and your honors may please the court edwards asked for appellant prado this is a case about the maritime drug law enforcement act and we're asking the court to issue two rulings here first that the issue of whether a vessel is subject to the jurisdiction of the united states involves a non waive a bull question of subject matter jurisdiction and second that the vessel here which we refer to as the go fast was not subject to the jurisdiction of the united states on the first point the circuits are split on the question of whether the vessel subject to a requirement is a matter of subject matter jurisdiction it was split three don't want to work we're hoping you'll make it four to one now i didn't include this court in the split but there is a decision  from the early eighty's in pink doma here which was strictly speaking decided under the predecessor statute but did treat the exact same language vessel subject to the jurisdiction of the united states as a non wave  westen of subject matter jurisdiction the importance being of course that jurisdiction cannot be waived by the guilty pleas here is the government your argument is that  fails the government fails to prove jurisdiction because of the terms of the statute that is they didn't make a request of the three sailors as to the nationality of the boat well there's there are several layers the first being that the government is the party invoking jurisdiction bears the burden of proof to show that your stiction was proper there appears to be a dispute among the parties as to what the burden is we argue it's beyond reasonable doubt and their support for that in a dissenting opinion in the first circuit in the case of mottoes luci but the majority there says preponderance i'm not sure this court needs to resolve it because we think even under a preponderance standard the government didn't meet its burden so let me yes i'm curious as to why i don't know whether your office was involved in the in the district were you involved the district court and our office was i personally was not you know why wasn't there a motion to suppress the evidence as the fruit of an illegal search it seems to me that it seems to me that the dam that there was an illegal search because the the coast guard had the right to board this vessel and search if the coast guard made a determination to make a determination that it  was a mistake was vessel and that's subject to the jurisdiction of the united states but as i understand it the coast guard came up in the vessel of course was speeding away not making it easy and  or received an answer which is they could be given and verified with ecuador is this vessel registered and if the answer was no they then could have proceeded but they didn't do that they just they just went ahead and boarded the vessel and we search dead and seized the the the drugs and arrested the people why wasn't that illegal conduct that your honor i'm not sure i can i can answer the question because because i don't actually don't know the answer but you're making you're making an excellent point but i think if if if there was no authorities to seize the vessel at all i think there's no jurisdiction to hold these foreigners interview because i mean if if if somebody feels to the fact that there was no thought or they didn't go through the procedures we don't know the answer we don't know the answers to to whether the vessel was subject to the authority of the united states because the procedures weren't gone through maybe that maybe it was an ecuadorian vessel probably it wasn't but but but but the the the defendants pleaded guilty they they  point is exactly right that there are procedures they are set forth in the statute they are not particularly onerous by the way that the government only needs to make the inquiry of equity not owners at all the government makes the inquiry the in making a claim no no you what you're on to the statute defines claim of nationality or registry in three ways one is a verbal claim of national unity one is what if one is flying the flag but that is not a verbal claim that is a physical claim of of a flag being flown and the parties disagree as to what that statutory term flying a nation's flag means we say it doesn't mean it has to be a clause affixed at one end and flapping in the breeze which is that what the government says it means we say given the maritime context and the surrounding context of the statute and ordinary english usage it means displaying a nation's flag on a ship to signal what you present is the sticker on the side of the boat is that it well no i wouldn't characterize it as a sticker  it's not clear what it was because the government blew the ship out of the water before the flag establishing the flag is simply a claim flag as defined by statute as one of the ways in which a vessel can make a claim of nationality and then other flag flying doesn't establish nationality but it is a claim as you want to point out and it what it does trigger is a duty of inquiry on the part of the united states to check with that quick check not necessarily to get on full decision that the country can just say we have no idea about this boat there's jurisdiction it's over and it's proved conclusively by a certificate from the secretary of state none of this was was done  prosecution rap is drawing a huge assumption because because you're assuming that the reference to jurisdiction is talking about the jurisdiction of courts the only the only type of jurisdiction that is not a wave  boat and that according to the theory the judgment of the court can be wiped out even a hundred years later because it because the court was without the power that is only when the provision goes to the court's authority to hear the case it doesn't have to do with a case where where the statute uses jurisdiction with respect to defining the crime and what must be true in order for the crime to be prosecuted that's one hundred percent right and that's exactly where the circuits are split so to take the d c circuit which is probably the most exhaustive analysis if they go through the reasons why this language in this particular statute is subject matter jurisdiction in a very narrow sense that your honor has to find it meaning the power to adjudicate the case i think both the government and i are using the term in exactly this narrow fashion not a broad loose term of jurisdictional personal jurisdiction or a thing this is a curtailing of the general criminal jurisdiction statute the general standard to which the government lies on its thirty two thirty one gives united states courts