United States v. Reyes-Valdivia

23 F.4th 153

Opinion

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

JOSÉ D. REYES-VALDIVIA,

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

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

Before

Howard, Chief Judge, Lipez and Thompson, Circuit Judges. Franco L. Pérez-Redondo, Research and Writing Specialist, with whom Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero, Assistant Federal Public Defender, and Liza L. Rosado- Rodríguez, Research and Writing Specialist, were on brief, for appellant José D. Reyes-Valdivia.

Raymond L. Sánchez-Maceira on brief for appellant Jeffri Dávila-Reyes.

Thomas F. Klumper, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, John A. Mathews II, Assistant United States Attorney, and David C. Bornstein, Assistant United States Attorney, were on brief, for appellee.

January 20, 2022 LIPEZ, Circuit Judge. These consolidated appeals arise

from the U.S. Coast Guard's interdiction of a small speed boat in

the western Caribbean Sea and the subsequent arrest and indictment

of the three men on board for drug trafficking under the Maritime

Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. §§ 70501-08. In a

motion to dismiss the indictment, appellants José Reyes-Valdivia

and Jeffri Dávila-Reyes challenged the constitutionality of the

MDLEA in multiple respects. Most relevant here, they argued that

the statute, which in certain circumstances allows U.S. law

enforcement to arrest and prosecute foreign nationals for drug

crimes committed in international waters, exceeds Congress's

authority under Article I of the Constitution. The district court

denied the motion to dismiss. Both appellants then pleaded guilty

pursuant to plea agreements in which each waived his right to

appeal if sentenced in accordance with his agreement's sentencing

recommendation provision.

On appeal, appellants renew their constitutional

objections to their prosecution. In our original decision, we did

not reach appellants' "primary argument" -- that their prosecution

was unlawful because their vessel was not properly deemed stateless

-- on the ground that "our governing precedent concerning the

protective principle of international law . . . permit[ted]

prosecution under the MDLEA even of foreigners on foreign vessels."

United States v. Dávila-Reyes, 937 F.3d 57, 59 (1st Cir. 2019)

- 3 - (withdrawn).1 That precedent, we concluded, required that we

affirm appellants' convictions.

Appellants then petitioned for panel rehearing and en

banc review. We held their requests in abeyance pending the en

banc decision in another drug-trafficking case involving a

constitutional challenge to the MDLEA. See United States v. Aybar-

Ulloa, 987 F.3d 1 (1st Cir. 2021) (en banc). Subsequently, based

on our view that the decision in Aybar-Ulloa "diminished the force

of this circuit's precedent on the protective principle," we

concluded that it would no longer be appropriate to rely on that

principle to uphold appellants' convictions. Order, Nos. 16-2089,

2143 (Mar. 17, 2021). We therefore granted panel rehearing to

address appellants' constitutional challenge to their prosecution

under the MDLEA.

We now hold that Congress exceeded its authority under

Article I of the Constitution in enacting § 70502(d)(1)(C) of the

MDLEA. That provision expands the definition of a "vessel without

nationality" beyond the bounds of international law and thus

unconstitutionally extends U.S. jurisdiction to foreigners on

foreign vessels. Hence, appellants' convictions must be vacated.

The protective principle of international law "permits a 1

nation 'to assert jurisdiction over a person whose conduct outside the nation's territory threatens the nation's security.'" Dávila- Reyes, 937 F.3d at 62 (quoting United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999)).

- 4 - I.

We draw the following facts primarily from appellants'

change of plea colloquies and the uncontested portions of their

Presentence Investigation Reports. See United States v. Vélez-

Luciano, 814 F.3d 553, 556 (1st Cir. 2016).2 In October 2015,

while patrolling waters approximately 30 nautical miles southeast

of San Andrés Island, Colombia,3 U.S. Coast Guard officers observed

a small vessel4 moving at a high rate of speed. When the occupants

of the vessel became aware of the Coast Guard boat nearby, they

began throwing packages and fuel barrels overboard. The Coast

Guard officers approached the boat and began to question its

occupants, the two appellants and a third co-defendant. Reyes-

Valdivia, as the "master"5 of the vessel, claimed Costa Rican

2 We also draw some facts from statements by Coast Guard officials that were submitted to the district court as attachments to the government's Motion in Limine and Memorandum of Law in Support of Jurisdiction. See United States v. Reyes-Valdivia, No. 3:15-cr-00721-FAB (D.P.R. Mar. 25, 2016), ECF No. 46. We note that all citations to the district court's electronic docket in this case will hereafter be cited using the short-form "Reyes-Valdivia, ECF No. __ (filing date)." 3 Although part of Colombia, San Andrés Island is located off the coast of Nicaragua. 4 The government's Motion in Limine describes the vessel as a 35-foot "low profile, open hull, 'go-fast-type' vessel." Reyes- Valdivia, ECF No. 46, at 3 (Mar. 25, 2016). 5 The term "master" is synonymous with "captain." It is a legal term of art meaning the person "to whom are committed the government, care, and direction of the vessel and cargo." Kennerson v. Jane R., Inc., 274 F. Supp. 28, 30 (S.D. Tex. 1967). The statement of facts attached to Reyes-Valdivia's plea agreement

- 5 - nationality for the vessel but did not provide any documentation

to support that claim.6

The Coast Guard officers boarded and searched the vessel

pursuant to a provision of an agreement between the United States

and Costa Rica "Concerning Cooperation to Suppress Illicit

Traffic." See Reyes-Valdivia, ECF No. 46-2, at 1 (Mar. 25, 2016)

(Dep't of State Certification). The officers did not find any

contraband, but a chemical test detected traces of cocaine. Based

on that evidence, the Coast Guard detained the three men -- all

citizens of Costa Rica -- and took them to the U.S. Naval Base at

Guantánamo Bay, Cuba, and then eventually to Puerto Rico. At some

point, the United States contacted the government of Costa Rica

requesting confirmation of the vessel's registry or nationality,

and Costa Rica subsequently responded that it could not confirm

does not identify him as the "master" of the vessel, see Reyes- Valdivia, ECF No. 68, at 11 (Apr. 4, 2016), but a statement from a Coast Guard officer reports that Reyes-Valdivia identified himself as such, see id., ECF No. 46-1, at 1 (Mar. 25, 2016) (Statement of Officer Luis Rosado). 6The Coast Guard reported that Reyes-Valdivia initially stated that "there was no nationality for the vessel" before asserting Costa Rican nationality. Reyes-Valdivia, ECF No. 46-1, at 1 (Mar. 25, 2016) (Statement of Officer Luis Rosado). However, this statement was not cited in the U.S. Department of State Certification as a basis for identifying the vessel as stateless. The Certification reported only that "[t]he master made a claim of Costa Rican nationality for the go fast vessel." Id., ECF No. 46- 2, at 1 (Mar. 25, 2016). Nor was the statement included in the government's version of the facts in the appellants' plea agreements. See infra.

- 6 - the vessel's registry. The United States thus determined that,

pursuant to § 70502(d)(1)(C) of the MDLEA, the boat was "without

nationality" and subject to U.S. jurisdiction.7

All three defendants were charged with two counts of

trafficking cocaine in violation of the MDLEA. Reyes-Valdivia and

Dávila-Reyes moved to dismiss the indictment for lack of

jurisdiction,8 arguing that the MDLEA, particularly

§ 70502(d)(1)(C), is unconstitutional. In their view,

§ 70502(d)(1)(C) exceeds Congress's authority under Article I of

the Constitution, and it violates the Due Process Clause of the

Fifth Amendment because it is unconstitutionally vague, subject to

arbitrary enforcement, and criminalizes conduct that has no nexus

with the United States. The district court denied the motion.

Reyes-Valdivia and Dávila-Reyes both subsequently agreed

to plead guilty to one count of possession with intent to

distribute five or more kilograms of cocaine in violation of the

7Section 70502(c)(1)(A) of the MDLEA provides that "a vessel without nationality" is "subject to the jurisdiction of the United States." 46 U.S.C. § 70502(c)(1)(A). As explained below, § 70502(d)(1)(C) defines a "vessel without nationality" to include any vessel "aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality." Id. § 70502(d)(1)(C). 8Reyes-Valdivia filed the motion, and the district court granted Dávila-Reyes's motion to join.

- 7 - MDLEA. See 46 U.S.C. § 70503(a)(1).9 Both men agreed to waive

appellate review if sentenced in accordance with the sentencing

recommendation provisions in their plea agreements. Ultimately,

the district court sentenced Dávila-Reyes consistently with his

agreement (a 120-month term), but sentenced Reyes-Valdivia to a

term longer than proposed in his agreement (70 months instead of

57) because it found that he should be given a two-level

enhancement for being the "captain" of the vessel. See U.S.S.G.

§ 2D1.1(b)(3)(C).

Reyes-Valdivia's motion for reconsideration was denied.

Both Reyes-Valdivia and Dávila-Reyes then appealed. We affirmed

their convictions on the basis that the protective principle

permitted their prosecution.

II.

As noted, this court's en banc decision in United States

v. Aybar-Ulloa led us to withdraw our prior opinion and reconsider

appellants' claims. In Aybar-Ulloa, the en banc court held that

"international law accepts the criminal prosecution by the United

States of persons . . . who [are] seized by the United States while

trafficking cocaine on a stateless vessel on the high seas." 987

9The third defendant also pleaded guilty to this count and was sentenced to a 57-month term of imprisonment. He did not file an appeal.

- 8 - F.3d at 3.10 In so holding, the court bypassed our circuit's

precedent on the protective principle, which could have provided

a straightforward basis for affirming the conviction, and instead

addressed a more complex issue of international law. Notably, the

en banc court did not achieve unanimity on the legal basis for

U.S. jurisdiction over foreign nationals apprehended on vessels

conceded to be stateless. See infra. The choice of a non-

unanimous analytical path over reliance on the protective

principle is one basis for our conclusion that Aybar-Ulloa weakened

our circuit's protective principle jurisprudence.

In addition, statements in both the majority and

concurring opinions in Aybar-Ulloa more directly suggest

skepticism about applying the protective principle to a foreign

vessel whose occupants are foreign nationals allegedly involved in

drug trafficking, at least absent acquiescence by the flag nation.

The majority observed that one of our primary precedents on the

protective principle -- United States v. Cardales, 168 F.3d 548

(1st Cir. 1999) -- "can be read as applying only to the

circumstance where a foreign flag nation consents to the

application of United States law to persons found on that nation's

flagged vessel." Aybar-Ulloa, 987 F.3d at 3. In our prior opinion

Generally, there is a consensus that "high seas" denotes 10

areas outside any country's territorial waters. See, e.g., United States v. Carvajal, 924 F. Supp. 2d 219, 234 (D.D.C. 2013), aff'd sub nom. United States v. Miranda, 780 F.3d 1185 (D.C. Cir. 2015).

- 9 - in this case, we assumed that appellants' vessel was Costa Rican,

as they had asserted, but we concluded that our precedent

nonetheless required us to uphold their prosecution based on the

protective principle. The Aybar-Ulloa majority's posited reading

of Cardales, however, would foreclose reliance on the protective

principle here because the record contains no consent from the

Costa Rican government to the prosecution.

The Aybar-Ulloa concurring opinion aired an even broader

uncertainty about the protective principle. In describing Aybar-

Ulloa's contentions, the concurrence noted the long-ago

observation by then-Judge Breyer that there is a "'forceful

argument' against application of [the] protective principle to

encompass drug trafficking on the high seas." Id. at 15 (Barron,

J., concurring) (quoting United States v. Robinson, 843 F.2d 1, 3

(1st Cir. 1988) (Breyer, J.)); see also id. at 20 (referencing the

same skepticism about the protective principle with a citation to

Robinson). Both Aybar-Ulloa opinions, then, caused the panel to

doubt its reliance on the protective principle to uphold Reyes-

Valdivia and Dávila-Reyes's prosecution under the MDLEA. See also

Aaron J. Casavant, In Defense of the U.S. Maritime Drug Law

Enforcement Act: A Justification for the Law's Extraterritorial

Reach, 8 Harv. Nat'l Sec. J. 191, 213 (2017) (noting that

commentators have rejected the protective principle to support

MDLEA prosecutions, "positing that 'the cases that see the MDLEA

- 10 - as an exercise of protective jurisdiction fundamentally

misconceive the principle'" (quoting Eugene Kontorovich, Beyond

the Article I Horizon: Congress's Enumerated Powers and Universal

Jurisdiction Over Drug Crimes, 93 Minn. L. Rev. 1191, 1231 (2009)

(emphasis omitted))); but see id. at 222-23 (noting "a circuit

split over whether the crime of maritime drug trafficking warrants

the use of the protective principle"); id. at 225 (stating that

"the protective principle of international law is broad enough to

encompass maritime drug trafficking").

Apart from any reference to the protective principle,

both Aybar-Ulloa opinions include statements indicating that the

prosecution of a foreign national seized on the high seas under

U.S. drug-trafficking laws would not be proper unless the targeted

activity and seizure occurred on a stateless vessel. The majority,

for example, concludes a passage on the reasonable expectations of

"those who set out in stateless vessels" by noting: "Simply put,

if a person intent on drug trafficking on the high seas wants to

be prosecuted in his own country should he be caught, he should

sail under that country's flag." Aybar-Ulloa, 987 F.3d at 9. The

majority subsequently describes its holding as limited "to vessels

flouting order and custom on the high seas by eschewing the

responsibilities and protections of the flag-state system." Id.

at 13; see also id. at 8 (quoting United States v. Furlong, 18

U.S. (5 Wheat.) 184, 198 (1820), for the proposition that "the

- 11 - distinction between foreign vessels and stateless vessels serves

to avoid 'offensive interference with the governments of other

nations'"). In the same vein, the concurring opinion in Aybar-

Ulloa notes the "fair amount of support" for the view that Congress

lacks authority under Article I's Define and Punish Clause "to

subject foreign nationals to our criminal laws" for acts occurring

on foreign vessels on the high seas. Id. at 15 (Barron, J.,

concurring).11

In sum, we see in Aybar-Ulloa multiple signals that the

majority of judges on our court do not view the protective

principle as supporting U.S. jurisdiction over drug-trafficking

11 Elsewhere, the Aybar-Ulloa concurrence notes that "the application of the MDLEA to Aybar[-Ulloa]'s conduct in this case" -- i.e., conduct aboard a stateless vessel -- would likely be consistent with international law, [e]ven if we were to assume that the law of nations places limits on Congress's power under the Define and Punish Clause to subject foreign nationals on foreign vessels in international waters to our domestic criminal laws, and even if we were to assume that the United States may not assert protective jurisdiction over drug trafficking merely because it occurs on stateless vessels in international waters, see Robinson, 843 F.2d at 3-4.

987 F.3d at 20. Although the Aybar-Ulloa concurrence does not take a position on those hypotheticals, we view them -- and the reiterated citation to Robinson -- to indicate a level of doubt about the applicability of the protective principle, at a minimum, to drug-trafficking activity by foreign nationals on foreign vessels.

- 12 - activity conducted on the high seas by foreign nationals on foreign

vessels.12 Hence, in light of Aybar-Ulloa, we decline to rely on

the protective principle to uphold appellants' convictions.

Rather, the question we must answer is whether -- as the United

States claims -- appellants' vessel was properly deemed stateless,

bringing the vessel and its occupants within the scope of the

holding in Aybar-Ulloa.

Before addressing that question, however, we review and

elaborate on our reasons, set forth in the withdrawn panel opinion,

for rejecting the government's argument that appellants waived

their claims of constitutional error. See Dávila-Reyes, 937 F.3d

at 60-61.

III.

The government contends that Reyes-Valdivia and Dávila-

Reyes waived their right to appeal in two distinct ways: by the

express appellate waiver provisions in their plea agreements and

by entry of unconditional guilty pleas to drug trafficking in

violation of the MDLEA. With respect to Reyes-Valdivia, the

government is wrong in arguing that his appeal is barred by his

plea agreement. As described above, the district court declined

Of course, consent by the flag nation changes the calculus, 12

as acknowledged by one commentator who has advocated for use of the protective principle in the context of drug-trafficking on the high seas. See Casavant, supra, at 223 (noting that "consent of the flag or coastal state" is a "check on the exercise of U.S. criminal jurisdiction").

- 13 - to follow the parties' recommended term of 57 months and instead

sentenced him to a 70-month term of imprisonment. Because Reyes-

Valdivia's sentence exceeded the recommendation, the waiver

provision plainly does not apply.13

Dávila-Reyes, however, received a 120-month sentence

that aligns with the recommendation in his plea agreement. He

argues that, despite the enforceable waiver, we should exercise

our inherent authority to consider his claims to avoid "a

miscarriage of justice." United States v. Teeter, 257 F.3d 14,

25-26 (1st Cir. 2001). He contends that his appeal raises

"important questions of law and [of] first impression" -- including

the constitutionality of § 70502(d)(1)(C) of the MDLEA -- and that

preventing him from bringing his appeal would be unjust.

