              Case: 17-11542     Date Filed: 05/22/2018   Page: 1 of 8


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-11542
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:16-cr-20880-JAL-5

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

MIGUEL ANGEL MEJIA,

                                                               Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (May 22, 2018)

Before MARCUS, JULIE CARNES and HULL, Circuit Judges.

PER CURIAM:

      Miguel Mejia appeals his conviction for conspiracy and possession with

intent to distribute more than five kilograms of cocaine while aboard a vessel

subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70506(b)
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of the Maritime Drug and Law Enforcement Act (“MDLEA”). Mejia argues that:

(1) the district court lacked subject matter jurisdiction to prosecute him because the

court gave the government’s unsubstantiated assertion that his go-fast vessel

(“GFV”) was stateless conclusive weight without making an independent finding

as to the vessel’s alleged statelessness; and (2) 46 U.S.C. § 70502(d)(2), as

amended in 2006, is unconstitutional because it strips the judiciary of its power to

determine jurisdiction and gives that power to the Executive Branch, in violation of

the separation of powers doctrine, and in direct conflict with our decision in United

States v. Rojas, 53 F.3d 1212, 1214 (11th Cir. 1995), superseded by statute as

stated in United States v. Campbell, 743 F.3d 802, 803-04 (11th Cir. 2014). After

careful review, we affirm.

      We review a district court’s determination of subject matter jurisdiction de

novo. United States v. Rendon, 354 F.3d 1320, 1324 (11th Cir. 2003); United

States v. Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir. 1998).

      The MDLEA criminalizes knowingly or intentionally manufacturing or

possessing a controlled substance, with or without intent to distribute, aboard a

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

Section 70506(b) of the MDLEA provides that “[a] person attempting or

conspiring to violate section 70503 of this title is subject to the same penalties as

provided for violating section 70503.” Id. § 70506(b). Under the MDLEA, a


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“vessel subject to the jurisdiction of the United States” includes “a vessel without

nationality.” Id. § 70502(c)(1)(A). In turn, the term “vessel without nationality”

includes a vessel 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);

see also United States v. Tinoco, 304 F.3d 1088, 1115 (11th Cir. 2002) (response

from Colombian government that it could not confirm nor deny a vessel’s registry

did not affirmatively and unequivocally assert that the vessel was of Colombian

nationality). A verbal claim of nationality by the master or person in charge of the

vessel counts as a claim of nationality or registry. 46 U.S.C. § 70502(e)(3).

      We have interpreted the “on board a vessel subject to the jurisdiction of the

United States” provision of the MDLEA as a congressionally imposed limit on a

court’s subject matter jurisdiction. United States v. De La Garza, 516 F.3d 1266,

1271 (11th Cir. 2008); see also Tinoco, 304 F.3d at 1107. The government bears

the burden of establishing MDLEA jurisdiction.            Tinoco, 304 F.3d at 1114.

Notably, jurisdictional issues arising under the MDLEA are not elements of the

offense, but instead are “preliminary questions of law to be determined solely by

the trial judge.” 46 U.S.C. § 70504(a). Therefore, “for a district court to have

adjudicatory authority over a charge that a defendant violated [§ 70506(b)], the

[g]overnment must preliminarily show that the conspiracy’s vessel was, when

apprehended, subject to the jurisdiction of the United States.” De La Garza, 516


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F.3d at 1272 (quotations omitted). Parties to a criminal case may not stipulate

jurisdiction but may stipulate to facts that bear on the jurisdictional inquiry.

United States v. Iguaran, 821 F.3d 1335, 1337 (11th Cir. 2016).

       In 2006, Congress amended § 70502(d)(2) into its current form, which states

that certification by the Secretary of State or the Secretary’s designee is conclusive

proof of a foreign nation’s response to a claim of registry.                       46 U.S.C. §

70502(d)(2); United States v. Hernandez, 864 F.3d 1292, 1300-01 (11th Cir. 2011).

A foreign nation’s “response” includes a denial, a non-denial or non-confirmation,

or a confirmation. Hernandez, 864 F.3d at 1301. Prior to this amendment, the

conclusive proof provision only applied to a foreign nation’s denial of a claim of

registry. 46 U.S.C. § 70502(d)(2) (2006).

       The separation of powers doctrine is implicated when the actions of another

branch “threaten an Article III court’s independence and impartiality in the

execution of its decisionmaking function.” Rojas, 53 F.3d at 1214. In Rojas, we

rejected a separation of powers challenge to a prior version of the MDLEA’s

certification provision, 1 concluding that the provision “merely provid[ed] a method

by which the Executive Branch [might] evidence that it ha[d] obtained a foreign


       1
          The version of the MDLEA at issue in Rojas provided that “[c]onsent or waiver of
objection by a foreign nation to the enforcement of United States law by the United States . . .
may be proved by the certification of the Secretary of State or the Secretary’s designee.” 46
U.S.C. app. § 1903(c)(1) (emphasis added); see Rojas, 53 F.3d at 1213-14. The statute further
provided that the denial of a claim of registry “may be proved by certification of the Secretary of
State or the Secretary’s designee.” 46 U.S.C. app. § 1903(c)(2) (emphasis added).
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nation’s consent [or waiver of objection] to jurisdiction.” Id. We explained that

the MDLEA did not dictate a court’s jurisdictional decision because “[n]othing in

the certification procedure deprive[d] the court of its ability and obligation to

determine whether the requirements of the MDLEA ha[d] been met, [and] [u]nder

the MDLEA, courts [were] free to determine . . . whether a proffered certificate

[was] sufficient evidence of jurisdiction.” Id. at 1214-15. Moreover, we’ve held

that, under the amended MDLEA, “courts must still determine whether the

MDLEA’s jurisdictional requirements have been met.”               United States v.

