UNITED STATES OF AMERICA v. ALEXANDER OBANDO; UNITED STATES OF AMERICA v. LAUREANO ROBERTO QUIROZ-MENDOZA; UNITED STATES OF AMERICA v. ALFONSO BITALIANO MARCILLO-MERA
No. 17-11202
No. 17-11276
No. 17-11313
United States Court of Appeals, Eleventh Circuit
June 1, 2018
D.C. Docket Nos. 1:16-cr-20962-FAM-3, 1:16-cr-20962-FAM-2, 1:16-cr-20962-FAM-1
[PUBLISH]
Appeals from the United States District Court for the Southern District of Florida
Before WILLIAM PRYOR, JILL PRYOR, and BLACK, Circuit Judges.
This appeal requires us to decide whether a flag painted on the side of a vessel is “flying” for the purpose of making a “claim of nationality or registry” under the Maritime Drug Law Enforcement Act,
I. BACKGROUND
On November 17, 2016, the United States Coast Guard Cutter Edmonton spotted the Siempre Malgarita, a 32-foot “go-fast” vessel, in international waters approximately 208 nautical miles off the coast of Guatemala. A Marine Patrol Aircraft observed the crew of the Siempre Malgarita “jettison[ing] packages into the water,” and the Edmonton launched a small vessel to investigate these packages, which tested positive for cocaine. The Edmonton also launched a second small vessel that intercepted the Siempre Malgarita.
The parties stipulated to facts about the interception that we use to assess jurisdiction. See United States v. Iguaran, 821 F.3d 1335, 1337 (11th Cir. 2016) (“Parties may . . . stipulate to facts that bear on our jurisdictional inquiry.” (emphasis omitted) (citation and internal quotation marks omitted)). The guardsmen approached the Siempre Malgarita and identified her crew as Alexander Obando, Laureano Roberto Quiroz-Mendoza, and Alfonso Bitaliano Marcillo-Mera. The guardsmen also determined that Marcillo-Mera was the master of the vessel. All three crew members are citizens of Ecuador.
The guardsmen attempted to determine the nationality of the Siempre Malgarita, but none of the vessel‘s occupants made a verbal claim of nationality or registry for the vessel. Marcillo-Mera also failed to produce documents evidencing nationality or to identify the homeport of the vessel or its last port of call. Indeed, when asked, Marcillo-Mera told the guardsmen that “he did not know” the vessel‘s nationality. See
The guardsmen noticed a flag painted on the hull of the vessel, and they “believed it was a Colombian flag.” But when they asked Marcillo-Mera about the flag, he asserted that it was the flag of Ecuador.
The two national flags are similar in appearance. The flag of Ecuador consists of horizontal bands of yellow, blue, and red and has a coat of arms in its center.
The flag of Colombia does not have a coat of arms but is otherwise identical.
The Flag of Colombia
The Coast Guard sent a “Form 1: Action Request” to the government of Ecuador to determine whether the Siempre Malgarita was registered in Ecuador. On the form, the Coast Guard stated that the vessel lacked a “claimed nationality,” but it acknowledged a “flag state claim via” “vessel markings.” Ecuadorian officials could not confirm the nationality or registry of the vessel, and the Coast Guard never communicated with Colombian officials. The Coast Guard determined that the Siempre Malgarita was a vessel without nationality subject to the jurisdiction of the United States under the Maritime Drug Law Enforcement Act, see
After the government charged the crew members with drug offenses, Marcillo-Mera moved to dismiss the charges on the basis that the United States lacked jurisdiction. He asserted that the Colombian flag painted on the Siempre Malgarita “was a claim of [Colombian] nationality in and of itself” and that “the Coast Guard contacted the incorrect flag state” when it instead communicated with Ecuadorian officials. A magistrate judge recommended that the district court deny the motion. The magistrate judge determined that the
The district court adopted the report and recommendation. All three crew members then conditionally pleaded guilty to conspiracy to possess with intent to distribute a controlled substance in violation of the Act, see id.
II. STANDARD OF REVIEW
Whether the United States has extraterritorial jurisdiction under the Act is a question of law that we review de novo. See Iguaran, 821 F.3d at 1336.
III. DISCUSSION
We divide our discussion in two parts. First, we explain that the United States has jurisdiction over the Siempre Malgarita and its crew because the painted Colombian flag on its hull was not “flying” for the purpose of making a “claim of nationality or registry.”
A. A Flag Painted on a Vessel Does Not Fly.
The Maritime Drug Law Enforcement Act grants the United States extraterritorial jurisdiction over “vessel[s] without nationality.” Id.
