United States v. Prado
Opinion
Defendants Joaquin Alarcon Prado, Hector Valencia Bautista, and Luis Armando Valencia Bautista appeal from the judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff,
J.
), convicting them, on their pleas of guilty, of conspiracy to
*126
distribute cocaine, and of possession of cocaine with intent to distribute, while on board a stateless vessel subject to the jurisdiction of the United States in violation of the Maritime Drug Law Enforcement Act, ("MDLEA" or "the Act"),
BACKGROUND
The district court conducted a hearing in part to determine whether the vessel on board which drugs were found was subject to the jurisdiction of the United States. The theory of the government was that the vessel was subject to the jurisdiction of the United States because it was without nationality, i.e., not registered in any nation. The government's evidence submitted at the hearing consisted entirely of the sworn complaint of Andres Mahecha, a detective of the New York City Police Department on a task force of the United States Department of Homeland Security ("DHS"), supplemented by exhibits including a video and photographs taken by the Coast Guard showing the interception of the vessel. 2
According to Mahecha's account, on June 19, 2015, officers of the United States Coast Guard patrolling the waters of the Pacific Ocean, off the coast of Central America, received a tip from Homeland Security that a Colombian drug cartel "was sending a go-fast carrying a large shipment of cocaine from Colombia towards Costa Rica." App'x 13. A "go-fast" is a small, rapid speed boat, which, because of its speed and low profile, is often used in drug trafficking.
Coast Guard officers in a reconnaissance plane spotted a small craft moving at high speed in international waters approximately 300 nautical miles off the border between Nicaragua and Costa Rica. 3 A Coast Guard cutter then sped to the area and sent out a helicopter and an interceptor launch in pursuit of the go-fast. When the go-fast failed to stop after the firing of warning shots, the helicopter crew fired on the vessel and disabled its engines. As the go-fast came to a stop, one of its occupants was observed throwing bundles into the sea. Officers on the launch boarded the go-fast and there encountered the three defendants, the only persons aboard. They also found twelve bundles later determined to contain approximately 680 kilograms of cocaine. Mahecha's complaint states, "All three of the defendants claimed to be of Ecuadorian nationality. [ ] In response to questioning by members of the Boarding Team, none of the defendants claimed to be the master or individual in charge of the Go-Fast. ... The Boarding Team also *127 did not find any registration documents [i.e., documents indicating that it was registered as a vessel of any nation] onboard the Go-Fast." App'x 14. His affidavit adds that "[t]he Go-Fast was not flying any flag, nor did it have any signs of registry painted on the side of the vessel." Id .
According to the Government's memorandum of law filed in the district court, the boarding team removed the cocaine and defendants from the go-fast, and then set fire to the go-fast and sank it, concluding that it was a navigation hazard. The defendants were arrested, transported to Guantanamo Bay in Cuba, and from there flown to New York to be charged and tried.
Affidavits submitted by defendants Hector Bautista and Javier Prado differ from Mahecha's account in a few respects. While Mahecha's affidavit stated that the go-fast was "not flying any flag," App'x 14, the defendants' affidavits asserted that the go-fast had an image of the Ecuadorian flag printed on the side of the vessel (which is corroborated by a video made by the Coast Guard boarding party that was attached to Mahecha's affidavit). There is no evidence that the officers inquired of the defendants as to the nationality or registration of the vessel, and both Javier Prado and Hector Bautista asserted in their affidavits that the officers did not make any such inquiry. Nor is there evidence (or a contention by the government) that the Coast Guard officers communicated with the registry of Ecuador or any other nation to determine whether the vessel was registered.
PROCEDURAL HISTORY
Following indictment, the defendants moved for various forms of relief, including dismissal of the indictment. The court conducted a hearing to determine whether the vessel was stateless, at which point it received the evidence described above. On the basis of that evidence, the court concluded that the go-fast was stateless and therefore subject to the jurisdiction of the United States under
DISCUSSION
Notwithstanding their having pleaded guilty, the defendants contend their convictions should be overturned, and the indictment dismissed, because the government failed to show that the go-fast was stateless and subject to the jurisdiction of the United States, as required by
I. The Requirements of the MDLEA
The MDLEA, in Section 70503, captioned "Prohibited Acts," prohibits possession of a controlled substance with intent to distribute "even though ... committed outside the territorial jurisdiction of the United States," if the prohibited act is committed aboard a "covered vessel." "Covered vessel" is defined to include three categories of vessels-one being a "vessel subject to the jurisdiction of the United States." The pertinent clauses are as follows:
(a) Prohibitions.-While on board a covered vessel , an individual may not knowingly or intentionally-
(1) manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance; ...
(b) Extension Beyond Territorial Jurisdiction.-Subsection (a) applies even though the act is committed outside the *128 territorial jurisdiction of the United States.
...
(e) Covered Vessel Defined.-In this section the term " covered vessel " means-
(2) any other vessel if the individual is a citizen of the United States or a resident alien of the United States.
(1) a vessel of the United States or a vessel subject to the jurisdiction of the United States ; or
Section 70502, captioned "Definitions," defines "vessel subject to the jurisdiction of the United States" to include a "vessel without nationality," as well as several other categories of vessels including, most prominently, vessels that are in, or entering, or have departed from, the waters of the United States, and, only if the foreign nation consents, vessels that are in the waters of a foreign nation or are registered in a foreign nation.
See
(d) Vessel Without Nationality.-
(1) In general.- In this chapter, the term "vessel without nationality" includes-
(A) a vessel aboard which the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed;
(B) a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and
(C) a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.
(2) Response to claim of registry. - The response of a foreign nation to a claim of registry under paragraph (1)(A) or (C) may be made by radio, telephone, or similar oral or electronic means, and is proved conclusively by certification of the Secretary of State or the Secretary's designee.
(e) Claim of Nationality or Registry. - A claim of nationality or registry under this section includes only-
(1) possession on board the vessel and production of documents evidencing the vessel's nationality as provided in article 5 of the 1958 Convention on the High Seas;
(2) flying its nation's ensign or flag; or
(3) a verbal claim of nationality or registry by the master or individual in charge of the vessel.
Id . § 70502 (emphasis added).
Section 70504, captioned "Jurisdiction and venue," of which part (a) was added to the MDLEA in 1996 4 , provides:
(a) Jurisdiction. -
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 solely by the trial judge.
*129 (b)Venue. - A person violating section 70503 or 70508 -
(1) shall be tried in the district in which such offense was committed; or
(2) if the offense was begun or committed upon the high seas, or elsewhere outside the jurisdiction of any particular State or district, may be tried in any district.
