hear st from miss rodgers is that right that's right judge good morning he made a plea want to work i'm kristen rogers from a federal defender's office immobile and i represent angel castro garcia in this case which involved the prosecution on the under the maritime law enforcement act my colleagues and i have agreed that i will argue the substantive jurisdictional issue for the three defendants participating in oral arguments today our claim is that the government did not demonstrate that the defendant vessel  yellow that in part from and with intercepted off of the coast of the dominican republic was a vessel subject to the jurisdiction of the united states the government argued that the yellow was a vessel vessel without nationality and relied on a provision of the act which defines a stateless vessel as a vessel aboard which 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 the vessel but that section does not support jurisdiction in this case an argument to that effect has two components st the four defendants who were aboard the eula took turns operating and being the individual in charge of the vessel as the officer asked and he stated this a couple of different ways in his narrative he said i was unable to determine who the master of the vessel was i asked who was driving and in charge of the vessel and then at trial he stated a little differently i had asked who the master who was in charge no one replied so i said who was driving the boat and they said we all took turns driving the boat and our position is that when there is no one on board he was specifically designated to be the master or the captain then whoever is operating the boat is the individual in charge of that vessel but if you can't tell what causes that carol was distinguishable from this case in a couple of ways but the court did state that the individual in charge was a person separate from the master and they discussed a little bit what that term individual in charge me and they relied on a case from the th circuit called gaffney which stated that you know just the plain meaning of the term individual in charge if the person who's operating the vessel and i think also in this case officer cordova his own testimony supports the conclusion that he thought the person driving the vessel was the individual in charge of the vessel just because of the way that he asked these questions because he said i asked who was driving and in charge of the vessel that's what his narrative says and when he asked who was the master who was in charge he when the when no one answered perhaps because they didn't understand the question he immediately said who was driving the boat and one of the individuals that we took turns driving the boat which was here just now one truck i think it would suggest that any one of those four defendants could make a claim of nationality for the vessel because each of them had been in charge of the vessel now the nd component of our argument that this statutory provision does not support your stiction is that the statute consistent with international law places the burden on the boarding officers to affirmatively request a claim of nationality or registry but the coast guard officers who boarded the yellow in this case the not asked the defendants either collectively or individually if they wish to do so  the government has a fallback argument in this case they said that the totality of the circumstances here supported a finding of state with the argument in response to that is that even if there is room in the definition of vessel without nationality in this statute in section do you want of the statute for other categories of stateless vessel such as genuinely stick with vessels under international law the government's argument that a sort of language i just don't think it's particularly relevant in this case the courts that have held that that's a non exhaustive list have held that the sort of there's a catch all category captured by section d one that includes vessels that are stateless vessels under international law under international law there but that's your argument about why this vessel was not state less under international law supposing that that does get swept him well if there are two cases that i think are highly relevant to that question st is the matters luci case in the nd is the roof stero case both of those cases are discussed at length in the barrel decision both by the majority and the dissent and i statelessness but still not be a stateless vessel the under international law the crew can still make an oral claim of statelessness under international law the burden remains on the boarding officers to ask questions of the crew members genuine statelessness under international law is actually incredibly difficult to prove it puts the government in the position of having to prove a negative and that's why the statute is written the way it is congress actually made the government's burden lighter by in numerate in those three situations in which a vessel will be deemed stateless under the statute i see that up almost to argue the issue raised by one of the non argument counsel and that is that judge in this case should have performed an full evidentiary hearing to determine jurisdiction prior to trial the statu and there are cases where a certification has been presented to a court and it dispenses with the necessity of an evidentiary here in this case there was no certification with the court relied on it was hearsay statements by costa resolve the dispute but but we don't that's not what happened here well i think there's there is conflict as to whether or not the stated the best  stateless where there's evidence to show that and that should have been sorted out as a matter jurisdiction prior to the truck because what it by not doing it that way it presented to the jury evidence that they otherwise would not have her jurisdictional evidence and i think that's one of the reasons why we do it beforehand is to keep that kind of evidence from a jury i think it's also important to note that the government in this case file a motion to limit eight to prevent any questioning or comment as to jurisdiction and i think they treated it as an regard to this issue there's we sort of need some guidance from the court as to how we handle this requirement of the necessity of a preliminary determination it's seems that judge made that determination that sort of this was just  he had he was making a tentative finding of sort of like a probable cause we hear polluter here and oftentimes we think is is or probable cause and it appears that the district judge was treating this a the boat in this case was a vessel without nationality in every sense of that phrase it was a homemade small skiff failing fifty miles off shore loaded with one hundred and eighty one kilograms of cocaine copious amounts of fuel and these four defendants it flew no flag it bore no insignia it carried no documents and no one claimed upon request to be the master or individual in charge when the wreck does is there any indication of the record any officer asked for a claim of national no the the officer did not ask for a claim of nationality for the vessel it asked the defendants individually for their nationality but not for the vessel and so the officer asked whether anyone was a master who are and charge is that right yes he asked who was the master who was in charge that was his trial testimony and the absence of any response to that did not seek to elicit any other  information about a claim of nationality that is correct your honor now miss rogers says that international law required more it wouldn't required the officers to at least elicit that information from the under international law and under the well he would not have been obliged he would have been obliged under the statute under day one be to follow up with the master or individual in charge i believe