- (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.
Whether the United States has extraterritorial jurisdiction over a vessel is a “preliminary question[] of law” decided by the district court and “not an element of [the] offense.” Id.
The crew members stipulated that the master of the Siempre Malgarita
The ordinary meaning of the word “flying” requires a flag to be capable of freely moving in the air. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 69 (2012) (“Words are to be understood in their ordinary, everyday meanings. . . .“). For example, Webster‘s New International Dictionary defines “fly” as “[t]o cause to fly or to float in the air as a . . . flag,” and it offers the illustrative phrase of “the ship flew the flag of Spain.” Fly, Webster‘s New International Dictionary 976 (2d ed. 1961) (emphasis omitted). Webster‘s Third New International Dictionary gives a nearly identical definition. Fly, Webster‘s Third New International Dictionary 879 (3d ed. 1993) (“[T]o cause to fly or float in the air (as a bird, a flag) . . . .“). And the Oxford English Dictionary defines “fly” as, “[t]o set (a flag) flying; to carry at the mast-head; to hoist.” Fly, Oxford English Dictionary (online ed.) (emphasis added). All of these definitions entail the movement of a physical object in the air. Indeed, the Oxford English Dictionary applies the same definition of “fly” to the act of “set[ting] (a sail) loosely.” Id.
To be sure, the ordinary meaning of a term will yield when the term has “a technical meaning” or is a “term[] of art,” see Scalia & Garner, supra, at 73 (emphasis omitted), but the meaning that the phrase “flying a flag” carries in the maritime context confirms that a vessel‘s flag must be able to move freely in the air. For example, the Oxford English Dictionary, in a section on “nautical phrases,” defines “to keep the flag flying” as “to refuse to haul down one‘s flag and surrender.” Flag, Oxford English Dictionary, supra. A painted flag cannot be “haul[ed] down.” Id.
A maritime treatise confirms that a vessel‘s flag must be hoisted in the air. See H. Meyers, The Nationality of Ships (1967). It refers to the physical “hoisting [of a] flag” to assert nationality, id. at 162, explains that “when [sea] traffic is heavy . . . [a] flag will have to be flown from the stern,” id. at 163 (emphasis added), and cautions that a vessel‘s flag may not always be a reliable “indicator” of nationality because it can be “easily changed,” id. at 140. It also explains that there may be times “when flying the flag cannot reasonably be required,” such as in the presence of “heavy gales” or if a “flag[] [is] blown overboard.” Id. at 164–65. Neither of these perils is relevant to painted flags. And the treatise presumes that vessels that are physically incapable of hoisting flags are similarly unable to “fly” flags when it discusses a hypothetical “deep sea research” submarine that, when “under water at all events . . ., will not fly a flag.” Id. at 166.
Maritime etiquette supports the same definition. For example, a procedural guide published by the United States Navy offers extensive instructions for “hoisting and lowering” the flag. Department of the Navy, NTP 13(B), Flags, Pennants & Customs 3-1 (1986). It also explains that a vessel‘s crew must “haul[] [the ensign] down” after sunset, id. at 3-1, and that a vessel may “dip” its flag to salute another vessel, id. at 3-1 to 3-2. But the guide never suggests that a flag may be painted on a vessel. On the contrary, its discussion
Other federal statutes about the display of flags clearly imply that a flag flies only when hoisted in the air, and “laws dealing with the same subject . . . should if possible be interpreted harmoniously.” Scalia & Garner, supra, at 252. For example, one statute provides that “[w]hen flags of two or more nations are displayed, they are to be flown from separate staffs of the same height,”
The crew members contend that the phrase “flying a flag” refers to any kind of visual depiction of a flag that suggests the nationality of the vessel, and they highlight that the “Form 1” template used by the Coast Guard to communicate with foreign governments in this kind of maritime interception suggests the possibility of a “flag state claim via” a “flag painted on [the] stern” of the vessel. But whether the Coast Guard considers a painted flag to be an assertion of national affiliation is not the same question as whether that flag is “flying” under the Act.