Section 70506(c) provides:
(c) Simple possession. -
(1) In general.-
Any individual on a vessel subject to the jurisdiction of the United States who is found by the Secretary, after notice and an opportunity for a hearing, to have knowingly or intentionally possessed a controlled substance within the meaning of the Controlled Substances Act ( 21 U.S.C. 812 ) shall be liable to the United States for a civil penalty not to exceed $5,000 for each violation. The Secretary shall notify the individual in writing of the amount of the civil penalty.
Accordingly, to prosecute a criminal offense in violation of the MDLEA, the government must establish, as a "preliminary question of law to be determined by the court," that the vessel on which the offense was committed was a covered vessel, which can be "a vessel subject to the jurisdiction of the United States." One way of proving that-the path undertaken by the government in this case-is by showing that the vessel was "without nationality" as defined in § 70502(d). That section offers three ways in which a vessel can be shown to be without nationality. These require that U.S. law enforcement officers take prescribed steps. If there is a "claim of nationality or registry," which can be asserted either by "possess[ing] on board the vessel and produc[ing] ... documents evidencing the vessel's nationality"; by "flying the nation's ensign or flag"; or by "a verbal claim of nationality or registry" by the "master or individual in charge."
II. Whether the Government Showed the Vessel Was "Subject to the Jurisdiction of the United States"
Section 70504(a) imposes the obligation on the trial judge to determine, as a "preliminary question[ ] of law," whether the vessel in question was subject to the jurisdiction of the United States. As § 70504(a) requires that the trial judge make this determination as a preliminary matter, (i.e., prior to a jury trial), the defendants' motion to dismiss the indictment was superfluous in this respect. At the hearing on that question, the burden was on the government to show that the vessel was subject to the jurisdiction of the United States.
See, e.g.
,
United States v. Perlaza
,
The Coast Guard officers faced the question whether the prohibition of the Act applied on board the go-fast when they boarded it in international waters and found a cargo of a controlled substance aboard. The crucial issue became whether the go-fast was registered in any nation. If it was registered, then the vessel was not a covered vessel that was "subject to the jurisdiction of the United States," and the prohibition set forth in MDLEA did not apply. If the vessel was not registered in any nation, then the MDLEA did apply and the defendants' conduct violated U.S. law. The detailed provisions of the statute, reviewed above, offered various ways for determining statelessness.
With respect to the making of a verbal claim of registration by the master (or individual in charge), the formulation of § 70502(e)(3), as to how a claim of registry is made, and that of § 70502(d)(1)(B), as to how a vessel's statelessness is shown, differ in an important respect. Under clause (e)(3), a verbal assertion of nationality by the master constitutes a claim, which is then tested by a U.S. officer's inquiry of the nation's registry authority. On the other hand, the absence of a master's claim of registration does not, by itself, establish absence of registration. It is only if " on request " of a duly authorized officer, the master "fail[s] to make a claim of nationality or registry," that statelessness is established.
The Coast Guard boarding party's inattention to the terms of the statute virtually doomed the prosecution to failure at the investigation stage. If the go-fast was, in fact, not registered in any nation, its status as "subject to the jurisdiction of the United States" could easily have been demonstrated to the satisfaction of the MDLEA's standards if the boarding party had followed statutorily specified procedure. In the absence of indicia of registration such as flying a nation's flag, presenting registration papers, or a volunteered assertion of national registration by the master, the statute calls on the investigating officer to ask the master (or individual in charge) whether the vessel is registered in any nation.
See
The problem for the government in this prosecution was that the Coast Guard officers first failed to follow the procedures by which statelessness can be established, and then destroyed the vessel without having secured a vessel identification number (or other means of identifying the vessel), which made it impossible for the government to establish subsequently by other means that the vessel was without nationality.
The district court found that the vessel was subject to U.S. jurisdiction because the defendants, despite having "every reasonable opportunity, and every good reason, to make a claim of nationality," failed to do so.
*131
United States v. Prado
,
That statutory distinction is only logical. The failure of the master of a vessel to state the vessel's nationality when asked supports a strong logical inference of statelessness. On the other hand, mere silence in the absence of a request for information supports no inference at all. In any event, the statute clearly provides that statelessness is established by the master's failure to assert a claim only when that failure is in response to a request.
The District Court further found that "the go-fast had minimal, if any, identifying features[,] [so that] [a]ttempting to trace the vessel back to any possible [registry] documents on land would ... have been a futile exercise, since there was no meaningful identifying information that could be provided to the Ecuadorian authorities."
The District Court also concluded that the display of the flag of Ecuador affixed to the side of the vessel, as shown on the Coast Guard's video, was not large or prominent enough to qualify as flying Ecuador's flag (which under § 70502(e)(2) qualifies as a claim of nationality).
Prado
,
Because of the Coast Guard's failure to follow statutorily prescribed steps that might have established statelessness at least to the satisfaction of the MDLEA's standards, followed by the Coast Guard's destruction of the vessel, it became virtually impossible for the government to demonstrate to the court in the statutorily mandated preliminary hearing that the vessel was subject to the jurisdiction of the United States and therefore that the MDLEA applied.
Because the evidence presented by the government to the court in support of the preliminary determination required by § 70504 was legally insufficient to support a finding that the go-fast was without nationality and subject to the jurisdiction of the United States, the District Court's finding that the go-fast was subject to the jurisdiction of United States must be vacated.
III. Did the government's failure to demonstrate that the vessel was without nationality mean that the court was without subject matter jurisdiction?
The government argues that its failure to prove the vessel was subject to the jurisdiction of the United States makes no difference because of the rule that a defendant's guilty plea waives all defects other than to the court's subject matter jurisdiction. Defendants respond that the rule cited by the government does not apply because the government's failure to show that the vessel was "subject to the jurisdiction of the United States"
is
a defect as to the court's subject matter jurisdiction. Accordingly, they argue that the federal court lacked subject matter jurisdiction to hear the case, and their guilty pleas did not constitute a waiver of the defect. Although defendants did not make this contention until these appeals, they rely on the proposition that an "objection that a federal court lacks subject-matter jurisdiction may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment."
Arbaugh v. Y&H Corp.
,
We reject the defendants' argument. Although the MDLEA's term, "a vessel subject to the jurisdiction of the United States," has caused confusion, we think it certain for numerous reasons that its function is not to confer subject matter jurisdiction on the federal courts, but rather to specify the reach of the statute beyond the customary borders of the United States. "Jurisdiction" is a chameleon word. The Supreme Court has described it as having "many, too many, meanings."
