that its analysis is not

limited to the statutory question addressed above about when a

vessel is "without nationality" under § 70502(c)(1)(A) of the

MDLEA. That analysis also applies to the international law

question of when a vessel is stateless. Matos-Luchi,

; see also Rosero,

(interpreting the predecessor

of § 70502(c)(1)(A) to describe vessels that are both "without

nationality" as a statutory matter and "stateless under

international law"). Thus, here, too, the defendants cannot show

that it is clear or obvious that the government's Matos-Luchi-

based defense of the convictions -- and thus the government's

defense of the convictions on a ground independent of

§ 70502(d)(1)(C) -- is mistaken. As a result, the Felonies Clause-

based challenge fails for that reason alone.

d.

As a fallback, the defendants contend that they need not

show that the government's Matos-Luchi-based theory is clearly or

obviously wrong to succeed on the Felonies Clause-based challenge

to their convictions, even assuming that the indictment itself is

sound. They contend that is so because the government is engaged

in impermissible "jurisdiction switching" in relying on the Matos-

Luchi theory to defend the convictions on appeal. The defendants

- 52 - argue in that contention that § 70502(d)(1)(C) is the only

jurisdictional provision on which the government relied below.

For that reason, they contend, it is also the only jurisdictional

provision that the government may put in play on appeal.

The dissent then goes on to contend not only that the

defendants are right on this score but also that it follows that

the only Felonies Clause-based challenge before us is the

defendants' challenge to § 70502(d)(1)(C). And, the dissent

proceeds to argue, because the defendants also challenged that

provision below under the Felonies Clause in moving to dismiss the

indictment, the challenge is preserved, thereby making our review

of that challenge on appeal de novo rather than for plain error.16

16In making the claim of "jurisdiction switching," neither the defendants nor the dissent contends that the defendants reasonably but mistakenly thought in pleading guilty that their vessel was being deemed stateless only based on § 70502(d)(1)(C). The defendants and the dissent contend instead only that the plea agreements must be construed to bar the government from arguing that the defendants' vessel is "without nationality" under the MDLEA and stateless under international law on any basis other than § 70502(d)(1)(C). Thus, the aim of the contention is not to explain why the pleas must be vacated for not having been knowingly and voluntarily made, such that we need not resolve whether § 70502(d)(1)(C) comports with the Felonies Clause to overturn the convictions. The aim instead is to show that we must decide whether § 70502(d)(1)(C) comports with that Clause to resolve the defendants' Felonies Clause-based challenge because the government gave up reliance on any other jurisdictional theory. - 53 - For reasons that we will next explain, we do not find

this line of argument to be persuasive. And that is so even if we

were to excuse its late-breaking nature.17

To start, the only jurisdictional provision of the MDLEA

to which the plea agreements refer is § 70502(c)(1)(A), not

§ 70502(d)(1)(C). Yet that provision "includes" as a ground for

a vessel to be "without nationality" the one that is laid out in

Matos-Luchi: The person making the oral claim of nationality for

the vessel on which the vessel's claim to being foreign depends is

not "in a position to provide evidence" of its claimed nationality.

(quoting Andrew W. Anderson, Jurisdiction over

Stateless Vessels on the High Seas: An Appraisal Under Domestic

and International Law,

, 341 (1982)).

Moreover, the plea agreements incorporated the

Government's Version of the Facts, which included facts concerning

the lack of any indicia of nationality aboard the defendants'

vessel. Yet those facts are relevant only to the Matos-Luchi-

based ground that § 70502(c)(1)(A) includes and not to the

17As we will explain, the defendants raised this concern about "jurisdiction switching" only in their briefing to the en banc court, which they submitted only after the panel majority had sua sponte raised and relied on the ground that the government could not switch jurisdictional theories. See Dávila-Reyes II,

.

- 54 - § 70502(d)(1)(C)-based ground that the plea agreements do not

mention.

These features of the plea agreements warrant attention

because, although we construe ambiguities in plea agreements in

favor of defendants, United States v. Newbert,

(1st Cir. 2007), we are not free to read the plea agreements "ex

silentio, to include a waiver by the government," United States v.

Anderson,

(1st Cir. 1990). For, "[w]hile the

government must be held to the promises it made in a plea

agreement, it will not be bound to those it did not make."

(cleaned up) (quoting United States v. Fentress,

(4th Cir. 1986)). And, here, the nature of the plea agreements is

such that we could find the claimed waiver only by reading them

silently to include it.

Indeed, with respect to the MDLEA's jurisdictional

requirement, the plea agreements mirrored the indictment, which

itself referred only to § 70502(c)(1)(A) and alleged no facts that

impliedly made it dependent on § 70502(d)(1)(C) alone. Given that

even the dissent acknowledges that the indictment cannot be

construed to be predicated solely on § 70502(d)(1)(C), we find it

hard to see how the government may be understood to have

"intentional[ly] relinquished" or "affirmatively disclaimed"

reliance on any "jurisdictional" provision other than

§ 70502(d)(1)(C) merely by having entered into plea agreements

- 55 - that reference only the same more encompassing "jurisdictional"

provision that the indictment itself did. United States v.

Carrasco-De-Jesús,

(1st Cir. 2009).

The dissent does make much of the criminal complaint

that preceded the indictment. But, like the indictment, the

complaint also does not refer to § 70502(d)(1)(C) or to facts that

bear only on its applicability. And, ultimately, the dissent

itself does not contend that the criminal complaint locked the

government into relying on that theory alone.

The dissent is right that the defendants chose to

"focus[]" on § 70502(d)(1)(C) in their motion to dismiss the

indictment. See dissent, infra, at 7. But the defendants

obviously cannot narrow the indictment -- and thereby preclude the

government from asserting a ground for determining the vessel's

nationality that the indictment on its face does not

exclude -- merely by choosing to challenge the indictment on a

limited ground.

So, in the end, the asserted waiver must be found in the

government's post-indictment filings. But we cannot agree that in

them the government waived any or all grounds for deeming the

vessel to be "without nationality" other than the one that

§ 70502(d)(1)(C) recognizes.

The government's brief in opposition to the defendants'

motion to dismiss the indictment did cite to § 70502(d)(1)(C).

- 56 - But it did so only twice -- and then without at either point

identifying that provision as supplying the sole basis for deeming

the defendants' vessel stateless. The brief instead referred to

that provision in explaining Matos-Luchi's holding that "the

MDLEA's definition of a 'vessel without nationality' provided a

non-exhaustive list of possible circumstances that would qualify

a particular vessel, while acknowledging that customary

international law may encompass additional types of vessels"

(citing

).18

The paragraph of the government's response to the motion

that directly followed that discussion, moreover, set out the same

facts that the defendants' plea agreements later included -- that

the vessel's master claimed their vessel had Costa Rican

nationality, that Costa Rica could not confirm that claim, that

the defendants did not present registration paperwork, and that

the vessel was devoid of indicia of nationality. And it was only

after having recounted all those facts -- the last two of which

concern the Matos-Luchi-based predicate rather than the

§ 70502(d)(1)(C)-based one -- that the government asserted without

The brief's other reference to § 70502(d)(1)(C) was made 18

in restating the defendant's contention that that provision was unconstitutionally vague.

- 57 - reference to any one jurisdictional theory that "[t]herefore, the

vessel was without nationality" (emphasis added).