That the Coast Guard may embrace a functionalist interpretation of how the master of a vessel may assert nationality in the interest of diplomatic caution cannot change the ordinary meaning of the statutory text. Indeed, the form permits a “flag state claim” by means not included in the exclusive list provided in the Act, such as by a “homeport [marked] on [the] stern” or a “verbal” claim by a “non-master.” See
The crew members cite idioms that suggest that the phrase “[f]lying the flag” refers to a general invocation of a vessel‘s “association with a nation,” but we are unpersuaded. They cite the Cambridge Idioms Dictionary, which defines “fly/show/wave the flag” as “to support or to represent [one‘s] country,” Flag, Cambridge Idioms Dictionary 145 (2006), and the Farlex Dictionary of Idioms, which defines the phrase “fly the flag” as to “represent or demonstrate support for [one‘s] country,” Fly the Flag, Farlex Dictionary of Idioms, https://idioms.thefreedictionary.com/Flying+the+Flag (last visited May 31, 2018). And they cite the Oxford Living Dictionaries, which defines “fly the flag” “of a ship” as to “be registered in a particular country and sail under its flag.” Fly the Flag, Oxford Living Dictionaries, https://en.oxforddictionaries.com/definition/fly_the_flag (last visited May 31, 2018). But were we to interpret the phrase “flying the flag” broadly to include a wide array of methods of signaling that a vessel is “registered in a particular country and sail[ing] under its flag,” id., we would render superfluous the other two specific methods of claiming nationality provided in the Act: the “possession . . . and production of documents evidencing the vessel‘s nationality,”
The crew members also contend that statements in our precedents that addressed other questions about the Act suggest that the definition of “flag” includes any kind of visual symbol, but we disagree. For example, in Campbell we mentioned that a “vessel lacked all indicia of nationality: it displayed no flag, port, or registration number.” 743 F.3d at 804. And in United States v. de la Cruz we explained that the stateless “vessel in question flew no flag, carried no registration paperwork, and bore no markings indicating its nationality.” 443 F.3d 830, 832 (11th Cir. 2006). According to the crew members, this language suggests that any visual depiction of a flag is enough. But even if these statements addressed the question whether a painted flag can “fly,” they would cut the other way. Our separate mentions of whether a vessel “flew [a] flag” or “bore . . . markings indicating its nationality,”
To be sure, the only other decision to address this question assumed, for the sake of argument, the opposite conclusion. In United States v. Prado, 143 F. Supp. 3d 94 (S.D.N.Y. 2015), the Southern District of New York ruled that a “small emblem of what appear[ed] to be an Ecuadorian flag . . . affixed to [a] boat[],” id. at 97, was not “flying . . . within the meaning of the [Act],” id. at 101 (citation and internal quotation marks omitted). The district court declined to adopt the argument of the government “that a piece of fabric must wave in the air.” Id. at 100. Instead, it explained that the phrase “‘flying a nation‘s ensign or flag’ . . . at a minimum refer[s] to a display sufficiently prominent as to put a United States official on notice of another country‘s interests” before it concluded that the particular emblem in question was “not remotely large or prominent enough.” Id. (alteration adopted) (citation omitted).
Not only was this functionalist analysis unnecessary in the light of the ordinary meaning of the phrase “flying a flag,” but the opinion in Prado also highlighted the inherent difficulty of dispensing with the requirement of a hoisted flag when it grappled with the question whether the “emblem” on the vessel in question was “enough to put a reasonable official on notice that [another country‘s] interests might be affected.” Id. The district court began its analysis by “assuming” that the emblem was “an image of an Ecuadorian flag,” id., and it acknowledged that the emblem, “[u]nlike a prominently displayed flag, . . . [is] easily confused with ornamentation . . . [and] difficult to see in any waters, not to mention . . . in the large waves of the high seas,” id. at 100–01; see also id. at 97 (“[A] small emblem of what appear[ed] to be an Ecuadorian flag had been affixed to the boat‘s rear starboard side.” (emphasis added)). It also underscored that “[t]he emblem [was] very much smaller than . . . nearby . . . images running the length of the boat‘s side,” id. at 101, in concluding that this particular emblem was not “enough,” id. at 100. In contrast, a flag hoisted in the air avoids these line-drawing problems and provides certainty to both American officials on the high seas and the courts that second-guess their decisions.
The ambiguities posed by painted flags also rebut the crew members’ practical complaint that the requirement of a physical flag will “lead to absurd results” because “a postage-stamp size . . . flag hoisted on a ship‘s mast could constitute a claim of nationality but a flag several feet long by several feet wide painted on the . . . hull of a boat could not.” Indeed, the Act has good reason to require an actual flag of any size instead of a painted representation. Consider a vessel painted with horizontal red, white, and blue stripes. Is this vessel flying the flag of the Netherlands? Or is it instead owned by a captain who only likes those colors? And as illustrated by Prado, static “emblems” require fact-intensive inquiries into the size, location, and intended meaning of such markings. See id. at 100–01. A flag hoisted in the air avoids these questions and unambiguously asserts nationality.
