         Case: 17-11313   Date Filed: 06/01/2018   Page: 1 of 25


                                                                   [PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 17-11202
                     ________________________

                D.C. Docket No. 1:16-cr-20962-FAM-3


UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,
                                versus

ALEXANDER OBANDO,

                                                      Defendant - Appellant.

                     ________________________

                           No. 17-11276
                     ________________________

                D.C. Docket No. 1:16-cr-20962-FAM-2


UNITED STATES OF AMERICA

                                                          Plaintiff - Appellee,
                                versus

LAUREANO ROBERTO QUIROZ-MENDOZA,

                                                      Defendant - Appellant.
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                           ________________________

                                 No. 17-11313
                           ________________________

                      D.C. Docket No. 1:16-cr-20962-FAM-1


UNITED STATES OF AMERICA,

                                                                 Plaintiff - Appellee,
                                       versus

ALFONSO BITALIANO MARCILLO-MERA,

                                                             Defendant - Appellant.

                           ________________________

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

                                   (June 1, 2018)

Before WILLIAM PRYOR, JILL PRYOR, and BLACK, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

      This appeal requires us to decide whether a flag painted on the side of a

vessel is “flying” for the purpose of making a “claim of nationality or registry”

under the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70502(e). When the

United States Coast Guard stopped the vessel Siempre Malgarita in international

waters on suspicion of drug trafficking, Alexander Obando, Laureano Roberto

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Quiroz-Mendoza, and Alfonso Bitaliano Marcillo-Mera were aboard the vessel, but

they failed to produce documents evidencing nationality or to make a verbal claim

of nationality or registry. Coast guardsmen spotted a Colombian flag painted on the

hull of the Siempra Malgarita, but the master of the vessel asserted that the flag

was Ecuadorian. The guardsmen did not ask Colombian officials whether the

vessel was registered in Colombia or whether Colombia consented to the Coast

Guard exercising jurisdiction. Guardsmen later boarded the vessel and arrested the

crew members. In the district court, the crew members argued that the United

States lacked jurisdiction because the painted Colombian flag constituted a claim

of nationality under section 70502(e)(2) that obliged the Coast Guard to ask

Colombian officials about the vessel. After the district court ruled that the vessel

was stateless and subject to the jurisdiction of the United States, the crew members

conditionally pleaded guilty. Because a painted flag does not fly, id. § 70502(e)(2),

we affirm.

                                I. BACKGROUND

      On November 17, 2016, the United States Coast Guard Cutter Edmonton

spotted the Siempre Malgarita, a 32-foot “go-fast” vessel, in international waters

approximately 208 nautical miles off the coast of Guatemala. A Marine Patrol

Aircraft observed the crew of the Siempre Malgarita “jettison[ing] packages into


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the water,” and the Edmonton launched a small vessel to investigate these

packages, which tested positive for cocaine. The Edmonton also launched a second

small vessel that intercepted the Siempre Malgarita.

      The parties stipulated to facts about the interception that we use to assess

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

(“Parties may . . . stipulate to facts that bear on our jurisdictional inquiry.”

(emphasis omitted) (citation and internal quotation marks omitted)). The

guardsmen approached the Siempre Malgarita and identified her crew as

Alexander Obando, Laureano Roberto Quiroz-Mendoza, and Alfonso Bitaliano

Marcillo-Mera. The guardsmen also determined that Marcillo-Mera was the master

of the vessel. All three crew members are citizens of Ecuador.

      The guardsmen attempted to determine the nationality of the Siempre

Malgarita, but none of the vessel’s occupants made a verbal claim of nationality or

registry for the vessel. Marcillo-Mera also failed to produce documents evidencing

nationality or to identify the homeport of the vessel or its last port of call. Indeed,

when asked, Marcillo-Mera told the guardsmen that “he did not know” the vessel’s

nationality. See 46 U.S.C. § 70502(d)(1)(B).




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      The guardsmen noticed a flag painted on the hull of the vessel, and they

“believed it was a Colombian flag.” But when they asked Marcillo-Mera about the

flag, he asserted that it was the flag of Ecuador.

      The two national flags are similar in appearance. The flag of Ecuador

consists of horizontal bands of yellow, blue, and red and has a coat of arms in its

center.