Id
. at 510,
Judicial jurisdiction raises the question whether a case comes within the judicial power of the court, so that the court possesses the legal power to adjudicate the case. Legislative, or prescriptive, jurisdiction concerns itself with the reach of a nation's (or any political entity's) laws. With respect to conduct occurring outside of a nation's territory, it asks whether the nation possesses, or has exercised, legislative power over those acts.
6
The question whether U.S. statutes reach foreign conduct arises relatively infrequently in the business of the U.S. courts. In contrast, jurisdiction to adjudicate, commonly referred to in the jurisprudence of the federal courts as "subject matter jurisdiction," is an issue that arises on a daily basis in the United States federal courts, because they are courts of limited jurisdiction and are charged with an "an independent obligation to ensure that they do not exceed the scope of their jurisdiction."
See
Henderson ex rel. Henderson v. Shinseki
,
A persuasive opinion of the First Circuit,
United States v. Gonzalez
,
1.
The statutory law governing the subject matter jurisdiction of federal courts over federal criminal prosecutions.
The question whether the federal courts have subject matter jurisdiction over a prosecution of a criminal offense defined by the statutes of the United States is simply and conclusively answered by
To conclude that the district court nonetheless lacked jurisdiction of this prosecution of an offense under the laws of the United States, we would need to conclude that the MDLEA somehow displaced, superseded, or limited § 3231 's express grant of jurisdiction. If it were the intention of the MDLEA to place limits on the federal courts' subject matter jurisdiction to adjudicate such a case notwithstanding their clear empowerment by § 3231 to do so, one would expect the limiting statute to say something to the effect of "notwithstanding § 3231," or "notwithstanding any other provision of law." But there is not a word in the MDLEA to suggest that it conflicts with, limits, or supersedes § 3231 's universal grant of subject matter jurisdiction to the federal courts over criminal offenses specified in federal statutes.
See
Gonzalez,
2.
The Supreme Court's guidance for interpreting ambiguous statutory requirements instructs that such a requirement does not go to subject matter jurisdiction absent a "clear statement" to that effect.
The term "jurisdiction" can carry a variety of meanings; "In very general terms, 'jurisdiction' means something akin to 'authority over.' "
Gonzalez
,
The Supreme Court has repeatedly addressed the problem that arises when a litigant advocates interpreting an ambiguous statutory requirement as a limitation on the subject matter jurisdiction of the federal courts.
See
Henderson
,
The Court has explained that its requirement of a clear statement is justified by the "unfairness and waste of judicial resources ... entailed in tying [a] requirement to subject-matter jurisdiction."
Arbaugh
,
3.
The words "vessel subject to the jurisdiction of the United States" specify how far the prohibitions reach into circumstances potentially conflicting with the sovereignty of other nations and make no apparent reference to the limited subject matter jurisdiction of the district courts
. The natural meaning of the statutory words, if read in context rather than in isolation, clearly specifies (and limits) the scope, reach, or coverage of the statutory prohibition, without reference to the court's jurisdiction. Section 70503(a) make it a criminal offense to possess controlled substances (with intent to distribute)
if the possession occurs "on board a covered vessel
" (emphasis added). "Covered vessel[s]" include three categories: (i) a vessel of the United States; (ii) a vessel on which the individual who possesses the drugs with intent to distribute is a citizen or resident of the United States; (iii) a vessel subject to the jurisdiction of the United States.
See
The MDLEA thus makes clear in what circumstances vessels are covered by the statute's prohibition. If the vessel falls outside the prescribed coverage, it is not a "covered vessel" and the prohibition specified in § 70503 does not apply to it. None of this in any way addresses the jurisdiction of the United States courts, which is normal, because (as demonstrated above) the jurisdiction of the United States courts over "all offenses against the laws of the United States" is provided by another statute.
See
Specifying the circumstances in which a nation's laws apply extraterritorially typifies a legislature's exercise of
legislative jurisdiction
by defining the statute's reach.
7
The general subject of legislative jurisdiction encompasses at least three legislative concerns: (i) whether it is consistent with international law to so extend the reach of the nation's laws; (ii) whether doing so respects comity among nations, or would cause undesired friction with foreign nations; and, finally, (iii) exactly
*137
how the extraterritorial reach of the statute is defined.
8
The relevant provisions of the MDLEA evince concern for each of these. With respect to "vessel[s] subject to the jurisdiction of the United States," the limits Congress imposed on the reach of the MDLEA to stateless vessels in international waters reflect concern for both international law and prescriptive comity.
See
McCulloch v. Sociedad Nacional de Marineros de Honduras
,
Congress here took pains to avoid interference with vessels regulated by other nations (absent the other nation's consent), such as by excluding from coverage vessels registered in other nations in international waters and vessels within the territorial waters of other nations, and by specifying the particular facts that can demonstrate that a vessel is without nationality and thus subject to the jurisdiction of the United States. In so doing, it specified the extent to which the law overcomes the "presumption against extraterritoriality," that U.S. laws are generally presumed to have only domestic effect unless Congress clearly manifests a contrary intention.
See
Morrison v. Nat'l Australia Bank Ltd.
,
The Supreme Court has chastised us before for treating a question of the prescriptive reach of a U.S. statute as if it placed a limit on the subject matter jurisdiction of the federal courts. In
Morrison
, our court had dismissed for lack of subject matter jurisdiction a civil suit alleging violation of the antifraud provision of the Securities Exchange Act of 1934 because we concluded that the statute did not apply to the wholly foreign facts.
See
Morrison,
This is not to say that the MDLEA is devoid of potential confusions. In 1996, after many years of its prohibition on possession of controlled substances on vessels "subject to the jurisdiction of the United States," Congress added the provisions now identified as § 70504(a) that "[j]urisdiction of the United States ... is not an element of an offense," and that "[a]ll jurisdiction issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge."
There are, however, strong reasons to reject that interpretation of the amendment. First, if Congress had intended this addition to change drastically the meaning of the prohibition on possession of narcotics on vessels subject to the jurisdiction of the United States, this would have been an oddly obscure and indirect way to go about saying something that would have been so easy to state in straightforward fashion.
The provisions of § 70504(a) were enacted a year after the Supreme Court decided in
United States v. Gaudin
,
*139
There is a significant conceptual difference between provisions of a criminal statute that identify the offensive conduct prohibited and provisions that specify the conditions necessary for the statute to reach that conduct. The Supreme Court later explicitly recognized the difference in
Torres v. Lynch
, --- U.S. ----,
It is true, as Judge Boudin observed in
Gonzalez
,
The MDLEA's legislative history contains no suggestion "that Congress had in mind the court's subject matter jurisdiction or that it meant to prevent a guilty plea from being given its normal effect."
