Appeals from the United States District Court for the
Southern District of Florida D.C. Docket Nos.
1:16-cr-20962-FAM-1, 1:16-cr-20962-FAM-3, 1:16-cr-20962-FAM-2
WILLIAM PRYOR, JILL PRYOR, and BLACK, Circuit Judges.
WILLIAM PRYOR, Circuit Judge
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 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.
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 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.
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.
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).
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.
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.
Flag of Ecuador
flag of Colombia does not have a coat of arms but is
Flag of Colombia
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
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 ...