district court's authority the jurisdiction to preside over all offenses against the united states but congress has the power in other statutes in specific criminal statutes to narrow or condition or curtail that grant so although the general grant gives jurisdiction of all of overall offenses of the united states you have to read that in harmony with this act which then says but only if the offenses involve a vessel subject to the jurisdiction of the united states and we think the better view certainly the majority view in the circuits is that if this is precisely subject matter jurisdiction it can't be  forfeited even if the parties agree they said judge we want you to have jurisdiction we think you have jurisdiction the court has an independent obligation at all stages of the case to satisfy itself that it has jurisdiction and that's the part that is not here i think when when mr prado on the other defendants pled guilty everyone proceeded under the normal assumptions that all pending motions are either moot or they're waived and they're gone and the case can proceed to sentencing but subject matter jurisdiction and this kind of jurisdiction is special and even if the parties didn't bring it to the court's attention as strongly as they should have the court had before it evidence from the defense side by the way government the only evidence that the government ever produced was the complete initial complaint in this case but it had evidence that at the very least called into question whether this have established the jurisdiction what should have happened but the the court had now a couple of altar there at the scene should have happened in order for the court now to have i see it in the water in the water that right time of the order of the bow of the interdiction is the government assuming assuming the boarding was lawful it gets to the ship it finds these three individuals if it sees this emblem of a flag it's on both sides of the hole the government produced the video itself that captures those images so that we say first trigger the duty to contact ecuador could have been done by radio by telephone there on board of there up on the helicopter or either way either way and by the way this is not the first time they've seen the this this fun in the record as part of the motion for reconsideration which was never resolved we show that ecuador in the united states are or have these this treaty obligation where there's a form that actually has a box that says claim of nationality with a box that  convention to which the united states and ecuador parties and you can you can find in a panic stop so there's the flag which we think is a claim of nationality that triggered the duty to inquire so that's one putting that aside  there are two other there are other ways for a vessel to qualify as a vessel without nationality which is the only theory the government is going on one is to make a request saying to the people to the person in charge of the three defendants is this boat registered anywhere you want to make a claim of nationality for the boat something to that group the master of the yes yes we want there's no evidence that was made the defendants affidavits which are which are there are two affidavits which say there was no such inquiry made there is nothing to contradict that from the government side so if in response to that request the defendants failed to make a claim of nationality that would then qualify the boat as a vessel without nationality leaving aside the flag i'm assuming the flag already established that there was back into the first you got to contact ecuador and see if the next door in that's right and they said they are put toward it that they did they did that doesn't but that doesn't give them the nationality of the boat which is the what we're concerned about under the statute right well they say we are ecuadorian or we are ecuadorian nationals or something to that effect it's not exactly sure what the exact language was but we said and there was no there's no evidence that they specifically mention the boats nationality we agree with them but we say that depending on what the questions were and the context of what the follow up answers were it could be that when you say we're from ecuador you mean to include yourself in the book for example if it if the question was what are you guys in your boat doing out here on the high seas they said look we're from ecuador all of us including the boat well if that that could be what it means we don't know because there was no there is and it never been any hearing there's never been any evidence but the judge ruled that because the language was we do we did not specifically say but it didn't qualify  r jurisdiction exist for us in case this i think you know morrison talked about the enforcement reach of securities laws and it said i  believe that that foreign transaction that that that that fraud involving morris and that when the issue is whether the law of the united states applies to the to the to the foreign co talked it is a mistake for courts to treat that as a matter of the jurisdiction of the court it should be treated as a matter of the requirements of the statute and not as a matter of court jurisdiction so  i think that it's i haven't i haven't looked specifically at morrison in a while with the statute but the morrison decision suggests to me that that whether the transaction is foreign or domestic ultimately goes to the jury it's part of whether there was a violation here the statute says explicitly that the question of whether the vessel is subject to the jurisdiction of united states doesn't go to the jury it's exclusively for the court as a matter of law so it's different in that sense it's not an element and i don't think the government disputes that says that it's not an element the government says but it's not subject matter jurisdiction it's some other strange animal that frankly i have never seen that something from the government shortly yes yes  required the united states to communicate with the foreign nation specifically ecuador and they did not do this in this case instead they chose to scuttle the boat we had a helicopter up in the air we had the interceptor which is a smaller boat launched from a cutter and we had a three person boarding team and none of those boats photographed the perimeter of the go fast to say whether or not there were registered to our thinking at the time was we considered making a fourth amendment motion to do to suppress we didn't think that would apply extraterritorial we decided to proceed on three get three grounds a