The crew members also assert that our interpretation may create conflicts within international law because vessels registered in countries that permit painted flags will be “deemed stateless by American [vessels] and boarded,” but this fear about miscommunications on the high seas overlooks that the Act provides alternative methods of claiming nationality, including a simple “verbal claim of nationality or registry.”
Finally, the crew members argue that we should invoke the rule of lenity because the statute is ambiguous, but the rule of lenity applies only when “traditional canons of statutory construction . . . [leave us] with an ambiguous statute.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 16 (2011) (quoting United States v. Shabani, 513 U.S. 10, 17 (1994)). We have already explained that the ordinary meaning of the term “flying” requires a flag to be hoisted in the air.
B. The Crew Members’ Alternative Arguments Are Unpersuasive.
The crew members also assert several alternative and fact-bound reasons why we should hold that the United States lacks jurisdiction. None are persuasive. We reject each in turn.
The crew members contend that we should overlook the stipulation that no crew member made a claim of nationality and instead determine that Marcillo-Mera‘s “statement that the vessel‘s flag was ‘Ecuadorian’ . . . [was] tantamount to a claim of nationality” that obligated “the Coast Guard to contact the government of Colombia,” but this reasoning is wholly unpersuasive. Parties may “stipulate to facts that bear on our jurisdictional inquiry.” Iguaran, 821 F.3d at 1337 (emphasis omitted) (citation and internal quotation marks omitted). And because the parties stipulated that no crewmember made a claim of nationality, we refuse to ignore this stipulation on appeal and act as a factfinder in the first instance.
The crew members also contend that the government is estopped from asserting “that there was never any claim of nationality” because the “Coast Guard‘s [decision to] contact[] . . . Ecuador” suggests that guardsmen thought that the defendants had asserted nationality, but this logic suffers from two flaws. First, that the Coast Guard elected to communicate with Ecuadorian officials does not necessarily imply that the guardsmen thought that the defendants had satisfied their burden of asserting nationality under the Act. Indeed, the guardsmen may have acted out of an abundance of caution, and we see no reason to punish the government for doing more than the Act requires. Second, the crew members voluntarily stipulated to the fact that they made no verbal claim of nationality, and there is no suggestion that the government dishonestly induced this stipulation or changed its position mid-litigation.
Finally, the crew members contend that the guardsmen acted in bad faith because they “purposely chose not to contact the Colombian government” despite knowing that the flag painted on the vessel was Colombian. But this appeal to the subjective knowledge of the guardsmen again overlooks the stipulations that the crew members failed to make a verbal claim of nationality and that the only verbal suggestion of nationality was Marcillo-Mera‘s statement that the flag was Ecuadorian. As the master of the vessel, he owed the obligation to claim nationality. See
We AFFIRM the judgments of conviction against Obando, Quiroz-Mendoza, and Marcillo-Mera.
BLACK, Circuit Judge, specially concurring:
I concur in the Court‘s opinion, but I write separately because there is an additional ground for affirmance.
The Act‘s focus on the words and actions of a vessel‘s master is consistent with longstanding principles of admiralty law. As Chief Justice John Marshall stated in 1818, “[t]he mere wood, iron, and sails of the ship, cannot, of themselves, violate the law. But this body is animated and put in action by the crew who are guided by the master. The vessel acts and speaks by the master. She reports herself by the master.” United States v. The Little Charles, 26 F. Cas. 979, 982 (Marshall, Circuit Justice, D. Va. 1818) (No. 15,612) (emphasis added); see also Dobbins‘s Distillery v. United States, 96 U.S. 395, 402 (1877) (same); United States v. Cargo of the Brig Malek Adhel, 43 U.S. (2 How.) 210, 234 (1844) (same). Requiring the master to speak on behalf of the ship also makes sense for practical reasons. See Rosero, 42 F.3d at 171 (noting that by placing the burden of claiming nationality on the vessel‘s master, Congress alleviated the practical difficulties associated with requiring the Coast Guard to disprove all possible claims of nationality).
It was incumbent upon the Siempre Malgarita‘s master to assert a claim of nationality on behalf of the ship. He did not, and Appellants’ contention that the Siempre Malgarita spoke for itself1 is contrary to both the statute‘s plain language and established principles of admiralty law. Given the stipulated facts,2 I would affirm the district court on the additional