the first of the cases this morning united states versus fernandez and all convicted or as we stand here today and that's because under the mary time drug law enforcement act or the m d a jurisdiction of an international vessel is given in only one of two ways if it's a stateless vessel or if the flag nation consents to jurisdiction and in our case the government and the district court relied upon a certification of the secretary of state's designee in order to find that it was a stateless i so even though there were material misrepresentations in this certificate that were brought to the attention of both the government and the district court pretrial and these material misrepresentations went to the heart of whether or not this was a stateless vessel which was the reason that the court had subject matter jurisdiction the district court in its analysis erroneous we found that the certain sort of fixation was effectively conclusive proof of jurisdiction and that the defendant couldn't inquire into the factual underpinnings what do you suppose the congress of the united states meant when it said that the response of a foreign nation to a claim registry is  conclusively by certification of the secretary of state or the secretaries designate what kind it was mean and that wasn't in the original draft of the n d l e so the statute changed think it means exactly what it says that only the response of the foreign nation is conclusively proved by the certification if congress had wanted to say jurisdiction is conclusively proved by the certification it would have said so if it wanted to say that the state vessel was conclusively proved by the certification it would have said so but it didn't and looking in the legislative history it explains to us why that is it was that the government the united states government was being forced to bring  certifications from foreign governments or other papers in order to establish that with the foreign government said they said was true so what is put to an end in the debate by the certification so what is put to the end is that if that is to say it's your rebuttal you can't go back in general so you and i don't aren't supported to put an end to something what is it that they put into it wanted to put an end to the fact that if the united states government walked into a court with only the certification that the response of the foreign government would be conclusively proven in other words they didn't have to bring in any corroborating documents in order to establish that the government said what they said but there was never in the statue nothing in the legislative history nor in our cases has said that somebody can't ask questions as to what our own agents aid that those statements if a foreign nation says we can neither confirm deny the claim that the vessel is registered under our sovereign state what does that mean what is the effect of saying that so if there was no challenge to the certification once the district court would make a finding as to jurisdiction it would find that it was stateless your honor i think that if you if you look at a certification in a vacuum if someone comes into district court with the certification as in all the cases cited to by the government they did the defendant can't say i want to dish and corroborating evidence to prove that that's what the government of haiti said but in every case including the one that we cited to in the supplemental authority will but if the no your honor it doesn't automatically make the vessel or an us because there could be well first of all is in our situation it wasn't it can't automatically become stateless because there were misstatements in the certification which led to that call up with that series of questions and maybe state in a slightly different way if you could say that in terms of ultimate truth this was registered in guatemala but the what the statute seems to be doing is to try to take out so it to determine whether the united states the state department in its international relations wants to fight this issue or not and so the statute provides that if the if the state department basically determines that they're not going that they're going to defend this if there's any international protest from guatemala and they make that kind of a certification to the court then the court just sort of stops thinking about those kinds of issues and just make sure that the formal requirements of the statute are met seems to me that reading of the scheme protects all the interests that congress is trying to protect in the statute without getting into some sort of esoteric analysis of whether in truth it was registered in guatemala if the united states certifies that the statutory words are met here that's a way for the united states that's the way for congress to say if this is something that the state department is willing to defend we're not going to deal with that in the courts we're just going to say it's conclusive seems to be the way that it reads i understand you could sort of par sort of a very nuanced technical way but it wouldn't really be serving the purpose of the statute to take certain aspects of these kinds of situations and just lift them to the international level and not have the court have to deal with them does that make sense well your honor i understand what you're saying but the cases have been very clear to say first of all that a defendant does have a right under the i'm a to establish whether or not there's jurisdiction i'll certainly does but if one of the ways of a stablish ing it is to challenge whether there has been a certification or whether the certification contains words that are the same as as the statute provides that would be a challenge to the jurisdiction he has the power to challenge the jurisdiction but the statute creates the jurisdiction by saying certain aspects of whether you have jurisdiction or conclusively determined by by the certification so you could still can consistently with cases saying you get to challenge jurisdiction sure you can challenge jurisdiction but the way that the government shows jurisdiction is t show i have a certificate so all you're left with is challenging whether there is a certificate that meets the requirements of the statute and as judge mike market suggests it seems literally to track the words of the statute does not the certification well no your honor because the statute says that the response of the foreign government is what's conclusively proven i don't think it's parsing words to say that just because the certification conclusively proves the response of the foreign government that therefore it can it should not conclusively prove jurisdiction or should not get help of this it says it proves conclusively the response of the foreign nation and if the form if the response of the foreign nation does not affirmatively and equivocally assert