We agree that the constitutional issue Dávila-Reyes

raises is significant and that the other factors allowing us to

exercise our discretion to disregard the appellate waiver also are

sufficiently present. See, e.g., United States v. Ortiz-Vega, 860

F.3d 20, 27-28 (1st Cir. 2017). Particularly important is the

lack of prejudice to the government, given Reyes-Valdivia's

The government contends that Reyes-Valdivia is nonetheless 13

bound by the waiver provision because he failed to explain in his opening brief why it is inapplicable. However, it is apparent on the face of the plea agreement that Reyes-Valdivia was not sentenced in accordance with the sentencing recommendation provision, and he was not obligated to make that obvious point in his opening brief. See United States v. Colón-Rosario, 921 F.3d 306, 310-11 (1st Cir. 2019).

- 14 - presentation of the same issues as Dávila-Reyes. See id. at 27.

Moreover, the potential for relief should not depend on the

happenstance that the district court added an enhancement to Reyes-

Valdivia's sentence. Thus, we exercise our discretion and decline

to enforce Dávila-Reyes's appellate waiver.

Nor do appellants' guilty pleas foreclose their right to

challenge the constitutionality of the MDLEA. The Supreme Court

held in Class v. United States that "a guilty plea by itself" does

not bar "a federal criminal defendant from challenging the

constitutionality of the statute of conviction on direct appeal."

138 S. Ct. 798, 803 (2018). In their briefing and oral argument,

appellants present claims that are permissible under Class.

Although they conceded through their guilty pleas that the MDLEA,

by its terms, allows the government to prosecute them under U.S.

law, they argue that Congress exceeded constitutional limits with

the enactment of the applicable provision. In other words,

appellants contend that their convictions were within the scope of

the statute but nonetheless unconstitutional. Such claims may

proceed notwithstanding an unconditional guilty plea. See id. at

805 (holding that a guilty plea does not bar claims that challenge

"the Government's power to criminalize [the defendant's]

(admitted) conduct" because "[t]hey thereby call into question the

Government's power to 'constitutionally prosecute him'" (quoting

United States v. Broce, 488 U.S. 563, 575 (1989))).

- 15 - The government asserts that Class does not apply here

because appellants "admitted without qualification that their

vessel was one 'subject to the jurisdiction of the United States,'"

without limiting the basis for jurisdiction to § 70502(d)(1)(C)

(whose text is reproduced in footnote 7).14 Appellee's Supp. Br.

at 18-19. In making that assertion, the government cites to the

appellants' general acknowledgment of guilt at their change-of-

plea hearing but disregards their specific admissions. The

prosecution -- and, accordingly, appellants' admissions of guilt

-- was premised on their vessel's statelessness under

§ 70502(d)(1)(C). The indictment stated generally that

jurisdiction was based on appellants' vessel being one without

The statutory phrase "a vessel subject to the jurisdiction 14

of the United States" in the MDLEA concerns legislative jurisdiction -- in other words, Congress's authority to enact legislation "regulat[ing] drug trafficking on [] ships" -- rather than the subject-matter jurisdiction of the federal courts. United States v. González, 311 F.3d 440, 443 (1st Cir. 2002); see also United States v. Prado, 933 F.3d 121, 130 (2d Cir. 2019) (adopting and elaborating on this interpretation and rejecting the alternative approach of other circuits). But see United States v. Miranda, 780 F.3d 1185, 1192 (D.C. Cir. 2015) (agreeing with the Fifth and Eleventh Circuits that "the question of whether a vessel is 'subject to the jurisdiction of the United States' is a matter of subject-matter jurisdiction"). "Unlike Congress's employment in other statutes of one-factor jurisdictional elements such as 'by a Federal Reserve Bank,' or 'affect[ing] interstate commerce,' the facts that may cause a vessel to be 'subject to the jurisdiction of the United States' [under the MDLEA] involve numerous complex alternatives, which are spelled out at length in § 70502 under 'Definitions.'" Prado, 933 F.3d at 149. Although appellants assert that their challenge to their prosecution implicates subject-matter jurisdiction, our precedent, as noted above, holds otherwise.

- 16 - nationality, see 46 U.S.C. § 70502(c)(1)(A),15 but the Department

of State Certification that subsequently was filed specified that

"the Government of the United States determined the vessel was

without nationality in accordance with 46 U.S.C.

§ 70502(d)(1)(C)," Reyes-Valdivia, ECF No. 46-2, at 3 (Mar. 25,

2016) (Dep't of State Certification) (emphasis added).

Appellants' plea agreements also identified § 70502(c)(1)(A) --

i.e., the subsection referring to vessels "without nationality" -

- as the basis for U.S. jurisdiction, see id., ECF Nos. 68, 72,

at 1-2 (Apr. 4, 2016), and the "Government's Version of the Facts,"

incorporated into those agreements, set forth the facts concerning

the vessel's status in language tracking the requirements of

§ 70502(d)(1)(C): the master's claim of Costa Rican nationality

and the response from the government of Costa Rica "that it could

neither confirm nor refute the registry of the suspect vessel,"

id. at 11. The same facts were recounted by the government at the

change-of-plea hearing. See id., ECF No. 117, at 26 (Oct. 3,

2016).16 The government's Motion in Limine and Memorandum of Law

15As previously noted, § 70502(c)(1) lists "a vessel without nationality" among the list of vessels that are "subject to the jurisdiction of the United States." 46 U.S.C. § 70502(c)(1)(A). Other types of vessels on the list include "a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States," id. § 70502(c)(1)(C), and "a vessel in the customs waters of the United States," id. § 70502(c)(1)(D). 16At the plea hearing, the government was asked to "give a brief explanation of the theory to be presented to prove each

- 17 - in Support of Jurisdiction17 likewise asked the district court to

"find, as a matter of law, that [appellants'] vessel was subject

to the jurisdiction of the United States, as defined in

. . . Sections 70502(c)(1)(A) and (d)(1)(C)." Id., ECF No. 46, at

4 (Mar. 25, 2016).18

Defendant guilty if a trial were to be held." Id. at 25. In relevant part, the prosecutor stated: The vessel was tracked by aircraft and eventually came to a stop. The U.S. Coast Guard boarding team approached the vessel and commenced right of approach questioning. The master claimed Costa Rican nationality for the vessel but provided no registration[] paperwork, and there was no indicia of nationality on the vessel. The Government of Costa Rica was approached. They responded they could neither confirm nor refute the registry of [the] suspect vessel. The vessel was determined to be one without nationality.

Id. at 25-26. 17 In a 1996 amendment to the MDLEA, Congress stated that jurisdictional issues under the statute "are preliminary questions of law to be determined solely by the trial judge." 46 U.S.C. § 70504(a); see also González, 311 F.3d at 442-43. Appellants moved to change their pleas a week after the government filed the Motion in Limine, and the district court therefore did not rule on it. See Reyes-Valdivia, ECF Nos. 59, 63 (Apr. 1, 2016). 18 The government has continued to rely on § 70502(d)(1)(C) before us. In its initial brief, the government quoted the provision in full and then described appellants' admission consistently with the provision's terms -- i.e., "that Costa Rica did not confirm the registry of their vessel (which had no indicia of nationality) and that their vessel was determined to be one without nationality." Appellee's Br. at 36. In addition, in asserting that the MDLEA provided sufficient and unambiguous notice of the MDLEA's applicability to appellants, the government

- 18 - Appellants thus pleaded guilty based on the government's

assertion of jurisdiction pursuant to § 70502(d)(1)(C), in

accordance with the facts stated in their plea agreements. In

other words, they admitted that they "did what the indictment

alleged" and that the government accurately described the facts

giving rise to U.S. jurisdiction under § 70502(d)(1)(C). Class,

138 S. Ct. at 804. Hence, their challenge to the constitutionality

of § 70502(d)(1)(C) does not "contradict the terms of the

indictment or the written plea agreement," and, as in Class, the

constitutional claim can "be 'resolved without any need to venture

beyond th[e] record.'" Id. (quoting Broce, 488 U.S. at 575).

Appellants' constitutional challenge is premised on the facts set

forth by the government and legal principles that, they claim,

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

nationality" as a basis for subjecting them to U.S. jurisdiction.

We need not go outside the existing record to address that question

of law. Consequently, appellants' guilty pleas do not bar this

direct appeal. See id. at 805.

The government also appears to argue, however, that it

is entitled to sidestep appellants' claim that § 70502(d)(1)(C) is

stated: "The absence of an assertion by the Costa Rican government rendered the Appellants' boat a 'vessel without nationality,' [46 U.S.C.] § 70502(d)(1), and thus a 'vessel subject to the jurisdiction of the United States,' id. § 70502(c)(1)(A)." Id. at 38.

- 19 - unconstitutional because, it says, their vessel could have been

deemed without nationality based on other jurisdictional theories

and other facts. In its supplemental brief, the government asserts

that Reyes-Valdivia's failure to produce registration paperwork or

otherwise substantiate his verbal claim of nationality would

suffice to "render[] the vessel stateless as a matter of domestic

and international law." Appellee's Supp. Br. at 9 (emphasis

omitted).19 The government further notes that the vessel could be

deemed stateless because it "had no indicia of nationality other

than the master's say-so, and even he presented conflicting

information, having initially stated the vessel had no

nationality." Id. at 11 (internal quotation marks omitted). But

these jurisdictional theories are not the basis on which the

government relied to arrest and prosecute appellants, and to obtain

their guilty pleas. The defendants therefore had no reason or

opportunity to consider those rationales for deeming their vessel

stateless before deciding to forgo their right to contest the MDLEA

charges,20 which relied on the undisputed facts establishing

This theory also plays a part in the government's defense 19

of § 70502(d)(1)(C), and we address it in that context in Section V.C. In his supplemental brief, Reyes-Valdivia challenges the 20

government's assertion that the vessel bore no indicia of nationality. He contends that "[p]hotos of the vessel clearly show the civil ensign of Costa Rica painted, albeit vertically, on the port and starboard sides of the ship's bow," and he points out that "the Costa Rica ensign was prominent enough for a Marine Patrol Aircraft ['MPA'] to recognize it from overhead."

- 20 - statelessness under § 70502(d)(1)(C).21 It is now simply too late

for the government to proffer alternative bases for jurisdiction.

Cf. United States v. Mitchell-Hunter, 663 F.3d 45, 50 n.7 (1st

Cir. 2011) (stating that jurisdiction under the MDLEA may be

established "any time prior to trial" (emphasis added)).

In sum, neither of the government's waiver-of-appeal

arguments has merit.

Appellants' Supp. Br. at 18 n.4. The assertion of visibility from the air was based on the statement of Customs Officer Luis Rosado recounting that the MPA had detected a go-fast vessel "with a Costa Rican flag painted on the bow." Reyes-Valdivia, ECF No. 46-1, at 1 (Mar. 25, 2016). The government properly points out that appellants admitted in their plea agreements to a version of the facts stating that their vessel bore no indicia of nationality and argues that appellants "may not pursue any contention on appeal that 'would contradict' that admission." Appellee's Supp. Response Br. at 5 (quoting United States v. Sarmiento-Palacios, 885 F.3d 1, 4 (1st Cir. 2018)). However, the government, too, must abide by the facts on which it relied to obtain appellants' pleas. 21 We also note that the government has argued, on the one hand, that "[t]he MDLEA is . . . clear about how the United States decides whether a vessel is stateless," citing 46 U.S.C. § 70502(d), Appellee's Br. at 35, but, on the other hand, has not identified a statutory provision that matches its newly offered theories of jurisdiction. As described more fully infra, the two other circumstances for classifying a vessel as "without nationality" expressly stated in § 70502(d)(1) -- the denial of a claim by the named country and the master's refusal to make a claim upon request -- do not apply here. See 46 U.S.C. § 70502(d)(1)(A), (B). Although § 70502(d)(1)'s categories of stateless vessels are non-exclusive (the provision states that "the term 'vessel without nationality' includes" the three listed examples (emphasis added)), the government cannot reasonably expect defendants to assess their options if it invokes a particular statutory basis for jurisdiction but reserves the right to shift theories -- including to theories beyond the statute's express language.

- 21 - IV.

We must consider one last issue before reaching the

merits of appellants' claims. As our colleague notes in his

concurrence, the jurisdictional provision relied on by the

government to prosecute appellants, 46 U.S.C. § 70502(d)(1)(C),

refers to a vessel master's having made a claim of registry, but

Reyes-Valdivia claimed Costa Rican nationality, not registry. The

parties initially appeared to agree that § 70502(d)(1)(C)

nonetheless applies to the facts of this case. In a supplemental

brief submitted in response to questions from the court, however,

appellants argued for the first time that the provision is inapt

where the master of the vessel asserts only a nationality claim.

We are unpersuaded that this distinction between a claim

of registry and a claim of nationality provides a basis for

vacating appellants' convictions. Although the terms

"nationality" and "registry," in formal usage, are not

interchangeable,22 the MDLEA treats them as such throughout

22 In general, the "nationality" of a vessel refers to the country that has certain "international rights and duties . . . in connection with a given ship and its users." Herman Meyers, The Nationality of Ships 129 (1967). The term "registration" refers to the recording of nationality "on land and under the supervision of a government body." Id.; see also id. at 129-30 ("The purpose of a register is to declare the nationality of a vessel engaged in trade with foreign nations, and to enable her to assert that nationality wherever found." (quoting The Mohawk, 70 U.S. (3 Wall.) 566, 571 (1865))).

- 22 - § 70502. Section 70502(e), for example, jointly defines a "claim

of nationality or registry" to "include[] only":

(1) possession on board the vessel and production of documents evidencing the vessel's nationality as provided in article 5 of the 1958 Convention on the High Seas;[23] (2) flying its nation's ensign or flag; or (3) a verbal claim of nationality or registry by the master or individual in charge of the vessel.

46 U.S.C. § 70502(e). By allowing the act of flying a national

flag or the possession of documents of nationality to suffice as

a claim to either nationality or registry, the MDLEA effectively

treats the distinction between nationality and registry as

irrelevant. Congress's use of the two terms interchangeably, or

at least inconsistently, is even more evident in § 70502(d)(1)(C),

where the rejection of a master's claim of registry is premised on

the named country's failure to confirm nationality.

Yet, this variation in terminology does not undermine

what is otherwise Congress's clear intention to require

verification when a master identifies a vessel as

"foreign" -- whether by claiming nationality or registry -- and

thereby seeks to avoid the jurisdiction possessed by the United

States (and all nations) over stateless vessels. As we shall

Article 5 23 states, in part, that "[e]ach State shall issue to ships to which it has granted the right to fly its flag documents to that effect." United Nations Convention on the High Seas art. 5, Apr. 29, 1958 ("1958 Convention on the High Seas"), 13 U.S.T. 2312.

- 23 - explain, we think it evident that Congress used the term "claim of

registry" in the first part of § 70502(d)(1)(C) to also encompass

a "claim of nationality" -- a common, albeit imprecise, choice of

language.

More than fifty years ago, one scholar noted the tendency

to use the term registration to signify the broader concept of

nationality. See Herman Meyers, The Nationality of Ships 28 (1967)

(noting that "[t]he phrase 'registered in', and other word

combinations in which the term register is used," are sometimes

imprecisely "used as synonymous with nationality"); id. at 127

(noting that, because "in the great majority of cases" nationality

and registration, along with documentation and flying the flag,

"occur in combination," "the differences between the terms have

sometimes been neglected and a pars pro toto [a part taken for the

whole] use of the word registration . . . is by no means rare in

the doctrine or in the sources of international law"). Indeed, a

claim of registry is also a claim of nationality. See supra note

22. Thus, the variable word choice in § 70502(d)(1)(C) does not

have the import that it might have in other contexts. See

generally DePierre v. United States, 564 U.S. 70, 83 (2011) (noting

the usual assumption that a legislature intends different meanings

when it uses different words, but also recognizing that "Congress

sometimes uses slightly different language to convey the same

message").

- 24 - Importantly, notwithstanding the prior reference to a

claim of registry in § 70502(d)(1)(C), Congress's ultimate demand

in that same provision is for confirmation of nationality. We can

detect no reason why Congress would require affirmative

confirmation when a vessel's master makes a claim of registry,

while allowing a claim of nationality to stand on its own.

Excluding claims of nationality from the provision's scope would

allow drug traffickers to evade the verification requirement

simply by asserting a claim of nationality. Appellants attribute

that glaring loophole to Congress's deference to foreign nations

and its intention to stay within the bounds of international law.