The government thereafter filed a motion of its own in

which it requested that the District Court find that the

defendants' vessel was "subject to the jurisdiction of the United

States." But that filing, too, did not purport at any point to

commit the government to relying only on the § 70502(d)(1)(C)-

based theory for deeming the defendants' vessel "without

nationality" under the MDLEA, regardless of what the indictment

charged or the record showed in that regard.

True, the motion pointed to facts that would satisfy

§ 70502(d)(1)(C). But, in support of the conclusion that there

was "ample evidence" that the vessel was subject to the

jurisdiction of the United States "as defined in Title

(c)(1)(A) and (d)(1)(C)" (emphasis

added), the motion listed facts that bear on the Matos-Luchi-based

theory (which itself falls under § 70502(c)(1)(A)) no less than on

the § 70502(d)(1)(C)-based one. We therefore do not understand

the motion, in requesting that the District Court "find as a matter

of law that the vessel in question was subject to the jurisdiction

of the United States" on the statutory grounds, to have amounted

to a waiver by the government of its right to rely on a Matos-

- 58 - Luchi-based ground for so finding insofar as § 70502(c)(1)(A)

encompasses that ground.

The dissent does contend that the State Department

Certification attached to the government's motion to establish

jurisdiction locked the government into proceeding on a

§ 70502(d)(1)(C)-based theory alone. The dissent emphasizes that

the certification states that "the Government of the United States

determined the vessel was without nationality in accordance with

(d)(1)(C), rendering the vessel subject to the

jurisdiction of the United States, pursuant to

(c)(1)(A)."

But the certification was only one of the evidentiary

attachments to the motion, and in purporting to support the

jurisdictional basis provided for in § 70502(d)(1)(C), the

certification does not purport to disclaim all others. Indeed, as

we have explained, the certification was attached to a motion that

itself recited facts elsewhere supported in the record that were

relevant not only to the § 70502(d)(1)(C)-based theory but also to

the Matos-Luchi-based one.

Nor is this a case in which a district court ruling

established that the only jurisdictional ground in play was

narrower than the grounds encompassed by the indictment and

supported by the admitted facts. The defendants pleaded guilty to

the charges set forth in the indictment before the District Court

- 59 - had passed on the government's jurisdictional motion. And, in

doing so, they entered into plea agreements that, like the

indictment, conspicuously did not mention -- with respect to

whether the vessel was "subject to the jurisdiction of the United

States" -- § 70502(d)(1)(C). Instead, the plea agreements

mentioned only the facially more encompassing § 70502(c)(1)(A).

Finally, it is worth noting that, while the defendants

now press the "jurisdiction switching" point to fend off the

government's Matos-Luchi-based defense of the convictions, the

defendants did not make this point in their oral argument to the

panel, where the Matos-Luchi theory was raised, nor did they raise

it in their supplemental briefing to the panel. And that is so

even though the defendants submitted their supplemental brief

after the government had advanced the Matos-Luchi-based theory for

deeming their vessel "without nationality" in its own supplemental

brief. If indeed the parties to the plea agreements had agreed

that the government precluded itself from relying on a theory of

jurisdiction supported by the admitted facts, one would have

expected the defendants themselves -- rather than judges who were

not party to the agreement -- to have been the ones to raise that

interpretation of the agreements.

In fact, the defendants chose at that time to take on

the merits of the theory without asserting any waiver. And, they

argued, too, that in pleading guilty they were not making any

- 60 - admissions at all regarding the legal basis for deeming their

vessel "without nationality" under the MDLEA precisely because

that question was reserved to the District Court by § 70504(a) of

the MDLEA. As the defendants put it, "the guilty plea conceding

factual guilt does not resolve the antecedent question of the

[United States'] ability to assert jurisdiction over appellants'

vessel."

Thus, it was only in the panel opinion -- and not in any

filing that the defendants themselves had made up to that

point -- that the notion first appeared of the government having

agreed in the plea agreements to be barred from relying on a Matos-

Luchi-based theory to defend the convictions even if the indictment

encompassed it and the record supported it. See Dávila-Reyes II,

. So, while the dissent contends that our

conclusion that the Matos-Luchi theory of jurisdiction remained

available to the government after the plea agreements were struck

is "patently absurd," the dissent does not dispute that the

contention originated with the panel rather than the defendants

themselves. It would thus appear that what the dissent contends

is self-evident about the plea agreements was not self-evident to

the actual parties to those plea agreements. In our view, then,

if a gloss is being retroactively imposed on the record, it is the

gloss that would attribute to the government an intentional waiver

of the Matos-Luchi-based theory. But, as no authority establishes

- 61 - that the government must be understood in these circumstances to

have intentionally (though silently) made such a waiver, cf.

Caraballo–Rodriguez,

(explaining that "a novel

interpretation of the [relevant] statute" advanced by the

government in response to a challenge to the factual basis of a

plea "cannot be said to be plainly erroneous" even when the court

had "found no . . . cases discussing the theory"), we cannot accept

the contention that one was made.

B.

Having explained that the defendants' Felonies Clause-

based claim fails in all its variants, we move on to the

defendants' remaining claims. The first of those claims is that

the indictment does not charge a crime that comports with the Due

Process Clause because a key aspect of § 70502(d)(1)(A) and

§ 70502(d)(1)(C) is void for vagueness.

But here, again, we are not persuaded that there is any

basis for concluding, even on de novo review, that the indictment

is dependent on the application of § 70502(d)(1)(C) in alleging

that the defendants violated the MDLEA while aboard a vessel

"without nationality" under § 70502(c)(1)(A). And, as we have

explained, there is no basis on plain error review for concluding

that the record at the time of the judgments of conviction was

such that § 70502(d)(1)(C) provided the sole means of determining

the defendants' vessel to have been "without nationality." Nor,

- 62 - as we also have explained, can we conclude that the government

waived the Matos-Luchi-based theory that it advances in defending

the convictions. Thus, we must reject this constitutional claim

because it rests on the unfounded premise that § 70502(d)(1)(C)

supplies the sole basis for deeming the defendants' vessel to be

"without nationality" under § 70502(c)(1)(A). We add only that,

because the defendants at no point developed an argument below or

to us as to how § 70502(d)(1)(A) might apply to their case, we

must reject this challenge as it relates to that provision as well.

C.

We next must address the defendants' claim under the Due

Process Clause in which they target a supposed failure by the

government to establish any nexus between the defendants'

allegedly unlawful conduct and the United States. The defendants

have developed this challenge only insofar as they contend that

they were aboard a vessel with foreign nationality. They have not

developed any argument as to why there must be such a nexus even

if the vessel was stateless under international law.

As we have explained, however, we cannot conclude, even

on de novo review, that the indictment charged the defendants with

being on a vessel that could be deemed "subject to the jurisdiction

of the United States" only on grounds that would fail to show that

the vessel was stateless under international law. And, as we have

also explained, there is no basis, on plain error review, for

- 63 - concluding that the record as it stood at the time of the

defendants' convictions only supports a ground for deeming their

vessel to have been "subject to the jurisdiction of the United

States" that clearly or obviously would not suffice to permit the

vessel to be deemed stateless under international law. Finally,

for the reasons given above, the government may not be understood

to have waived all jurisdictional theories save for the one based

on § 70502(d)(1)(C). Thus, this constitutional claim fails, too.

