          United States Court of Appeals
                      For the First Circuit

No. 10-2281

                          UNITED STATES,

                            Appellee,

                                v.

                      FRANCISCO NUECI-PEÑA,

                      Defendant, Appellant.


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

          [Hon. Carmen C. Cerezo, U.S. District Judge]



                              Before

                   Howard, Lipez and Thompson,
                         Circuit Judges.



     Vivianne M. Marrero-Torres, Assistant Federal Defender, for
appellant, with whom Hector L. Ramos-Vegas, Assistant Federal
Defender, and Hector Guzman-Silva, Federal Defender, were on brief.
     Justin Reid Martin, Assistant United States Attorney, for
appellee, with whom Nelson Pérez-Sosa, Assistant United States
Attorney, Appellate Chief, and Rosa Emilia Rodríguez-Velez, United
States Attorney, were on brief.



                          March 19, 2013
          THOMPSON, Circuit Judge.        A massive drug interdiction on

the high seas by the United States Coast Guard ("the Coast Guard")

ended with the arrest and indictment of multiple defendants,

including Appellant Francisco Nueci-Peña ("Nueci").              Nueci was

sentenced to twenty-four years in prison after being convicted of

possession with the intent to distribute over 1140 pounds of

cocaine and heroin while on board a vessel in violation of the

Maritime Drug Law Enforcement Act, 46 U.S.C. § 70501 et seq.

("MDLEA").     On appeal, Nueci says his conviction cannot stand,

arguing that Congress has no authority under Article 1, Section 8,

Clause 10 of the United States Constitution to criminalize drug

trafficking on board a vessel in international waters under the

MDLEA without requiring a nexus between the conduct and the United

States, and that the admission of certain certifications to support

the jurisdiction determination violated his Sixth Amendment right

to confrontation.    After careful consideration, we affirm.

                                 BACKGROUND1

          On    February   23,    2007,   the   Coast   Guard   detected   a

suspicious go-fast vessel in Carribean waters.           After the vessel

twice attempted to evade authorities, the Coast Guard managed to

stop and board the vessel to verify its nationality.                Nueci,

identifying himself as the master of the ship, said that the vessel


     1
      United States v. Mitchell-Hunter, 663 F.3d 45 (1st Cir.
2011),    a   related   case   involving    co-defendant Javier
Mitchell-Hunter's appeal, recites similar facts.

                                    -2-
was Colombian.      Consistent with operational procedures, the Coast

Guard   contacted    Colombian   authorities   for   confirmation.   The

Colombian Navy, however, could neither confirm nor deny that the

vessel was registered in Colombia.        The Coast Guard, therefore,

determined that the vessel was "without nationality" and subject to

the jurisdiction of the United States under the MDLEA.         The Coast

Guard proceeded to search the vessel and discovered 396 kilograms

of cocaine and 123 kilograms of heroin on board.

            All six passengers on the vessel, including Nueci, were

arrested and subsequently charged with aiding and abetting (Count

I) and conspiracy (Count II) in the possession with intent to

distribute at least five kilograms or more of cocaine and one

kilogram or more of heroin on board a vessel subject to the

jurisdiction of the United States (that is, a vessel without

nationality), in violation of the MDLEA, 46 U.S.C. §§ 70503(a)(1),

70504(b)(1), and 70506(b).       They pled not guilty.

           On October 23, 2007, on the eve of trial, Nueci moved to

dismiss for lack of jurisdiction over the vessel, a motion joined

by other co-defendants.      In their motion, the defendants argued

that the direct use of gunfire by the Coast Guard violated Article

12 of the Agreement Between the Government of the United States of

America and the Government of the Republic of Colombia to Suppress

Illicit Traffic by Sea, T.I.A.S. No. 12835. The defendants further

asserted that at the time of the interdiction Nueci claimed the


                                    -3-
vessel was registered in Venezuela, not Colombia.                      In support of

that       assertion,   the   defendants         said   that   three   of    them    had

overheard Nueci telling the officer, who was part of the Coast

Guard boarding team, that the vessel was Venezuelan.                        They added

that FBI Special Agent Benjamin C. Walker, who was not part of that

boarding team, stated in an affidavit in support of the complaint

against the defendants that Nueci had claimed Venezuelan registry.