that the ves of the nationality then the statute provides that there is jurisdiction right so if the certification says this does not affirmatively and on equivocally assert the vessel is of the nationality it your honor no no i don't believe so because if the words of the statute had meant what the government is intending them to mean then the state then there would never be anybody that would defend it would face right which is what happened in this situation wouldn't be able to use its article three obligations to determine whether or not there was subject well but if the statute is something is constitutional in referring that determination to the executive branch you could argue that it's not i suppose but if it's constitutional to defer that decision to the executive branch then it's consistent with article three just to look at those at the at the superficial to determination of whether it meets those requirements i mean we have for year for generations the foreign sovereign immunity was determined by by by the executive branch and the law was you have to defer to that period you didn't you could look and see whether it was really sovereign immunity or  immunity under international law because the long as you just defer to that nobody said that violated article three they statute specifically gives jurisdiction to the district court to make up eliminate a preliminary finding of jurisdiction in a different part of the statute so this isn't something where clear why can't you say that this is what i'm puzzled by your argument why can't you say determining jurisdiction means determining whether there's an effective certificate because then that's what the statute would have said it would have said that  is conclusive proof of jurisdiction but it doesn't is the response of the foreign nation let me ask it this way i was looking at the certification from the commander of the coast guard salvatore fazio and he has a variety of things that he says and at the penultimate line he says the five after having requested the government of the republic of guatemala to confirm or deny the vessels registry and if confirmed grant permission to board and searched that so he says quote the government of the republic of guatemala responded that it could neither confirm nor deny the claim that the go fast vessel was registered in guatemala and then d accordingly the government of the united states is the term and that the vessel was without nationality in accordance with title forty six etc rendering the vessel subject to the jurisdiction of the united states why does not not comply with the command of congress because  luck to believe the court to conclude that there was jurisdiction you know because then it goes to the district court and the district court has to look at the certification and make a determination if it ain't to find subject matter jurisdiction but because there's a material misstatement in that document write a statement saying that there were no registration documents when there were registration documents on that boat which we know because the coast guard turned them over to defense counsel and unlike the other cases  a because the secretary of state's certification did not contain any details about the communication between the coast guard and haiti and the government offered no corroboration  the certification we construed the statute in its current form and said and i quote the m d l e provides that the certification is conclusive proof of a response to the claim of registry and then we held that the secretary of state's certification therefore provided conclusive proof that the vessel was within the jurisdiction of the united states didn't require anything else didn't require us to go behind didn't admit of the possibility that maybe they're proceeding in bad faith didn't examine the question of whether they had told the foreign sovereign the truth the whole truth and nothing but the truth well your honor what about campus campbell not controlling well campbell is very distinguishable your honor because in campbell but if the answer is no it's not controlling it is not controlling because in that case the defendant stipulated to all the facts in the certificate being true if the defendant had said everything the coast guard said happened happened they were only asking for separate corroborating document what's the language of the panel is a whole lot broader than that well ron i went back to look at to the briefs as to i don't know i'm talking about the police can say anything they want the language of the holding couldn't have been clearer and couldn't have been prouder but it well your honor the language of the holding discusses the fact that the defendant stipulated to all of the facts in it it does explain that first and i would agree that if everybody thinks that with everything the coast guard did is correct you cannot look at the certification right because then the certification you're only dealing with what happened from the foreign government that you could be right to say not was standing conclusively proven it should say conclusively proven unless there's an underlying challenge to the disclosure to the foreign sovereign by the coast guard no your honor i think it should stay as it is which is conclusively proven it conclusively proves the response of the foreign nation but it does not conclusively prove the facts stated by our own foreign government who we've always been able to call into question which is why in wiltshire which is the only case where this court where defendant actually was questioning the statements of the certification made by the u s coast guard the exact statements here write that there were no registration documents even though evidence show that there were this court and gauged in the analysis even  government made all the same arguments that it's making here today this court implicitly said the defendant can't challenge those statements and the court went to materiality course it depends on how you read world court said even if you do it you lose court could do and it discusses the fact that a there's conflicting evidence in that case as to whether or not there actually was a misstatement where in our case it's very clear the government's never conceded there wasn't conflicting evidence and then  not i mean there was no question that it was it was a nationality of whatever it was the bahamas in that case yes i mean i think it's a different issue in that case which is why it was a different year of it is different statutory provision i mean it's kind of similar ways to have jurisdiction under the a one is if it's stateless and then the other is if the flag nation consents to jurisdiction so in there which is why this misstatement wasn't material because in that case the country had already consented had already confirmed registration and consented to jurisdiction whereas in