D.

There remains only to address the defendants' claim that

the government violated the Due Process Clause by failing to bear

the burden of showing that the defendants' vessel was stateless

under international law. But, as best we can tell, the premise

for this claim is that the sole basis for deeming the vessel to be

"without nationality" under § 70502(c)(1)(A) is by operation of

§ 70502(d)(1). Thus, this constitutional claim fails for the same

reasons that the other claims we have addressed fail -- it rests

on a premise that cannot be sustained as to the indictment, even

on de novo review, or as to the record at the time of the judgments

of conviction, under plain error review, and the government did

- 64 - not intentionally relinquish reliance on all jurisdictional

theories save for the one based on § 70502(d)(1)(C).19

V.

For the reasons given above, the judgments of the

District Court are affirmed.

-Dissenting Opinion Follows-

19We note that we must also reject the defendants' sole, purely statutory challenge -- that the government improperly relied on § 70502(d)(1)(C) to establish that their vessel was "without nationality" because § 70502(d)(1)(C) references only a claim of "registry" and defendants made a claim of nationality. The reason is by now familiar. The defendants cannot show, even on de novo review, that the indictment is premised solely on § 70502(d)(1)(C), and they cannot show, on plain error review, that it is clear or obvious from the state of the record at the time that the defendants entered their guilty pleas that § 70502(d)(1)(C) provided the sole basis for deeming the vessel "without nationality." Nor can the defendants show that the government waived all "jurisdictional" theories other than the § 70502(d)(1)(C)-based one.

- 65 - LIPEZ, THOMPSON, and MONTECALVO, Circuit Judges,

dissenting. It is a basic principle of plea agreements, derived

from contract law, that the parties' written agreement embodies

their commitments to each other and governs their expectations.

Today, in their effort to avoid important and complex issues

concerning the United States' authority to prosecute foreign

nationals encountered on vessels in international waters, our

colleagues in the majority have done serious damage to the

reliability of plea agreements. Stymied by the content of

appellants' agreements and the proceedings leading to their pleas,

the majority adopts a view of the record inappropriately favorable

to the government and justifies the analysis with an indefensible

application of the plain-error doctrine. We cannot accept the

resulting perversion of the plea process and, for that reason among

others, dissent from the majority's decision.

I.

Using the majority's terminology, we wish to make clear

that our disagreement with our colleagues' analysis does not arise

from their treatment of the so-called "first variant" of

appellants' constitutional claim, a dichotomy imposed by the

majority. We recognize that the indictment itself does not specify

the basis on which the government was alleging that the defendants

were on board a vessel without nationality. Nor are we saying

that the criminal complaint that initiated appellants' prosecution

- 66 - necessarily fixed the boundaries for the indictment and confined

the government to showing that appellants' vessel was stateless

pursuant to

(d)(1)(C). However, we are saying

that when the government reduces the broad terms of an indictment

to a specific theory of prosecution and relies on that theory to

obtain guilty pleas, the government cannot later justify those

convictions with a different rationale when it discovers that its

chosen theory is flawed.

The majority's "second variant" analysis, however,

endorses just such an unfair substitution. As we shall describe,

appellants had no reason in the district court proceedings to

challenge any basis for deeming their vessel "without nationality"

other than by operation of § 70502(d)(1)(C). The majority

nonetheless latches onto the omission of any such challenge to

avoid appellants' claim that their convictions violate the

Felonies Clause because Congress lacked authority to deem their

vessel without nationality based on that provision. In other

words, the majority addresses appellants' challenge to their

convictions under the false pretense that, at the time appellants

signed plea agreements, the government was relying on alternative

theories for deeming their vessel stateless.

Put even more bluntly, the majority performs a sleight-

of-hand to allow the government to ambush appellants with a theory

of jurisdiction under the Maritime Drug Law Enforcement Act

- 67 - ("MDLEA") that was not the one used to secure their guilty pleas.

As set forth in detail in Section II below, the government

consistently premised its assertion that appellants' vessel was

stateless solely on the failure of Costa Rica to "affirmatively

and unequivocally" confirm nationality pursuant to

(d)(1)(C). Appellants, in turn, consistently argued that

§ 70502(d)(1)(C) is unconstitutional and in conflict with

international law. That same claim of constitutional invalidity

is at the forefront of this appeal from appellants' convictions.

Now, the government insists that we should uphold the

prosecution, regardless of the validity of § 70502(d)(1)(C),

because the facts included in appellants' plea agreements

establish that their vessel was "without nationality" apart from

§ 70502(d)(1)(C). The government thus asks us to treat the

litigation history and appellants' reasonable understanding of

their plea agreements as irrelevant. The majority condones that

strategy and dwells on one alternative theory in particular: that

Reyes-Valdivia's oral claim of Costa Rican nationality when

confronted on his vessel was ineffective because it was not

substantiated by other indicia of nationality.

Indefensibly, however, the majority contrives a

procedural default that does not exist. The government never

changed course in its theory of the prosecution from the time of

the criminal complaint through the entry of appellants' guilty

- 68 - pleas; it invoked § 70502(d)(1)(C), implicitly or explicitly, at

every stage. Nor did any facts change during the course of the

proceedings. The affidavit attached to the Criminal Complaint

that preceded the indictment contained a "Summary of the

Investigation" that included the following information:

The master claimed Costa Rican nationality for the vessel but provided no registration paperwork. The Boarding Team reported no further indicia of nationality. The government of Costa Rica was approached to either confirm or deny vessel registry. Costa Rica responded that it could not confirm nor refute the registry of the suspect vessel. The vessel was determined to be one without nationality.

Affidavit in Support of Criminal Complaint, United States v. Reyes-

Valdivia, No. 3:15-cr-00721-FAB (D.P.R. Nov. 9, 2015), ECF No. 1-

1, at 3-4.20 These facts, which also appear in the plea agreements,

give rise to jurisdiction under § 70502(d)(1)(C).21 The government

recited these same facts repeatedly throughout the subsequent

proceedings to support jurisdiction under § 70502(d)(1)(C). See

infra Section II. There was simply no new argument that appellants

All subsequent citations in this opinion to the district 20

court's docket will use the short-form "Reyes-Valdivia, ECF No. __ (filing date)." 21Section 70502(d)(1)(C) defines a "vessel without nationality" to include any vessel "aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality."

(d)(1)(C).

- 69 - failed to make, and the majority's plain-error analysis thus

depends on altering the assumptions underlying the plea

agreements, contrary to basic principles of plea bargaining and

contract law.

Of course, the majority's ability to rely on plain error

is essential to the decision to affirm appellants' convictions

without addressing their constitutional challenge to

§ 70502(d)(1)(C). That is so because the majority relies primarily

on dicta contained in a single decision of a divided panel of our

court -- which in turn cited only a single authority -- for the

proposition that Reyes-Valdivia's oral claim of nationality was

inadequate on its own to establish that appellants' vessel was not

stateless. See United States v. Matos-Luchi,

(1st

Cir. 2010). The adequacy of an oral claim of nationality under

international law is one of the issues at the heart of the merits

of this case -- relevant to the constitutionality of

§ 70502(d)(1)(C) -- and a subject the majority desperately wants

to avoid. See United States v. Dávila-Reyes (Dávila-Reyes II),

(1st Cir. 2022). Only plain-error review allows

the majority to give Matos-Luchi's dicta dispositive effect

without considering its correctness and, hence, to avoid dealing

with the difficult constitutional questions posed by this appeal.