motion for spoliation because the u s coast guard inexplicably decided to this boat without photographing the perimeter and then they come into court and they sign a complaint saying it saying the complaint saying inaccurately in the complaint that it failed to show signs of registration or nationality on its hull and it's only when the federal defenders took the video that was shot from the helicopter and slowed it down frame by frame they found by zooming in they found a photograph of what we call the flag of ecuador and which the government concedes at the very least is something that appears to be the flag of ecuador and they called it an an emblem so we chose to proceed by a split in motion a motion to dismiss for lack of jurisdiction and then under a due process claim arguing that it was fundamentally unfair and arbitrary for the u s to assert jurisdiction over the boat in this location and the reason we argued it was fundamentally unfair would be that if a boat were carrying some type of narcotic any quantity whatsoever and it had an emblem painted on the side by the government's interpretation even if it was just a small quantity of marijuana and it was somewhere off the coast of japan even if it were one joint and even if it had the flag on the side of the pope but they're calling it an emblem if it wasn't big enough the u s crude search jurisdiction and bring these individuals back to the southern district of new york under their reading and of the statute and that's fundamentally unfair and it's arbitrary so the government the parties can not waive jurisdiction as m counsel argued we could only stipulate to facts from which the court might find your stiction and we did not do that here in fact but your arguments let's back you back up a know your arguments about due process and those various things are your client having plead guilty those are wrong yes i mean which would you have left and what we're wrestling with i think but please correct me if you have a different view is the matter of the jurisdiction of the court actually to punish misses a crime right yes no normally a constitutional challenges are weighed by a guilty  had here i would just ask your honor to consider that perhaps in the context of this case where we have a subject matter jurisdiction claim to begin with but i take your honors point that there is a problem i think we have a strong argument on the merits of the due process claim but but there is a problem with the preservation for appeal council user to me and i know you subscribe to the arguments to whether a claim of nationality was made is whether the court should even entertain these challenges whether there is subject matter jurisdiction here in the first place and i recognize there is a circuit split but we respectfully submit that when each of those circuits and what the  s do is they confuse the language vessel subject to the jurisdiction of the united states with a concept of the jurisdiction of a court and those are two very different things as judge without pointed out morrison actually addresses this and this co addressed this concept and use it as well and morrison the issue was whether the extraterritorial reach the securities act constitute the subject matter deficiency or whether it constituted some some other issue that specifically went to the of the case and morrison was very clear that that kind of claim extraterritoriality goes to the merits not to the subject matter jurisdiction of the court and what we have here is we have a statute in which the language court which is the first which is the d c circuit decision and the appellate what they hang their hat on is a vessel subject to the jurisdiction the united states that language does not speak at all about the court's authority it's very specifically targeted to the jurisdiction of the united states to prescribe certain conduct in this as the united states have the power under this under the statute to prosecute this crime yes that that's ri honor and that's that's a common usage in any number of statutes where frankly it wouldn't make sense to construe it as the authority of the court to hear the case for example we cite in our brief title eighteen united states code section thousand and one which involves making false statements to federal agents within a matter of the jurisdiction of the united states i don't think anybody or even the appellate would contend that if a district court granted a rule twenty nine motion finding that it was concerning a matter that was not within the jurisdiction united states that the district court would not have subject matter jurisdiction to enter a judgment of acquittal that demonstrates the difference and this court and use of specifically noted that there is a difference between the power of the united states to prescribe conduct whether the united states can proceed and whether the district court has authority to hear it and turning back to morrison what i think is important here what's the good of from proscribing conduct that can be put to good to be true right well you are there are there are circumstances in which a court has the ability to entertain a challenge to a statute that says that the united states has exceeded its authority and an example of that is extraterritoriality in determining whether is the one you just cited about and one if the court could decide the court can hear the case and the court can make a ruling that this matter was not the matter in which the defendant made false statement was not within the jurisdiction of the his state because no u s agency was in fact inquiring into this that's absolutely right your honor i think what significant is the supreme court certainly has noted that congress is able to create limitations beyond let's say for example found in eighteen thirty two thirty one which grants jurisdiction to district courts over effect offenses against the united states congress is empowered to create additional statutory requirements but because of the tremendous burden that subject matter jurisdiction limitations that doesn't judge the value noted one for example that a judgment could be set aside one hundred years down the road on the basis of the subject matter challenge because of that congress said or the supreme court's had a pardon me that the language has to be clear it has to be unmistakable that's in the orbit case that's also in the lawless case and congress has demonstrated its ability to on the one hand use language that limits the u s his ability to prosecute cases the thousand and one example versus on the other hand very specifically talking