              Case: 11-11922    Date Filed: 01/11/2013   Page: 1 of 3

                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 11-11922
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 8:10-cr-00252-JSM-TBM-2



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

FELIX ENRIQUE TOMALA CRUZ,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________
                               (January 11, 2013)

Before BARKETT, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

      Felix Enrique Tomala Cruz appeals his convictions after his guilty plea to

conspiracy and possession with intent to distribute more than five kilograms of
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cocaine while aboard a vessel in international waters, in violation of the Maritime

Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. §§ 70503(a)(1), 70506(a) &

(b), 21 U.S.C. § 960 (b)(1)(B)(ii), and 18 U.S.C. § 2. He argues for the first time

on appeal that the district court lacked subject matter jurisdiction. Although the

United States Department of State certified that his vessel was stateless and subject

to the United States jurisdiction, Cruz asserts that the Ecuadorian Ambassador to

Guatemala later intervened on his behalf.

      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). A

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

nationality.” Id. § 70502(c)(1)(A). A “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).

      There is no dispute that Cruz was one of three crewmembers aboard a vessel

that the United States Coast Guard interdicted in international waters. The crew

initially made no claim of nationality, but stated that they had departed from

Colombia. Later, the crewmembers claimed Ecuadoran nationality. Neither

Colombia nor Ecuador could confirm or deny the nationality of the vessel and the

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Secretary of State certified that the vessel was without nationality. Based on this

certification, the district court found that it had jurisdiction over the stateless vessel

in international waters.

       On appeal, Cruz’s only argument appears to be that because, he asserts, the

Ecuadorian Ambassador actually intervened on his behalf, it was improper for the

United States to not surrender Cruz to Ecuador. However, Cruz admits in his brief

on appeal that “no diplomat or Ecuadorian official ha[s] filed any formal claim or

documentation of any kind in this case.” We have no evidence that the

Ecuadorian Ambassador claimed that the vessel was not stateless. In short, Cruz

does not present any facts contradicting that he was on a stateless vessel in

international waters subject to United States jurisdiction.1

       AFFIRMED.




       1
         Cruz argues that a foreign nation preserves its inherent right to prosecute its own
nationals, notwithstanding the provision of Article I, section 8, clause 10 of the Constitution,
pursuant to which the MDLEA was passed. However, in this case, there is no factual basis in the
record to support Cruz’s claim of Ecuadorian intervention.

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