That the Colombian authorities could neither confirm nor deny the

vessel's registry in the end, the defendants argued, meant nothing

since the United States authorities had requested a consent waiver

from the wrong country.         Defendants insisted that since no contact

had been made with the Venezuelan government to verify that claim

of registry, the United States never had jurisdiction over the

vessel and, consequently, over them.                The defendants claimed that,

as a result, the United States had not established jurisdiction

under the MDLEA over the vessel.

               Confronted     with   the    motion      to   dismiss   for    lack    of

jurisdiction less than two weeks before Nueci's trial was set to

begin, the district judge pushed back the trial and referred the

motion to a magistrate judge in mid-November 2007.2                            In its

opposition to the defendants' motion to dismiss, the government

rehashed what happened when the Coast Guard boarded the vessel:



       2
      Although the defendants initially requested an evidentiary
hearing, the parties subsequently agreed it was unnecessary.

                                           -4-
that Nueci, who claimed to be the person in charge on the vessel,

told an officer, who was part of the Coast Guard boarding team,

that the vessel was Colombian.           The government pointed to the

"Certification For the Maritime Drug Law Enforcement Act Case

Involving the Go-Fast Vessel (Without Nationality)" attached to its

opposition, which recounts that the vessel had no "marking or

indicia of nationality" and "was not displaying any registry

numbers, a hailing port, or flying a national flag, and had no

documentation or registry papers" at the time of the interdiction.

The Certification showed that in accordance with the "Operational

Procedures for Boarding and Search of Vessels Suspected of Illicit

Traffic by Sea Related to Narcotics and Psychotropic Substances,"

the Coast Guard inquired via fax with the Colombian Navy to verify

Nueci's claim of registry, but Colombia could neither confirm nor

deny that claim.      Consequently, the government noted, the United

States   determined     the   vessel     was   without   nationality,   or

"stateless," in accordance with 46 U.S.C. § 70502(d)(1)(c) and

subject to its jurisdiction.           In response to the defendants'

argument that the United States should have asked Venezuela, not

Colombia, whether the vessel was registered there, the government

asserted that any confusion about the vessel's registry was created

by the defendants themselves.      The government acknowledged Nueci

had claimed at one point that the vessel had departed near the

Venezuelan/Colombian border and that the drug trafficking venture


                                   -5-
was organized in Venezuela (which the government suggests could

have been      why   Agent    Walker      indicated         that   Nueci    had   claimed

Venezuelan     registry      when   he    was    not    actually      present     at    the

interdiction).       But, the government argued, at the time of the

interdiction the vessel flew no flag, had no markings, had no

registration documentation, and defendants have offered no proof

that the vessel was Venezuelan. The government further argued that

subject matter jurisdiction was not an element of the offense under

the   MDLEA    and   that     defendants        had    no    standing      to   challenge

compliance with the treaty they claimed the United States violated

in using gunfire to stop the vessel.

              The government later filed a supplemental response to the

defendants' motion to dismiss.              In that response, the government

detailed the Coast Guard's more recent contact with Venezuelan

authorities -- contact initiated to determine whether the vessel

was indeed registered there as Nueci claimed.                           The government

attached to its motion the "Supplemental Certification For The

Maritime Drug Law Enforcement Act Case Involving the Go-Fast Vessel

(Without Nationality) Federal Drug Identification Number (FDIN) –

2007987278"      issued      on   January       15,    2008.        The    supplemental

certification not only details the contact with the Colombian

authorities concerning the vessel's registry (included in the

original    certification),         but   also    addresses        Nueci's      claim    of

Venezuelan registry. In accordance with Article 3 of the Agreement


                                          -6-
Between the Government of the United States of America and the

Government of the Republic of Venezuela to Suppress Illicit Traffic

in Narcotic Drugs and Psychotropic Substances by Sea, the Coast

Guard requested the Venezuelan Coast Guard to confirm or deny that

Nueci's vessel interdicted on February 23, 2007 was registered in

Venezuela.     Venezuela could not say the vessel was registered

there. The government asserted that regardless of Nueci's claim of

registry,    because   neither   Venezuela   nor   Colombia   claimed   the

vessel, the vessel was "stateless" and the United States' exercise

of jurisdiction was proper under the MDLEA.