our case registration documents are highly material because in our case guatemala had it confirmed registration and then when we when defense counsel good morning and may it please the court lisa miller on behalf of the united states joined at counsel table by you is a dan matt skin who wrote the brief and usa you go on rodriguez shaq tried the case it is particularly significant to the government that all cases before the nine hundred ninety six amendment to the m t l usa through campbell through the president are consistent on one point and that is that the point of the jurisdictional requirement in the a was as a diplomatic courtesy to foreign nations to maintain international comedy it was an acted to protect the flag nation's interests and not meant to create rights for the defendant or an acted out of concern for the defendant and the cases are consistent with that congressional purpose which has been longstanding over time congress has only made it easier and easier for the united states to obtain jurisdiction and these international  hundred six statute notably it was amended to remove the question of subject matter jurisdiction from being an element proved to the jury to the exclusive province of the judge and it was in one thousand nine hundred six when congress first used to prove conclusively language of course then it was only applied to a situation where a denial of a claim of registry by a foreign nation could be conclusively proved by a certificate are you saying he has no standing t challenge the issue the government is in this case saying on these facts essentially the defendant has no standing because it is a claim of international law the appellant's do repackage their argument as a statutory chevy's left without any way to raise the claim that the court is without jurisdiction on the facts here your honor the government would say that there is no remedy where there's a claim of statelessness you go to the foreign government the foreign government says we don't know they can never challenge it in any way well in other facts facts not present here miss suppose there's no certification for if there's no certification the government has the burden of proving during another why would they have the burden of proving anything if they have no standing to raise a claim or your honor may have been unclear earlier the appellant and defendants always have the ability to challenge subject matter jurisdiction and it's the government's burden to prove that they don't have standing here when it constantly you know since they can raise the claim that there's no subject manager stiction correct correct so then what in what sense are we using the word standing is like statutory standing is that what you're talking about yes your honor so our supreme court's told us the name break it was lee that once we get into the realm of statutory standing we kind of mix up the meaning of the concept that we really ought to be asking does it state a claim if there are harmed if their interests are immediate and concrete i'm at a los understand why they wouldn't have the right to get up in a court of law and say judge you don't have the power to adjudicate this claim you are without subject manageress stiction sure and seven o five they have the have standing to raise a claim of failure to comply with international law as a basis for defense now the government understands it here the appellant's are careful to characterize their claim as something other than a challenge to international law but essentially what they're saying is that the government committed a fraud and go unquote amala some protocol in place of the quad amala was violated because certainly the statute itself and campbell don't require sort of cations to say what was communicated to foreign nation but they're saying here the communication to the foreign nation was somehow improper or dishonest the government says factually that's not true in any event but if we're focusing on their argument assuming it's true for the purpose of disposing of it soon that's true the remedy would lie in the hands of water mala they could issue a diplomatic note or take it up with the state department but it's not in the defendant's hands just so help me understand if you would miss miller or kind of standing they have to raise a claim that court was without the power to adjudicate the case they can bring that sort of claim by challenging whether the government its burden of proof of establishing jurisdiction but because the certificate by law is conclusive proof they can't bring the how can they do that if a person doesn't have standing to raise a claim of failure to comply with international law well for example if there was no certificate at all if the government was just putting on testimony from a coast guard officer but no certificate from a specific statute but to the extent they're saying that you didn't follow the protocol in place with water mauler you lied to the water maula that's not a claim they can raise but they can say you must put on some proof of what you did and what the response of the subject to one argument that i think the other side makes and it's an argument that's passed all the standing business and it just gets to these two provisions of the statute one is the operative provision which is the one see and says a vessel aboard which the master makes a claim of registry and which is the case here right and for which the claymation of registry does not affirmatively or it unequivocally assert that the vessel is of its nationality so the so the issue is for that provision is whether that those words are met right and then you have the next sentence which is sub two which says the response is proved conclusively by certification it doesn't say the but the contents of the response it just says the response so their argument i took it and i'm not sure that's exactly what their argument but i took the argument to be the content of the response is proved by the certification and but the court has to determine whether that content meets the standard contained in d one c whereas your argument is know not only the content of the response but whether that content meets the standard of the one c or both proved conclusi conclusively by the certification are you with me and with you and so if you buy their argument there strewn for argument by them that the certification accurately characterized what the response was but wasn't binding with respect to whether that met legally the legal standard contained in d one c right and to be fair the literal words of the statute i'm not sure compel at all it's a little hard for me to see what it means if it doesn't mean so what's your response to that response to that is that factually here because the words of the certificate do say the four nation could not confirm law where sometimes you can have words and say that in one context