It is no surprise that, to establish MDLEA jurisdiction,

the government chose to rely on the government of Costa Rica's

- 70 - statement that it could neither confirm nor refute Reyes-

Valdivia's claim of nationality -- a straightforward method under

the MDLEA for deeming a vessel stateless. Now what the government

wants us to do, and what the majority has agreed to do, is to

uphold the convictions based on a different rationale anchored

only in the dicta from Matos-Luchi. That retroactive change-of-

course is unfair to appellants and harmful to the plea-bargaining

process.

II.

The en banc majority's analysis rests on the view that

the government never relinquished any theory for deeming

appellants' vessel "without nationality" that could be supported

by the facts incorporated into appellants' plea agreements.

Brushing aside the well-established law that ambiguities in plea

agreements must be construed in favor of defendants, see infra,

the majority instead credits the government with silently

preserving a theory of jurisdiction appellants had no reason to

contemplate during the plea-bargaining process -- thereby

condoning the government's introduction of a new construction of

the plea agreements.

In fact, a fair reading of the record shows that, from

the outset of appellants' prosecutions, and consistently

throughout, the government relied exclusively on

(d)(1)(C) to support jurisdiction over appellants and their

- 71 - vessel. As recounted above, that approach was previewed in the

affidavit attached to the Criminal Complaint, which stated that

the "vessel was determined to be one without nationality" after

the master claimed Costa Rican nationality and that "Costa Rica

responded that it could not confirm nor refute the registry of the

suspect vessel." Reyes-Valdivia, ECF No. 1-1, at 3-4. Although

-- as we have acknowledged -- the theory of statelessness reflected

in the pre-indictment affidavit did not prevent the government

from developing other jurisdictional rationales post-indictment,

the government's version of the facts and theory of jurisdiction

did not change.

Each time the government defended the jurisdictional

foundation for the prosecution -- in its response to appellants'

motion to dismiss the indictment (dated Feb. 16, 2016), in its own

motion in support of jurisdiction (dated Mar. 25, 2016), at the

change-of-plea hearing (held on Apr. 4, 2016), and in the plea

agreements themselves (filed on Apr. 4, 2016) -- the government

presented the same facts originally set forth in the Criminal

Complaint (filed in Nov. 2015) and never stated that it was

proceeding on alternative theories of jurisdiction, one statutory

and one non-statutory. Appellants focused on § 70502(d)(1)(C) in

their motion to dismiss the indictment. In that motion, after

noting that the MDLEA prohibits drug activity by individuals on a

vessel subject to U.S. jurisdiction, appellants stated: "As

- 72 - relevant here, a 'vessel subject to the jurisdiction of the United

States' includes . . . 'a vessel aboard which the master or

individual in charge makes a claim of registry and for which the

claimed nation of registry does not affirmatively and

unequivocally assert that the vessel is of its nationality.' [46

U.S.C.] § 70502(c)(1)(A), (d)(1)(C)." Reyes-Valdivia, ECF No. 29,

at 3 (Feb. 1, 2016) (emphasis added).

In its response, the government did not contest

appellants' assumption that the "relevant" provision was

§ 70502(d)(1)(C). The response addressed appellants' multiple

statutory-based arguments by asserting, inter alia, that the MDLEA

is within Congress's authority under the Constitution; that "drug

trafficking, as criminalized by the MDLEA, is properly within the

scope of the Felonies Clause"; that the MDLEA does not require a

nexus between the drug activity and the United States; that the

MDLEA is consistent with international law; and that § 70502(d)(1)

is not unconstitutionally vague. See Reyes-Valdivia, ECF No. 38,

at 3-8, 11-13 (Feb. 16, 2016). The government also noted the

applicability of the protective principle of international law.

See id. at 17. The government repeated, nearly verbatim, the facts

that had appeared in the Criminal Complaint:

In this case, the Defendants made a claim of Costa Rican nationality over the vessel. The United States approached the government of Costa Rica and they responded that they could not confirm or deny the nationality of the

- 73 - vessel. Furthermore, the Defendants failed to present any registration paperwork supporting their claim and there were no other indicators of nationality, such as a flag, on the vessel. Therefore, the vessel was without nationality.

Id. at 11.

Although the response cited Matos-Luchi seven times,

none of those references invoked the dicta on the need to

substantiate an oral claim of nationality. See id. at 8, 11, 12,

15, 16. Indeed, the government distinguished appellants' case

from one cited by appellants in which "the [g]overnment [had]

attempted to proceed on two theories of jurisdiction" and had

"failed to provide any evidence that . . . the alleged flagging

nation" had denied the claim of registry. Id. at 16 (discussing

United States v. Potes,

(1st Cir. 1989)). The

government asserted that, by contrast, in this case it "ha[d] been

consistent in its theory of jurisdiction and provided all

[d]efendants in discovery statements by the boarding team and

pilots that prove the master's claim of Costa Rican nationality,

the lack of other indicia of nationality, and the fact that the

U.S. Coast Guard Seventh District Commander permitted the vessel

to be treated as one without nationality."

The government,

in other words, emphasized that it had provided appellants with

the facts, first reported in the Criminal Complaint and now

reproduced in their response to the motion to dismiss, that

appellants understood as premising jurisdiction solely on

- 74 - § 70502(d)(1)(C) -- an understanding the government did not

dispute in its response to the motion to dismiss.

But even if the government's response left ambiguity in

its theory of jurisdiction, any lack of clarity was dispelled when

the government later filed its motion in support of jurisdiction.

The connection between the government's consistently reported

facts and § 70502(d)(1)(C) was drawn explicitly in the Department

of State Certification that was submitted as an attachment to the

government's motion. The Certification, signed by a U.S. Coast

Guard Commander, reported that the master of the vessel "made a

claim of Costa Rican nationality," that the United States

government "requested that the [g]overnment of the Republic of

Costa Rica confirm the registry or nationality of the suspect

vessel," and that "the [g]overnment of the Republic of Costa Rica

replied that it could not confirm [the] vessel's registry." Reyes-

Valdivia, ECF No. 46-2, at 1 (Mar. 25, 2016). The Certification

then expressly linked those facts to the assertion of jurisdiction:

"Accordingly, the [g]overnment of the United States determined the

vessel was without nationality in accordance with

(d)(1)(C), rendering the vessel subject to the jurisdiction

of the United States, pursuant to

(c)(1)(A)."

(emphases added). Significantly, this motion, with its

attached Certification, also gives important context for the

government's earlier reference, in its response to appellants'

- 75 - motion to dismiss, to "the fact that the U.S. Coast Guard Seventh

District Commander permitted the vessel to be treated as one

without nationality." Reyes-Valdivia, ECF No. 38, at 16. The

Certification specifies that the U.S. Coast Guard Commander gave

that permission "in accordance with

(d)(1)(C)."

The Certification language also reveals a significant

flaw in the government's attempt to obscure its chosen theory of

jurisdiction by insisting that it always relied on

§ 70502(c)(1)(A) separately from § 70502(d)(1)(C), thereby giving

notice that it was contemplating other rationales for deeming the

vessel "without nationality." Section 70502(c)(1)(A) of the MDLEA

states generally that "a vessel without nationality" is "subject

to the jurisdiction of the United States."