They note that a claim of nationality "presents a more complicated

scenario since not all national ships are registered," making it

more difficult for the claimed nation "to confirm or refute the

nationality claim." Appellants' Supp. Br. at 8-9. Appellants do

not explain, however, why that concern would prompt Congress, in

effect, to nullify the verification provision by encouraging

vessel masters to claim foreign nationality rather than registry.

Inescapably, then, the reference in the first part of

§ 70502(d)(1)(C) solely to "a claim of registry" must be

attributable to the not infrequent practice of treating a "claim

of registry" and a "claim of nationality" as essentially

synonymous, even though the former term is technically narrower

than the latter.

- 25 - Our view that § 70502(d)(1)(C) is not reasonably

construed as limited to claims of registry is reinforced when the

provision is considered in the context of the MDLEA as a whole and

in light of its legislative history. See, e.g., Abramski v. United

States, 573 U.S. 169, 179 n.6 (2014) ("[A] court should not

interpret each word in a statute with blinders on, refusing to

look at the word's function within the broader statutory

context."); United Sav. Ass'n of Tex. v. Timbers of Inwood Forest

Assocs., Ltd., 484 U.S. 365, 371 (1988) ("Statutory construction

. . . is a holistic endeavor. A provision that may seem ambiguous

in isolation is often clarified by the remainder of the statutory

scheme -- because the same terminology is used elsewhere in a

context that makes its meaning clear, or because only one of the

permissible meanings produces a substantive effect that is

compatible with the rest of the law." (citations omitted)). The

MDLEA reflects Congress's intention to enable the aggressive

prosecution of maritime drug trafficking. See 46 U.S.C. § 70501

("Congress finds and declares that . . . trafficking in controlled

substances aboard vessels is a serious international problem, is

universally condemned, and presents a specific threat to the

security and societal well-being of the United States . . . .").

Indeed, § 70502(d)(1)(C) was among several provisions added to the

MDLEA in 1996 to "expand the Government's prosecutorial

effectiveness in drug smuggling cases." H.R. Rep. No. 104-854, at

- 26 - 142 (1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N. 4292, 4337.

Given this statutory backdrop, the majority observed in United

States v. Matos-Luchi that "Congress did not expect courts to

render a cramped reading of the statute." 627 F.3d 1, 7 (1st Cir.

2010).

In addition, other portions of the MDLEA's legislative

history indicate that Congress's specific reference to a claim of

registry in subsections (A) and (C) of § 70502(d)(1) -- both

involving the claimed nation's response (or lack thereof)24 -- may

reflect the fact that registry claims appear to have been the

common way in which drug-trafficking defendants asserted their

foreign nationality. There are multiple references to the

difficulty faced by prosecutors in producing "judicially

admissible documentary evidence" of the foreign nation's "consent

[to board] or denial of a claim of registry." S. Rep. No. 99-530,

at 15 (1986) (emphasis added); see also, e.g., USCG Authorizations

and Load Lines: Hearing on H.R. 1362 Before the S. Subcomm. on

Merchant Marine of the Comm. on Commerce, Sci. & Transp., 99th

Cong. 39-40 (1986) (Responses of Adm. James Gracey to questions

24 Like § 70502(d)(1)(C), see supra note 7, subsection (d)(1)(A) specifically references a claim of registry, stating that a "vessel without nationality" includes any vessel "aboard which the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed."

- 27 - from Sen. Hollings).25 But whatever the exact explanation for the

chosen language, given the legislative background, together with

25This hearing, in May 1986, preceded the adoption that year of the MDLEA. Asked to "describe the kinds of problems the Coast Guard and federal prosecutors have encountered" in responding to jurisdictional objections from accused drug traffickers at trial, Admiral Gracey responded, in part, as follows: The princip[al] problems that have arisen involve the difficulty of proving vessel status. For [e]xample, if upon inquiry by the Coast Guard, a vessel makes a claim of registry, the U.S. must confirm that registry with the claimed flag state. If the flag state denies registry, the vessel is stateless, i.e., a "vessel subject to the jurisdiction of the United States" . . . . At this point, the U.S. may under international law take law enforcement action against that vessel. However, to prove the element of the offense in court, the U.S. must obtain a formal certification from the claimed flag state attesting that the vessel is not registered in that state. On the other hand, i[f] the claimed state verifies registry, the U.S. obtains that state's consent to take law enforcement action. . . . However, to prove the element of the offense in court, the United States must obtain a formal certification from the flag state verifying registry and confirming its consent for the U.S. to take law enforcement action. The difficulties in obtaining these documents from foreign governments in a timely manner, and in a form acceptable to our courts under the Federal Rules of Evidence, have been considerable.

USCG Authorizations and Load Lines: Hearing on H.R. 1362 Before the S. Subcomm. on Merchant Marine of the Comm. on Commerce, Sci. & Transp., 99th Cong. 39-40. A focus on registry as the common indicator of nationality also appears in the legislative history of the MDLEA's predecessor, the Marijuana on the High Seas Act, Pub. L. No. 96-350, 94 Stat.

- 28 - Congress's blending of the concepts of nationality and registry

elsewhere in the MDLEA, a reading of § 70502(d)(1)(C) that excludes

claims of nationality would "produce[] a substantive effect that

is [in]compatible with the rest of the law." United Sav. Ass'n of

Tex., 484 U.S. at 371.

We note, in addition, that this court has treated claims

of registry and nationality synonymously in multiple cases. For

example, in Matos-Luchi, the majority cited § 70502(d)(1)(A) and

(C) -- both of which refer only to a claim of registry -- as

applicable to a "claim of nationality [that] is made but rejected

[(d)(1)(A)] or not backed up by the nation invoked [(d)(1)(C)]."

627 F.3d at 6; see also United States v. Cuevas-Esquivel, 905 F.2d

510, 513-14 (1st Cir. 1990) (noting the absence of a claim of

nationality but citing to a provision in an earlier codification

of the MDLEA that referenced only registry (46 U.S.C. App.

§ 1903(c)(2)(A))); United States v. Maynard, 888 F.2d 918, 925

(1st Cir. 1989) ("Since a 'claim of nationality' was made, the

1159 (1980). See, e.g., Stopping "Mother Ships" -- A Loophole in Drug Enforcement: Hearing Before the S. Subcomm. to Investigate Juvenile Delinquency of the Comm. on the Judiciary, 95th Cong., at 52 (1978) (Statement of Morris Busby, Acting Deputy Assistant Sec. of State for Oceans and Fisheries Affairs) (noting the "well- established principle under international law . . . that a country may exercise jurisdiction on the high seas over a vessel without nationality, one that is not registered in any foreign state"); id. at 53 (explaining that, when the master or crew make "a claim of nationality," the Coast Guard's protocol involves contacting the claimed flag state to "request[] that the government verify the registry of the vessel").

- 29 - [vessel] can be classified as a stateless vessel only if the 'claim

is denied by the flag nation whose registry is claimed.'" (quoting

§ 1903(c)(2)(A))).

Other courts have likewise used the terms

interchangeably. See United States v. Alarcon Sanchez, 972 F.3d

156, 162-63 (2d Cir. 2020) (stating that "[a] claim of registry

may be made" by "'a verbal claim of nationality or registry,'"

quoting 46 U.S.C. § 70502(e) and relying on § 70502(d)(1)(C) in

discussing the master's assertion of nationality); United States

v. Prado, 933 F.3d 121, 130 (2d Cir. 2019) ("[A] verbal assertion

of nationality by the master constitutes a claim, which is then

tested by a U.S. officer's inquiry of the nation's registry

authority."); United States v. Hills, 748 Fed. App'x 252, 253 (11th

Cir. 2018) (per curiam) (finding that the defendant's vessel was

without nationality based on § 70502(d)(1)(C) where the defendant

"told [the Coast Guard] that he was the master of the vessel and

identified the vessel as Costa Rican"); United States v. Rosero,

42 F.3d 166, 171 (3d Cir. 1994) (referring to "a false claim of

nationality or registry" even though the provision at issue, 46

U.S.C. App. § 1903(c)(2)(A), referred only to "a claim of

registry"); id. at 174 ("[T]he prosecution can establish that a

vessel is stateless by showing that the master or person in charge

- 30 - made a claim of nationality or registry that was denied by the

flag nation whose registry was claimed.").26

We therefore see no basis for departing from our prior

understanding of § 70502(d)(1)(C)'s scope.27 Congress's reference

solely to claims of registry in the first part of § 70502(d)(1)(C)

is not reasonably construed to exclude from that subsection's

verification requirement claims of nationality that are phrased

without reference to registration.28

26The government in this case also blended the two concepts. Despite the claim solely of nationality, the United States asked Costa Rica to confirm "registry or nationality." Costa Rica then "replied that it could not confirm [the] vessel's registry." See Reyes-Valdivia, ECF No. 46-2, at 1 (Mar. 25, 2016) (Dep't of State Certification). 27 In so concluding, we note that, contrary to appellants' assertion, the statutory imprecision here is not an instance of ambiguity requiring application of the rule of lenity. The rule of lenity, which "requires that ambiguity in a criminal statute be resolved in favor of the accused," United States v. Jimenez, 507 F.3d 13, 20 (1st Cir. 2007), "does not apply if the ambiguous reading relied on is an implausible reading of the congressional purpose," Caron v. United States, 524 U.S. 308, 316 (1998). As we have described, Congress clearly intended to subject a claim of nationality that is not premised on registry to the same verification requirement as a claim of registry. Accordingly, the rule of lenity does not come into play. See Moskal v. United States, 498 U.S. 103, 108 (1990) ("[W]e have always reserved lenity for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute." (internal quotation marks omitted)). 28Although we do not rely on waiver in rejecting appellants' belated argument that § 70502(d)(1)(C) does not apply to the facts of this case, we note that a request for supplemental briefing does not revive a claim that a party has failed to preserve. See United States v. Galíndez, 999 F.3d 60, 69 n.10 (1st Cir. 2021).

- 31 - V.

Having addressed these threshold issues, we turn to

appellants' constitutional challenge to 46 U.S.C.

§ 70502(d)(1)(C). As described above, we have construed that

provision to allow U.S. authorities to deem a vessel "without

nationality" -- i.e., stateless -- when a claim of either registry

or nationality asserted by the vessel's occupants is neither

confirmed nor denied by the claimed country. See, e.g., Matos-

Luchi, 627 F.3d at 6. Under Aybar-Ulloa, a determination of

statelessness has a significant consequence: it permits

prosecution under U.S. law of any foreign national aboard the

vessel. See 987 F.3d at 3. Appellants contend that

§ 70502(d)(1)(C) exceeds Congress's authority under the "Define

and Punish Clause" of Article I, which gives Congress the power

"[t]o define and punish Piracies and Felonies committed on the

high Seas, and Offences against the Law of Nations." U.S. Const.

art. I, § 8, cl. 10.

It is undisputed that the "vessel without nationality"

provisions of the MDLEA were enacted solely pursuant to Congress's

authority to "define and punish . . . Felonies committed on the

high Seas" ("the Felonies Clause").29 See United States v.

Although it may be more accurate to refer to the "Felonies 29

Clause" as the "Felonies Sub-Clause," given that it is contained within the Define and Punish Clause, we use the "Felonies Clause" designation for simplicity.

- 32 - Cruickshank, 837 F.3d 1182, 1187 (11th Cir. 2016) (stating that

the MDLEA "was enacted under Congress's authority provided by the

Felonies Clause"). Appellants argue that the definition of "vessel

without nationality" in § 70502(d)(1)(C) conflicts with

international law and thus authorizes the arrest and prosecution

of foreign nationals aboard vessels on the high seas that the

Constitution does not permit. This assertion of U.S. jurisdiction

is incompatible with the Constitution, appellants contend, because

Congress's authority under the Felonies Clause is constrained by

international law. Put another way, appellants ask us to conclude

that, under longstanding principles of international law, their

vessel was not properly deemed stateless, and because Congress's

authority in this instance is limited by international law,

appellants' arrests and prosecution were unconstitutional.

We review appellants' challenge to the constitutionality

of a federal statute de novo. See United States v. Booker, 644

F.3d 12, 22 (1st Cir. 2011). We begin by describing existing law

on the MDLEA, and then consider the origins and meaning of the

Define and Punish Clause generally, and the Felonies Clause

specifically, before assessing whether § 70502(d)(1)(C) of the

MDLEA violates the jurisdictional limits imposed by the Felonies

Clause.

- 33 - A. Statutory Background and Overview of Case Law on the MDLEA

The MDLEA makes it unlawful for persons "on board a

covered vessel . . . [to] knowingly or intentionally . . .

manufacture or distribute, or possess with intent to manufacture

or distribute, a controlled substance." 46 U.S.C. § 70503(a)(1).

The MDLEA's prohibitions apply "even though the act is committed

outside the territorial jurisdiction of the United States," id.

§ 70503(b), and "a covered vessel" includes, inter alia, any

"vessel subject to the jurisdiction of the United States," id.

§ 70503(e)(1).30 As relevant here, the Act defines "vessel subject

to the jurisdiction of the United States" to include any "vessel

without nationality." Id. § 70502(c)(1)(A).

A vessel is expressly considered "without nationality"

-- or stateless -- under the MDLEA in three circumstances. First,

that label applies when "the master or individual in charge fails,"

when asked by U.S. law enforcement, "to make a claim of nationality

or registry for th[e] vessel." Id. § 70502(d)(1)(B). As noted

above, a claim of nationality or registry can be made by presenting

documents demonstrating nationality, "flying [the claimed]

nation's ensign or flag," or verbally asserting nationality or

30 Another subsection of the statute defines "covered vessel" to include "any other vessel if the individual [allegedly engaged in drug activity] is a citizen of the United States or a resident alien of the United States." 46 U.S.C. § 70503(e)(2). At issue in this case is U.S. jurisdiction over foreigners, and we therefore do not consider the MDLEA's application to U.S. nationals.

- 34 - registry. Id. § 70502(e)(1)-(3). Second, a vessel is considered

stateless if its master does make a claim of nationality or

registry, but the nation identified denies the claim when contacted

by U.S. officials. Id. § 70502(d)(1)(A). Third, a vessel is

considered stateless when the country whose nationality is claimed

"does not affirmatively and unequivocally assert that the vessel

is of its nationality." Id. § 70502(d)(1)(C). This last situation

-- the foundation for appellants' arrest and prosecution -- is the

focus of the constitutional challenge now before us.31

Despite the frequency with which MDLEA cases arise in

this circuit, waiver and other threshold procedural issues have

prevented us from fully addressing the merits of a challenge under

Article I to any portion of the MDLEA. See United States v.

Sarmiento-Palacios, 885 F.3d 1, 3-4 (1st Cir. 2018) (finding a

challenge to the constitutionality of the MDLEA waived where the

defendant failed to develop the argument and conceded that "the

MDLEA is a valid exercise of Congress's Article I powers"); United

States v. Díaz-Doncel, 811 F.3d 517, 518 (1st Cir. 2016) (holding,

before Class, that the defendant had waived the right to challenge

the constitutionality of the MDLEA on appeal by entering an

31A vessel also may be treated as stateless under the MDLEA if it displays more than one country's flag "and us[es] them according to convenience." 1958 Convention on the High Seas, supra, art. 6 (incorporated into the MDLEA at 46 U.S.C. § 70502(c)(1)(B)).

- 35 - unconditional guilty plea); United States v. Nueci-Pena, 711 F.3d

191, 196-98 (1st Cir. 2013) (addressing defendant's Article I

challenge to the MDLEA under plain error review because the

argument was not raised in the district court and concluding that

there was no plain error in light of the lack of First Circuit and

Supreme Court precedent addressing the constitutionality of the

MDLEA); United States v. Cardales-Luna, 632 F.3d 731, 737-38 (1st

Cir. 2011) (holding that, because the constitutionality of the

MDLEA did not implicate the court's subject matter jurisdiction,

it was not appropriate for the court to raise the issue sua

sponte).

In Aybar-Ulloa, the en banc court was presented with a

preserved constitutional challenge. The defendant argued that

Article I did not give Congress the authority to assert U.S.

jurisdiction over stateless vessels that have no nexus to the

United States, basing his argument on the asserted existence of a

nexus requirement in international law. See 987 F.3d at 15

(Barron, J., concurring) (elaborating Aybar-Ulloa's constitutional

claim). The en banc court did not address Congress's authority

under the Constitution, however, because it concluded that

international law permits the United States to prosecute foreign

nationals engaged in drug trafficking on any stateless vessel, at

least when U.S. authorities have boarded and seized the vessel

pursuant to the right of boarding recognized under international

- 36 - law. Id. at 6, 14.32 The court expressly did not "reach the

question of whether the application of the MDLEA to Aybar[-Ulloa]

would be constitutional were international law otherwise." Id. at

3. Aybar-Ulloa does not govern this case. Unlike the defendant

there -- who admitted that his vessel was stateless -- Reyes-

Valdivia and Dávila-Reyes insist that their vessel was not properly

deemed "without nationality." They assert that the method of

determining statelessness in § 70502(d)(1)(C) expands U.S.

jurisdiction beyond the bounds permitted by the Constitution.