they mean one thing but another context they mean something else when we are in our but in this context the government emphasize clear that the response was  confirm or deny statehood rights by operation of law essentially that response so why so even even though we may know as a factual matter that it's not the case the fact that it's proved conclusively you're saying is just a way for the statute to move this to the international plane and get it out of the way of the district court to try the person right and i would add the cases such as the myth that right or wrong that's right and i would add and but you could make that all that argument without getting into because there is standing to make certain kinds of arguments but they're precluded because this provision says conclusive inconclusive means what you say it means and that furthers the purpose of the statute that's correct your honor  standing because it is in seven o five or so and i understand it's you know it's a it's an argument that kind of gives color to the overall scheme i'm just of i'm just concerned that maybe you get into a quagmire when you start talking about standing the content that is a claim of international law at least according to the fifth circuit decision making as well was let me let me ask it this way you answered the question i thought it was a strong answer to say that the language of the certificat was was impairing material with the statutory language in the previous sentence what if it wasn't one of the language arguably did not affirmatively on equivocally assert but arguably didn't and there was a legal argument as to whether it actually tracked sufficiently then they'd be able to challenge that with us and that had have standing out over them yet and such alledged to have a right because it goes to the jurisdiction not to the ultimate international law issue it goes to whether the statute in that in that circumstance this is something that the court will decide or something that the state department will decide but when when you would say the certificate itself tracks it in this way we have to read it th interesting case the statutory is not exactly the same stature we're talking about here wrecked but let's hold that aside for the moment in wiltshire cause it's true that the district court went behind it and allowed evidence to go into look at this question of bad faith didn't play well in terms of bad faith there the ultimate holding the court didn't address the issue even though the united states raised the same arguments in the same president right but the court didn't say and will call conclusive proof end of story good bye you can't go behind it that's what congress meant rather they said you could go behind it your honor is absolutely correct i don't read the opinion to say you how do you mean that in perry material with how you would have us read the statute and what we said earlier in campbell the district court was not satisfied with the state department's certification from the coast guard allowed them to go behind it and then we just a determination made a finding and we said yeah that's right and affirmed we didn't say district court didn't have to engage in that kind of analysis at all and of story there's a certification it trac statute goodby has jurisdiction it's a limb an area issue for the district court to resolve it's not an element of the crime it's not something that goes to the jury how do you deal with that certainly and registration documents that were allegedly concealed in bad faith from the foreign nation there the bahamas into there the court's holding the government reads it was mostly premised on the fact that they didn't need to really reach it on the law since factually would make no difference and not move the needle and so the government doesn't read this court's opinion about koma specifically commenting on or considering the propriety of the desert court's choice to address the challenge of bad faith but we could well have said district  no business going into that at all certainly the court could inclusive means conclusive it means eery bought a bill end of story evidence so strong as to over bear any evidence to the contrary that's what black's law dictionary says and it's what mitchell hunter said in the first circuit and reason not to do that is that would have been a broader holding maybe in wilts com we just made a narrower holding just to not to cite something we didn't need to decide the government would not be binding them right yes and the point though the government did want to address is the contention that there is a material misrepresentation in the certification in the first instance here the certification statement that is challenge says that quote no registration documentation was provided to or located by united states law enforcement personnel and quote and that's from documentary sixty eight one the certification the government is not conceding that even a false statement here or that that statement was ever conveyed to guatemala the record is silent as to what was actually conveyed to guatemala the appellant's make much of saying water malala was misled but there's absolutely nothing in the record saying that statement was false was ever conveyed to guatemala it's just not clear and there's no reason to remain to get more clarity on that point for the reasons i've already articulated but it's significant that the documentation that was found is documentation called bizarre and that is  documentation simply shows the last port the ship was at and this stark did not even have the names of the defendants on it it was from two thousand and twelve when the boat was stopped in two thousand and thirteen so factually the government would also say that there was no material misrepresentation here if a court has any further questions i'm happy to address them no thanks very much thank you for your time it please the court the government's interpretation of the statute would create an absurd result where just because there's a certification out there that tracks the language of the statute it's automatically there's automatically jurisdiction for  example the secretary of state's designee could have contacted haiti and haiti could have neither confirmed nor denied registration even though everyone on the vessel side that it was registered in guatemala and all the evidence at trial shows that everyone on the vessel claimed registration in guatemala but the statute the certification tracks the statute right the certification says neither confirmed nor denied so therefore automatically become a stateless vessel that would create an absurd result which is why all the courts are saying why couldn't congress say in its own wisdom we do not choose to give you the opportunity to go behind the certification we accept the good faith of the secretary of state and the good faith of the coast