it is more i believe that under international law that the burden it does not shift the burden to the coast guard to make that cla yes it is under de one b if there is a master or individual in charge identified then the coast guard must ask that follow up question about nationality but you're saying that a requirement and so i was i don't law that does not otherwise arise under international law is that right we're not talking about crimes or anything just a board then normally in international law when you board a vessel that same rate then then the party boarding is concerned  that's the concern under international law and that is also the concern under the m d l e a is to respect the sovereignty of nations to because the statute was written against the  that master or individual in charge making a crime now yes and only international law is consistent with the statute in that it is only the master or individual in charge who can make a claim not a crew member not a boat driver but the master or individual in charge and if there is no one who speaks up when the coast guard attempts to identify that person then the burden does not is not on the coast guard to ask the follow up question either under international law or under day one day of the statute that's that's our argument and what we that the court can affirm jurisdiction in this case either under day one be proper or under a totality of the circumstances analysis because as you pointed out judge prior the the the language between the congress used in day one and he are different for a reason and should be given meaning that we look to what you're saying then as i understand your argument as if you're saying we're as i understand it just is a quizzical about in which case that is a vessel without nationality even though the master has made that claim of nationality right that's that's true that's under de one a and c the statute and b is different in an important respect in the language that congress used in that subsection it  c requires as you mentioned affirmative action on the part of the master individual in charge subsection baby is grounded in silence and in action it uses the word fails instead of some other more active like refuses and that section of the statute can be met by failure on two levels one failure to for the master or individual in charge to identify  him or herself and then if he happens to do that then a failure on the nd level which is to fail to quite make a claim of nationality so  the court can affirm jurisdiction in this case other either under d one b proper or under a totality of the circumstances analysis because the one is a non exclusive list and the circumstances of well to answer to the last question st and then made it at the very last minute he made it after charging the jury but before giving the case to the jury he made that final determination and he made it then because he was being very careful to give the defendants the opportunity that they requested to at some point cross examine the coast guard witnesses on the jurisdictional issue the defendant's never took advantage of that opportunity even though it was left open by the judge and that is that is part of the reason he made it political ruling in the st place he wanted to give the defendants that opportunity when the witnesses were in court under oath but they never did it they were solid they never requested and he in the end to the judge offered to do that outside the presence of the jury but the defendants were solid and never took advantage of that opportunity under those circumstances the court did not abuse its discretion by not holding a hearing there was extensive briefing in the case the united states submitted statements and documents proving jurisdiction  contrary backs jurisdictional facts to to disprove the government's proof of jurisdiction so under those circumstances the district court did not abuse its discretion and if a hearing was required it was a couple of the other issues that the defendants have argued that they were all individuals in charge because at some point during their of our voyage they took the tiller and  guided the direction of the boat for a time but not all boat drivers are individuals in charge a driver can be but it is not necessarily so is the defendants argue the statute contemplates something more than a brief control over the direction of the master of the that the statute use it as a term master and individual in charge and the dictionary definition of master is someone who has  authority over another person and we know that through the rule of statutory interpretation that words in a list in a statute are known by the company they keep that individual in charge is something different but  kin to master and steering about for a brief period of time is not evidence that they were in control or in charge of the vessel instead the evidence in this case shows that they were there was no person in charge there was no hierarchy among the four defendants no one claimed to be in charge they all drove the boat for a period because of the difficulty of steering the boat that boat in those  and the defendant who was driving the boat at the time of the coast guard intercepted the vessel abandoned the helm and mixed in with the other four defendants concealed himself and never identified to test to test their theory let's assume that there was a this was a larger boat with a larger twenty four dollars member crew if each of those under the defendants theory if each of those crew members drove the boat for an hour in each of them would be individuals in charge and that is not what the statute contemplates it contemplates someone who was truly in charge and overlooked there was testimony by martinez was this turn statements claim to be a boat driver or an individual in charge and say that my time's up and i thank the court for the time and ask that it affirm these convictions for the reason stated but i thank you mr martin miss rogers you have questions secondly no court has adopted the government's broad totality of the circumstances argument justice alito when he was a judge on the rd circuit wrote the ruth arrow decision in which he specifically  rejected that totality totality of the circumstances argument and he did so because of what the internet the burden that international law places on the boarding officers to ask questions  rd i'd like to acknowledge judge joe flaps dissent in garo because he's here and noted that there's a factual and important factual distinction between this case and garo which made a huge difference i think in just reflects reasoning in that dissent and that was that in that case the crew specifically said they had a master but he had gone overboard that there was a master who was no longer present which is stark contrast to this case where the individuals never denied never claim to have a master who was no longer present and therefore as we argue because there was no master of this ves then the men were who were driving the vessel were in charge of the vessel out of necessity someone had to be in charge of the vessel and they were the only four individuals who were on it what should have happened in this case  is especially given that this boat had so many connections to the dominican republic the government should have contacted the dominican republic through its normal state department channels and got in gotten the jurisdiction certification  the concerning thing in a statute that would require that kind of outreach to from the coast guard to a foreign nation that no one has made it known and made a claim of registry for no one made a claim because no one was asked in this case  ordinarily perhaps nobody here no one was asked the question and so the government could have gotten that consent from the dominican republic at any point up to trial so that's not it that's not a high burden for the government