We have passed upon some related questions, such as

whether another of the "without nationality" provisions of the

MDLEA is consistent with international law, see Matos-Luchi, 627

F.3d at 6-7 (noting that 46 U.S.C. § 70502(d)(1)(B) is consistent

The concurring judge in Aybar-Ulloa declined to join the 32

majority's approach, finding "no clear support in either case law or commentary for the comparatively modest proposition that persons on stateless vessels that a foreign country's officials have seized and boarded pursuant to their recognized right to visit it are subject to that country's territorial jurisdiction under international law." 987 F.3d at 18 (emphasis added). More particularly, the Aybar-Ulloa concurrence observed that international law experts have "long noted the disagreement that exists over" whether "the prevailing view of the law of nations is that the interdicting country acquires the same territorial jurisdiction over the vessel's occupants as it acquires over the vessel itself." Id. at 17. Given this lack of support for the majority's approach, and related concerns, see id. at 20-22, the concurring opinion instead rejected Aybar-Ulloa's challenge based on "the more than two-century-old precedent" addressing "the United States' power to prosecute defendants of a range of citizenships and circumstances" "for their felonious conduct on stateless vessels in international waters." Id. at 22, 26 (relying on United States v. Holmes, 18 U.S. (5 Wheat.) 412 (1820)).

- 37 - with international law allowing a vessel to be deemed stateless if

the master refuses to claim a nationality),33 and whether the

MDLEA's flag-nation consent provisions provide due process, see

Cardales, 168 F.3d at 553 (holding that "due process is satisfied

when the foreign nation in which the vessel is registered

authorizes the application of United States law to the persons on

board the vessel"). Along with Aybar-Ulloa, these cases provide

a useful backdrop to our discussion of the constitutionality of

§ 70502(d)(1)(C), but they do not answer the question now before

us.

Although several of our sister circuits have addressed

whether the MDLEA is, in general, a constitutional exercise of

Congress's authority under the Felonies Clause, it appears that no

circuit has considered the specific authority for

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

Instead, courts have assumed that the MDLEA applies only to vessels

that would be subject to U.S. jurisdiction under international

In Matos-Luchi, the panel majority made the broad statement 33

that "the MDLEA is consistent with international law." 627 F.3d at 6. Read in context, however, that statement refers only to the jurisdictional provision at issue there -- § 70502(d)(1)(B). The discussion that follows focuses on deeming a vessel stateless when there is an attempt "to avoid national identification," and concludes by asserting that "the instances specified by Congress -- pertinently, the refusal 'aboard' the vessel to claim nationality, 46 U.S.C. § 70502(d)(1)(B) -- are not departures from international law but merely part of a pattern consistent with it." Id. at 7 (emphasis added).

- 38 - law, i.e., U.S. vessels and those meeting the international law

definition of statelessness. See, e.g., United States v.

Ballestas, 795 F.3d 138, 146-47 (D.C. Cir. 2015) (holding that

Congress had authority under the Felonies Clause to punish a

defendant for conduct committed by his co-conspirators aboard a

stateless vessel on the high seas); United States v. Campbell, 743

F.3d 802, 810 (11th Cir. 2014) (stating that "we have long upheld

the authority of Congress to 'extend[] the criminal jurisdiction

of this country to any stateless vessel in international waters

engaged in the distribution of controlled substances'" (quoting

United States v. Marino-Garcia, 679 F.2d 1373, 1383 (11th Cir.

1982)) (alteration in original)); United States v. Estupinan, 453

F.3d 1336, 1338 (11th Cir. 2006) (holding that the MDLEA's

punishment of drug trafficking "on board a vessel subject to the

jurisdiction of the United States" is within Congress's

constitutional authority); United States v. Moreno-Morillo, 334

F.3d 819, 824 (9th Cir. 2003) (citing United States v. Davis, 905

F.2d 245, 248 (9th Cir. 1990), for the proposition that "this court

clearly has held that the MDLEA is constitutional" in a case where

the statelessness of the vessel was uncontested). We have thus

found no precedent squarely addressing the argument that

appellants make here: that the definition of a "vessel without

nationality" in § 70502(d)(1)(C) is broader than the definition of

- 39 - a stateless vessel under international law and is therefore

unconstitutional.34

Thus, although we draw on prior cases addressing the

constitutionality of the MDLEA and its relationship with

international law, the issue before us appears to be one of first

impression for the federal courts.

B. Constitutional Limits on Congress's Authority to Define and Punish Felonies

As described above, appellants contend that

§ 70502(d)(1)(C) of the MDLEA defines "vessel without nationality"

to encompass vessels -- including their own -- that are not in

fact without nationality under international law. A conflict

exists, they explain, because the provision treats a vessel as

Although the same MDLEA provision was at issue in United 34

States v. Bravo, the defendants argued only that their prosecution was flawed because the government failed to satisfy a nexus requirement -- i.e., "that the marijuana transported in the vessel would affect the United States." 489 F.3d 1, 7 (1st Cir. 2007). We rejected the challenge, stating that "[w]e do not read the MDLEA to require a jurisdictional nexus." Id. Hence, we were not confronted with the argument asserted here -- that Congress acted beyond its constitutional authority in adopting § 70502(d)(1)(C). We note that the author of Bravo subsequently rejected the position taken in that case. See United States v. Trinidad, 839 F.3d 112, 116 (1st Cir. 2016) (Torruella, J., dissenting) ("I can no longer support the approach taken by this and our sister circuits in embracing the sweeping powers asserted by Congress and the Executive under the [MDLEA.]"). Trinidad also involved § 70502(d)(1)(C), but the defendant there did not challenge the government's determination that his vessel was "without nationality" under that provision or argue that "his plea agreement must be vacated because Congress exceeded its constitutional authority under Article I in enacting the MDLEA." Id. at 113 n.1.

- 40 - stateless despite a claim of nationality being made through a

method long acceptable under international law -- specifically, in

their case, the master's verbal claim -- if the named country does

not "affirmatively and unequivocally assert that the vessel is of

its nationality." 46 U.S.C. § 70502(d)(1)(C). In other words,

appellants maintain that § 70502(d)(1)(C) rejects a claim of

nationality in circumstances where international law accepts the

claim. According to appellants, because of this disconnect between

the MDLEA and international law, U.S. authorities who rely on the

definition of a "vessel without nationality" contained in

§ 70502(d)(1)(C) will impermissibly arrest and prosecute foreign

nationals on a foreign vessel -- which is what they say occurred

in this case.

Appellants' assertion of improper arrest and prosecution

depends on two propositions involving international law: first,

that Congress's authority to "define and punish . . . Felonies

committed on the high Seas," U.S. Const. art. I, § 8, cl. 10, is

limited by principles of international law and, second, that

§ 70502(d)(1)(C) allows the United States to deem vessels

stateless even when they would not be deemed stateless under

international law. If both propositions are correct,

§ 70502(d)(1)(C) would unconstitutionally permit U.S. authorities

to assert jurisdiction over vessels that would not be stateless

under international law. In that scenario, the United States would

- 41 - be imposing its law on foreign individuals on foreign vessels --

an extension of jurisdiction that ordinarily is impermissible.

See, e.g., Aybar-Ulloa, 987 F.3d at 5 (noting that "the flag-state

system guarantees freedom of navigation in international waters,

as states generally may not interfere with the passage on the high

seas of ships lawfully flying the flag of another state" (citing

Richard A. Barnes, "Flag States," in The Oxford Handbook on the

Law of the Sea 313 (Rothwell et al. eds. 2015))); id. at 12 (noting

"the presumption of exclusive flag-state jurisdiction" over

vessels with identified nationality).

Hence, resolving this case requires us first to examine

the intersection between the Felonies Clause and international

law. To be clear, the claim here is not that international law

itself constrains Congress's authority to enact statutes.35

Rather, appellants contend that the Felonies Clause of the

Constitution, by original design, requires Congress to adhere to

the jurisdictional limits of international law with respect to

The MDLEA states that a person charged under the statute 35

"does not have standing to raise a claim of failure to comply with international law as a basis for a defense." 46 U.S.C. § 70505. The provision further states that "only . . . a foreign nation" may raise such a claim and that "[a] failure to comply with international law does not divest a court of jurisdiction and is not a defense to a proceeding under this chapter." Id. This bar does not apply here precisely because defendants are not arguing that international law itself constrains Congress's authority.

- 42 - determining statelessness.36 We thus begin our discussion by

examining how the Framers would have understood the authority given

to Congress by the Felonies Clause.

1. The Constitution and International Law

The delegates who gathered to draft the Constitution had

a primary goal of improving the new nation's ability to meet its

obligations to other countries under international law. See Ryan

Goodman & Derek P. Jinks, Filartiga's Firm Footing: International

Human Rights and Federal Common Law, 66 Fordham L. Rev. 463, 464

(1997) ("[T]he Framers held the Constitutional Convention in large

part due to the perceived inability of the Confederation to uphold

American obligations under international law.").37 When the

Governor of Virginia, Edmund Randolph, introduced the "Virginia

Plan" that was to become the basis for the Constitution,38 he

36 Of course, where possible, we construe statutes to be consistent with international law. See Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804); Garcia v. Sessions, 856 F.3d 27, 41 (1st Cir. 2017). 37 In Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), the Second Circuit held that plaintiffs could bring actions under the Alien Tort Statute ("ATS") "based on modern human-rights laws absent an express cause of action created by an additional statute." Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1398 (2018). The plaintiffs in Filartiga were the family members of a young man who had been tortured and murdered by Paraguayan police officers, one of whom was living in New York. The suit was filed in the United States District Court for the Eastern District of New York, and the appeals court found jurisdiction existed under the ATS. 38 The Virginia Plan was a set of fifteen "republican Principles" introduced by Randolph for discussion at the Constitutional Convention. 1 Records of the Federal Convention of

- 43 - criticized the Articles of Confederation because they did not allow

the federal government to punish states that "act[] against a

foreign power contrary to the laws of nations or violate[] a

treaty" or to compel states to punish their citizens who violate

the law of nations by, for example, "invad[ing]" the rights of an

ambassador. 1 Records of the Federal Convention of 1787 24-25

(Max Farrand ed., 1911) (hereinafter "Farrand's Records").

Likewise, James Madison wrote to James Monroe in 1784 that

"[n]othing seems to be more difficult under [the Articles of

Confederation] than to impress on the attention of our [state]

Legislatures a due sense of those duties which spring from our

relations to foreign nations." Letter from James Madison to James

Monroe (Nov. 27, 1784), in 2 The Writings of James Madison 93

(Gaillard Hunt ed., 1901).

These statements reflect the Framers' concern that,

without the power to "enforce national treaties against

recalcitrant states, compel their compliance with the law of

1787 27-28 (Max Farrand ed., 1911). It described in general terms the governmental structure that was later adopted in significant part by the Constitution: a bicameral legislature, a national executive (albeit one elected by the legislature), and a judiciary with, among other powers, the authority to "determine Piracies, Captures, [and] Disputes between Foreigners and Citizens." Id. Before introducing this plan, Randolph listed five ways in which the Articles of Confederation did not fulfill "the objects for which it was framed." Id. at 24. The first of these, as explained above, was its failure to ensure compliance with international law. Id. at 24-25.

- 44 - nations, punish offenses against that law, regulate foreign

commerce, and so on, the new republic would be unable to obtain

commercial advantages and, given its military weakness and

perilous geographic situation, would face external threats."

David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The

Early American Constitution, the Law of Nations, and the Pursuit

of International Recognition, 85 N.Y.U. L. Rev. 932, 980 (2010);

see also id. at 934-35 (explaining that "[d]iplomatic frustrations

resulting from state violations of the Treaty of Peace [with

England], in particular, helped create the atmosphere of crisis

that motivated profederal forces to organize and write a

constitution").

In drafting a new constitution, the Framers thus aimed

"to provide a national monopoly of authority in order to assure

respect for international obligations." Stewart Jay, The Status

of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819,

829 (1989). The Framers were "commit[ted] to protecting sovereign

interests through rigorous enforcement of the law of nations."

Douglas J. Sylvester, International Law as Sword or Shield? Early

American Foreign Policy and the Law of Nations, 32 N.Y.U. J. Int'l

L. & Pol. 1, 9 (1999); see also Jesner v. Arab Bank, PLC, 138 S.

Ct. 1386, 1417 (2018) (Gorsuch, J., concurring) ("[W]hen the

framers gathered to write the Constitution they included among

their chief priorities endowing the national government with

- 45 - sufficient power to ensure the country's compliance with the law

of nations."); Golove & Hulsebosch, supra, at 988 (stating that

the Framers "carefully designed the new Constitution to ensure

that the new nation would uphold its duties under the law of

nations"); Louis Henkin, Foreign Affairs and the United States

Constitution 234 (2d ed. 1996) ("The Framers assumed that the new

federal government would carry out the obligations of the United

States under international law."); Anthony J. Bellia Jr. & Bradford

R. Clark, The Law of Nations as Constitutional Law, 98 Va. L. Rev.

729, 751 (2012) ("Of all the rights that can belong to a nation,

sovereignty is, doubtless, the most precious, and that which others

ought the most scrupulously to respect, they would not do it an

injury." (quoting 1 Emmerich de Vattel, The Law of Nations, bk.

II, § 54, at 138 (London, J. Newberry et al., 1759), "the most

well-known work on the law of nations in England and America at

the time of the Founding," id. at 749)); Beth Stephens, The Law of

Our Land: Customary International Law as Federal Law after Erie,

66 Fordham L. Rev. 393, 397 (1997) (stating that "the intent of

the framers, incorporated into the Constitution, was to ensure

respect for international law by assigning responsibility for

enforcement of that law to the three branches of the federal

government"). Laws governing interactions on the high seas were

of particular concern: "The framers of the Constitution were

familiar with [the law of the sea] and proceeded with it in mind.

- 46 - Their purpose was not to strike down or abrogate the system, but

to place the entire subject . . . under national control, because

of its intimate relation to navigation and to interstate and

foreign commerce." Panama R. Co. v. Johnson, 264 U.S. 375, 386

(1924).

The Framers' commitment to international law principles

was both pragmatic and ideological. See Jay, supra, at 822

(explaining that, "[i]n the eighteenth century a consensus existed

that the law of nations rested in large measure on natural law,"

and thus the Framers viewed following the law of nations as a moral

imperative); Beth Stephens, Federalism and Foreign Affairs:

Congress's Power to "Define and Punish . . . Offenses Against the

Law of Nations", 42 Wm. & Mary L. Rev. 447, 465 (2000) (describing

the Framers' belief that "[e]nforcement of international law norms

was . . . a moral obligation"). Indeed, the Framers believed that

to be a "nation," the United States must honor the law of nations.39

39 At the time of the founding, the phrase "law of nations" was generally used to refer to customary international law (i.e., law established by universal practice rather than by agreement in a treaty). See United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1251 (11th Cir. 2012) (stating that "[w]e and our sister circuits agree that the eighteenth-century phrase, the 'law of nations,' in contemporary terms, means customary international law," and collecting cases). However, it was also used as a broader term for international law, including treaties. See Sarah H. Cleveland & William S. Dodge, Defining and Punishing Offenses under Treaties, 124 Yale L.J. 2202, 2206-07 (2015) (arguing that "Offences against the Law of Nations" includes treaty violations). In this case, where no treaty is at issue, we need not consider the precise meaning of the term "law of nations" as used by the Framers, and

- 47 - See Chief Justice John Jay, Charge to the Grand Jury of the

District of New York (Apr. 4, 1790), reprinted in N.H. Gazette

(Portsmouth 1790) (stating, in a charge to a grand jury, that "[w]e

had become a nation -- as such, we were responsible to others for

the observance of the Laws of Nations"). Hence, as they embarked

on drafting a constitution, the Framers saw a federal system

capable of upholding international law as an imperative for the

United States to achieve equal status in the community of nations.

See Aybar-Ulloa, 987 F.3d at 26 (Barron, J., concurring) ("The

founding generation was attentive to the strictures of the law of

nations.").

With this backdrop, we think it apparent that the Framers

viewed international law as a restraint on Congress's enumerated

powers bearing on foreign relations. As John Quincy Adams

explained, "[t]he legislative powers of Congress are . . . limited

to specific grants contained in the Constitution itself, all

restricted on one side by the power of internal legislation within

the separate States, and on the other, by the laws of nations."