                                 The Flag of Ecuador




The flag of Colombia does not have a coat of arms but is otherwise identical.

                                The Flag of Colombia




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      The Coast Guard sent a “Form 1: Action Request” to the government of

Ecuador to determine whether the Siempre Malgarita was registered in Ecuador.

On the form, the Coast Guard stated that the vessel lacked a “claimed nationality,”

but it acknowledged a “flag state claim via” “vessel markings.” Ecuadorian

officials could not confirm the nationality or registry of the vessel, and the Coast

Guard never communicated with Colombian officials. The Coast Guard

determined that the Siempre Malgarita was a vessel without nationality subject to

the jurisdiction of the United States under the Maritime Drug Law Enforcement

Act, see 46 U.S.C. § 70502(c)(1)(A), and the guardsmen arrested the crew

members.

      After the government charged the crew members with drug offenses,

Marcillo-Mera moved to dismiss the charges on the basis that the United States

lacked jurisdiction. He asserted that the Colombian flag painted on the Siempre

Malgarita “was a claim of [Colombian] nationality in and of itself” and that “the

Coast Guard contacted the incorrect flag state” when it instead communicated with

Ecuadorian officials. A magistrate judge recommended that the district court deny

the motion. The magistrate judge determined that the vessel was stateless based on

the parties’ stipulation “that when the Coast Guard inquired as to the nationality of

the vessel,” Marcillo-Mera “either said nothing or said he did not know.” And the


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magistrate judge reasoned that the painted Colombian flag was not itself “a claim

of nationality or registry” because a painted flag cannot fly.

      The district court adopted the report and recommendation. All three crew

members then conditionally pleaded guilty to conspiracy to possess with intent to

distribute a controlled substance in violation of the Act, see id. §§ 70503(a),

70506(b), but reserved the right to challenge the jurisdiction of the United States

on appeal.

                           II. STANDARD OF REVIEW

      Whether the United States has extraterritorial jurisdiction under the Act is a

question of law that we review de novo. See Iguaran, 821 F.3d at 1336.

                                  III. DISCUSSION

      We divide our discussion in two parts. First, we explain that the United

States has jurisdiction over the Siempre Malgarita and its crew because the painted

Colombian flag on its hull was not “flying” for the purpose of making a “claim of

nationality or registry.” 46 U.S.C. § 70502(e). Second, we reject the crew

members’ alternative arguments about why the United States lacks jurisdiction.

                  A.     A Flag Painted on a Vessel Does Not Fly.

      The Maritime Drug Law Enforcement Act grants the United States

extraterritorial jurisdiction over “vessel[s] without nationality.” Id.


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§ 70502(c)(1)(A). The Act states that a vessel is without nationality if “the master

or individual in charge fails, on request of an officer of the United States . . ., to

make a claim of nationality or registry for that vessel.” Id. § 70502(d)(1)(B). And

the Act provides three exclusive methods for the master or individual in charge to

make a “claim”:

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

Id. § 70502(e). If the master of a vessel in international waters makes a claim of

foreign nationality that is affirmed by the asserted nation, see id. § 70502(d)(1)(A)

& (C), the United States ordinarily must obtain “consent[]” from that nation before

exercising jurisdiction, id. § 70502(c)(1)(C).

      Whether the United States has extraterritorial jurisdiction over a vessel is a

“preliminary question[] of law” decided by the district court and “not an element of

[the] offense.” Id. § 70504(a); see also United States v. Campbell, 743 F.3d 802,

805 (11th Cir. 2014). The answer to this question determines whether the district

court may exercise subject matter jurisdiction, “for a district court . . . ha[s]

adjudicatory authority over a charge that a defendant conspired to violate the

substantive crime defined in the [Act]” only if “the conspira[tors’] vessel was,
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when apprehended, subject to the jurisdiction of the United States.” Iguaran, 821

F.3d at 1336 (alteration adopted) (quoting United States v. De La Garza, 516 F.3d

1266, 1272 (11th Cir. 2008)). “[T]he government bears the burden of establishing

. . . jurisdiction . . . .” United States v. Tinoco, 304 F.3d 1088, 1114 (11th Cir.

2002); see also Iguaran, 821 F.3d at 1338.