(c)(1)(A). Section 70502(d)(1)(C) specifies one way in

which the United States may deem a "vessel without

nationality" -- namely, if the master "makes a claim of registry

and for which the claimed nation of registry does not affirmatively

and unequivocally assert that the vessel is of its nationality."

(d)(1)(C). These two provisions plainly operate

in tandem when cited together, as the government consistently did

in this case. And, when those provisions were combined with the

facts offered by the government, the general allegations of the

indictment concerning jurisdiction -- that appellants' vessel was

"subject to the jurisdiction of the United States" because it was

- 76 - "without nationality" -- were reduced to the specific version of

the crime the government was charging.

The Certification sets forth that specific theory in

unambiguous terms: appellants' boat was subject to United States

jurisdiction as a "vessel without nationality" under

§ 70502(c)(1)(A) because the circumstances satisfied the

requirements of § 70502(d)(1)(C).22 As noted above, the government

had emphasized in its response to appellants' motion to dismiss

that it "ha[d] been consistent in its theory of jurisdiction,"

thus giving appellants no reason to believe that it was invoking

any theory of statelessness other than § 70502(d)(1)(C). Put

simply, the unmistakable import of the government's

representations in the district court is that the government relied

consistently -- and exclusively -- on the theory of statelessness

that appellants have consistently challenged.

The government attempts to step away from that

acknowledgment by pointing out that it had no opportunity to press

22As the panel majority opinion explained, it does not matter that § 70502(d)(1)(C) by its terms applies when there has been a "claim of registry" but, in this case, Reyes-Valdivia made a claim of Costa Rican nationality. See Dávila-Reyes II,

- 69. Both the government and appellants assumed that § 70502(d)(1)(C) applied to Reyes-Valdivia's claim of nationality until the panel suggested otherwise in a request for supplemental briefing. Whether § 70502(d)(1)(C) covers claims of nationality is a distinct question from whether, in the particular circumstances of this case, that provision was the basis on which the government asserted MDLEA jurisdiction.

- 77 - other theories of statelessness because appellants pleaded guilty

before the district court ruled on its motion in support of

jurisdiction. Nowhere in that motion, however, does the government

indicate that it was planning to argue that the vessel could be

deemed "without nationality" on the ground that appellants did not

substantiate Reyes-Valdivia's oral assertion of Costa Rican

nationality with documentary or visual indicia of nationality.

There is no reference in the motion to the Matos-Luchi dicta on

which the majority relies. Indeed, as described above, the motion

included the Certification as an attachment and, referring to the

Certification's contents, the government asserted that the Coast

Guard Commander "certified that the Government of Costa Rica was

approached and could neither confirm nor deny registry of the go-

fast vessel, thereby enabling the United States to treat the vessel

as one without nationality pursuant to Section 70502(d)[(1)](C)."

Reyes-Valdivia, ECF No. 46, at 4 (emphasis added). It is clear

from this motion -- filed a week before appellants moved to change

their pleas -- that the government was adhering to its "consistent"

reliance on § 70502(d)(1)(C).

Critical, of course, is what admissions appellants

understood they were making at the time they signed their plea

agreements. We have recognized that, in construing plea

agreements, "[t]he touchstone is the 'defendant's reasonable

understanding.'" United States v. Gardner,

(1st

- 78 - Cir. 2021) (quoting United States v. Conway,

(1st

Cir. 1996)); see generally United States v. Gall,

, 72

n.6 (1st Cir. 2016) (citing cases for the general proposition that

a court's construction of a plea agreement should align with the

reasonable expectations of the parties). If there is any

uncertainty about the scope of defendants' pleas, the consequence

of the imprecision "must fall upon the government," United States

v. Newbert,

(1st Cir. 2007), "not only because

ambiguities in contracts are traditionally interpreted against the

drafter, but also because plea agreements implicate broader

societal interests, some of constitutional magnitude,"

at 185

n.3 (citation omitted).

At the change-of-plea hearing, when asked to "give a

brief explanation of the theory to be presented to prove each

Defendant guilty if a trial were to be held," the prosecutor

stated, in relevant part:

The vessel was tracked by aircraft and eventually came to a stop. The U.S. Coast Guard boarding team approached the vessel and commenced right of approach questioning. The master claimed Costa Rican nationality for the vessel but provided no registration[] paperwork, and there was no indicia of nationality on the vessel. The Government of Costa Rica was approached. They responded they could neither confirm nor refute the registry of [the] suspect vessel. The vessel was determined to be one without nationality.

- 79 - Reyes-Valdivia, ECF No. 117, at 25-26 (Oct. 3, 2016). These same

facts -- reiterating Reyes-Valdivia's claim of nationality and

Costa Rica's failure to confirm or deny his claim -- were

incorporated into the plea agreements themselves. Hence, a

reasonable defendant would conclude that the plea agreements'

inclusion of the same facts used consistently by the government to

support jurisdiction based solely on § 70502(d)(1)(C) meant that

the government was relying solely on that provision as the

jurisdictional foundation for their guilty pleas. It is not

reasonable to attribute to appellants an awareness of a different

theory of statelessness that they also needed to challenge. Given

the government's handling of the case from inception to pleas, the

majority's resort to plain-error review of a different

jurisdictional rationale is unfathomable.23

The majority makes much of the fact that the government's

version of the relevant events includes information that is not

part of the § 70502(d)(1)(C) requirements, specifically that the

vessel had no registration paperwork or other indicia of Costa

The government also makes a somewhat different plain-error 23

argument in its en banc briefing, asserting that appellants failed to argue that their guilty pleas lacked a factual foundation. However, putting aside the statutory-language problem first noted by the panel, see supra, Reyes-Valdivia and Dávila-Reyes have not contested that the facts stated by the government satisfy the requirements of § 70502(d)(1)(C) and thus provide a statutory foundation for their guilty pleas. Their claim challenges the authority of the government to rely on § 70502(d)(1)(C).

- 80 - Rican nationality on board. However, the government's report that

no evidence of nationality was found on the vessel -- in the same

sentence reporting the master's oral claim of nationality -- does

not indicate, or even suggest, that the government was setting

forth a theory of jurisdiction independent of § 70502(d)(1)(C).

The factual statement does not declare that the vessel was

determined to be without nationality because no corroborating

evidence was found. Nor does the government preface the report of

its inquiry to Costa Rica with language -- such as "In addition"

-- to indicate that § 70502(d)(1)(C) was a second, independent

basis for deeming the vessel "without nationality." Rather, the

sequence of facts in the statement confirms that the vessel was

determined to be without nationality, per the Certification, "in

accordance with

(d)(1)(C)."

The majority's use of the government's reference to the

lack of corroboration to infer an unarticulated alternative theory

of statelessness is thus unjustified from a commonsense reading of

the factual statement. That approach is especially unacceptable

given our obligation to impose the burden of any ambiguity in plea

agreements on the government. Absent some explicitly stated

connection between those non-essential facts and a non-statutory

theory of jurisdiction, the inclusion in the plea agreements of

the same facts that had informed every phase of the prosecution

simply does not show -- or even suggest -- that the government is

- 81 - relying on any basis other than § 70502(d)(1)(C) to deem

appellants' vessel without nationality. We do not know why the

government placed those facts in the plea agreements. Perhaps the

government wanted to eliminate any possibility that appellants

could reassert their earlier claim that the vessel bore indicia of

nationality.24 What we do know, however, is that the government

did not communicate a connection between those facts and the non-

statutory theory of statelessness attributable to the dicta in

Matos-Luchi.