John Quincy Adams, The Jubilee of the Constitution 71 (1839)

(emphasis added).

we henceforth use the modern term "international law" to refer to the body of law that includes both customary international law and treaties.

- 48 - There is a particular justification for interpreting the

Define and Punish Clause in relation to the Framers' understanding

of international law principles. The Define and Punish Clause, of

which the Felonies Clause is a part, refers to "Offences against

the Law of Nations," "Piracies," and "Felonies" -- all concepts

taken directly from international law. See Banco Nacional de Cuba

v. Sabbatino, 376 U.S. 398, 451 & n.13 (1964) (White, J.,

dissenting) (noting that the language of the Define and Punish

Clause shows the Framers' belief that "the law of nations is a

part of the law of the land"); Golove & Hulsebosch, supra, at 1009

(stating that "[t]his deliberate borrowing suggest[s] that the

established principles of the law of nations might define the scope

of the [congressional] powers themselves"). These phrases, found

in the leading international law treatises of the day, were

familiar shorthand for complex international law concepts. Their

use in the Constitution is thus strong evidence that the Framers

intended the Define and Punish Clause to align with the

international law understanding of those terms. See 3 Emmerich de

Vattel, The Law of Nations 295 (1758) (Charles G. Fenwick trans.,

1916) (referencing "offenses against the Law of Nations"); 4

William Blackstone, Commentaries *67-71 (discussing "offences

against the law of nations," and defining "piracy" as one such

offense); 3 Sir Edward Coke, The Institutes of the Laws of England

- 49 - 111 (1644) (describing "Piracies, and felonies . . . done on the

sea").

International law thus informs our inquiry into the

meaning of the Define and Punish Clause and, specifically, the

Felonies portion of the Clause.

2. The Meaning of the Felonies Clause

As noted above, the Define and Punish Clause grants

Congress the following authority: "To define and punish Piracies

and Felonies committed on the high Seas, and Offences against the

Law of Nations." U.S. Const. art. I, § 8, cl. 10. We discuss

below primarily the text that precedes the comma -- i.e., the

authority with respect to "Piracies and Felonies committed on the

high Seas." That is so because, as we have noted, it is undisputed

in this case that the MDLEA was enacted pursuant to Congress's

authority under the Felonies Clause. Although the reference to

"Piracies" -- a crime "committed on the high Seas" and appearing

alongside the term "Felonies" -- necessarily plays a role in our

analysis, the separate clause referencing "Offences against the

Law of Nations," which applies to crimes committed both on land

and at sea, sheds no light on the scope of U.S. jurisdiction on

the high seas. We therefore focus solely on the authority

specifically given to Congress over crimes "on the high Seas."

That focus requires us to determine what the Framers

intended by the words they chose. In so doing, we seek guidance

- 50 - on the Framers' understanding of international law principles,

including international law terminology, from contemporaneous

sources. See U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S.

452, 461-62 & n.12 (1978) (explaining the Framers' separate use of

the terms "treaty," "compact," and "agreement" in Article I of the

Constitution by reference to treatises on international law with

which the Framers would have been familiar); Waring v. Clarke, 46

U.S. 441, 441 n.1 (1847) (stating that "[t]he Constitution . . .

refers to the law of nations for the meaning of" the terms

"admiralty" and "maritime," and thus interpreting those terms in

light of their meaning in international law); see also Zivotofsky

ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 12 (2015) (looking to

"prominent international scholars" from "the time of the founding"

to elucidate the meaning of the Reception Clause, Article II,

section 3, of the Constitution).

Just as it does today, at the time the Framers were

drafting the Constitution the term "Felonies" meant serious

crimes, such as treason, murder, arson, burglary, robbery, and

rape. See Blackstone, supra, at *94; 2 Timothy Cunningham, A New

and Complete Law Dictionary 23-28 (3d ed. 1783). Before the

Constitution became the governing law, all such crimes, whether

committed on land or at sea, were defined by state statutes or

state common law and punished in state courts. In the only

statement at the Constitutional Convention regarding the inclusion

- 51 - of the term "Felonies," James Madison explained that, "[i]f the

laws of the states were to prevail on [the meaning of "Felonies"],

the citizens of different states would be subject to different

punishments for the same offence at sea. There would be neither

uniformity nor stability in the law." 5 Debates on the Federal

Constitution 437 (Jonathan Elliot ed., 2d ed. 1836). As voiced by

Madison, then, the constitutional drafters recognized the need to

create a uniform system of crimes and punishments on the high seas

that would apply to all U.S. citizens. There was no mention,

however, of conduct committed by foreigners on foreign vessels.

Nonetheless, the independent inclusion of "Piracies" in

the Define and Punish Clause provides a clue to the Framers' intent

regarding U.S. jurisdiction over felonies committed on foreign

vessels. The separate references to "Piracies" and "Felonies"

inescapably reflects the Framers' view that Congress's power over

each category was meant to be distinct. See generally The

Federalist No. 42, at 233 (James Madison) (E.M. Scott ed., 1898)

(discussing the necessity of defining each term). That distinction

has its origin in international law.

Piracy, as defined by international law -- i.e.,

"robbery upon the sea," United States v. Smith, 18 U.S. 153, 162

- 52 - (1820)40 -- is a crime of "universal jurisdiction,"41 meaning that

it can be punished by any country no matter where it is committed

or by whom. At the time the Constitution was drafted, this feature

of piracy under international law was well established. See

40 A more expansive definition of the universal crime of piracy, updated to include the realm of aviation, is as follows: Piracy includes any illegal act of violence, detention or depredation committed for private ends by the crew or passengers of a private ship (or aircraft) against another ship (or aircraft) or persons or property on board it, on (or over) the high seas[.]

R.R. Churchill & A.V. Lowe, The Law of the Sea 209-10 (3d ed. 1999). 41 As stated in modern international law, the doctrine of universal jurisdiction provides that "a nation may prosecute certain serious offenses even though they have no nexus to its territory or its nationals, and no impact on its territory or its citizens." Cardales-Luna, 632 F.3d at 740 (Torruella, J., dissenting); see also Restatement (Third) of Foreign Relations Law of the United States § 404 (1987) (noting that "[a] state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern," even where there is no nexus between the offense and the state). Crimes may be universal jurisdiction offenses if they are "contrary to a peremptory norm of international law" and are "so serious and on such a scale that they can justly be regarded as an attack on the international legal order." Kontorovich, Beyond the Article I Horizon, supra, at 1224 n.228 (quoting Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law 178-79 (Stephen Macedo ed., 2004)). At present, in addition to piracy, the crimes generally recognized as subject to universal jurisdiction are the "slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism." See Restatement (Third) of Foreign Relations Law of the United States § 404. Drug trafficking is not recognized as a universal jurisdiction crime. Aybar-Ulloa, 987 F.3d at 14.

- 53 - Blackstone, supra, at *71 (stating that "every community has a

right" to punish piracy because it "is an offense against the

universal law of society"); 1 James Kent, Commentaries on American

Law 174 (1826) (stating that "piracy, under the law of nations, is

an offence against all nations, and punishable by all"). As

Justice Story explained in an early piracy case:

Pirates may, without doubt, be lawfully captured on the ocean by the public or private ships of every nation; for they are, in truth, the common enemies of all mankind, and, as such, are liable to the extreme rights of war. And a piratical aggression by an armed vessel sailing under the regular flag of any nation may be justly subjected to the penalty of confiscation for such a gross breach of the law of nations.

The Marianna Flora, 24 U.S. (11 Wheat.) 1, 40-41 (1825); see also

Cardales-Luna, 632 F.3d at 741 (Torruella, J., dissenting) ("Until

recently, piracy was the only crime which was punishable by all

nations . . . ."); United States v. Yousef, 327 F.3d 56, 104 (2d

Cir. 2003) ("The class of crimes subject to universal jurisdiction

traditionally included only piracy.").

That the Framers understood the term "Piracies" to refer

to the specific offense subject to universal jurisdiction is

supported by their statements describing piracy as a term borrowed

from international law. For example, at the Virginia Convention,

James Madison explained that "Piracies" was "[a] technical term of

the law of nations." 3 Farrand's Records, supra, at 332. Thus, by

- 54 - separating the term "Piracies" from "Felonies," the Framers

plainly intended to refer to the specific crime that, under

international law, could be punished by Congress even when it was

committed by foreign nationals on foreign vessels.

Just as plainly, then, the phrase "Felonies committed on

the high Seas" was intended to reference other types of serious

crimes committed on vessels. At the time, it was a well-accepted

principle of international law that countries could enact statutes

criminalizing conduct on the high seas other than piracy, but only

as to a given country's own nationals or on vessels over which the

country could exercise jurisdiction pursuant to international law.

See Blackstone, supra, at *71 (describing acts that would be

punished as felonies only if committed by an English "subject" at

sea); Letter from Thomas Jefferson to Edmond Charles Genet (June

17, 1793) (explaining that a country's jurisdiction over crimes

such as murder "on the high seas . . . reaches its own citizens

only"); William Rawle, A View of the Constitution of the United

States of America 107 (2d ed. 1829) (explaining that Congress's

power to punish felonies applies to anyone "except the citizens or

subjects of a foreign state sailing under its flag," but that

piracy is "punishable in our courts, and in the courts of all

nations" (emphasis added)); Henry Wheaton, Elements of

International Law 164 (Richard Henry Dana, Jr., ed., 8th ed. 1866)

(observing that countries could enact laws punishing conduct at

- 55 - sea, but such conduct could "only be tried by that State within

whose territorial jurisdiction" or "on board of whose vessels, the

offence thus created was committed").

Confusingly, these other serious crimes, which would be

denominated felonies if committed on land, were often referred to

as "piracies" when committed on the high seas, even though they

were not "Piracy" as defined by international law. See Wheaton,

supra, (explaining that "[t]here are certain acts which are

considered piracy by the internal laws of a State, to which the

law of nations does not attach the same signification"); Hon. John

Marshall, Speech Delivered in the House of Representatives (Mar.

7, 1800), at 10 ("A statute may make any offence piracy, committed

within the jurisdiction of the nation passing the statute, and

such offence will be punishable by that nation."); Kent, supra,

(explaining that, under international law, "[t]he statute of any

government may declare an offence committed on board its own

vessels to be piracy, and such an offence will be punishable

exclusively by the nation which passes the statute"). As one

scholar explains, the term piracy "had a popular meaning of serious

or capital offense on the high seas," Eugene Kontorovich, The

"Define and Punish" Clause and the Limits of Universal

Jurisdiction, 103 Nw. L. Rev. 149, 166 (2009), and the term was

thus used colloquially to refer to any felony committed at sea,

see John Marshall Speech at 10 ("It is by confounding general

- 56 - piracy with piracy by statute, that indistinct ideas have been

produced, respecting the power to punish offences committed on the

high seas.").

The Framers' separation of "Piracies" and "Felonies" in

the Define and Punish Clause avoids this confusion and reserves

the precise meaning of "Piracy" under international law for that

specific crime. The Framers' use of the separate terms "Piracies"

and "Felonies" thus manifests an intent to distinguish between

crimes with different jurisdictional limits under international

law: classic piracy, which can be punished no matter where

committed or by whom, and Felonies, which can be punished only if

committed by U.S. nationals42 or on vessels subject to U.S.

jurisdiction under international law. As noted in the Aybar-Ulloa

concurrence, "the United States itself early on took the position

before the Supreme Court that the Define and Punish Clause" "is

As stated supra, we do not address here the MDLEA's 42

application to U.S. citizens and resident aliens. However, the sources quoted above indicate that the Framers would have understood the Felonies Clause to permit U.S. authorities to exercise jurisdiction over U.S. nationals on foreign vessels in at least some circumstances. See Skiriotes v. Florida, 313 U.S. 69, 73 (1941) (stating that "the United States is not debarred by any rule of international law from governing the conduct of its own citizens upon the high seas or even in foreign countries when the rights of other nations or their nationals are not infringed"); United States v. Kaercher, 720 F.2d 5, 5 (1st Cir. 1983) (per curiam) (quoting the Restatement of Foreign Relations Law of the United States for the proposition that "[a] state has jurisdiction to prescribe a rule of law . . . attaching legal consequences to conduct of a national of the state wherever the conduct occurs" (alteration and omission in original)).

- 57 - impliedly limited by the law of nations in ways that constrain

Congress's authority to rely on that Clause to subject foreign

nationals to our criminal laws for conduct that they engage [in]

while they are on foreign vessels -- even when those vessels are

on the high seas." 987 F.3d at 16 n.7, 15 (Barron, J., concurring);

see id. at 16 n.7 (quoting the argument of Mr. Blake on behalf of

the United States in United States v. Palmer, 16 U.S. (3 Wheat.)

610, 620 (1818): "A felony, which is made piracy by municipal

statutes, and was not such by the law of nations, cannot be tried

by the courts of the United States, if committed by a foreigner on

board a foreign vessel, on the high seas; because the jurisdiction

of the United States, beyond their own territorial limits, only

extends to the punishment of crimes which are piracy by the law of

3. Jurisdiction on the High Seas under International Law

Given the Framers' clear intention to draw a

jurisdictional distinction between "Piracies" and "Felonies," the

question of when a vessel sailing on the high seas may be subject

to U.S. jurisdiction under international law -- i.e., the question

at the heart of this case -- has constitutional significance. It

is a bedrock principle of the international law of the sea,

recognized long before the founding of this country, that "all

nations have an equal and untrammelled right to navigate on the

high seas." Marino-Garcia, 679 F.2d at 1380; see also United

- 58 - States v. Maine, 475 U.S. 89, 96 n.11 (1986) (explaining that

"since the days of Grotius, the principle of the freedom of the

high seas found an ever wider currency" and "crystallized into a

universally accepted principle of international law" by "the

beginning of the nineteenth century" (quoting Yehuda Z. Blum,

Historic Titles in International Law § 61, at 242-43 (1965)));

Hugo Grotius, The Freedom of the Seas 44 (Ralph V.D. Magoffin

trans., 1916) ("It is clear . . . that he who prevents another

from navigating the sea has no support in law."); United Nations

Convention on the Law of the Sea ("UNCLOS") art. 90, Dec. 10, 1982,

1833 U.N.T.S. 397.43 To ensure this right of free navigation,

43 Although the Senate has not ratified the UNCLOS, it was signed by the President and is generally recognized by the United States as reflecting customary international law, i.e., universal practice. See United States v. Alaska, 503 U.S. 569, 588 n.10 (1992) (acknowledging the U.S. government's position that the UNCLOS provisions are part of customary international law); see also Aybar-Ulloa, 987 F.3d at 5 n.2 (citing the UNCLOS "as evidence of the customs and usages of international law"); United States v. Hasan, 747 F. Supp. 2d 599, 635 (E.D. Va. 2010) ("[T]he United States has consistently accepted UNCLOS as customary international law for more than 25 years."). Moreover, "many of the provisions of the [UNCLOS] follow closely provisions in the 1958 conventions to which the United States is a party and which largely restated customary law as of that time." Restatement (Third) of Foreign Relations Law of the United States, Part V, Introductory Note; see also Mayagüezanos por la Salud y el Ambiente v. United States, 198 F.3d 297, 304 n.14 (1st Cir. 1999) (referring to the "UNCLOS only to the extent that it incorporates customary international law," and noting that, as a signatory, "the United States 'is obliged to refrain from acts that would defeat the object and purpose of the agreement'" (quoting Restatement (Third) of Foreign Relations Law of the United States § 312(3))). The UNCLOS provisions defining a stateless vessel discussed infra have long been part of the international law of the sea and are largely identical to those in

- 59 - "international law generally prohibits any country from asserting

jurisdiction over foreign vessels on the high seas," and "vessels

are normally considered within the exclusive jurisdiction of the

country whose flag they fly."44 Marino-Garcia, 679 F.2d at 1380;

see also Aybar-Ulloa, 987 F.3d at 5; John Marshall Speech at 5

(stating that "the opinion of the world is, that a fleet at sea,

is within the jurisdiction of the nation to which it belongs").

To preserve this system of flag-state jurisdiction,

"every vessel must sail under the flag of one and only one state;

those that sail under no flag . . . enjoy no legal protection."