            The magistrate judge recommended the defendants' motion

to dismiss be denied.     Emphasizing that the list of mechanisms for

establishing that a vessel is without nationality was not meant to

be exhaustive and may be supplemented by looking to international

law, the judge found the vessel would not have been authorized to

fly the Venezuelan flag under international law since Venezuela was

unable to trace the registry of the vessel. He therefore concluded

Nueci's vessel was without nationality and subject to the United

States' jurisdiction under "46 U.S.C. § 70502(d)(1) as supplemented

by international law."     The magistrate judge quickly disposed of

the violation of international law claim, finding that there was no

evidence the vessel was registered in Colombia and defendants had

failed to explain how the treaty had been triggered without such

registry.    The magistrate judge further concluded that even if the


                                   -7-
treaty applied in Nueci's case, Nueci had no standing to raise a

claim for failure to comply with international law and that such

failure does not divest a court of jurisdiction.                See 46 U.S.C. §

70505.        The district judge approved and adopted the report and

recommendation in full in an order issued on April 9, 2008.                After

rescheduling the trial multiple times -- mostly due to the parties'

motions to continue -- she set the trial date for September 17,

2008.

               Days before trial, two co-defendants moved to change

their pleas and the court terminated the September trial date and

referred the motions to the magistrate judge.              Two additional co-

defendants moved to change their pleas around this time.                     The

magistrate judge granted the co-defendants' motions and recommended

the district judge accept their guilty pleas; the judge adopted

those recommendations and subsequently sentenced each of those

defendants.

               In the thick of that activity, co-defendant Mitchell-

Hunter moved to supplement the previous motion to dismiss.                    He

argued        that   the   commander's         certifications     --   regarding

jurisdiction prepared by the Secretary of State's designees as

proof that both Colombia and Venezuela did not object to the

exercise of jurisdiction over the defendants' vessel -- were

testimonial hearsay, and that under Crawford v. Washington, 541

U.S.     36     (2004),    their   use    in     the   pretrial    jurisdiction


                                         -8-
determination,     without    an    opportunity    for    cross-examination,

constituted    a   violation       of   his   Sixth     Amendment   right    to

confrontation.     The district judge referred the matter to the

magistrate    judge   who    recommended      denying    the   motion.      The

magistrate judge found inter alia that the right to confrontation

was a trial right and, therefore, inapplicable to the pretrial

jurisdiction determination.        While Nueci had not moved to join the

motion to dismiss, he moved to join Mitchell-Hunter's timely filed

objections to the magistrate's report and recommendation.                   The

district judge overruled those objections and agreed with the

magistrate judge that the Confrontation Clause and Crawford did not

apply before trial and found no other reason for dismissal under

the MDLEA.    Mitchell-Hunter changed his plea to guilty, which the

district court accepted, and Nueci proceeded to trial, set for June

11, 2010.

            The day before trial Nueci moved for an order declaring

he had preserved his jurisdictional challenges.3                 He moved to

preserve three issues: (1) "the constitutionality of allowing

certificates as proof of a statement of no objection"; (2) "the

constitutionality of having the jurisdictional issue decided by the

Court and of not having the jury decide an element of the crime";

and (3) "the constitutionality of being tried under this statute



     3
      Mitchell-Hunter pled guilty shortly after joining Nueci's
motion to preserve certain jurisdictional challenges.

                                        -9-
[the MDLEA] which criminalizes activities on the high seas with no

requirement that the acts be directed towards the United States,

and   in   particular,   whether   it    is   constitutional     to   exercise

jurisdiction over a person in this manner."           Though the district

judge determined that the first issue had been previously raised,

she could not find in the record when he had ever raised the latter

two issues.4     Understandably puzzled by a request to preserve

arguments she was "not aware" Nueci had ever raised before,                the

district judge ordered him to "provide the specific information

regarding the presentation of these two issues."                  Instead of

complying fully with the order, Nueci clarified his challenge to

the MDLEA was based on the statute's provision which "exempts the

government from having to demonstrate a 'nexus' between the offense

and the United States merely because the vessel . . . was deemed

stateless."      He   argued   that     the   statute's   lack   of   a   nexus

requirement exceeds Congress's power to define and punish piracies

and felonies on the high seas.           As the district judge correctly

concluded, however, Nueci merely gave an "explanation of the

[motion's last two] constitutional issues, without referring the

Court to the instances, if any, where each of them had been raised

before." Nor could the district judge find any motions where those



      4
      While Nueci's motion regarding the preservation of his
jurisdictional challenges cited his objections to the magistrate
judge's supplemental report and recommendation, those objections
said nothing about these particular constitutional issues.