There is not even a hint in the provisions of the plea

agreements that the government was relying on multiple theories of

jurisdiction. It is irrelevant that the agreements do not

expressly cite to § 70502(d)(1)(C). As explained above, the

unelaborated reference in the agreements to § 70502(c)(1)(A)

serves to identify the pertinent category of vessels "subject to

United States jurisdiction" -- i.e., vessels "without nationality"

24 Appellants argued to us that "[p]hotos of the vessel clearly

show the civil ensign of Costa Rica painted, albeit vertically, on the port and starboard sides of the ship's bow." See Dávila-Reyes II,

n.20 (quoting Appellants' Supp. Br. at 18 n.4). That assertion is supported by a statement attached as an exhibit to the government's motion in support of jurisdiction, in which a U.S. Customs Boarding Officer reported that a marine patrol had spotted a vessel "with a Costa Rican flag painted on the bow."

As the panel majority observed, however, appellants necessarily gave up the claim that their vessel bore indicia of Costa Rican nationality when they pled guilty based on the "Government's Version of the Facts" incorporated into their plea agreements.

- 82 - -- but it does not identify the specific basis on which appellants'

vessel fit within that category.

It is the factual statement

incorporated into the plea agreements, detailing the government's

compliance with § 70502(d)(1)(C) in the same way the government

had been doing throughout the proceedings, that provides the

necessary, specific basis for that finding. There is simply no

room for debate about the theory of jurisdiction on which the plea

agreements -- and thus the guilty pleas -- rested.

On appeal, too, the government maintained its focus on

§ 70502(d)(1)(C). See Dávila-Reyes II,

n.18. Its

appellate brief linked § 70502(c)(1)(A) and § 70502(d)(1)(C) in

the way we have emphasized -- i.e., citing them as a single

invocation of jurisdiction -- when it stated: "The absence of an

assertion by the Costa Rican government rendered the Appellants'

boat a 'vessel without nationality,' [46 U.S.C.] § 70502(d)(1),

and thus a 'vessel subject to the jurisdiction of the United

States,' id. § 70502(c)(1)(A)." Id. (alteration in original)

(emphases added). This framing again clearly reveals the

government's view that appellants' vessel was subject to United

States jurisdiction because the circumstances matched one of the

definitions of a stateless vessel listed in § 70502(d)(1).

In its supplemental en banc brief, the government argues

at length that the examples of vessels without nationality listed

in § 70502(d)(1)(A)-(C) are "non-exhaustive" and that the

- 83 - government can establish that a vessel is "without nationality" in

various ways.25 The government asserts that, if appellants had not

pleaded guilty, it "would have been prepared" to prove that the

vessel both fell within § 70502(d)(1)(C) and "otherwise qualified

as a stateless vessel under international law." But the question

here is not what theory the government could have used; the

question is what rationale it did use to secure the guilty pleas.26

Notably, even in its motion on jurisdiction, when the

government was required to make clear to the court the

jurisdictional basis for the prosecution, the government

25In December 2022, a fourth type of vessel was added to the list in § 70502(d)(1): "a vessel aboard which no individual . . . claims to be the master or is identified as the individual in charge, and that has no other claim of nationality or registry under paragraph (1) or (2) of subsection (e)."

(d)(1)(D). The pertinent paragraphs of subsection (e) refer to documents "evidencing the vessel's nationality" and "flying [a] nation's ensign or flag."

§ 70502(e)(1), (2). 26 Unsurprisingly, the government's assertion that it could have demonstrated that appellants' vessel "otherwise qualified" as "without nationality" relies, in part, on a report that Reyes- Valdivia initially told a Coast Guard Boarding Officer that appellants' vessel had no nationality. In other words, the government highlights that Reyes-Valdivia had admitted a fact that would be decisive in establishing that the vessel was "without nationality" apart from the requirements of § 70502(d)(1)(C). But that fact was not in the Criminal Complaint or the Department of State's official attestation of jurisdiction. And, critically, it was not in the government's recitation of facts at appellants' change of plea hearing, in the "Government's Version of the Facts" incorporated into their plea agreements, or in appellants' Presentence Investigation Reports. As the majority also recognizes, at least implicitly, the government cannot now retrieve a fact it plainly chose to abandon.

- 84 - ultimately and only asked the district court to make a finding and

instruct the jury "pursuant to Title

(c)(1)(A) and (d)(1)(C) that the suspect vessel

carrying the Defendants was a vessel Without Nationality and

therefore subject to the jurisdiction of the United States."

Reyes-Valdivia, ECF No. 46, at 5 (emphasis added). There was no

alternative request for the court to instruct the jury or make a

finding of jurisdiction under general principles of international

law based on the lack of corroboration of Reyes-Valdivia's oral

claim. Given the definitive pronouncements by the government

seeking court validation of § 70502(d)(1)(C) as the basis for its

assertion of jurisdiction over the vessel, it is absurd for the

majority to validate the government's contention that it was

proceeding under alternative theories. And it is simply

preposterous to say that appellants should have understood that

their plea agreements left the door open to theories of

statelessness other than § 70502(d)(1)(C).

Indeed, the majority's view of the record depends on

drawing meaning from what the government did not say. In effect,

the majority holds that, because the government did not promise to

rely only on § 70502(d)(1)(C), any theory of jurisdiction that

could be supported by the facts in appellants' plea agreements

remained on the table -- regardless of whether the government had

specifically invoked such alternatives during the proceedings that

- 85 - culminated with appellants' guilty pleas. As we have described,

the government never told appellants or the district court that it

was relying on the Matos-Luchi dicta as a basis for jurisdiction

over appellants' vessel, while it repeatedly relied expressly on

§ 70502(d)(1)(C). For the majority, the government's singular

reliance on that statutory provision does not matter. Our

colleagues, for example, discount the State Department's

certification that appellants' vessel was determined to be without

nationality "in accordance with

(d)(1)(C)" by

observing that "the certification does not purport to disclaim all

other[]" theories of jurisdiction. In other words, the government

may retroactively introduce the non-statutory Matos-Luchi

rationale because it never promised not to do so.

We cannot emphasize enough that the question at this

juncture is not what theories the government could have offered to

support jurisdiction, but what theory informed appellants'

decision to plead guilty. As should be clear by now, the plea

agreements incorporated the facts consistently cited by the

government to establish that appellants' vessel was "without

nationality" pursuant to § 70502(d)(1)(C): the claim of

nationality and the failure of Costa Rica to "affirmatively and

unequivocally" confirm nationality. That theory of jurisdiction,

and that theory alone, should determine the validity of appellants'

convictions.

- 86 - III.

The majority acknowledges that appellants argued in

their motion to dismiss the indictment that the government had

deemed their vessel to be "without nationality" based solely, and

unconstitutionally, on § 70502(d)(1)(C).27 Our colleagues thus

realize that they cannot say that appellants failed to preserve

the argument that their convictions must be vacated because

§ 70502(d)(1)(C) is unconstitutional. Hence, needing to find a

rationale for the application of plain error, the majority contends

that appellants failed to timely argue against theories for deeming

their vessel stateless that are not based on § 70502(d)(1)(C).