Matos-Luchi, 627 F.3d at 5; see also, e.g., Aybar-Ulloa, 987 F.3d

at 6 (noting that "international law renders stateless vessels

'susceptible to the jurisdiction of any State'" (quoting Barnes,

supra, at 314)); United States v. Pinto-Mejia, 720 F.2d 248, 260

(2d Cir. 1983) (explaining that "a stateless vessel, which does

not sail under the flag of one state to whose jurisdiction it has

submitted, may not claim the protection of international law and

does not have the right to travel the high seas with impunity");

United States v. Rubies, 612 F.2d 397, 403 (9th Cir. 1979) ("'In

the 1958 Convention on the High Seas, which has been ratified by the United States. See supra, arts. 5 & 6. 44 Although the nationality of a vessel is often referred to as its "flag," there is no requirement that a vessel fly a physical flag to maintain its nationality. See Matos-Luchi, 627 F.3d at 5. Rather, "[s]hips have the nationality of the State whose flag they are entitled to fly." UNCLOS art. 91, § 1 (emphasis added).

- 60 - the interest of order on the open sea, a vessel not sailing under

the maritime flag of a State enjoys no protection whatever, for

the freedom of navigation on the open sea is freedom for such

vessels only as sail under the flag of a State.'" (quoting Lassa

Oppenheim, International Law 546 (7th ed. 1948))). Therefore, it

has long been understood that the United States -- and any other

country -- may exercise jurisdiction over vessels that are

considered stateless under international law. We confirmed that

understanding in Aybar-Ulloa. See, e.g., 987 F.3d at 12

("[S]tateless vessels are treated as subject to the exercise of

authority by any nation."); see also, e.g., Matos-Luchi, 627 F.3d

at 6 (noting that "international law . . . treats the 'stateless

vessel' concept as informed by the need for effective enforcement,"

and, hence, "a vessel may be deemed 'stateless,' and subject to

the enforcement jurisdiction of any nation on the scene, if it

fails to display or carry insignia of nationality and seeks to

avoid national identification"); Andrew W. Anderson, Jurisdiction

over Stateless Vessels on the High Seas: an Appraisal Under

Domestic and International Law, 13 J. Mar. L. & Com. 323, 337

(1982) ("[T]he extension of United States jurisdiction over

stateless vessels seems not only to be a reasonable claim but

completely consistent with both customary and treaty international

law.").

- 61 - These general principles of jurisdiction on the high

seas are not disputed in this case, and, indeed, the Supreme Court

applied these principles in the decades immediately following the

Constitution's adoption. In 1790, Congress passed a law making

murder and robbery committed by "any person" on the high seas

punishable under U.S. law. See Palmer, 16 U.S. (3 Wheat.) at 626.

It was an open question, however, whether the statute extended to

conduct by foreigners on foreign vessels. When he was a

congressman, John Marshall argued that the Define and Punish Clause

can never be construed to make to the government a grant of power, which the people making it, did not themselves possess. It has already been shown that the people of the United States have no jurisdiction over offences, committed on board a foreign ship, against a foreign nation. Of consequence, in framing a government for themselves, they cannot have passed this jurisdiction to that government.

John Marshall Speech at 24-25.

Not surprisingly, then, the Supreme Court in United

States v. Palmer, in an opinion written by now Chief Justice

Marshall, held that the statute did not extend U.S. jurisdiction

to foreigners on foreign vessels for the common law form of

robbery, as distinguished from classic piracy. See 16 U.S. (3

Wheat.) at 630-34. The Court reiterated its holding on the

statute's reach two years later, concluding that it did not

criminalize the murder of a foreigner on a foreign vessel on the

- 62 - high seas because Congress knew it "had no right to interfere" in

such cases. Furlong, 18 U.S. (5 Wheat.) at 198; see also id. at

197 (observing that "punishing [murder] when committed within the

jurisdiction, or, (what is the same thing,) in the vessel of

another nation, has not been acknowledged as a right, much less an

obligation"). By contrast, the Supreme Court recognized the

classic form of piracy as "a crime within the acknowledged reach

of the punishing power of Congress" even when "committed by a

foreigner upon a foreigner in a foreign ship," id. at 197, and

noted in other cases that "[m]urders committed by and against

foreigners on stateless vessels . . . could be prosecuted in the

United States," Aybar-Ulloa, 987 F.3d at 7 (citing United States

v. Klintock, 18 U.S. (5 Wheat.) 144, 151 (1820) and United States

v. Holmes, 18 U.S. (5 Wheat.) 412, 417-18 (1820)).45

Thus, in light of these well-established limitations on

Congress's ability to criminalize the conduct of foreign nationals

45As noted above, the concurring opinion in Aybar-Ulloa also reports the historical support, in caselaw and commentary, for the contention that Congress lacks authority under the Define and Punish Clause to punish foreign nationals for conduct committed on foreign vessels, "even when those vessels are on the high seas." 987 F.3d at 15-16 & n.7 (Barron, J., concurring); see also id. at 22-26 (discussing the cases "decided just decades after the Constitution's ratification" that "dealt with the United States' power to prosecute defendants of a range of citizenships and circumstances who shared the attribute of having been indicted in our country pursuant to our criminal justice system for murder, robbery, or other wrongdoing on the high seas").

- 63 - aboard foreign vessels on the high seas,46 the question that arises

when the United States seeks to impose its law on foreigners on

the high seas is how to identify a vessel that is not within any

other country's jurisdiction -- potentially exposing those aboard

to every country's jurisdiction.47 In other words, when may a

vessel be characterized as stateless? Stateless vessels do not

appear to have been a primary focus at the time of the Framers,

and we have found no explicit statements in their deliberations on

when a vessel should be deemed stateless. That silence, of course,

is unsurprising, given the focus on avoiding improper intrusions

into the affairs of foreign nations.

As we have concluded, however, there can be no doubt

that the Constitution's drafters intended that Congress's

There are, of course, exceptions to the broad principle 46

that Congress cannot extend U.S. criminal jurisdiction to crimes like common law robbery or murder committed by foreigners against foreigners on foreign vessels. For example, a country may prosecute such crimes with the consent of the foreign nation. See Matos-Luchi, 627 F.3d at 7; see also 46 U.S.C. § 70502(c)(1)(C). But these exceptions are not pertinent here. We use the word "potentially" because we declined in Aybar- 47

Ulloa to decide "whether the United States may prosecute a foreign citizen engaged in drug trafficking on a stateless vessel where the United States never boarded and seized the vessel." 987 F.3d at 14. We note, in addition, the observation in the Aybar-Ulloa concurrence that the Third and Fourth Restatements of Foreign Relations Law of the United States do not "establish that the prevailing view of the law of nations is that the interdicting country acquires the same territorial jurisdiction over the [stateless] vessel's occupants as it acquires over the vessel itself." Id. at 17 (Barron, J., concurring).

- 64 - authority under the Define and Punish Clause, including the

Felonies portion of it, be constrained by currently applicable

international law whenever Congress invokes that Clause to assert

its authority over foreign nationals and their vessels on the high

seas. The Framers sought to ensure that Congress would respect

the sovereignty of other nations, and the limits placed on the

prosecution of other countries' nationals is an essential

component of the international system of mutual respect.

Necessarily, then, that constraint applies when Congress passes

legislation deeming vessels on the high seas stateless. If the

Constitution instead permitted Congress to define a vessel as

stateless in any way it wished, there would be a risk that Congress

could contravene international norms determining when a country

may prosecute felonies committed by foreign nationals on the high

seas. It therefore follows that the Felonies Clause requires

Congress to abide by international law principles in defining

statelessness. We thus review those principles.

4. Statelessness under International Law

International law allows each nation to decide for

itself the process through which it will grant its nationality to

a vessel. See Lauritzen v. Larsen, 345 U.S. 571, 584 (1953) ("Each

state under international law may determine for itself the

conditions on which it will grant its nationality to a merchant

ship, thereby accepting responsibility for it and acquiring

- 65 - authority over it."); UNCLOS art. 91, § 1 ("Every State shall fix

the conditions for the grant of its nationality to ships, for the

registration of ships in its territory, and for the right to fly

its flag."); 5 J.H.W. Verzijl, International Law in Historical

Perspective 146 (1972) (describing an 1801 proclamation by the

King of England regarding the conditions under which merchant ships

may fly the British flag, and noting "[t]he general principle

. . . that it is within the domestic jurisdiction of any State

. . . to determine on what conditions it will allow a sea-going

vessel to fly its flag and thus grant her its 'nationality'").

The simplest definition of a stateless vessel under international

law is thus a vessel that has not been granted nationality by any

state. Pursuant to that definition, a vessel will lack

nationality, for example, "if no state has ever authorized [the

vessel] to fly its flag, if a state has cancelled its

authorization, or if the political entity that authorized a ship

to fly its flag is not recognized as an international person."

Rosero, 42 F.3d at 171; see also id. ("[A] vessel is without

nationality if it is not authorized to fly the flag of any

state."); Matos-Luchi, 627 F.3d at 16 (Lipez, J., dissenting)

("Under international law, a stateless vessel is simply one that

does not have a valid grant of nationality from any country.").

Authorities encountering a vessel on the high seas would

not be aware of some of these circumstances -- e.g., if a state

- 66 - has cancelled a vessel's registration -- and thus will be unable

to definitively determine nationality by sight even if a vessel is

flying a flag. Nonetheless, international law recognizes a

presumption of nationality in the flag-flying situation, among

others. We have noted that "[b]y custom, a vessel claims

nationality by flying the flag of the nation with which it is

affiliated or carrying papers showing it to be registered with

that nation." Matos-Luchi, 627 F.3d at 5 (citing Lassa Oppenheim,

International Law § 261, at 594-96 (H. Lauterpacht ed., 8th ed.

1955)); see also United States v. Bustos-Guzman, 685 F.2d 1278,

1280 (11th Cir. 1982) (per curiam) (noting that flying a flag is

generally "prima facie proof" of nationality under international

law); The Chiquita, 19 F.2d 417, 418 (5th Cir. 1927) ("The flag

under which a merchant ship sails is prima facie proof of her

nationality.").

Absent a flag or papers, "a vessel may also traditionally

make an oral claim of nationality when a proper demand is made."

Matos-Luchi, 627 F.3d at 5; see also Aybar-Ulloa, 987 F.3d at 5

(quoting Matos-Luchi, 627 F.3d at 5); United States v. Obando, 891

F.3d 929, 939 (11th Cir. 2018) (Black, J., specially concurring)

(noting that, under "longstanding principles of admiralty law,"

the master "speak[s] on behalf of the ship" and must be the one to

make a verbal claim of nationality); The Little Charles, 26 F.

Cas. 979, 982 (Marshall, Circuit Justice, C.C. Va. 1818) ("The

- 67 - vessel acts and speaks by the master."); Anderson, supra, at 341

(noting that a vessel may claim nationality "by showing its flag,

presenting its documents, or making some other outward or oral

claim to a nationality" (emphasis added)). The MDLEA itself

recognizes this form of asserting nationality, stating that "[a]

claim of nationality or registry under this section includes

. . . a verbal claim of nationality or registry by the master or

individual in charge of the vessel." 46 U.S.C. § 70502(e)(3).

International law also recognizes two specific

circumstances in which a vessel may be deemed stateless regardless

of its actual status and absent any effort to determine its

nationality: when the vessel refuses to claim any nationality or

when it claims more than one nationality. See Matos-Luchi, 627

F.3d at 6-7 (stating that "a vessel may be deemed 'stateless' . . .

if it fails to display or carry insignia of nationality and seeks

to avoid national identification" by "refus[ing], without

reasonable excuse, to reveal its" nationality (quoting Meyers,

supra, at 322) (internal quotation marks omitted)); UNCLOS art.

92, § 2 (stating that "[a] ship which sails under the flags of two

or more States . . . may be assimilated to a ship without

nationality"); The Commander's Handbook on the Law of Naval

Operations ¶ 3.11.2.4 (2017),

https://www.gc.noaa.gov/pdfs/CDRs_HB_on_Law_of_Naval_Operations_

AUG17.pdf (stating that "[a] vessel may be assimilated to a vessel

- 68 - without nationality," inter alia, "when the vessel makes multiple

claims of nationality . . . or the master's claim of nationality

differs from the vessel's papers").48

Hence, whether authorities are seeking to ascertain

nationality in the first place -- by examining documents or

eliciting a verbal claim -- or to resolve a concern about

nationality that was declared by means of a flag, they may need

close contact with the vessel and its master. It is therefore

48The 2017 version of the Commander's Handbook -- applicable to the U.S. Navy, Marine Corps, and Coast Guard -- also states that a vessel may be "treated as one without nationality" when, among other factors, it displays no "identifying characteristics," when -- consistent with § 70502(d)(1) -- the master makes no claim of nationality or registry, or when "[t]he claim of registry or the vessel's display of registry is either denied or not affirmatively and unequivocally confirmed by the State whose registry is claimed." Commander's Handbook ¶ 3.11.2.3 (2017), supra; see also id., References 4 (listing MDLEA, 46 U.S.C. §§ 70501-70507). Interestingly, the Handbook's previous version, in effect when appellants were detained, did not include the failure-to-verify scenario that mirrors § 70502(d)(1)(C) of the MDLEA. Rather, its list of characteristics of a stateless vessel all relied on inconsistencies in a vessel's presentation of nationality to observers or the absence of, or refusal to provide, identification. See Commander's Handbook ¶ 3.11.2.4 (2007), https://www.marines.mil/Portals/1/Publications/MCTP%2011- 10B%20(%20Formerly%20MCWP%205-12.1).pdf?ver=2017-07-11-151548- 683 (providing "a partial list of factors that should be considered in determining whether a vessel is appropriately assimilated to stateless status: (1) No claim of nationality; (2) Multiple claims of nationality; (3) Contradictory claims or inconsistent indicators of nationality (e.g. master's claim differs from vessel's papers; homeport does not match nationality of flag); (4) Changing flags during a voyage; (5) Removable signboards showing different vessel names and/or homeport; (6) Absence of anyone admitting to be the master; displaying no name, flag, or other identifying characteristics; and (7) Refusal to claim nationality").

- 69 - understood that international law's so-called "right of visit"

permits authorities to inquire, board, and conduct a limited search

"designed to elicit information about the vessel's identification

and registration." Cuevas-Esquivel, 905 F.2d at 513; see also

Aybar-Ulloa, 987 F.3d at 6 (recognizing that a "clearly-marked law

enforcement ship of any state may board [a private ship] . . . if

there is reason to suspect that the ship . . . is without

nationality" (quoting Restatement (Third) of Foreign Relations Law

of the United States § 522(2)(b) (1987)) (omissions in original));

United States v. Cortes, 588 F.2d 106, 109 (5th Cir. 1979) (stating

that, under international law, "stateless vessels are subject to

this type of examination").49 The question in this appeal,

addressed in Section V.C infra, is whether international law

The "right of visit" under international law allows a 49

"warship" (which would include a law enforcement ship like the Coast Guard vessel here) to stop and question a foreign ship if "there is reasonable ground for suspecting that the ship is engaged in piracy," slave trading, or illegal broadcasting, "is without nationality," or, although flying a foreign flag, is actually of the same nationality as the warship. UNCLOS art. 110, § 1. However, the right of visit does not provide an independent ground for exercising jurisdiction over a vessel, and certainly does not allow a state to apply its domestic laws to those aboard that vessel. Rather, it is simply a mechanism for a state to investigate suspected wrongdoing and then take actions within its authority under international law. See, e.g., Penelope Mathew, Address - Legal Issues Concerning Interception, 17 Geo. Immigr. L.J. 221, 224-25 (2003) (discussing the limited nature of the right of visit and noting that "a State would have to rely on some positive basis of jurisdiction . . . to exercise jurisdiction over persons on a stateless ship").

- 70 - permits Congress to dictate the results of such an inquiry as

provided in § 70502(d)(1)(C) of the MDLEA.

5. Summary: The Felonies Clause and Stateless Vessels

Our review of the law governing jurisdiction on the high

seas thus reveals clear signs in multiple sources -- the historical

record, the well-established perspective in the late eighteenth

century on the role of individual nations in the international

sphere, and contemporaneous legal precedent -- that the Framers'

invocation of international law terminology in the Define and

Punish Clause was deliberate. Seeking to ensure their new nation's

compliance with international law, the Framers invoked principles

drawn from that law in drafting the Define and Punish Clause

generally and the Felonies Clause specifically. In particular,

they knew the distinction in international law between "Piracies,"

which can be punished by any country wherever they occur, and other

serious crimes on the high seas, which can be punished by a country

only when committed by individuals subject to its jurisdiction.

The Framers' goal of incorporating respect for international norms

into the federal system thus makes clear that, under the Felonies

Clause, Congress's authority to set the boundaries of domestic law

on the high seas must be consistent with international law

principles. Pursuant to those principles, the key to determining

whether Congress can apply domestic law to foreign nationals on a

non-U.S. vessel on the high seas ordinarily will depend on whether

- 71 - international law would deem the vessel to be "without nationality"

-- i.e., stateless. Finally, international law recognizes that an

oral claim by the vessel's master constitutes prima facie proof of

the vessel's nationality.