                                      -10-
specific    issues    had    been    raised.     She   therefore   found   the

constitutionality of allowing certificates as proof of a statement

of no objection as the only issue that had been preserved for

appeal purposes and otherwise noted Nueci's motion to preserve the

other issues.

            On June 24, 2010, the jury found Nueci guilty on both

counts in the indictment. The district court denied his motion for

acquittal and his renewed two-sentence motion to dismiss the

indictment for lack of jurisdiction.              Nueci received 24 years

imprisonment    and    5    years   supervised   release.     He   moved   for

reconsideration of the sentence, arguing that the sentence was

procedurally and substantively unreasonable given the disparity

between his sentence and that of each of his co-defendants, among

other reasons.       The judge denied that motion too.       Nueci's appeal

followed.

                                    DISCUSSION

               A. Constitutional Challenge to the MDLEA

            On appeal, Nueci argues the MDLEA is unconstitutional

because it exceeds Congressional authority "[t]o define and punish

Piracies and Felonies committed on the high Seas . . . ." ("the

Piracies and Felonies Clause") under Article I, Section 8, Clause

10 of the Constitution.

            As a threshold matter, Nueci says that de novo review

applies to his constitutional challenge on appeal.             We, however,


                                       -11-
ordinarily review legal and constitutional claims de novo only when

they are properly preserved.       United States v. Neto, 659 F.3d 194,

200 (1st Cir. 2011).     Nueci failed to preserve his constitutional

challenge by failing to properly raise it in the district court.5

Nueci's motion to dismiss for lack of jurisdiction before trial was

not based on a challenge to Congress's authority under the Piracies

and Felonies clause to punish drug trafficking under the MDLEA;

rather it was based on Nueci's claim that he had said the vessel

was of Venezuelan, not Colombian, registry and since the United

States had not (at that time) contacted Venezuela to confirm it,

the United States never had jurisdiction over the vessel and,

consequently, over the defendants.

            His motion the day before trial for an "order deeming

jurisdictional issues preserved" listed as one of those issues:

"the constitutionality of being tried under this statute [the

MDLEA] which criminalizes activities on the high seas with no

requirement that the acts be directed towards the United States,

and   in   particular,   whether   it   is   constitutional     to   exercise

jurisdiction over a person in this manner."                When ordered to

indicate when Nueci had previously raised that argument, Nueci

instead filed a further explanation of his argument that the MDLEA

is an unconstitutional exercise of Congressional authority under



      5
      The government     erroneously      asserts   that   de   novo   review
applies as well.

                                   -12-
the Piracies and Felonies Clause.          As the district judge aptly

concluded, however, Nueci had never before raised that argument.

           Ignoring   his     failure      to     properly     preserve    the

constitutional challenge he now raises on appeal, Nueci seems to

suggest that his constitutional claim goes to whether the district

court had jurisdiction to sentence him for violating a law he says

is   unconstitutional;   that   is,   if    the    MDLEA's    lack   of   nexus

requirement exceeds Congressional authority under the Piracies and

Felonies Clause, the district court lacked jurisdiction over Nueci,

or so the argument goes.        To the extent Nueci contends that a

challenge to the constitutionality of the MDLEA inherently involves

a challenge to subject matter jurisdiction and that subject matter

jurisdiction can be raised at any time, regardless of whether it

was raised below, we have previously rejected the assertion that a

constitutional   challenge    to   the    MDLEA   always     "implicates    the

subject matter jurisdiction of the court."                 United States v.

Cardales-Luna, 632 F.3d 731, 737 (1st Cir. 2011). "'If a challenge

to the constitutionality of an underlying criminal statute always

implicated subject-matter jurisdiction, then federal courts, having

an obligation to address jurisdictional questions sua sponte, would

have to assure themselves of a statute's validity as a threshold

matter in any case.'"       Id. (quoting United States v. Baucum, 80

F.3d 539, 541 (D.C. Cir. 1996)).