guard which is the designee of the secretary of state and we're not going to allow these cases to break down into debates about the nicety of what the coast guard said to the foreign sovereign if there was a certification that's the end of it as far as we're concerned in the aggregate that yields the result we want and we're happy to say under those circumstances th why couldn't they reach that determination what's your particular case maybe they might have made a mistake in the aggregate maybe they didn't but don't they have the constitutional power to do that or you saying that there's some violation of the constitution as we've already aside why couldn't they do that and simply say we're going to rely upon the certification of the secretary of state it is conclusive it is eerie possible story over as to jurisdiction because once they gave jurisdiction to the district court to find to make sure that there was subject matter jurisdiction as a preliminary matter then evidence which would contradict the district court simply has to make a technical review to see whether the t s were crossed and the i's were dotted no more than that but your honor a technical review or a review would include if there was a misstatement on the face of the certification we're not asking this court to go behind the certification right he says discussed for example campbell was asking the court to go behind the certification because in campbell they had stipulated to all the facts by the coast guard were discussing the same thing that happened in wiltshire where it's a statement on the face of the certification that was false and i think there in lies the difference isn't proved conclusively language that you would use when you were trying to avoid arguments that the statement that a statement is false i mean why else would you if if you did if it didn't if if proved conclusively didn't cover story false statements then what what does it accomplish well your honor it's the statement is what we need to focus on because again we're not saying that the response of the foreign nation was false and that's why it says the response of the foreign nation has proved conclusively and we know the reason for this looking at the legislative level i mean if you're talking about your haiti example i mean i think you there's room in here to say the response of a foreign nation means the nation that we're talking about heart but the only reason we would know it's the nation we're talking about is if the defendant was able to bring in evidence to show separately what they said to the coast something it lived outside of the certification my point is only that the certification and of itself doesn't create jurisdiction a disaster well i'm not so concerned about whether creates jurisdiction is the ultimate issue i'm concerned about whether it meets the requirements of the that's the test so the issue from my perspective is who gets to apply that test who gets to see whether this item fits that statutory standard and you could read i can see that you could read this in a very technical way to say this doesn't give the secretary of state the power to apply that test but that's a pretty technical unlikely reading of this it doesn't doesn't make sense to have it read that way it makes it but it makes perfect sense to read it the way that the government suggests which is that the secretary is there by removing this is willing to defend it even if it's indefensible the secretary is willing to defend it in international discourse so it's district court you're done well your honor but they gave the district court jurisdiction to look at this and they were all right but the they gave it to look at it subject to the fact that certain facts are conclusive yes honor but the certain facts is just the response of the foreign nation and in no case that has been brought before where a defendant has said that there was a material misstatement by our own government by the united states coast guard has this court found that we couldn't look at that and the that any different from saying it wasn't affirmative or it wasn't equivocal because i'm not i have no we have no issue with what demolish stated at that time right they can neither confirm nor denied registration we agree that's proved by the certification but what's not proved is subject matter jurisdiction because the certification on its face and i don't see why this wouldn't apply if we were talking about a hostile nation and the secretary of state just lied and so they did it when they didn't why wouldn't that be but conclusively prove that's statutory language to mean we assume as a matter of law that that's true even though it's not that's what the words mean yes your honor if this secretary just a lot i did and said that's the nation said something that they didn't that would still be conclusively proved but i don't i think that and i heart that's hard for me to see when they make that statement and it's based on inadequate evidence that it's not conclusively proved well your honor it would be compl by the certification but i don't think that that means that the district court doesn't have an article three obligation to go on that kind of what we're focusing on counsel is what exactly is the nature of the district court's obligation to determine whether he certification and the question boils down to whether it's enough for the judge to look at the nature of the certification and the declaration from the secretary of state or his design which says i contacted the foreign sovereign in the foreign sovereign said it could not answer the question it wasn't the collaring that this was a vessel registered under the sovereign power of the state of a failure here in the nature of the disclosure to the foreign sovereign they didn't tell them x y and z whether it was the time location what they were told rome of that's a war something like that or whether it's enough simply for them to make the declaration that there are and i'm not going that far i'm not saying that he was to me that's necessarily where you have to go in order to prevail no your honor because i'm saying on the face of the certification that was given to the district court in this case there was a lot a misstatement in the certification itself said that no registration documents were possessed when they know we know that they were so in your honor in your example you're going behind the certification to say who did you speak to what was communicated you're looking for corroborating evidence and that's not what we're asking for i we are saying that if the certification but before the district court has a misstatement that's material goes directly to whether or not the court actually has subject matter jurisdiction that under the statute and under article three the district court needs to look at that thank you very much thank you both i will proceed to the next