With that understanding of the applicable law, we turn

to the question of whether Congress exceeded its power to "define

and punish . . . Felonies committed on the high Seas" in the

challenged provision of the MDLEA.

C. Constitutionality of § 70502(d)(1)(C)

The MDLEA reflects Congress's objective of addressing,

to the full extent of its authority, the scourge of drugs entering

the United States from abroad. See Matos-Luchi, 627 F.3d at 11

(Lipez, J., dissenting) (noting that the MDLEA and its predecessor,

the Marijuana on the High Seas Act, Pub. L. No. 96-350, 94 Stat.

1159 (1980), manifest Congress's objective to "give the Justice

Department the maximum prosecutorial authority permitted under

international law" (quoting S. Rep. 96-855, at 2 (1980))); id. at

7 ("The MDLEA was responding to repeatedly frustrated efforts to

prosecute maritime drug trafficking."). Undoubtedly mindful of

the prohibition against applying domestic law to foreigners

traveling on foreign vessels on the high seas, Congress plainly

sought in the MDLEA provision defining a stateless vessel to reach

as broadly as possible through an expansive definition of

statelessness. The statute, however, can reach no farther than

- 72 - the authority granted to Congress by the Felonies Clause, which,

as we have determined, is constrained by the norms of international

law.

As detailed above, the MDLEA provides three descriptions

for a "vessel without nationality" in § 70502(d)(1). See 46 U.S.C.

§ 70502(d)(1).50 Two are clearly consistent with international

law: when the nation whose registry is claimed denies the claim,

id. § 70502(d)(1)(A), and when the individual in charge of a vessel

fails to make a claim of nationality or registry for the vessel

upon request of an authorized United States officer, id.

§ 70502(d)(1)(B); see, e.g., Matos-Luchi, 627 F.3d at 6 (involving

For convenience, 50 we provide here the full text of § 70502(d)(1): In this chapter, the term "vessel without nationality" includes -- (A) a vessel aboard which the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed; (B) a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and (C) a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.

46 U.S.C. § 70502(d)(1).

- 73 - a refusal to make a claim of nationality). The third definition,

however -- the one at issue here -- allows a vessel to be treated

as stateless where there is a claim of nationality recognized by

international law but the identified country neither confirms nor

denies that claim. See 46 U.S.C. § 70502(d)(1)(C).

This provision thus treats a response that reports only

that the named country is unable to confirm nationality -- or the

country's failure to respond at all to U.S. inquiry -- as evidence

that is equivalent to an outright denial of a master's claim of

nationality or registry. In other words, § 70502(d)(1)(C)

displaces the prima facie showing of nationality that arises from

an oral assertion of nationality or registry -- made in accordance

with international law -- without any affirmative evidence to the

contrary. See Bustos-Guzman, 685 F.2d at 1280 (referring to the

"prima facie proof" of nationality that arises from flying a flag);

The Chiquita, 19 F.2d at 418 (same); 46 U.S.C. § 70502(e) (listing

flying a flag and a verbal claim as alternative methods of making

a claim of nationality). In so doing, § 70502(d)(1)(C) adds a new

category to the limited circumstances in which international law

deems a vessel stateless (the refusal to claim a nationality,

claiming more than one nationality, and disavowal of a claim of

nationality by the named country). A response stating only that

the country is unable to confirm nationality, or the country's

failure to provide any response, suffices to nullify even an

- 74 - unequivocal claim of nationality or registry made by the person in

charge of the vessel.

The government contends that this variation on deeming

a vessel stateless is implicitly, if not explicitly, recognized in

international law. The government asserts that international law

requires a vessel not only to make a claim of nationality, but

also to "'be in a position to provide evidence of [nationality].'"

Appellee's Br. at 29 (quoting Matos-Luchi, 627 F.3d at 6).

Consequently, the government proposes, an absence of

"affirmative[] and unequivocal[]" confirmation from the claimed

country may properly be relied upon in deeming the vessel

stateless. Id. at 36.

In making this assertion, the government relies heavily

on dicta in Matos-Luchi, a case in which the defendants had

declined to make a claim of nationality in response to a request

from Coast Guard personnel. See 627 F.3d at 2.51 As we have

described, avoiding national identification is a well-established

basis for deeming a vessel stateless, and it is incorporated into

the MDLEA in § 70502(d)(1)(B). See supra note 50; see also, e.g.,

Meyers, supra, at 322 ("[A] ship which obscures the cognoscibility

of its allocation repeatedly, deliberately, and successfully may

51 In Matos-Luchi, when the Coast Guard approached a small vessel whose crew members were suspected of drug trafficking, the crew initially fled and, when subsequently apprehended, "declined to make a claim of nationality" for their vessel. 627 F.3d at 2.

- 75 - be treated as stateless." (internal quotation marks omitted)).

However, the Matos-Luchi majority went beyond that indisputable

basis for deeming a vessel stateless -- and the facts before it -

- to suggest that an oral declaration of nationality is inadequate

if the vessel's master provides no other evidence of the claimed

nationality. See 627 F.3d at 6. Stated without examination of

the issue, the majority's dicta, which is not binding on another

panel, does not support the government's contention that

international law allows a vessel to be deemed stateless based

solely on the absence of confirming evidence of the master's verbal

claim. As the government acknowledges, the MDLEA recognizes "a

verbal claim of nationality or registry by the master" as a "claim

of nationality or registry" equivalent to flying a flag or

producing "documents evidencing the vessel's nationality." 46

U.S.C. § 70502(e). Rejecting a verbal claim of nationality based

solely on a lack of substantiating evidence effectively negates

that distinct method for claiming nationality recognized both by

the MDLEA and by international law.

The government also directly invokes international law

to support its position. In its supplemental brief, the government

cites articles 17(1) and (2) of the United Nations Convention

against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances, Dec. 20, 1988, 1582 U.N.T.S. 95 ("UN Narcotics

Convention"), and article 5(2) of the 1958 Convention on the High

- 76 - Seas, supra, in arguing that the United States may deem a vessel

stateless if neither its master nor the claimed nation

substantiates a verbal claim of nationality. Neither of these

sources supports that proposition. The first cited provision of

the UN Narcotics Convention calls for cooperation "to suppress

illicit traffic by sea, in conformity with the international law

of the sea," id. art. 17(1), and the second states that a party

with "reasonable grounds to suspect that a vessel flying its flag

or not displaying a flag or marks of registry is engaged in illicit

traffic may request the assistance of other [p]arties in

suppressing its use for that purpose," id. at 17(2). These

principles of cooperation do not speak to the circumstances in

which international law deems a vessel stateless.

The provision of the 1958 Convention on the High Seas

cited by the government provides that "each state shall issue to

ships to which it has granted the right to fly its flag documents

to that effect." The UNCLOS contains a nearly identical provision,

see UNCLOS art. 91, § 2, and another UNCLOS provision specifically

addresses registration, requiring states to "maintain a register

of ships containing the names and particulars of ships flying its

flag, except those which are excluded from generally accepted

international regulations on account of their small size," id.

art. 94, § 2(a). The government suggests that such provisions

create an expectation that all vessels will carry documents and

- 77 - that, if a vessel's master does not substantiate a verbal claim

with documents or other evidence, the claimed country of

nationality "has accepted through its international treaty

obligations that the vessel may be deemed stateless." Appellee's

Supp. Br. at 16.

However, these treaty provisions demanding that

countries issue documents evidencing vessel nationality say

nothing about when a vessel may be deemed stateless. Nor can the

provisions reasonably be construed to provide consent to the

exercise of jurisdiction over a signatory's vessel by all other

signatories based solely on the master's failure to produce

documents in support of a claim of nationality. Indeed, as we

have noted, consent by the country whose nationality is claimed

provides a separate basis for jurisdiction under the MDLEA, see 46

U.S.C. § 70502(c)(1)(C), and the statute specifies that consent

"may be obtained by radio, telephone, or similar oral or electronic

means," id. § 70502(c)(2)(A). The government's theory of implicit

consent is at odds with this scheme.

The government also attempts to infer from treaty

provisions a principle of international law that when a country

both fails to confirm a claim of registration or nationality and

the vessel carries no registration or other identifying documents

the vessel may be deemed stateless. This theory conflates two

discrete international law issues. Even accepting documentation

- 78 - requirements as within customary international law, it does not

follow that a country's failure to issue identifying documents or

"maintain a register" renders a vessel stateless when its master

has verbally claimed that country's nationality. The relevant

question is not whether the claimed country has satisfied its

obligations under international law. Rather, the question is what

type of inquiry and response suffices to permit the United States

to deem a vessel stateless despite a claim of nationality

recognized by international law. On that question, the government

cites no source of international law expressly recognizing a lack

of documents, or the claimed country's failure to confirm

nationality (instead of an outright denial), as a basis for

overcoming the prima facie showing of nationality arising from the

master's oral declaration.

That lack of support for the government's proposition is

unsurprising. As we have explained, the master's oral declaration

has long sufficed under international law to establish a

presumption of nationality. See, e.g., N.P. Ready, Ship

Registrations 3 (3d ed. 1998) ("A vessel may be considered as

possessing the nationality of a State even though she is

unregistered, possesses no documents evidencing that nationality,

nor even flies the flag of that State."); see also Aybar-Ulloa,

987 F.3d at 5 (observing that, "[w]ithout a flag or papers, a

vessel may also traditionally make an oral claim of nationality

- 79 - when a proper demand is made" (quoting Matos-Luchi, 627 F.3d at

5)).52 That presumption is sensibly overcome by the named country's

express denial of the claim, a scenario long embedded in

international law.

However, a response stating that the country can neither

confirm nor deny the claim, or the named country's failure to

respond at all, may say very little about the veracity of the

master's assertion of nationality. Indeed, the inability to

confirm the claim may have more to do with the responding country's

bureaucracy than with the vessel's status. The facts in United

States v. Hernandez, 864 F.3d 1292 (11th Cir. 2017), graphically

illustrate the problem with § 70502(d)(1)(C). The captain of a

vessel told Coast Guard officers that his boat was registered in

Guatemala -- a truthful claim -- and he and the other three crew

52 In addition to the traditional methods of claiming nationality discussed above -- flying the flag, presenting documents, and oral declaration -- authorities may in some instances look to the nationality of the vessel's owner. See, e.g., The Chiquita, 19 F.2d at 418 ("If [a vessel] is not properly registered, her nationality is still that of her owner."). However, whether the owner's nationality establishes that of the vessel will depend on the practice of the particular country. As discussed above, "a State is absolutely independent in framing the rules concerning the claim of vessels to its flag." Oppenheim (8th ed.), supra, at 595; see also id. (noting that Great Britain "allow[s] only such vessels to sail under [Great Britain's] flags as are the exclusive property of their citizens or corporations established on their territory," while "[o]ther [countries] allow vessels which are the property of foreigners" to do so); Churchill & Lowe, supra, at 213 n.19 (noting that a country may not register small ships but may "regard such ships as having its nationality if they are owned by its nationals").

- 80 - members all identified themselves as Guatemalan citizens. Id. at

1297. Indeed, at some point, Guatemalan registration documents

were found on the vessel. Id. Nonetheless, when asked by the

Coast Guard to confirm the registry claim, the government of

Guatemala responded that it could neither confirm nor deny it.

Id. Although the vessel plainly was not stateless, the court

rejected the defendants' challenge to their convictions under the

MDLEA because Guatemala had not "'affirmatively and unequivocally

assert[ed]' the ship's registry." Id. at 1299 (quoting

§ 70502(d)(1)(C)).53 In other words, the vessel was deemed

53The defendants in Hernandez contended that jurisdiction under the MDLEA was improper because their vessel was in fact registered and because the Coast Guard had identifying information about their vessel "that would easily have confirmed its registry," but "failed in bad faith to convey that information" to the Guatemalan government. 864 F.3d at 1299. In rejecting those contentions, the court observed that "[t]he MDLEA does not state what information the United States must convey to the foreign government during its communication, and it does not state that actual registry overrides the [Department of State] certification's proof of statutory statelessness." Id. "MDLEA statelessness," the court explained, "does not turn on actual statelessness, but rather on the response of the foreign government." Id. The court further observed that, given the MDLEA's "clear terms" deeming their vessel stateless, "any diplomatic consequences of the criminal prosecution" -- including any violation of international law -- were the responsibility of the executive branch and not a basis for undoing the convictions. 864 F.3d at 1297. One defendant in Hernandez also argued "that the MDLEA is an unconstitutional assertion of Congressional power because it reaches stateless vessels on the high seas without a proven nexus to the United States" -- an argument rejected there as foreclosed by Eleventh Circuit precedent. 864 F.3d at 1303. The Hernandez defendants did not make the argument asserted here that § 70502(d)(1)(C) is unconstitutional because Congress acted beyond

- 81 - "stateless" even when verification of its nationality should have

been easily accomplished.

Moreover, where -- as in Hernandez and here -- the

master's oral declaration of nationality is consistent with the

citizenship or nationality of all individuals aboard the vessel,

the declaration is particularly forceful. To reject the master's

declaration of nationality in such circumstances based solely on

the claimed country's failure to provide affirmative and

unequivocal confirmation -- or its failure to respond at all --

would eviscerate a method long accepted for identifying a vessel's

nationality under international law. We cannot infer displacement

of that method merely based on treaty provisions imposing

obligations on signatory countries to register vessels or issue

other documents.54

That is not to say that the government's emphasis on

registration or documentary evidence of nationality is wholly

misplaced. International law does, in general, promote a system

its authority under the Felonies Clause in defining a vessel without nationality to include a vessel whose master makes a verbal claim of nationality that is not affirmatively and unequivocally confirmed by the identified country. Importantly, § 70502(d)(1)(C) on its face applies not only 54

to verbal claims of nationality, but to any claim of registration or nationality, even one based on documentation. By its terms, therefore, it allows the United States to reject a claim of registration or nationality that is supported by documentary evidence based solely on an equivocal response, or no response at all, from the identified country.

- 82 - of registration.55 It is reasonable to expect that registered

vessels would have documents onboard, and, if not, that the claimed

country of nationality would be able to easily confirm a legitimate

claim by checking its registry. However, not all vessels must be

registered. Small vessels are excluded from the UNCLOS registry

requirement, see UNCLOS art. 94, § 2(a), perhaps because some

countries typically do not register small vessels -- whether

defined by length or by tonnage. In the United States, for

example, the registration of smaller boats is generally left to

individual states. See 46 U.S.C. § 12102(b) (providing that "[a]

vessel of less than 5 net tons may engage in a trade without being

55As we recognized in Aybar-Ulloa, it is important that some country exercise jurisdiction over a vessel. See 987 F.3d at 5. A flag state has several responsibilities [under international law], including the responsibility to ensure that its ships comply with domestic and international law and regulations. . . . Most notably, a state must exercise "jurisdiction and control [over its fleet] in administrative, technical, and social matters." Control includes ensuring that ships are seaworthy and comply with relevant labor regulations and criminal laws.

Allyson Bennett, Note, That Sinking Feeling: Stateless Ships, Universal Jurisdiction, and the Drug Trafficking Vessel Interdiction Act, 37 Yale J. Int'l L. 433, 439 (2012) (second alteration in original) (footnotes omitted) (citing various provisions of the UNCLOS); see also Purchase of Ships of Belligerents by Neutrals, 6 Op. U.S. Att'y Gen. 638, 640 (1854) ("The law of nations and common sense combine to require that every ship shall have a nationality[.]").

- 83 - documented"); id. § 12301 (providing that "[a]n undocumented

vessel equipped with propulsion machinery of any kind shall have

a number issued by the proper issuing authority in the State in

which the vessel principally is operated"); see also U.K. Mar. &

Coastguard Agency, Guidance: Vessel Classification and

Certification (2018), https://www.gov.uk/guidance/vessel-

classification-and-certification#certification-requirements-for-

uk-vessels (stating that, in the United Kingdom, a certificate of

registry is optional for "small commercial vessel[s]," defined as

vessels under 24 meters (roughly 79 feet)); R.R. Churchill & A.V.

Lowe, The Law of the Sea 213 n.19 (3d ed. 1999) (noting that "a

State may not require, or permit, the registration of ships below

a certain size"); Meyers, supra, at 160 ("Many states . . . do not

issue documents to ships with a tonnage below a given figure.").56

56 We note that 24 meters (roughly 79 feet) is a cutoff point for the applicability of several major international conventions. See, e.g., International Convention on Tonnage Measurement of Ships art. 4, June 23, 1969, 1291 U.N.T.S. 4 (exempting "ships of less than 24 metres (79 feet) in length"); International Convention on Load Lines art. 5, Apr. 5, 1966, 9159 U.N.T.S. 134 (same); see also Gudrun Petursdottir, Olafur Hannibalsson & Jeremy M.M. Turner, Part II: International Conventions and Guidelines on Safety at Sea, in Safety at Sea as an Integral Part of Fisheries Management, Food & Agric. Org. of the United Nations (2001), available at https://www.fao.org/3/X9656E/X9656E01.htm (stating that recommendations and conventions developed by the International Maritime Organization and International Labor Organization "are aimed at large vessels, primarily the merchant fleet on international voyages" and observing that "[s]ome conventions explicitly exempt fishing vessels, and most do not apply to vessels under 24m thus leaving out the majority of fishing vessels and transport boats in the developing countries").