                                   -13-
            Because he failed to raise his argument before the

district court that Congress exceeded its authority under the

Piracies    and   Felonies    Clause    in    enacting      the   MDLEA   without

requiring a nexus between the conduct and the United States, the

proper standard of review is plain error.                See United States v.

Acevedo-Maldonado, 696 F.3d 150, 156 (1st Cir. 2012) (plain error

review applies where defendant failed to raise Confrontation Clause

objection at trial).         To establish plain error, Nueci must show

"(1) error, (2) that is plain, and (3) that affects substantial

rights."     Johnson v. United States, 520 U.S. 461, 467 (1997)

(internal   quotation marks,       alterations      and     citation omitted);

United States v. Borrero-Acevedo, 533 F.3d 11, 15 (1st Cir. 2008).

If all three elements are satisfied, "'an appellate court may then

exercise its discretion to notice a forfeited error, but only if

(4) the error 'seriously affect[s] the fairness, integrity, or

public reputation of judicial proceedings.'"              Borrero-Acevedo, 533

F.3d at 15 (quoting Johnson, 520 U.S. at 467).

            The   MDLEA   makes   it    unlawful     for     an   individual     to

"knowingly or intentionally manufacture or distribute, or possess

with intent to manufacture or distribute, a controlled substance on

board . . . a vessel of the United States or a vessel subject to

the jurisdiction of the United States."            46 U.S.C. § 70503(a)(1).

That prohibition "applies even though the act is committed outside

the   territorial   jurisdiction       of    the   United    States."      Id.   §


                                    -14-
70503(b).     A vessel "subject to the jurisdiction of the United

States"     includes      "a      vessel      without     nationality."       Id.    §

70502(c)(1)(A). "A vessel without nationality" in turn is defined,

as   relevant     here,    as     "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."       Id.    §

70502(d)(1)(C).6        The MDLEA does not require a nexus between a

defendant's conduct and the United States.                   See id. § 70502(c).

Focusing on that, Nueci contends the Piracies and Felonies Clause

does not authorize Congress to punish drug trafficking on the high

seas under the MDLEA without requiring a nexus between the unlawful

conduct and the United States.                We need not delve into the merits

of Nueci's argument because even assuming his conviction under the

MDLEA was error on that basis, the error was certainly not plain.

            Looking       first    to    the     language    of   the   Piracies    and

Felonies Clause, we note the Clause does not explicitly require a

nexus between the unlawful conduct committed on the high seas and

the United States be established before Congress can punish that

conduct.     See U.S. Const. art. I, § 8, cl. 10.                    In addition, on


      6
      Section 70502(e) defines "a claim of nationality or registry"
as including only:     "(1) possession on board the vessel and
production of documents evidencing the vessel's nationality as
provided in article 5 of the 1958 Convention on the High Seas; (2)
flying its nation's ensign or flag; or (3) a verbal claim of
nationality or registry by the master or individual in charge of
the vessel."

                                             -15-
more than one occasion, we have noted that Congress was "[i]nvoking

its constitutional power '[t]o define and punish Piracies and

Felonies committed on the high seas'" in making drug trafficking

unlawful under the MDLEA.        United States v. Matos-Luchi, 627 F.3d

1, 3 (1st Cir. 2010); Mitchell-Hunter, 663 F.3d at 49 n.3 ("The

MDLEA is derived from Congress's power [under the Piracies and

Felonies Clause].").       The Third and Fifth Circuits have similarly

observed that Congress derived its authority to enact the MDLEA

from   the     Piracies    and   Felonies       Clause.   United   States    v.

Ledesma-Cuesta, 347 F.3d 527, 531-32 (3d Cir. 2003); United States

v. Suerte, 291 F.3d 366, 376-77 (5th Cir.             2002); United States v.

Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993).

             While those cases did not examine in depth the scope of

Congress' authority under the Piracies and Felonies Clause to enact

the MDLEA, at least one circuit court to have addressed the

specific challenge Nueci raises here -- that the Piracies and

Felonies Clause does not authorize Congress to enact the MDLEA,

which punishes conduct without a connection to the United States --

has rejected it.      See, e.g., United States v. Estupinan, 453 F.3d

1336, 1338-39 (11th Cir. 2006)           (holding Congress did not exceed

its authority under the Piracies and Felonies Clause by enacting

the    MDLEA     without     requiring      a     jurisdictional   nexus).