Gonzalez
,
The Conference substitute [for diverging Senate and House versions of the bill] establishes new law enforcement provisions which expand the Government's prosecutorial effectiveness in drug smuggling cases. Claims of foreign registry must be "affirmatively and unequivocally" verified by the nation of registry to be valid. People arrested in these international situations would not be able to use as a defense that the U.S. was acting in violation of international law regarding recognition of registry at the time of the arrest. ... Jurisdictional issues would always be issues of law to be decided by the trial judge, not issues of fact to be decided by the jury.
142 Cong. Rec. H11485 § 1138 (Sept. 27, 1996). The President's signing statement similarly announces a goal to "strengthen *140 drug interdiction by clarifying U.S. jurisdiction over vessels in international waters." Presidential Statement on Signing the Coast Guard Authorization Act of 1996, 1996 PUB. PAPERS 1869 (Oct. 19, 1996). Interpreting the statutory reference to "jurisdiction of the United States" as meaning the subject matter jurisdiction of the federal courts, thus enabling defendants who had pleaded guilty to reopen the issue of statelessness long after their pleading guilty (at a time when the government might no longer be able to prove the necessary facts to establish jurisdiction), would weaken, not strengthen the Act's effectiveness in drug interdiction. The meaning of § 70503 did not change as a result of the addition of a requirement that the court decide jurisdiction as a matter of law.
4. Interpreting the phrase, "a vessel subject to the jurisdiction of the United States," as meaning a restriction on the jurisdiction of federal courts to hear a case (rather than as a limitation on the reach of the statute), would give the prohibitory terms of the statute a highly expansive, bizarre, unlikely meaning that would affront the sovereignty of other nations. Interpreting the phrase, "vessel subject to the jurisdiction of the United States" as a limitation on the jurisdiction of the U.S. courts (rather than as a limitation on the reach of the statute), apart from the fact that it distorts the clear apparent meaning of the statute's words, causes bizarre distortions to the meaning of the statute that Congress is highly unlikely to have intended.
For example, the jurisdiction of the court to adjudicate the prosecution would turn on the government's ability to prove that the vessel was "covered" for one of the three categories of "covered vessel[s]," but not for the other two. Thus, if the prosecution is brought on the theory that the vessel is a "vessel of the United States" (because the vessel is "owned in any part by an individual who is a citizen of the United States,"
see
Interpreting "subject to the jurisdiction of the United States" as a limitation on the jurisdiction of the court, rather than on the reach of the statute, would have still more bizarre consequences for the meaning of the statute. If that phrase is a limit on the jurisdiction of the court, rather than on the reach of the statute, it would mean that the statute prohibits drug possession on foreign-registered vessels and on vessels in the waters of foreign nations, regardless of whether those nations consented. The United States Coast Guard would be authorized to enforce violations by boarding such vessels in the waters of foreign nations, seizing the drugs, and arresting foreign nationals in *141 possession. 10 The only limitation on enforcement would be the unavailability of a court to impose criminal penalties. Passing a law purporting to criminalize drug possession by aliens on vessels registered in other nations or in the waters of other nations would create the very sort of affront to other nations that Congress clearly sought to avoid by the way it tailored the statute's coverage. The words of the statute show a clear intent of Congress's that the statute not apply in such circumstances that would affront the sovereignty of other nations. That intent is realized only if "vessel subject to the jurisdiction of the United States" is construed as a limitation on the reach of the statute.
Finally, it would have been inexplicably strange for Congress to criminalize drug possession in those circumstances, only to deny the courts authority to adjudicate the prosecutions for the violations.
5. The verbal formulations of statutes conferring subject matter jurisdiction on the courts uniformly adopt a very different terminology. It is further instructive to compare the language of the MDLEA with the many acts of Congress that do confer subject matter jurisdiction on the federal courts. Section 3231, which confers subject matter jurisdiction in the federal courts in criminal cases, and the many statutes of Chapter 85 of the Judicial Code, Title 28, U.S. Code, that confer subject matter jurisdiction on the federal courts in civil cases, uniformly employ a forthright formulation, clearly stating, with tiny variations, "The district courts ... shall have ... jurisdiction of [a specified category of case]." 11 The MDLEA contains no such language.
*142 The point is not merely that the MDLEA's formulation differs from that used by Congress to confer jurisdiction on the federal courts. The MDLEA not only uses a very different formulation, but one which, on its face, contains neither a "clear statement" of intent to affect the jurisdiction on the federal courts, nor even a less-than-clear statement of such intent. If Congress had intended, either implicitly in enacting §§ 70502 and 70503, or in the 1996 amendment, to limit the subject matter jurisdiction of the federal courts, there is every reason to believe it would have used a formula that communicated the intended message. The proposition that the federal courts will have jurisdiction of a specified category of cases is so easy to state in clear, simple language, that it would be inexplicably astonishing if Congress, desiring to achieve that objective, had done such a bad job of stating it in the statutory language.
6. Other provisions of the MDLEA and of Title 46 use the formulation of § 70503 in circumstances that cannot refer to the subject matter jurisdiction of the federal courts. Perhaps what most persuasively demonstrates that § 70503 's use of the phrase "vessel subject to the jurisdiction of the United States" is not intended to confer subject matter jurisdiction on the federal courts is that other provisions of the MDLEA and Title 46 employ the same terminology referring to vessels and waters "subject to the jurisdiction of the United States" in a manner that cannot refer to the subject matter jurisdiction of the U.S. courts. Other statutes throughout *143 Title 46, the shipping title of the United States Code, use the phrase "subject to the jurisdiction of the United States" to refer to the waters where the provisions of United States laws will apply. 12 These provisions do not contemplate proceedings in the federal courts. Some of these references authorize the Secretary to prescribe regulations governing shipping in waters "subject to the jurisdiction of the United States." Their context clearly refers to the reach of U.S. law and not to the subject matter jurisdiction of the U.S. courts.