- 84 - Hence, proof of a vessel's nationality via a centralized registry

or other evidence of registration may be unavailable, and a country

whose citizens have properly claimed nationality on behalf of their

vessels thus may be unable either to confirm or deny those claims

when contacted by the U.S. Coast Guard or other authorities.57

Importantly, we do not suggest that international law

requires the United States to accept a bare assertion of

nationality where there is conflicting evidence and attempts to

resolve the conflict prove fruitless. Although the master's oral

declaration constitutes prima facie proof of nationality, that

verbal assertion can be undermined by contrary evidence, as is the

case for any prima facie showing. For example, if the vessel's

claimed nationality differs from the nationality of most crew

According to the government, appellants' boat was 35 feet in length. See supra note 4. 57That may be what occurred in this case. The Department of State's Certification, which describes the measures taken to verify the master's claim of nationality, indicates that, on the day the Coast Guard encountered the vessel -- October 29, 2015 -- U.S. officials "requested that the Government of the Republic of Costa Rica confirm the registry or nationality of the suspect vessel, and, if confirmed, provide disposition instructions." Reyes-Valdivia, ECF No. 46-2, at 1 (Mar. 25, 2016) (emphasis added). The Certification reports that, nearly three months later, "the Government of Costa Rica replied that it could not confirm [the] vessel's registry." Id. (emphasis added). Separately, although not presented as an issue on appeal, the time lag between the defendants' initial detention and Costa Rica's response to the verification request strikes us as problematic, given that the status of a vessel determines whether U.S. law enforcement officials may proceed with prosecuting the crew members under the MDLEA.

- 85 - members, or if a small vessel is interdicted far from the claimed

country,58 U.S. authorities could properly seek verification of the

master's claim. In other words, where surrounding facts provide

legitimate reason to doubt an oral claim of nationality,

international law would permit the United States to treat the

vessel as stateless absent the sort of confirmation required by

§ 70502(d)(1)(C). See, e.g., Commander's Handbook (2017), supra,

¶ 3.11.2.4 (stating that "[a] vessel may be assimilated to a vessel

without nationality" if, inter alia, there are contradictory or

inconsistent indicators of nationality).

Put differently, when U.S. authorities are presented

with mixed signals about the nationality of a vessel, it would be

permissible under international law for the United States to seek

confirmation from the country of asserted nationality and, if none

is forthcoming, to treat the vessel as stateless. As we have

described, a vessel may be deemed stateless under international

law both when it "seeks to avoid national identification," Matos-

Luchi, 627 F.3d at 6, and when it "sails under the flags of two or

58 The government posits such a scenario, asserting that it would be absurd to require countries to accept unconfirmed verbal claims of nationality because "[d]rug traffickers . . . could falsely claim their vessels are the nationals of a small Micronesian island or, more perplexingly, a country like North Korea with limited diplomatic contacts." Appellee's Supp. Br. at 15. We do not disagree. Our analysis permits further inquiry when a vessel's master claims a nationality that is at odds with surrounding circumstances, including the vessel's location or the nationality of the master and crew.

- 86 - more States," UNCLOS art. 92, § 2 -- two situations that produce

ambiguity concerning the vessel's nationality.59 International

law, by inference, likewise permits treating a vessel as stateless

when its master makes a verbal claim of nationality that is both

unsubstantiated and inconsistent with other relevant indicators of

the vessel's nationality. As when the master of a vessel avoids

claiming a nationality or when a vessel indicates that it is

attempting to claim multiple nationalities, conflicting signals of

nationality create an ambiguity that properly gives rise to inquiry

and, absent confirmation, permits designation of the vessel as

"without nationality."60

59 These two circumstances are reflected in the MDLEA's provisions addressing vessels without nationality. As we have described, § 70502(d)(1)(B) covers the avoidance scenario, defining a "vessel without nationality" to include one for which the master fails "to make a claim of nationality or registry" upon inquiry. The scenario of multiple identities is covered in § 70502(c)(1)(B), which states that a "vessel subject to the jurisdiction of the United States" includes "a vessel assimilated to a vessel without nationality under paragraph (2) of article 6 of the 1958 Convention on the High Seas." Paragraph (2) of the Convention states: "A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality." 1958 Convention on the High Seas, supra, art. 6. 60 As described above, the government in its supplemental briefing suggests that the circumstances here involved mixed signals because, according to a Coast Guard officer's statement, Reyes-Valdivia initially stated that the vessel lacked a nationality. Although the government noted the reported disclaimer of nationality in its Motion in Limine in support of jurisdiction, it chose for whatever reason not to include that fact in the version of the facts presented at appellants' change- of-plea hearing or in appellants' plea agreements. See supra.

- 87 - However, that conflicting-signals limitation is not part

of § 70502(d)(1)(C) as currently enacted. Rather, as we have

described, even where the circumstances offer no rationale for

displacing the prima facie showing of nationality established

through a verbal claim, § 70502(d)(1)(C) treats a vessel as

stateless based solely on the named country's failure to respond

"affirmatively and unequivocally" to U.S. inquiry. The statute on

its face is thus inconsistent with international law,61 and we have

no license to rewrite it to satisfy constitutional requirements.

See Iancu v. Brunetti, 139 S. Ct. 2294, 2301 (2019) (stating that,

although the Court "may interpret 'ambiguous statutory language'

Accordingly, as indicated in our discussion of the government's Class argument, see Section III supra, it may not rely now on that untested fact. Moreover, any attempt to raise a new theory of prosecution at this juncture would raise serious due process questions. 61 Although the government in its briefing at times depicts appellants' claim that § 70502(d)(1)(C) is unconstitutional as an as-applied challenge, that characterization is inapt. The classification of a vessel as stateless based solely on the named country's indecisive response to inquiry, or its failure to respond, is a "constitutional flaw evident in the statutory terms themselves." Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 Am. U.L. Rev. 359, 365 (1998); cf. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-50 (2008) ("In determining whether a law is facially invalid, we must be careful not to go beyond the statute's facial requirements and speculate about 'hypothetical' or 'imaginary' cases."). The mere fact that a cognizable legal challenge by necessity concerns the application of a statute to individuals does not transform a facial challenge into an as- applied challenge. See generally Richard H. Fallon, Jr., As- Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321 (2000).

- 88 - to 'avoid serious constitutional doubts,' . . . '[w]e will not

rewrite a law to conform it to constitutional requirements'" (first

quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516

(2009), and then quoting United States v. Stevens, 559 U.S. 460,

481 (2010))); see also Jennings v. Rodriguez, 138 S. Ct. 830, 843

(2018) ("Spotting a constitutional issue does not give a court the

authority to rewrite a statute as it pleases."). It is up to

Congress to narrow the language of § 70502(d)(1)(C) if it so

chooses.62

Even the absence of conflicting evidence of nationality,

however, does not mean that foreign nationals engaged in drug

trafficking on the high seas can evade prosecution based solely on

a verbal claim -- whether true or false -- of a vessel's

nationality. The Coast Guard and other countries' authorities can

always ask the claimed country of nationality for consent to arrest

and prosecute the individuals onboard. See 46 U.S.C.

§ 70502(c)(1)(C) (stating that a "vessel subject to the

jurisdiction of the United States" includes "a vessel registered

62We recognize that the three examples of vessels without nationality listed in § 70502(d)(1) are not exclusive, and the government might argue in future cases -- as the government belatedly argued in this case -- that a vessel may be properly deemed without nationality under the MDLEA based solely on mixed signals, without the need to make any inquiry of the sort required by § 70502(d)(1)(C). We need not, and therefore do not, consider the viability of such an argument, including whether reliance on a rationale for deeming a vessel without nationality that is not expressly described in the MDLEA would raise due process concerns.

- 89 - in a foreign nation if that nation has consented or waived

objection to the enforcement of United States law by the United

States"); see also, e.g., Cardales-Luna, 632 F.3d at 736 (noting

that the United States obtained consent from the government of

Bolivia, which "waived objection to the enforcement of U.S. laws

by the United States with respect to the vessel . . . , including

its cargo and all persons onboard" (quoting State Department

certification)); Matos-Luchi, 627 F.3d at 18 (Lipez, J.,

dissenting) (noting that the government in that case had failed to

obtain consent from the likely country of nationality, "which could

have provided a fallback position in the event that the evidence

of statelessness proved deficient").

Indeed, it is common practice for countries, including

the United States, to negotiate bilateral and multi-lateral

agreements to facilitate the apprehension of drug traffickers

operating on the high seas. See, e.g., Casavant, supra, at 205

(stating that the United States has entered into twenty-seven such

agreements, including with countries in South America, Central

America, and the Caribbean, providing a "process by which the two

[or more] nations can operate to suppress drug trafficking while

also respecting flag state jurisdiction").63 The United States

As previously noted, the United States relied on such an 63

agreement to board appellants' vessel. The State Department's Certification reports that "United States law enforcement personnel boarded the vessel" "pursuant to Article V of the

- 90 - also can address its concerns about maritime drug trafficking by

seeking to persuade other countries to take enforcement action

against their own vessels and nationals. See generally James

Kraska, Broken Taillight at Sea: The Peacetime International Law

of Visit, Board, Search, and Seizure, 16 Ocean & Coastal L.J. 1,

11 (2010) ("Nowhere is collaboration [among countries] so

ingrained than in counter-drug operations at sea."). In this

regard, a 2021 report by the U.S. Department of State noted that

the Coast Guard of Costa Rica -- the claimed flag-state here --

"is a successful regional partner with the United States for

maritime interdiction." See U.S. Dep't of State, Bureau of Int'l

Narcotics & Law Enforcement Affairs, Int'l Narcotics Control

Strategy Report, Vol. 1, Mar. 2021, at 117; see also id. at 119

("[A] bilateral agreement between the United States and Costa Rica

is regularly used in maritime drug interdiction operations[.]").

What the United States cannot do consistently with the

Constitution, however, is arrest and prosecute foreigners on

foreign vessels by relying on a concept of statelessness that

conflicts with international law. And that is what

§ 70502(d)(1)(C) allows. It overrides international law by

treating a country's failure to supply an "affirmative[] and

Agreement between the Government of the United States of America and the Government of the Republic of Costa Rica Concerning Cooperation to Suppress Illicit Traffic." Reyes-Valdivia, ECF No. 46-2, at 1 (Mar. 25, 2016).

- 91 - unequivocal[]" confirmation of nationality -- including a failure

to respond at all -- as evidence sufficient to invalidate an oral

claim of foreign nationality even when there are no mixed signals

that would call the claim into doubt. That is, the MDLEA treats

as stateless a vessel that, under international law, would be a

vessel with nationality. Accordingly, the prosecution of foreign

nationals traveling on such a vessel for a violation of U.S. law

is impermissible under the Felonies Clause of the Constitution,

the only source of authority asserted for Congress's adoption of

the MDLEA. See Aybar-Ulloa, 987 F.3d at 4 (referring to

"Congress's power under Article I '[t]o define and punish Piracies

and Felonies committed on the high Seas'" (quoting U.S. Const.

art. 1, § 8, cl.10)); Mitchell-Hunter, 663 F.3d at 49 n.3

(explicitly stating that "[t]he MDLEA is derived from Congress'

power to 'define and punish Piracies and Felonies committed on the

high Seas'" (quoting U.S. Const. art. 1, § 8, cl.10)); Cruickshank,

837 F.3d at 1187 (same).

VI.

The Framers intended international law to be a

constraint on Congress's authority "[t]o define and punish . . .

Felonies committed on the high Seas." Two centuries ago, the

Supreme Court held that Congress lacked authority under the

Felonies Clause to extend U.S. jurisdiction to felonies committed

by foreign nationals on foreign vessels. See Furlong, 18 U.S. (5

- 92 - Wheat.) at 198; Palmer, 16 U.S. (3 Wheat.) at 632-34. With

§ 70502(d)(1)(C), Congress violated this principle, extending U.S.

jurisdiction beyond the limits of international law and, hence,

beyond the authority conferred by the Felonies Clause.

In this case, relying on the authority provided by

§ 70502(d)(1)(C), the Coast Guard treated a vessel whose master

made a claim of Costa Rican nationality cognizable under

international law as a "vessel without nationality." The United

States government improperly relied on that classification -- in

violation of constitutional limits -- to arrest and prosecute Costa

Rican citizens, Reyes-Valdivia and Dávila-Reyes. We therefore

vacate their convictions and remand the case to the district court

with instructions to dismiss the MDLEA charges against them.64

So ordered.

-CONCURRING OPINION FOLLOWS-

Because we vacate appellants' convictions based on their 64

Felonies Clause argument, we do not reach their due process challenges to the MDLEA or Reyes-Valdivia's appeal from the district court's application of the "captain" sentencing enhancement.

- 93 - HOWARD, Chief Judge, concurring in the result. As noted

in the majority opinion, we withdrew our prior panel opinion and

granted panel rehearing after the en banc court issued its opinion

in Aybar-Ulloa. In Aybar-Ulloa, the en banc court did not address

arguments raised by the parties about the protective principle.

In light of the now uncertain status of our protective principle

precedent, like my colleagues I am reluctant to unquestioningly

rely on the protective principle to affirm the convictions

underlying these appeals. Unlike my colleagues, I would not decide

these appeals on constitutional grounds.

I would instead reverse these convictions on the basis

that the agreed facts do not support the statelessness claim

charged by the government.65 The government claims the vessel is

stateless per 46 U.S.C. § 70502(d)(1)(C), which provides that

'vessels without nationality' include:

Although this ground for reversal of the convictions was 65

not initially raised in the appeals, the panel was concerned enough about the mismatch that we requested that the parties brief the issue, and they complied. That the issue was addressed by the parties through supplemental briefing may not by itself be reason enough for us to bypass appellate waiver -- including not only the failure to raise the issue on appeal but also, in the case of Dávila-Reyes, the affirmative waiver of appeal contained in the plea agreement. But the majority's constitutional analysis depends in part on an equivalency between "nationality" and "registry" that it finds in § 70502(d)(1)(C). My disagreement about whether that equivalency exists is consequential, such that it should not be relegated to a dicta detour along the way to finding waiver. At this stage of the proceedings, the gap in the statelessness determination under § 70502(d)(1)(C) is stark enough for me to join the majority, albeit in result only.

- 94 - a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.

The majority asserts that the facts here meet the criteria

described above in § 70502(d)(1)(C) because § 70502 treats

"registry" and "nationality" synonymously. But I find no support

for that observation in the text of § 70502 or in our cases.

To reach its conclusion that "registry" and

"nationality" are used interchangeably in the statute, the

majority argues that interpreting these terms to have independent

meanings would leave an incongruous hole in statutory coverage;

how, the majority wonders, could Congress have intended to cover

a situation in which a master asserts Costa Rican registration,

but not Costa Rican nationality?

The answer becomes apparent when we examine the overall

legal terrain. Section 70502(d)(1) establishes three avenues to

find statelessness. But this list is not exclusive, and leaves in

place other ways in which the government can establish lack of

nationality. See United States v. Matos-Luchi, 627 F.3d 1, 4 (1st

Cir. 2010); id. at 15 (Lipez, J., dissenting) ("As the majority

correctly holds, Congress did not intend those three examples [in

§ 70502(d)(1)] to be exhaustive. The MDLEA extends to vessels

that are considered stateless under international law, even if

those vessels do not fall within one of the specifically

- 95 - enumerated categories."); see also United States v. Miranda, 780

F.3d 1185, 1197 (D.C. Cir. 2015) ("[T]he statute contains three

nonexclusive examples of 'vessels without nationality,' each of

which turns on the 'registry' of the vessel."); United States v.

Rosero, 42 F.3d 166, 171 (3d Cir. 1994) (Alito, J.). Thus, giving

meaning to all the terms in § 70502(d)(1) does not immunize vessel

masters who claim foreign nationality rather than registry.

Here, the master asserted Costa Rican nationality for

the vessel; at no point did he assert Costa Rican registry.

Accordingly, by its terms, § 70502(d)(1)(C) is not applicable, nor

did the government assert an alternative basis for finding

statelessness when prosecuting appellants. I would reverse the

convictions on that ground and go no further.

- 96 -