       The crew members stipulated that the master of the Siempre Malgarita failed

to produce documents evidencing the vessel’s nationality or to make a verbal

“claim of nationality or registry,” see 46 U.S.C. § 70502(e)(1) & (3), but they

contend that the painted flag on the side of the vessel constituted a claim of

Colombian nationality that obliged the Coast Guard to ask Colombian officials

whether the vessel was registered there and whether Colombia consented to the

exercise of jurisdiction by the United States. This argument fails if the Colombian

flag painted on the hull was not “flying.” Id. § 70502(e)(2). It was not.

       The ordinary meaning of the word “flying” requires a flag to be capable of

freely moving in the air. See Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 69 (2012) (“Words are to be understood in their

ordinary, everyday meanings . . . .”). For example, Webster’s New International

Dictionary defines “fly” as “[t]o cause to fly or to float in the air as a . . . flag,” and

it offers the illustrative phrase of “the ship flew the flag of Spain.” Fly, Webster’s


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New International Dictionary 976 (2d ed. 1961) (emphasis omitted). Webster’s

Third New International Dictionary gives a nearly identical definition. Fly,

Webster’s Third New International Dictionary 879 (3d ed. 1993) (“[T]o cause to

fly or float in the air (as a bird, a flag) . . . .”). And the Oxford English Dictionary

defines “fly” as, “[t]o set (a flag) flying; to carry at the mast-head; to hoist.” Fly,

Oxford English Dictionary (online ed.) (emphasis added). All of these definitions

entail the movement of a physical object in the air. Indeed, the Oxford English

Dictionary applies the same definition of “fly” to the act of “set[ting] (a sail)

loosely.” Id.

      To be sure, the ordinary meaning of a term will yield when the term has “a

technical meaning” or is a “term[] of art,” see Scalia & Garner, supra, at 73

(emphasis omitted), but the meaning that the phrase “flying a flag” carries in the

maritime context confirms that a vessel’s flag must be able to move freely in the

air. For example, the Oxford English Dictionary, in a section on “nautical phrases,”

defines “to keep the flag flying” as “to refuse to haul down one’s flag and

surrender.” Flag, Oxford English Dictionary, supra. A painted flag cannot be

“haul[ed] down.” Id.

      A maritime treatise confirms that a vessel’s flag must be hoisted in the air.

See H. Meyers, The Nationality of Ships (1967). It refers to the physical “hoisting


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[of a] flag” to assert nationality, id. at 162, explains that “when [sea] traffic is

heavy . . . [a] flag will have to be flown from the stern,” id. at 163 (emphasis

added), and cautions that a vessel’s flag may not always be a reliable “indicator” of

nationality because it can be “easily changed,” id. at 140. It also explains that there

may be times “when flying the flag cannot reasonably be required,” such as in the

presence of “heavy gales” or if a “flag[] [is] blown overboard.” Id. at 164–65.

Neither of these perils is relevant to painted flags. And the treatise presumes that

vessels that are physically incapable of hoisting flags are similarly unable to “fly”

flags when it discusses a hypothetical “deep sea research” submarine that, when

“under water at all events . . ., will not fly a flag.” Id. at 166.

       Maritime etiquette supports the same definition. For example, a procedural

guide published by the United States Navy offers extensive instructions for

“hoisting and lowering” the flag. Department of the Navy, NTP 13(B), Flags,

Pennants & Customs 3-1 (1986). It also explains that a vessel’s crew must “haul[]

[the ensign] down” after sunset, id. at 3-1, and that a vessel may “dip” its flag to

salute another vessel, id. at 3-1 to 3-2. But the guide never suggests that a flag may

be painted on a vessel. On the contrary, its discussion of painted symbols is limited

to non-flag “emblems,” such as the medical cross. Id. at 17-11. It also specifically

forbids service members from “paint[ing]” “[s]tars or replicas of personal flags . . .


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on vehicles,” id. at 14-1 (emphasis added), which suggests that real flags consist of

more than paint. A Navy protocol handbook explains that “[t]he national ensign

shall be displayed during daylight from the gaff (or from the triatic stay . . .)” and

speaks in dynamic terms of “the hoisting, lowering[,] or flying of the ensign.”