The most pertinent to our inquiry is another provision of this very statute. Section
*144
70506(c) of the MDLEA, enacted in 2010,
13
which, like § 70503(a), prohibits drug possession on "a vessel subject to the jurisdiction of the United States," applies in circumstances in which the federal courts will play no role whatsoever. Mere possession of a controlled substance (i.e., without intent to distribute) on "a vessel subject to the jurisdiction of the United States," is declared to be a "violation," to be enforced in administrative proceedings conducted by the Secretary. Thus, another section of the same statute employs the same phrase ("a vessel subject to the jurisdiction of the United States") in the same context (prohibiting drug possession on board the vessel), having no reference to the subject matter jurisdiction of the United States courts, as the proceedings it authorizes will not be conducted in the United States courts. To accept the defendants' argument that "a vessel subject to the jurisdiction of the United States," as used in §§ 70502 and 70503, means a limitation on the subject matter jurisdiction of the federal district courts, one would need to construe these words as having a drastically different meaning from the same words used in the same context to define a less serious violation specified in § 70506.
See
Sorenson v. Sec. of the Treasury of the U.S.
,
7. No prior court decisions have advanced persuasive arguments for construing this statute as a limitation of the jurisdiction of the federal courts.
While in a few instances courts have treated the MDLEA's reference to a "vessel subject to the jurisdiction of the United States" as a limitation on the subject matter jurisdiction of the federal courts, the majority of those decisions have simply assumed reflexively that a reference to "jurisdiction" means the subject matter jurisdiction of the court, without considering any possible alternative meaning. Only three opinions of Courts of Appeals,
Gonzalez
,
We turn to the decisions of the various Circuits that treat this language as referring to the subject matter jurisdiction of the court. The majority of opinions dealing with convictions for violation of the MDLEA have been, not surprisingly in view of its geographic situation, in the Eleventh Circuit. Defendants cite the Eleventh Circuit's decision in
United States v. De La Garza
,
The previous
Tinoco
opinion had not interpreted the statutory phrase as referring to the subject matter jurisdiction of the courts; it had simply adopted that interpretation from prior rulings of the Eleventh Circuit in
United States v. Medina
,
In sum, throughout the history of MDLEA litigation in the Eleventh Circuit, the court never decided whether the MDLEA's reference to "a vessel subject to the jurisdiction of the United States" refers to the reach of the United States statute or to the subject matter jurisdiction of the United States court to adjudicate the criminal prosecution. The Circuit's most recent case, De La Garza , the only case in which the question was raised, explicitly left the issue unresolved.
In
Miranda
,
The opinion cites no evidence in support of its speculation that Congress was concerned to free criminal defendants after pleading guilty to raise for affronts to comity and international law. That proposition, furthermore, is both far-fetched and inconsistent with explicit provisions of the MDLEA. Section 70505 specifies that a defendant "does not have standing to raise a claim of failure to comply with international law as a basis for a defense." It adds that "a failure to comply with international law does not divest a court of jurisdiction and is not a defense."
The government has no need, furthermore, to rely on defendant-drug traffickers to protect the Nation's interest in its foreign relations. The Departments of State and Justice are both parts of the executive branch. If a particular prosecution would cause undesirable friction with a foreign nation because of Coast Guard transgressions on another nation's maritime sovereignty, the government can simply drop the prosecution without need for the defendant to serve as a protesting ambassador, and without need for the court's approval to achieve a diplomatic objective.
Cf.
Kiobel v. Royal Dutch Petroleum Co
.,
A further serious flaw in the Miranda opinion's assessment is its unawareness that, as explained above in Part III(c) at page 50, the same shipping title of the United States Code repeatedly uses the phrase-"subject to the jurisdiction of the United States"-to mean legislative jurisdiction, including a nearly identical usage in the MDLEA to prescribe a variant of the prohibited conduct where the reference cannot be to the subject matter jurisdiction of the federal court as the court will have no role in the prosecution.
*148
While quoting from the Supreme Court's
Arbaugh
opinion to the effect that "[i]f the Legislature clearly states that a threshold limitation on the statute's scope shall count as jurisdictional, then courts will be duly instructed,"
Miranda
,
Miranda argues that congressional intention to refer to subject matter jurisdiction is clearly stated, indeed "self-evident," because § 70504(a) groups references to "jurisdiction" together with the provision relating to venue, which "by nature speaks to the authority of the district court to hear a case." Id . at 1196 (The "entire provision, including the references to 'jurisdiction' self-evidently concerned the authority of district courts, not the legislative authority of Congress." (emphasis added)). We respectfully disagree. If § 70504 were being construed in isolation, the argument would have more force. But the mere fact that § 70504 's reference to jurisdiction is grouped with a provision for venue does not negate and alter the meaning of the jurisdictional provision it refers to in § 70503. The grouping in § 70504 makes perfect sense with regard to the MDLEA's grouping of subjects. Sections 70502 and 70503 specify the definition of the offense and the reach of the statute. Section 70504 turns to issues for trial, designating the proper district for trial and telling how issues are to be divided as between judge and jury. The grouping of issues in § 70504 furnishes no reason to interpret the language of §§ 70502 and 70503 as meaning anything other than what it appears on its face to say.
Miranda
further argues that "when Congress establishes a so-called 'jurisdictional element' addressing the reach of its legislative authority, Congress does not use the term 'jurisdiction' in the statute."
Id
. at 1195.
Miranda
illustrates the proposition by referring to statutes criminalizing conduct when committed "by ... 'an officer, director, agent or employee ... with any Federal Reserve bank' " or making it unlawful to possess in a school zone a firearm "that has moved in or that otherwise affects interstate or foreign commerce."
Id
. (quoting
A final illogic we find in Miranda 's arguments is that, while giving great importance to this altogether understandable use of a different approach to the identification of "jurisdictional elements" than in other statutes, Miranda dismisses without discussion the government's observation that the MDLEA formulation, if construed as conferring subject matter jurisdiction on the courts, differs drastically from the virtual blueprint statutory formulation that is used again and again in the United States Code to confer subject matter jurisdiction on the federal courts. Id . at 1195. (See discussion above at III(4)).
The reasoning of the Fifth Circuit in
Bustos-Useche
,
The government argued that by pleading guilty without reservation, the defendant had waived the claim. The Fifth Circuit reasoned that whether the defendant had waived the claim turned on "whether the jurisdictional requirements of [the MDLEA] are merely substantive elements of the crime or prerequisites of the district court's subject matter jurisdiction."
