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United States v. Obando

United States Court of Appeals, Eleventh Circuit

June 1, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ALEXANDER OBANDO, Defendant-Appellant. UNITED STATES OF AMERICA Plaintiff - Appellee,
v.
LAUREANO ROBERTO QUIROZ-MENDOZA, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ALFONSO BITALIANO MARCILLO-MERA, Defendant-Appellant.

          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

          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 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 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).

          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

         (Image Omitted)

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

         The Flag of Colombia

         (Image Omitted)

         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 ...


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