Department of the Navy, 1710.7A, Social Usage and Protocol Handbook J-19

(2001); see also id. at J-20 (discussing “[d]ipping the national ensign” and “[h]alf-

masting the national ensign”). The guide also fails to mention painted flags, and it

distinguishes flags from the more general category of “distinctive mark[s].” Id. at

J-19. And a flag guide published by a civilian group provides that even motorboats

without a mast or rigging should still have a means of hoisting a flag. See United

States Power Squadrons, Flag Etiquette, http://www.usps.org/f_stuff/etiquett.html

(last visited May 31, 2018) (discussing the “United States Ensign”).

      Other federal statutes about the display of flags clearly imply that a flag flies

only when hoisted in the air, and “laws dealing with the same subject . . . should if

possible be interpreted harmoniously.” Scalia & Garner, supra, at 252. For

example, one statute provides that “[w]hen flags of two or more nations are

displayed, they are to be flown from separate staffs of the same height,” 4 U.S.C.

§ 7(g) (emphasis added), that when “flags are flown from adjacent staffs, the flag

of the United States should be hoisted first and lowered last,” id. § 7(f) (emphases


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added), and that “[t]he flag, when flown at half-staff, should be first hoisted to the

peak,” id. § 7(m) (emphases added). And the statute does not use the term “flying”

to refer to the display of flags that are not hoisted in the air. It instead uses different

verbs like “drap[ing],” id. § 7(b), “display[ing],” id. § 7(i) & (k), and “cover[ing],”

id. § 7(n), to describe that kind of use. And a related statute explains that the “flag

patch” worn by military and emergency personnel should be “affixed to the[ir]

uniform[s].” Id. § 8(j) (emphasis added). “Flying” refers to a particular method of

displaying a flag, and the Maritime Drug Law Enforcement Act uses this specific

word instead of the more general term “displaying.”

       The crew members contend that the phrase “flying a flag” refers to any kind

of visual depiction of a flag that suggests the nationality of the vessel, and they

highlight that the “Form 1” template used by the Coast Guard to communicate with

foreign governments in this kind of maritime interception suggests the possibility

of a “flag state claim via” a “flag painted on [the] stern” of the vessel. But whether

the Coast Guard considers a painted flag to be an assertion of national affiliation is

not the same question as whether that flag is “flying” under the Act.

       That the Coast Guard may embrace a functionalist interpretation of how the

master of a vessel may assert nationality in the interest of diplomatic caution

cannot change the ordinary meaning of the statutory text. Indeed, the form permits


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a “flag state claim” by means not included in the exclusive list provided in the Act,

such as by a “homeport [marked] on [the] stern” or a “verbal” claim by a “non-

master.” See 46 U.S.C. § 70502(e) (explaining that “[a] claim of nationality or

registry . . . includes only . . . (1) possession . . . and production of documents . . .;

(2) flying [a] . . . flag; or (3) a verbal claim . . . by the master or individual in

charge” (emphasis added)). The form also offers no suggestion that the Coast

Guard has adopted a definitive or consistent interpretation of the phrase “flying a

flag” worthy of any kind of administrative deference. Cf. Reno v. Koray, 515 U.S.

50, 61 (1995) (explaining that an “internal agency guideline . . . is still entitled to

some deference” when “it is a permissible construction of the statute” (citations

and internal quotation marks omitted)). Indeed, the Coast Guard did not even

check the “painted” flag box on the “Form 1” that it submitted to Ecuadorian

officials after stopping the Siempre Malgarita, despite the stipulation that the

guardsmen saw the painted flag. And the crew members offer no additional

evidence that the Coast Guard credits painted flags as claims of nationality.

       The crew members cite idioms that suggest that the phrase “[f]lying the

flag” refers to a general invocation of a vessel’s “association with a nation,” but we

are unpersuaded. They cite the Cambridge Idioms Dictionary, which defines

“fly/show/wave the flag” as “to support or to represent [one’s] country,” Flag,


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Cambridge Idioms Dictionary 145 (2006), and the Farlex Dictionary of Idioms,

which defines the phrase “fly the flag” as to “represent or demonstrate support for

[one’s] country,” Fly the Flag, Farlex Dictionary of Idioms,

https://idioms.thefreedictionary.com/Flying+the+Flag (last visited May 31, 2018).