And, because the government's oft-repeated version of the facts

supports a determination of statelessness pursuant to the dicta in

Matos-Luchi, the majority concludes that there is no clear or

obvious error and that appellants' convictions are properly

affirmed.

This contrived use of plain error -- i.e., the disregard

of the government's singular reliance on § 70502(d)(1)(C) -- is

The majority notes that appellants argued that "[a] vessel 27

may not be deemed stateless under international law . . . simply because the nation to which the vessel's master has claimed that it belongs fails to 'affirmatively and unequivocally assert,' § 70502(d)(1)(C), that the vessel is registered with that nation." The majority further observes that appellants construed the indictment to "charge[] that the vessel that the defendants were aboard was 'without nationality' under § 70502(c)(1)(A) solely based on the operation of § 70502(d)(1)(C)." (Emphasis added.)

- 87 - contrary to our obligation to "hold prosecutors . . . to 'the most

meticulous standards of both promise and performance'" in

effectuating a plea agreement. United States v. Lessard,

(1st Cir. 2022) (quoting United States v. Clark,

(1st Cir. 1995)). As we indicated above, our colleagues'

reasoning permits the government to retroactively expand the

jurisdictional foundation for appellants' guilty pleas. That is

not the way ordinary contracts work, and it is the principles of

contract law that govern plea agreements. See generally Garza v.

Idaho,

(2019) ("[P]lea bargains are essentially

contracts." (quoting Puckett v. United States,

(2009))); see also United States v. Brown,

(1st

Cir. 2022) ("Traditional principles of contract law guide our

interpretation of the terms and performance of a plea agreement.").

We find especially troubling the unilateral revision of a

contractual agreement when the result is to disfavor the party who

gave up "a panoply of constitutional rights." United States v.

Tanco-Pizarro,

(1st Cir. 2017) (quoting United

States v. Almonte-Nunez,

(1st Cir. 2014)).

As we have demonstrated, at the time they negotiated and

signed their plea agreements, appellants had no reason to evaluate

whether to plead guilty based on theories of MDLEA jurisdiction

other than § 70502(d)(1)(C). The facts giving rise to jurisdiction

under that provision were undisputed. But there were factual and

- 88 - legal issues relevant to the Matos-Luchi dicta on which the

majority relies to affirm appellants' convictions. Indeed,

appellants gave up the contention that their vessel bore indicia

of nationality when they signed plea agreements that included the

fact that the vessel lacked any such display. See supra note 24.

If the government was not relying solely on jurisdiction under

§ 70502(d)(1)(C), surely appellants were entitled to explicit

notice of such other theory or theories before agreeing to give up

competing facts and arguments, and ultimately pleading guilty.

To justify appellants' prosecutions based on

jurisdictional theories unspecified when they agreed to admit

guilt is not only unfair in this case but also troubling as a

precedent for plea agreements more generally. If the government

is permitted to support convictions by superimposing a new

rationale on plea agreements that were so clearly premised on

different understandings, the concept of plea agreements as

contracts -- whose linchpin is the reasonable expectations of the

parties -- will be grievously eroded.

The government made its choice to rely on

§ 70502(d)(1)(C) when it obtained appellants' acquiescence to

facts the government had consistently invoked to deem their vessel

"without nationality" under that specific provision. The panel

majority concluded that the government's chosen theory is

unconstitutional. Hence, in effect, the en banc majority is

- 89 - holding that the government may unilaterally renegotiate the deal

it struck with a defendant when flaws are identified in the

original agreement. The majority's approach is not restricted to

proceedings under the MDLEA and thus could be used to the

government's advantage whenever it chooses. The harm to the plea-

bargaining process from the majority's holding is severe and

indefensible.

As described above, however, the majority maintains that

appellants should have realized that the facts in the plea

agreements, along with citation to the MDLEA provision that

generally authorizes jurisdiction over vessels "without

nationality," preserved jurisdictional theories that the

government never specifically invoked. In other words, according

to the majority, appellants should have challenged theories on

which the government did not rely because the government never

pledged to forego reliance on them at a later juncture. To bolster

their position that plain error thus applies to the Matos-Luchi-

based theory, our colleagues repeatedly and pointedly say that the

claim of "jurisdiction switching" -- their term -- was voiced by

appellants "only in their briefing to the en banc court, which

they submitted only after the panel majority had raised and relied

on the theory sua sponte." Hence, our colleagues say, "if a gloss

is being retroactively imposed on the record, it is the gloss that

- 90 - would attribute to the government an intentional waiver of the

Matos-Luchi-based theory."

But we are not arguing that the government waived

reliance on Matos-Luchi. Rather, the government is precluded from

switching jurisdictional gears because of ordinary contract

principles and the particular importance of adhering to those

principles in the context of plea-bargaining. As explained above,

appellants have focused on the validity of their prosecutions based

on § 70502(d)(1)(C) because that was the sole jurisdictional

rationale specifically relied upon by the government throughout

the proceedings in the district court. The panel majority's

statement that the government could not reconceive the plea

agreements retroactively was -- and is -- merely an inescapable

conclusion based on contract law and our obligation to honor a

defendant's reasonable understanding of his plea agreement. Even

if appellants in their en banc briefs had not repeated the panel's

objection to new theories of jurisdiction, it would be wrong for

us to ignore the government's attempt to ambush appellants with an

alternative basis for deeming their vessel "without nationality."

To the extent this contractual constraint on the

government's ability to change course operates like a waiver, that

limitation is simply a function of the way contracts and plea-

bargaining work. The inclusion of facts extraneous to

§ 70502(d)(1)(C) in the plea agreements cannot, without some

- 91 - linkage to a specified jurisdictional theory, open the door to the

government's permissible reliance on such an alternative to

validate an otherwise impermissible prosecution. At most, those

stray facts create an ambiguity that precedent tells us must be

resolved in appellants' favor. Certainly, the obligation to deal

forthrightly with defendants who will be giving up important

constitutional rights cannot be met with plea agreements that sub

silentio -- at best -- or deceptively -- at worst -- enlarge the

government's end of the bargain.

Yet, our colleagues attempt to justify their choice to

rely on a contrived plain-error analysis by discrediting the ways

in which appellants responded to the government's shift in

strategy. First, the majority notes that appellants have not

sought to vacate their pleas as unknowing and involuntary in light

of the government's assertion that the plea agreements covered

rationales for deeming their vessel "without nationality" other

than § 70502(d)(1)(C). Second, the majority observes that, in the

supplemental brief requested by the panel in early 2019, appellants

responded to the government's Matos-Luchi-based argument on its

merits rather than asserting that the argument had been waived.

This turning of the tables on appellants is another

example of the remarkable lengths the majority is traveling to

justify avoiding appellants' constitutional challenge to

§ 70502(d)(1)(C). Appellants admitted that the government's facts

- 92 - establish their vessel's statelessness pursuant to

§ 70502(d)(1)(C), and they necessarily concede that, if

§ 70502(d)(1)(C) is constitutional, their pleas and convictions

would stand (assuming their other challenges to the MDLEA also

failed).28 In other words, appellants do not dispute that their

pleas were knowing and voluntary based on the only ground relied

upon by the government to secure them. It is patently absurd to

suggest that, rather than challenging the constitutional

legitimacy of the government's actual theory of jurisdiction, they

should be seeking to undo their pleas -- more than seven years

later and after Reyes-Valdivia served his entire sentence -- based

on a counterfactual version of the record.