As with Miranda , the Bustos-Useche court reached its conclusion that the statute's jurisdictional requirement was a limitation on the court's subject matter jurisdiction without awareness that § 70506(c) and Title 46 use the same language in *150 circumstances that unmistakably refer to the reach of the statute and cannot mean to define the subject matter jurisdiction of the courts. The Bustos-Useche court, in 2001, furthermore, did not have the benefit of the Supreme Court's later admonition in the Arbaugh triad that statutory references to "jurisdiction" should not be interpreted as limitations on subject matter jurisdiction unless that intention was "clearly stated" in the statute. And, as discussed above, the fact that Congress did not regard the vessel's subjectivity to the reach of U.S. law as an offense element did not necessarily mean, as the court seemed to assume, that Congress considered this requirement as a limitation on the subject matter jurisdiction of the federal courts. At the time of the 1996 amendments, there was no judge-made law to the effect that Congress could not, consistent with the Sixth Amendment, withdraw a jurisdictional element from jury consideration. 16 In *151 our view, none of the opinions construing the MDLEA's jurisdictional requirements as a limitation on the subject matter jurisdiction of the federal courts refutes the persuasive reasoning of Gonzalez , especially as supplemented by the MDLEA's and Title 46's usages of the same words in provisions that cannot refer to the subject matter jurisdiction of the courts.
IV. Whether Defendants' Guilty Pleas Must Be Vacated Because of Deficiencies in the Plea Proceedings.
The final question before us is whether, even if the MDLEA's jurisdictional requirement pertains to the reach of the statute and not to the subject matter jurisdiction of the court, the defendants' guilty pleas nonetheless should not be treated as waivers of their claim that the jurisdiction of the United States was not shown, because the plea procedure did not adhere to the requirements of Fed. R. Crim. P. 11. The rule advocated by the government-that a guilty plea waives all defects except to the court's jurisdiction-applies only to valid guilty pleas, and the defendants' guilty pleas were defective.
Our court and others have ruled that a defective guilty plea will not necessarily be deemed to waive all objections to a conviction. For example, we ruled in
United States v. Gonzalez
,
*152
Fed. R. Crim. P. 11(b)(1)(C), in failing to tell the defendant of his right to have the jury determine drug quantity, and a violation of the obligation under Rule 11(b)(3) to determine that there was a "factual basis for the plea" with respect to drug quantity-required that the judgment of conviction be vacated and the defendant be permitted to withdraw his plea. In
United States v. Fisher
,
Notwithstanding the provision of Rule 11(h) that "a variance from the requirements of this rule is harmless error if it does not affect substantial rights," Fed. R. Crim. P. 11(h), we have found in several instances that deficiencies in the Rule 11 proceedings did affect substantial rights and therefore prevailed over the concept that a plea waives all defects. Repeatedly, we have ruled that the court's failure to elicit a factual basis for the conviction would justify vacating the plea.
See, e.g.,
United States v. Culbertson
,
In this instance, we find that the plea proceedings departed from the requirements of Rule 11 in two significant related respects. Rule 11(b)(1)(G) requires that the court "must inform the defendant of, and determine that the defendant understands, ... the nature of each charge to which the defendant is pleading." Fed. R. Crim. P. 11(b)(1)(G). Rule 11(b)(3) requires the court to "determine that there is a factual basis for the plea."
The defendants could not be guilty of the offense unless the vessel on which they possessed drugs was "subject to the jurisdiction of the United States." The theory of the prosecution was that the vessel was subject to the jurisdiction of the United States because it was a "vessel without nationality." In advising the defendants of the nature of the charge, the court did inform them of aspects of the requirements of the charge, such as that they were accused of "conspiracy, that is to say an agreement between each defendant and at least one other person, to violate the Maritime Drug Law Enforcement Act by dealing in cocaine." App'x 388. But the court made no reference either to the requirement *153 that the vessel have been subject to the jurisdiction of the United States or to the crucial issue of its statelessness. Nor did the defendants demonstrate awareness in their allocutions of the crucial significance of statelessness. Each of them acknowledged having agreed to transport cocaine on a boat that traveled the high seas, but none said anything about the boat's nationality or of its being subject to the jurisdiction of the United States.
The court may have believed it was unnecessary to explain these issues in view of the fact that the defendants had moved through counsel to dismiss the indictment on the ground that statelessness had not been established. But Rule 11 does not allow the court to assume that a pleading defendant understands the charge because its nature has been the subject of discussion and argument by the defendant's counsel. A plea of guilty requires the personal participation of the defendant, and the court is obligated to inform the defendant of the nature of the charge.
In addition, the court failed to determine, as required by Rule 11(b)(3), that there was "a factual basis for the plea." In view of the probability, as a practical matter, that the defendants did understand from their attorneys that statelessness was an issue, this violation was even more problematic. In fact, as discussed at length in the early portions of this opinion, there was no factual basis for the plea, at least so far as could be demonstrated. Because of the Coast Guard's failure to follow statutorily approved procedures for demonstrating the statelessness of the vessel and its subsequent destruction of the vessel, the government was unable to demonstrate that the vessel was stateless and therefore "subject to the jurisdiction of the United States," unless the defendants themselves supplied the missing information. The defendants never provided this information, and in fact, as defendants note, there was no mention of the issue of statelessness during the plea proceedings.
Rule 11(h) provides that "[a] variance from the requirements of this rule is harmless error if it does not affect substantial rights." Fed. R. Crim. P. 11(h). If the record had presented a convincing showing that the defendant understood the nature of the charges in pleading guilty, and sources other than the defendants' allocutions confirmed a factual basis for the plea, the violations of Rule 11 would perhaps not have affected substantial rights. But where the record provided no basis for a finding that the vessel was unregistered, or otherwise subject to the jurisdiction of the United States, the defendants' drug possession did not come within the reach of the MDLEA. They had not committed a criminal offense under the laws of the United States. There was no valid basis for their convictions. The deficiencies in the
Rule 11 procedure affected the defendants' substantial rights. Their guilty pleas and the judgments of conviction must be vacated.
VI. Disposition.
Section 70504(a) of the MDLEA requires the court to make a preliminary determination of jurisdictional issues. The import of this rule, although unstated, is that if the government fails to establish the jurisdictional element, such as by failing to show that the vessel was subject to the jurisdiction of the United States, the court should dismiss the indictment. In this case, for reasons explained above, the indictment should have been dismissed upon the government's failure to demonstrate at the pretrial hearing that the vessel was subject to the jurisdiction of the United States. The error was not cured by *154 the defendants' subsequent defective guilty pleas.
CONCLUSION
The judgments of conviction are hereby VACATED and the indictment is DISMISSED.
Pooler, Circuit Judge, concurring in the judgment:
The Maritime Drug Law Enforcement Act (the "MDLEA") makes it illegal to engage in specified drug trafficking activity "[w]hile on board a covered vessel."