And they cite the Oxford Living Dictionaries, which defines “fly the flag” “of a

ship” as to “be registered in a particular country and sail under its flag.” Fly the

Flag, Oxford Living Dictionaries, https://en.oxforddictionaries.com/definition/

fly_the_flag (last visited May 31, 2018). But were we to interpret the phrase

“flying the flag” broadly to include a wide array of methods of signaling that a

vessel is “registered in a particular country and sail[ing] under its flag,” id., we

would render superfluous the other two specific methods of claiming nationality

provided in the Act: the “possession . . . and production of documents evidencing

the vessel’s nationality,” 46 U.S.C. § 70502(e)(1), and “a verbal claim of

nationality . . . by the master,” id. § 70502(e)(3). And the presumption against

surplusage directs us to give effect to “every word and every provision” of a statute

and not “giv[e] an interpretation [to one provision] that causes it to duplicate” other

provisions. Scalia & Garner, supra, at 174. To be sure, the crew members modestly

limit their definition of “flying a flag” to a visual “display [of] a flag” sufficient “to

put [the] United States . . . on notice of another country’s interests.” But their


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preferred idiomatic definitions encompass a wider range of expressive conduct that

would swallow the three specific and exclusive methods outlined in the Act. See 46

U.S.C. § 70502(e)(1)–(3). In any event, extensive authorities on maritime practices

trump the broader definitions cited by the crew members and confirm that “flying

[a] . . . flag” is a distinct act that requires a flag to be hoisted in the air. Id.

§ 70502(e)(2).

       The crew members also contend that statements in our precedents that

addressed other questions about the Act suggest that the definition of “flag”

includes any kind of visual symbol, but we disagree. For example, in Campbell we

mentioned that a “vessel lacked all indicia of nationality: it displayed no flag, port,

or registration number.” 743 F.3d at 804. And in United States v. de la Cruz we

explained that the stateless “vessel in question flew no flag, carried no registration

paperwork, and bore no markings indicating its nationality.” 443 F.3d 830, 832

(11th Cir. 2006). According to the crew members, this language suggests that any

visual depiction of a flag is enough. But even if these statements addressed the

question whether a painted flag can “fly,” they would cut the other way. Our

separate mentions of whether a vessel “flew [a] flag” or “bore . . . markings

indicating its nationality,” id., imply that a flying flag is distinct from other visual

displays that also suggest nationality.


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      To be sure, the only other decision to address this question assumed, for the

sake of argument, the opposite conclusion. In United States v. Prado, 143 F. Supp.

3d 94 (S.D.N.Y. 2015), the Southern District of New York ruled that a “small

emblem of what appear[ed] to be an Ecuadorian flag . . . affixed to [a] boat[],” id.

at 97, was not “flying . . . within the meaning of the [Act],” id. at 101 (citation and

internal quotation marks omitted). The district court declined to adopt the

argument of the government “that a piece of fabric must wave in the air.” Id. at

100. Instead, it explained that the phrase “‘flying a nation’s ensign or flag’ . . . at a

minimum refer[s] to a display sufficiently prominent as to put a United States

official on notice of another country’s interests” before it concluded that the

particular emblem in question was “not remotely large or prominent enough.” Id.

(alteration adopted) (citation omitted).

      Not only was this functionalist analysis unnecessary in the light of the

ordinary meaning of the phrase “flying a flag,” but the opinion in Prado also

highlighted the inherent difficulty of dispensing with the requirement of a hoisted

flag when it grappled with the question whether the “emblem” on the vessel in

question was “enough to put a reasonable official on notice that [another country’s]

interests might be affected.” Id. The district court began its analysis by “assuming”

that the emblem was “an image of an Ecuadorian flag,” id., and it acknowledged


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that the emblem, “[u]nlike a prominently displayed flag, . . . [is] easily confused

with ornamentation . . . [and] difficult to see in any waters, not to mention . . . in

the large waves of the high seas,” id. at 100–01; see also id. at 97 (“[A] small

emblem of what appear[ed] to be an Ecuadorian flag had been affixed to the boat’s

rear starboard side.” (emphasis added)). It also underscored that “[t]he emblem

[was] very much smaller than . . . nearby . . . images running the length of the

boat’s side,” id. at 101, in concluding that this particular emblem was not

“enough,” id. at 100. In contrast, a flag hoisted in the air avoids these line-drawing

problems and provides certainty to both American officials on the high seas and

the courts that second-guess their decisions.