The majority also suggests that, by arguing against the

merits of the Matos-Luchi alternative, appellants gave up the

argument that their plea agreements were reasonably understood to

establish their vessel's statelessness only via § 70502(d)(1)(C).

But the majority ignores and thereby distorts the significance of

appellants' substantive rebuttal to the Matos-Luchi dicta.

Appellants addressed Matos-Luchi on the merits only when

responding to a series of questions posed to both parties by the

panel, including whether there were other possible theories of

28 As described in the majority opinion, appellants also presented multiple arguments alleging violations of the Due Process Clause of the Constitution.

- 93 - jurisdiction to support the prosecution given that, by its terms,

§ 70502(d)(1)(C) refers only to claims of registry, not -- as

occurred here -- to claims of nationality. See supra note 22.

The government relied heavily on Matos-Luchi in its response, even

asserting -- contrary to the reality described in Section II above

-- that "[b]efore the Appellants pleaded guilty, the Government's

primary basis for determining that their vessel was 'subject to

the jurisdiction of the United States' under

(c)(1) was that it bore no indicia of nationality and its

master did not support his verbal claim of Costa Rican

nationality." Appellants' response sensibly covered the

possibility that our court would allow a post-conviction switch in

jurisdictional theory based on Matos-Luchi in disregard of

appellants' reasonable understanding of the plea agreements -- a

step the majority has, in fact, lamentably taken.29

The majority's plain-error analysis relying on Matos-Luchi 29

is disturbing beyond the disregard of appellants' understanding of their plea agreements. At a minimum, the en banc court should be considering whether Matos-Luchi's dicta aligns with international law. If international law does require corroboration of an oral claim of nationality to establish a vessel's foreign status, appellants' prosecutions at least would be within Congress's authority under the Felonies Clause, even if improper given the government's sole reliance on § 70502(d)(1)(C) to obtain the guilty pleas. If Matos-Luchi is wrong, however, the prosecutions would be unconstitutional unless sustainable under § 70502(d)(1)(C) or our court's precedent on the protective principle -- issues the majority also refuses to address.

- 94 - IV.

Under Class v. United States,

(2018),

Reyes-Valdivia and Dávila-Reyes are entitled to challenge their

convictions on the ground that Congress exceeded its

constitutional authority when it enacted § 70502(d)(1)(C) as a

basis for designating a vessel "without nationality." As the panel

majority opinion shows, that challenge is legally complex --

requiring us to examine, inter alia, the Constitution's language,

the Founding generation's understanding of that language, the

legislative history of the MDLEA, our circuit's precedent on the

protective principle, and the principles of international law

governing vessels traveling on the high seas. Indeed, our court

is now ruling on appellants' challenge for the third time,

reflecting the difficulty of the issues and the undeveloped nature

of our precedent. Twice, the panel confronted the merits of

appellants' claims, once after a pause of more than a year for

completion of the en banc proceedings in United States v. Aybar-

Ulloa,

(1st Cir. 2021) (en banc), a case that presented

overlapping issues concerning the United States' authority to

prosecute foreign nationals accused of drug-trafficking on the

high seas. Now, for the first time, the court's dispositive ruling

avoids seriously engaging with any aspect of the merits of

appellants' claim.

- 95 - The majority's justification for that avoidance depends

on a non-existent plain-error scenario and a deeply problematic

misuse of the plain-error standard. The plain-error doctrine sets

a high threshold for remedying errors on appeal to "keep[] parties

from hiding problems below" that could have "been fixed then and

there." United States v. Romero,

, 205 n.4 (1st Cir.

2018); see also Puckett,

("[T]he contemporaneous-

objection rule prevents a litigant from 'sandbagging' the

court -- remaining silent about his objection and belatedly raising

the error only if the case does not conclude in his favor."

(quoting Wainwright v. Sykes,

(1977))). Ignoring

that rationale for the plain-error doctrine, the majority uses

plain error as a convenient off-ramp. The government consistently

relied on § 70502(d)(1)(C) to support the prosecutions, and

appellants have consistently challenged the prosecutions as

unconstitutional based on the government's reliance on that

provision. Appellants never hid the ball, leaving no justification

for invoking the plain-error rubric to avoid their claims. It is

the government, abetted by the majority, that seeks to change the

terms of the plea bargain.

The majority's sidestepping of substantial issues of

great import based on a contrived procedural ground is particularly

disconcerting at this late stage of the case. At no point during

the case's lengthy history in our court was there a suggestion

- 96 - that the case should end because of a procedural default. Of

course, that history would not justify ignoring a true procedural

impediment to the en banc court's reaching the merits. But the

procedural impediment on which the majority relies is an artifice

in the name of constitutional avoidance with severe consequences

for the practice of plea-bargaining. Nor should we forget the

impact on the two individuals directly affected by the majority's

dogged avoidance of the merits. Reyes-Valdivia and Dávila-Reyes,

Costa Rican nationals who plausibly claimed Costa Rican

nationality for their vessel, have vigorously pressed their

constitutional challenge to § 70502(d)(1)(C), and they deserve to

know -- after more than seven years -- whether they were lawfully

prosecuted. Although Reyes-Valdivia completed his sentence,

Dávila-Reyes remains incarcerated.

Constitutional avoidance is an important principle. But

it is not properly used here to escape confronting appellants'

challenge to § 70502(d)(1)(C). Indeed, as an intermediate

appellate court, we could perform an important service by exploring

"the broader questions of international and constitutional law"

acknowledged by the majority and attempting to crystalize the

issues in a way that would be useful to the Supreme Court if it

chose to review our decision. We do not minimize the "sensitive

issues of U.S. foreign relations and national power" implicated by

appellants' challenge to § 70502(d)(1)(C), but we cannot sidestep

- 97 - such questions because of their sensitivity and import when properly

raised. If we answer them incorrectly, the Supreme Court will tell

us. In addition, with their avoidance, our colleagues forsake their

obligation to address and clarify multiple unresolved issues in our

own law on MDLEA prosecutions, including the role of the protective

principle and the validity of the Matos-Luchi dicta as a basis for

deeming a vessel "without nationality." These recurring issues

deserve our attention now.

Moreover, the dance the majority performs to avoid

appellants' serious constitutional challenge undermines the Supreme

Court's decision in Class to forgo the usual finality of unconditional

guilty pleas to protect criminal defendants from prosecutions -- and,

perhaps most importantly, imprisonments -- that the United States

lacks authority to pursue. See Class,

(holding that

an unconditional guilty plea does not bar a direct appeal where the

defendant's claims "call into question the [g]overnment's power to

'constitutionally prosecute' him" (quoting United States v. Broce,

(1989))). Accordingly, we dissent and, based on

the analysis set forth in the panel majority opinion, see Appendix,

conclude that appellants' convictions should be reversed.30

The majority suggests that, if appellants' contentions did 30

not otherwise fail, their claims may be waived. The panel majority explained why appellants' plea agreements do not bar their appeals and why, pursuant to Class, their guilty pleas do not foreclose their constitutional claims. Those explanations are contained in Section III of the panel majority opinion. See Appendix.

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