Wilchcombe, 838 F.3d 1179, 1186 (11th Cir. 2016).

      Under the revised MDLEA, the government is still required to prove that a

vessel was without nationality, in accordance with § 70502(d)(1), and thus a vessel

subject to U.S. jurisdiction under § 70502(c)(1)(A). See Hernandez, 864 F.3d at

1298-99. In Hernandez, we held that the district court properly determined that the

vessel was a vessel within the jurisdiction of the United States because the

government provided a certificate by the Secretary of State’s designee, which

declared that the self-identified master of the vessel claimed that the ship was

registered in Guatemala, and in response to the U.S. Coast Guard’s request for

confirmation of that claim, the Guatemalan government stated that it could neither

confirm nor deny Guatemalan registry of the vessel.         Id.   We rejected the

defendants’ argument that the vessel was actually registered in Guatemala and


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noted: “MDLEA statelessness does not turn on actual statelessness, but rather on

the response of the foreign government.         Arguing actual registry against the

certification therefore misses the mark.” Id. at 1299.

      Here, the district court properly determined that Mejia’s GFV was a vessel

subject to the jurisdiction of the United States because it was a vessel without

nationality within the meaning of the plain text of the MDLEA. Contrary to

Mejia’s argument, the record is not devoid of any evidence that the GFV satisfied

the statutory requirements for jurisdiction. In his factual proffer, Mejia admitted

that: (1) his codefendant claimed that the vessel was registered in Venezuela; (2)

the Coast Guard asked the Venezuelan government to confirm or deny the vessel’s

registry; and (3) the Venezuelan government responded that it could neither

confirm nor deny the vessel’s nationality. Moreover, Mejia confirmed the veracity

of these facts at his change-of-plea hearing.

      As the self-identified master of the vessel, Mejia’s codefendant’s verbal

claim of Venezuelan nationality constituted a claim of nationality or registry under

§ 70502(e)(3). In turn, the Venezuelan government’s response to this claim -- that

it could neither confirm nor deny the vessel’s nationality -- meant that Venezuela

did not “affirmatively and unequivocally assert” the vessel’s registry within the

meaning of § 70502(d)(1)(C). See Hernandez, 864 F.3d at 1299. The absence of

such an assertion rendered Mejia’s GFV a vessel without nationality, see 46 U.S.C.


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§ 70502(d)(1)(C), and therefore, a vessel subject to U.S. jurisdiction, see id. §

70502(c)(1)(A), to which the MDLEA’s criminal prohibition against conspiracy to

possess a controlled substance with distributary intent applied, see id. §§

70503(a)(1), 70506(b). Mejia thus stipulated to facts that gave rise to the district

court’s proper exercise of subject matter jurisdiction under the MDLEA. See

Iguaran, 821 F.3d at 1337. Therefore, the district court did not err in finding that,

based on his factual proffer, the government satisfied its burden in establishing that

Mejia’s vessel was subject to U.S. jurisdiction. See De La Garza, 516 F.3d at

1272; Tinoco, 304 F.3d at 114.

      As for Mejia’s constitutional challenge, the district court relied on Mejia’s

factual proffer in finding that his vessel was within the jurisdiction of the United

States, not a certificate provided by the Secretary of State or his designee. As a

result, Mejia’s argument regarding the constitutionality of § 70502(d)(2) is

unavailing, since the MDLEA’s certification procedure did not apply to the district

court’s exercise of jurisdiction in his case.

      In any event, § 70502(d)(2)’s conclusive proof provision does not violate the

separation of powers doctrine or relieve the government of its burden of

establishing subject matter jurisdiction. First, Mejia’s reliance on Rojas to support

his separation of powers argument is misplaced.            In Rojas, we held that the

MDLEA’s certification procedure did not violate the Constitution’s separation-of-


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powers doctrine because it did not dictate a court’s jurisdictional decision. See

Rojas, 53 F.3d at 1214-15. Rather, the certification procedure only provided the

Executive Branch with a method to show that it had obtained a foreign nation’s

response to a claim of registry. See Rojas, 53 F.3d at 1214-15. Moreover, while §

70502(d)(2) now provides that the foreign nation’s response is “proved

conclusively” by certification, nothing in the provision deprives the district court

of its power to determine whether the MDLEA’s jurisdictional requirements have

been met. See Wilchcombe, 838 F.3d at 1186.

      Further, as we noted in Hernandez, whether a vessel is without nationality,

in accordance with § 70502(d)(1), and thus subject to U.S. jurisdiction, pursuant to

§ 70502(c)(1)(A), turns on the response of the foreign government and not the

vessel’s “actual statelessness.” See Hernandez, 53 F.3d at 1299. Therefore, the

government must still show that the foreign nation’s response in the proffered

certificate results in statutory statelessness in order for the district court to exercise

jurisdiction, and Mejia’s argument that the government failed to establish that his

vessel was actually stateless is without merit. See id. at 1298-99.

      Accordingly, we affirm Mejia’s conviction and sentence.

      AFFIRMED.




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