      The ambiguities posed by painted flags also rebut the crew members’

practical complaint that the requirement of a physical flag will “lead to absurd

results” because “a postage-stamp size . . . flag hoisted on a ship’s mast could

constitute a claim of nationality but a flag several feet long by several feet wide

painted on the . . . hull of a boat could not.” Indeed, the Act has good reason to

require an actual flag of any size instead of a painted representation. Consider a

vessel painted with horizontal red, white, and blue stripes. Is this vessel flying the

flag of the Netherlands? Or is it instead owned by a captain who only likes those

colors? And as illustrated by Prado, static “emblems” require fact-intensive


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inquiries into the size, location, and intended meaning of such markings. See id. at

100–01. A flag hoisted in the air avoids these questions and unambiguously asserts

nationality.

      The crew members also assert that our interpretation may create conflicts

within international law because vessels registered in countries that permit painted

flags will be “deemed stateless by American [vessels] and boarded,” but this fear

about miscommunications on the high seas overlooks that the Act provides

alternative methods of claiming nationality, including a simple “verbal claim of

nationality or registry.” 46 U.S.C. § 70502(e)(3) (emphasis added). Indeed, “the

flying of the national flag [has] never [been] the cause of—or the condition for—

allocation [of nationality].” Meyers, supra, at 162; see also id. at 140. The

requirement that a vessel hoist a flag in the air will not render helpless foreign

vessels that have only painted flags.

      Finally, the crew members argue that we should invoke the rule of lenity

because the statute is ambiguous, but the rule of lenity applies only when

“traditional canons of statutory construction . . . [leave us] with an ambiguous

statute.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 16

(2011) (quoting United States v. Shabani, 513 U.S. 10, 17 (1994)). We have




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already explained that the ordinary meaning of the term “flying” requires a flag to

be hoisted in the air.

       B.     The Crew Members’ Alternative Arguments Are Unpersuasive.

      The crew members also assert several alternative and fact-bound reasons

why we should hold that the United States lacks jurisdiction. None are persuasive.

We reject each in turn.

      The crew members contend that we should overlook the stipulation that no

crew member made a claim of nationality and instead determine that Marcillo-

Mera’s “statement that the vessel’s flag was ‘Ecuadorian’ . . . [was] tantamount to

a claim of nationality” that obligated “the Coast Guard to contact the government

of Colombia,” but this reasoning is wholly unpersuasive. Parties may “stipulate to

facts that bear on our jurisdictional inquiry.” Iguaran, 821 F.3d at 1337 (emphasis

omitted) (citation and internal quotation marks omitted). And because the parties

stipulated that no crewmember made a claim of nationality, we refuse to ignore

this stipulation on appeal and act as a factfinder in the first instance.

      The crew members also contend that the government is estopped from

asserting “that there was never any claim of nationality” because the “Coast

Guard’s [decision to] contact[] . . . Ecuador” suggests that guardsmen thought that

the defendants had asserted nationality, but this logic suffers from two flaws. First,


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that the Coast Guard elected to communicate with Ecuadorian officials does not

necessarily imply that the guardsmen thought that the defendants had satisfied their

burden of asserting nationality under the Act. Indeed, the guardsmen may have

acted out of an abundance of caution, and we see no reason to punish the

government for doing more than the Act requires. Second, the crew members

voluntarily stipulated to the fact that they made no verbal claim of nationality, and

there is no suggestion that the government dishonestly induced this stipulation or

changed its position mid-litigation.

      Finally, the crew members contend that the guardsmen acted in bad faith

because they “purposely chose not to contact the Colombian government” despite

knowing that the flag painted on the vessel was Colombian. But this appeal to the

subjective knowledge of the guardsmen again overlooks the stipulations that the

crew members failed to make a verbal claim of nationality and that the only verbal

suggestion of nationality was Marcillo-Mera’s statement that the flag was

Ecuadorian. As the master of the vessel, he owed the obligation to claim

nationality. See 46 U.S.C. § 70502(d)(1)(A)–(C). And because the guardsmen

knew that Marcillo-Mera was Ecuadorian, they had good reason to conclude that

Ecuador was the correct target for their inquiry.