Significantly, Nueci points us to no Supreme Court or circuit court




                                     -16-
case, nor are we aware of any, holding otherwise.7   Given both our

sister circuits' view that the MDLEA is a constitutional exercise

of Congress' power under the Piracies and Felonies Clause and the

absence of Supreme Court precedent addressing the scope of that

power in this context, we cannot conclude that any jurisdictional

error under the MDLEA related to Nueci's conviction -- and we do

not suggest there was such error -- would constitute plain error.

                B. Confrontation Clause Challenge

          Next, Nueci contends that even assuming the government

could prosecute him under the MDLEA, the district court erred in


     7
      To support his argument, Nueci mistakenly asserts that the
early Supreme Court case United States v. Furlong, 18 U.S. 184
(1820), held that Congress does not have the power to punish
felonies on the high seas that have no nexus to the United States.
That was not the Court's holding, however. Furlong, a case about
statutory interpretation, involved challenges to the convictions of
several defendants under a piracy statute, the Act for the
Punishment of certain Crimes against the United States, § 8, 1
Stat. 112 (1790) ("Act of 1790"). 18 U.S. at 185-93. The Court
held that the defendants' piratical conduct was prohibited by the
Act of 1790. Id. at 192-93. Even Furlong's dicta, stating the Act
of 1790 could not "extend [to] the punishment of murder" on the
high seas by a foreign crew member against another aboard a foreign
vessel because piracy (the crime covered by the statute) is the
"crime within the acknowledged reach of the punishing power of
Congress," id. at 193-97, does not stand for the broad proposition
that Congress cannot punish felonies such as drug trafficking on
the high seas that bear no connection with the United States under
the MDLEA.
     Nueci's reliance on United States v. Smith, 18 U.S. 153
(1820), is equally misplaced. The issue in Smith was whether the
Act of 1819's definition of piracy referencing the law of nations
was within Congress' power to define and punish piracies. 18 U.S.
at 158-60. Smith goes no further than holding that the Act of
1819's definition of piracy was a constitutional exercise of
Congress' power to define piracies and that piracy is defined by
the law of nations as "robbery upon the sea." Id. at 160-62.

                               -17-
admitting as evidence the commander's certifications to establish

the vessel was subject to the jurisdiction of the United States.

Specifically, Nueci argues that the certifications are testimonial

in nature and by admitting them, his Sixth Amendment right to

confrontation was violated.      The Confrontation Clause of the Sixth

Amendment to the Constitution provides that a criminal defendant

"shall enjoy the right . . . to be confronted with the witnesses

against him . . . ."     U.S. Const. amend. VI.        While Nueci concedes

that determinations of jurisdiction under the MDLEA are for judges

to make, Nueci argues that the right to confrontation should extend

to proceedings (before a judge) to determine jurisdiction under the

MDLEA.

              Our recent decision in Mitchell-Hunter, 663 F.3d at

50-53,    forecloses    that   argument.        In     that   case,    Nueci’s

co-defendant, Mitchell-Hunter, made the very argument Nueci now

advances on appeal:     that it was a violation of the Sixth Amendment

right    to   confrontation    for   the    district    court   to    use   the

certifications as evidence in the determination of jurisdiction

under the MDLEA.       In rejecting the argument, we explained that

Crawford and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009),

the two cases upon which Nueci relies here, have not extended the

reach of the Confrontation Clause beyond the context of trial. See

Mitchell-Hunter, 663 F.3d at 52-53.          We concluded, as we do here,

that "[i]n this non-trial context, where evidence does not go to


                                     -18-
guilt or innocence," the Confrontation Clause does not apply.   Id.

at 53.8    Thus, Nueci's Confrontation Clause argument gets him

nowhere.

                            CONCLUSION

           In the end, we affirm the district court, and Nueci's

conviction stands.




     8
      We made clear, however, that we were not going so far as to
hold that the Confrontation Clause could never apply to pretrial
determinations, just that it did not apply under these
circumstances. Id.

                               -19-