The majority and I both agree that the government has failed to establish that Defendants-Appellants' "go-fast" was a "vessel subject to the jurisdiction of the United States." Id . § 70503(e). Moreover, we both agree that that failure requires vacatur of the judgments of conviction and dismissal of the indictment. We disagree, however, about why the government's failure in this regard demands that result.
Our disagreement centers on the following statutory command: "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 solely by the trial judge."
If I agreed that the language in Section 70504(a) does not speak to federal courts' subject-matter jurisdiction, I would further agree with the majority regarding the inadequacy of the plea proceedings. However, consistent with the majority of circuits to consider the issue, I would hold that the MDLEA imposes limits on federal courts' subject-matter jurisdiction.
See
United States v. Miranda
,
DISCUSSION
I. The Clear-Statement Rule
To determine whether statutory language imposes a limit on federal courts' subject-matter jurisdiction, we ask whether that language "clearly states" that the limitation at issue is "jurisdictional."
Reed Elsevier, Inc. v. Muchnick
,
Although the Supreme Court has described this rule as a "readily administrable bright line,"
For instance, in
Arbaugh
, the Supreme Court held that Title VII's 15-employee numerosity requirement was not a jurisdictional limitation.
Applying this rule to Section 70504(a), I find clear indication that Congress intended to impose limits on federal courts' jurisdiction. In other words, if alleged criminal conduct occurs on a vessel that is not subject to the jurisdiction of the United States, then any corresponding criminal charges are beyond federal courts' jurisdiction to entertain.
II. The MDLEA Limits Federal Courts' Jurisdiction
The strongest indication that Congress intended to limit federal courts' subject-matter jurisdiction is in the structure of the relevant statutory provision itself.
See
Reed Elsevier
,
*156
Moreover, that the MDLEA makes "[j]urisdictional issues ... preliminary questions of law to be determined solely by the trial judge,"
Although this understanding of the reference to jurisdictional issues in Section 70504(a) is, admittedly, not without fault, the other possible understandings of that term do not withstand scrutiny. Most significantly, if the concept of jurisdiction as it is employed in Section 70504(a) is meant to encompass the reach of the MDLEA-that is, the reach of Congress's legislative jurisdiction-rather than the federal courts' jurisdiction, it is necessarily transformed into a jurisdictional element of the offense. That interpretation is contrary to the clear statutory language and injects serious constitutional concerns into the statute.
Generally, when Congress is concerned with its own legislative power, it delineates the limits of that power in the definition of the crime it creates in what has become known as a "jurisdictional element."
See
Gonzalez
,
As noted above, the problem with treating the reference to jurisdiction in Section 70504(a) as an element of the offense is twofold. First, it contradicts the explicit language of the statute, which provides, "Jurisdiction of the United States with respect to a vessel subject to this chapter
is not an element of an offense
."
Second, and more significantly, even if we were content to disregard that clear instruction, construing the MDLEA's reference to jurisdiction as a jurisdictional element creates serious constitutional problems. That is because the Fifth and Sixth Amendments "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt."
United States v. Gaudin
,
However, Section 70504(a) provides that "[j]urisdictional issues" are "to be determined solely by the trial judge."
I also reject the notion that Congress instead permissibly created a "preliminary question[ ] of law,"
Construing a statute to instead create a middle path that navigates between these two choices perilously dulls the line between "what conduct [a statute] prohibits,"
Morrison v. Nat'l Austl. Bank Ltd.
,
Finally, as the District of Columbia Circuit has observed, "there are strong reasons"-grounded in international comity concerns rather than solicitude for defendants' rights-"to conclude that Congress intended the 'jurisdiction of the United States with respect to a vessel' to be non-waivable and non-forfeitable by a defendant and to be independently confirmed by courts regardless of whether it is raised."
Miranda
,
The majority's most persuasive point is that
The majority also observes that Title 46 of the United States Code repeatedly uses the phrase "vessel subject to the jurisdiction of the United States" in contexts that clearly do not refer to courts' subject-matter jurisdiction. That is true. However, I simply do not attach the same significance to that fact. There are numerous other instances where a particular phrase takes on jurisdictional significance in one statute but not others. Consider
CONCLUSION
I conclude with the following observation. The majority and I chart different courses but reach the same destination: the conclusion that Defendants-Appellants' convictions must be vacated and the indictment dismissed. Thus, in this case, there is little practical consequence, if any, whether one understands the jurisdictional issues referenced in Section 70504(a) as referring to courts' subject-matter jurisdiction or only the reach of the MDLEA itself. I suspect the same will be true in most MDLEA cases.
Indeed, even if, as in this case, a criminal defendant pleads guilty, he or she can
*160
still challenge on appeal whether the vessel on which he or she was apprehended was "subject to the jurisdiction of the United States."
See
Because I agree with the disposition of this appeal, I concur in the judgment.
The changing views of each member of the panel over time regarding the proper disposition of this case have substantially delayed the formation of a durable majority in favor of any particular disposition and required reassignment of authorship of the majority opinion.
Mahecha does not purport to have witnessed the events described in his sworn statement. His description of the events is "based on [ ] participation in the investigation, [ ] conversations with other [unidentified] law enforcement agents, and [ ] review of documents obtained during the investigation." App'x 13.
We use the term "officers" in reference to the Coast Guard personnel solely to signify their function in this episode as law enforcement officers, without reference to whether they held commissioned or enlisted rank in the Coast Guard.
Pub.L. No. 104-324, § 1138(a)(5),
The government's evidence showed that none of the three defendants identified himself as the master. That did not prevent the officers from making the inquiry. They could have asked all three persons whether the vessel was registered, and if none responded, that would have shown a failure by whichever was in charge to make a claim.
Willis L. M. Reese, the reporter for the second conflict of laws restatement, defines "legislative jurisdiction" as "the power of a state to apply its law to create or affect legal interests." Willis L. M. Reese, Legislative Jurisdiction,
The Fourth Restatement of Foreign Relations Law makes a similar distinction, employing the term "jurisdiction to prescribe":
The foreign relations law of the United States divides jurisdiction into three categories:
(a) jurisdiction to prescribe, i.e., the authority of a state to make law applicable to persons, property, or conduct;
(b) jurisdiction to adjudicate, i.e., the authority of a state to apply law to persons or things, in particular through the processes of its courts or administrative tribunals; and
(c) jurisdiction to enforce, i.e., the authority of a state to exercise its power to compel compliance with law."
See Restatement (Fourth) of Foreign Relations Law, § 401-Categories of Jurisdiction (2018).