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                              IV. CONCLUSION
     We AFFIRM the judgments of conviction against Obando, Quiroz-

Mendoza, and Marcillo-Mera.




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BLACK, Circuit Judge, specially concurring:

      I concur in the Court’s opinion, but I write separately because there is an

additional ground for affirmance. Section 70502(d) of the Act places the burden of

claiming a vessel’s nationality on “the master or individual in charge.” See 46

U.S.C. § 70502(d)(1); United States v. Rosero, 42 F.3d 166, 171 (3d Cir. 1994).

As the Court’s opinion notes, the parties stipulated that the Siempre Malgarita’s

master made no such claim. USDC Doc. 31 at ¶ 4 (“Neither the defendant

Marcillo-Mera, as the master of the vessel, nor the co-defendants, Quiroz-Mendoza

and Obando, as the crew members, made a claim of nationality or registry for the

vessel.”); id. at ¶ 5 (“When the boarding team asked about the vessel’s nationality,

the defendant Marcillo-Mera stated that he did not know . . . .”); id. at ¶ 6 (“The

USCG Edmonton communicated the master’s failure to make a claim of nationality

or registry of vessel . . . .”). Thus, because “the master or individual in charge” did

not make a claim of nationality or registry for the ship, the Siempre Malgarita was

a “vessel without nationality” under the plain language of § 70502(d)(1). See 46

U.S.C. § 70502(d)(1).

      The Act’s focus on the words and actions of a vessel’s master is consistent

with longstanding principles of admiralty law. As Chief Justice John Marshall

stated in 1818, “[t]he mere wood, iron, and sails of the ship, cannot, of themselves,


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violate the law. But this body is animated and put in action by the crew who are

guided by the master. The vessel acts and speaks by the master. She reports

herself by the master.” United States v. The Little Charles, 26 F. Cas. 979, 982

(Marshall, Circuit Justice, D. Va. 1818) (No. 15,612) (emphasis added); see also

Dobbins’s Distillery v. United States, 96 U.S. 395, 402 (1877) (same); United

States v. Cargo of the Brig Malek Adhel, 43 U.S. (2 How.) 210, 234 (1844) (same).

Requiring the master to speak on behalf of the ship also makes sense for practical

reasons. See Rosero, 42 F.3d at 171 (noting that by placing the burden of claiming

nationality on the vessel’s master, Congress alleviated the practical difficulties

associated with requiring the Coast Guard to disprove all possible claims of

nationality).

       It was incumbent upon the Siempre Malgarita’s master to assert a claim of

nationality on behalf of the ship. He did not, and Appellants’ contention that the

Siempre Malgarita spoke for itself1 is contrary to both the statute’s plain language




       1
          See Br. of Appellant Marcillo-Mera at 11 (“The Colombian flag painted on the side of
the Siempre Malgarita put the Coast Guard on notice that the vessel claimed Colombian
nationality . . . . [T]he Siempre Malgarita never claimed to be Ecuadorian . . . .” (second
emphasis added)); USDC Doc. 20 at 7 (“[E]ffectively, the Siempre Malgarita, speaking for
herself, told the boarding team she was Colombian.” (emphasis added)).

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and established principles of admiralty law. Given the stipulated facts, 2 I would

affirm the district court on the additional basis that there was no claim of

Colombian nationality or registry attributable to the vessel’s master under

§ 70502(d)(1), regardless of whether the painted Colombian flag could otherwise

support a claim of nationality or registry under § 70502(e).




       2
         Appellants attempt to contradict the stipulated facts on appeal and argue that, to the
extent an act attributable to the vessel’s master is necessary, the master asserted a claim of
Colombian nationality by setting out to sea in a vessel bearing the Colombian flag. The master,
however, stated he believed the flag was Ecuadorian. Thus, even if we allowed Appellants to
contradict the stipulated facts on appeal, the vessel’s master could not have intentionally asserted
a claim of Colombian nationality based on a flag he believed to be Ecuadorian, and it would be
unreasonable to suggest he could have made such a claim accidentally.

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