Restatement (Fourth) of Foreign Relations Law, § 401-Categories of Jurisdiction (2018) (defining "jurisdiction to prescribe" as a state's authority "the authority of a state to make law applicable to persons, property, or conduct"); Willis L. M. Reese, Legislative Jurisdiction, 78 COLUM. L. REV. 1587, 1587 (1978) (describing "legislative jurisdiction" as "the power of the state to apply its law to create or affect legal interest").
Courts have long assumed that Congress, in deciding whether and the extent to which it exercises extraterritorial prescriptive jurisdiction, bears in mind the potential for international discord that may arise from aggressive exercises of extraterritorial jurisdiction. Restatement (Fourth) of Foreign Relations Law, §
405-Reasonableness in Interpretation
, cmt. a (2018) ("Reasonableness and prescriptive comity: In interpreting the geographic scope of federal law, courts seek to avoid unreasonable interference with the sovereign authority of other states. This principle of interpretation accounts for the legitimate sovereign interests of other nations.");
F. Hoffman-La Roche Ltd. v. Empagran. S.A
,
Judge Boudin's concern came closer to realization in 2016, when the Supreme Court rendered decisions in
Torres
and
Taylor v. United States
, --- U.S. ----,
As Justice Breyer observed in
Kiobel v. Royal Dutch Petroleum Co.
,
See, e.g.
,
See, e.g.,
Maritime Drug Law Enforcement Act,
Like
Medina
and
Ayarza-Garcia
, our court
assumed
in
United States v. Pinto-Mejia
, that the reference to "jurisdiction of the United States" in the predecessor to § 70503 meant the subject matter jurisdiction of the court.
That decision cannot be counted as a holding on the question we consider here-whether the statute's reference to "a vessel subject to the jurisdiction of the United States" defines the reach of the statute or the subject matter jurisdiction of the court-because the court never considered the question. The government made no argument that the statutory reference to "jurisdiction" implicated the reach of the statute rather than the jurisdiction of the court, and the court simply assumed that it referred to subject matter jurisdiction. Furthermore, at the time of the decision, the Supreme Court had not yet uttered its admonishments (in the Arbaugh triad discussed above).
The meaning of the statutory invocation of "jurisdiction" arose again in our court shortly thereafter in a manner that has no influence on our decision because the court did not purport to resolve the confusion. In
United States v. Henriquez
,
The provision of § 70505 that a failure to comply with national "does not divest the court of jurisdiction" demonstrates that, when Congress wanted to speak of the court's jurisdiction, it did so directly and clearly.
Judge Pooler's concurring opinion expresses the view that the MDLEA "clearly states" a Congressional intent that the words, "a vessel subject to the jurisdiction of the United States" serve as a limitation on the subject matter jurisdiction of the federal courts. Concurring Op. at 154, 155. The only statutory text on which Judge Pooler relies as supporting her finding of such intention is § 70504(a), which says:
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 solely by the trial judge.
Judge Pooler argues that Congress cannot have intended its use of the word "jurisdiction" as a so-called "jurisdictional element" referring to Congress's legislative jurisdiction (to define the reach of the statute), or provided that it was "to be determined solely by the trial judge," for two reasons: First, that would be "contrary to the clear statutory language" providing that "[j]urisdiction of the United States with respect to a vessel ... is not an element of an offense," and second, such an interpretation would "inject[ ] serious constitutional concerns into the statute," Concurring Op. at 156, because "the Fifth and Sixth Amendments 'require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged beyond a reasonable doubt.' " Concurring Op. at 157 (quoting
United States v. Gaudin
,
We find neither argument persuasive. Both fail for the same reason. Both arguments are based on law established by the Supreme Court many years after Congress enacted § 70504(a). Neither contemplates the law as it was in 1996. When Congress enacted § 70504(a), jurisdictional elements of criminal statutes relating to Congress's exercise of its legislative jurisdiction were widely regarded as different from the substantive elements of the criminal offense that defined the antisocial conduct being prohibited. At the time, there was no inconsistency between Congress prescribing what was called a "jurisdictional element" and asserting that the jurisdictional element is "not an element of an offense." Nor was it constitutionally objectionable to consign the jurisdictional element to the trial judge, rather than the jury.
Seventeen years later, such a distinction became problematic when the Supreme Court asserted in
Alleyne v. United States
,
Judge Pooler also offers a policy-based reason for her interpretation. Following views expressed by the D.C. Circuit in
Miranda
, she argues that, because of the risk of harm to international relations arising from arrests and seizures on foreign vessels outside the United States, the issue of the jurisdiction of the United States with respect to a vessel should be "insulated from waiver or forfeiture by a defendant" so that the courts "in every case-and at every level of review-[could] assure that the requirement is satisfied." Concurring Op. at 158-59 (quoting
Miranda
,
Judge Pooler attributes to Congress an intention to rely on defendants to protect the interests of foreign nations and thus guard against international friction by raising failures of proof that a vessel was within the jurisdiction of the United States even after having pled guilty. She fails, however, to acknowledge that the terms of the statute provide strong evidence that Congress's intention was the contrary. Section 70505 of the MDLEA specifies that a defendant "does not have standing to raise a claim of failure to comply with international law as a basis for a defense." It adds that "[a] failure to comply with international law does not divest a court of jurisdiction and is not a defense."
The majority does not pause long on this point, concluding that Congress used the heading "Jurisdiction and venue" merely because the section "turns to issues for trial." I do not find such a facile explanation persuasive in light of the other instances in which Congress has used that heading in circumstances that clearly relate to a court's subject-matter jurisdiction.
E.g.
,
Indeed, Congress appears to have added the disputed language in 1996 in response to the fact that the circuit courts of appeal that had explicitly decided the issue had treated the jurisdictional provisions of the MDLEA as creating a jurisdictional element.
See
United States v. Medina
,
Contrary to the majority's suggestion, the notion that jurisdictional elements must be proven to a jury beyond a reasonable doubt pre-dates Congress's 1996 revisions to the MDLEA,
see, e.g.
,
United States v. DiSanto
,
The majority concludes that Defendants-Appellants' boat was not subject to the jurisdiction of the United States, and thus, their guilty pleas lacked a factual basis. In other words, "[t]he defendants could not be guilty of the offense unless the vessel on which they possessed drugs was 'subject to the jurisdiction of the United States.' "
The majority claims to find support in
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Javier Joaquin Alarcon PRADO, Luis Armando Valencia Bautista, Hector Valencia Bautista, Defendants-Appellants.
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