to the we're speaking to the jurisdiction of the court so in morrison for example there is a statute within the securities act that conveys jurisdiction to district courts that's statute reads the district courts of the united states and the united states courts of any third territory or other place subject to the jurisdiction of the united s exclusive jurisdiction the statute is very specific to a her to the district court's jurisdiction that's also true in the diversity statute thirteen thirty two where says the district court shall have original jurisdiction of all civil actions it's true  thirty two thirty one where that says the law was the part of that statute it's book about any place subject to the jurisdiction of the united states i'm sorry just like i do know that the statutory language you are just reading relevant to the securit laws you just read a phrase that said any place subject to the jurisdiction of the united states yes can you read that again i didn't catch that certainly out of the so that it first refers to the district  united states and the united states courts of any territory or other place subject to the jurisdiction of the united states it was referring to which meant a court that is located in another place subject to the jurisdiction of the united states it's basically says  speaks about the chords having jurisdiction to hear the case exclusive it is and the other one talking about a place that is subject to the jurisdiction the united states would use it more or less in the manner in which the statute that's exactly right your honor and i think law doesn't make sense are both just as ginsburg pointed out that the jurisdiction the word jurisdiction has many different meanings and it's only when the statute is using the in our blog is that there has been a tendency both by parties and courts to use that phrase very loosely in reed elsevier verse much much nick scuse me justice thomas provided some definition to the phrase jurisdiction when applied to the court specifically jurisdiction when referred to a court involves either jurisdiction over classes of cases that would be subject matter jurisdiction or jurisdiction or classes of vessels that can be subject so within the same category of cases it differentiates between the different types of vessels that can be subject to the jurisdiction of the united states so even against the the court can hold an evidentiary hearing because it is a preliminary question for the court in exactly the same way as a court can entertain a challenge to the extraterritorial reach of a statute they could perfectly well have made a motion to dismiss this complaint united states that they were entitled to that in fact they did do that and and the court decided and then they filed a motion for reconsideration afterwards but abandoned it which is similarly inconsistent with the view that this was a subject matter jurisdiction but but i think what that address is also judge told to turn your point quickly is the miranda court expressed some concern that if this was not treated as a matter of subject matter jurisdiction that there was a hypothetical situation in which a foreign nation would become aggrieved despite a guilty plea and not have a recourse and i think that's incorrect for a couple or it's one respectfully that the potential for friction between between the united states in a foreign country is a matter that's properly exercised by the executive branch or the legislative branch but even to the extent it is a matter for the court to consider in considering statute the parade of horribles doesn't exist because first in accepting a guilty plea as was done in this case the district court the defense lawyer and the government all inquire as to whether there's a valid basis for the plea or whether there is a valid defense when the pleas knowing and voluntary so there's an initial check even to make sure that ability to redress and address the concerns of the foreign country that is aggrieved through commutation or part so it's not as if the the foreign relations concerns of the miranda court expressed would be   the statute certainly has a multi tiered approach and in order for the coast guard to be obligated in the first instance to reach out to ecuador there has to be a claim of nationality and the statute has very specific ways in wh request upon request i mean certain of them would be on request yes your honor so i get the flag is a claim of nationality right there showing well well the statute specifically refers because the statute specifically refers to the concept of flying the flag not displaying the flag you arguing that it has to be a piece of cloth flying on in the air yes your honor so no submarine and i  just take that on because obviously you're aware of that argument no submarine that is emerging from having been under water until it gets up and runs up its flag is recognized as a submarine and as a vessel for a nation well i i would i would agree with that you are there's also a separate statue i believe it deals with with some marines in particular so merciless in particular but specific to the statutory language it's clear and unambiguous and in fact it mirrors what congress has done in other statutes discussing the coastguard we cited in our brief but in title fourteen section eight ninety two congress itself draws a distinction between flying a flag or displaying a coast guard insignia that there is a difference between those two terms in ordinary usage and in fact some some terms that we refer to in the maritime context with respect to a flag would make any but in order to be recognized as an assertion of nationality or claim of nationality under the statute it has to be the statutory requirements of the statutory language and that's different than simply displaying a flag so the boat is  the three main search team and the defendants will say common practice and i think we we make this are going to i think even the district court know this and oral argument that crew members of different nationalities always often sail on vessels that are not registered to their nationality but they said were s make considerable hay over the concept of the flag being phony there were the registration numbers at no point coupling with the we are a queer dorian's do any of the defendants claim that they pointed to the so called registration numbers on the side of the know i think i think you're right that it has to be germane to the question of the origins of the voter the origins of the individuals but i think the specificity of that question whether it's wary from designed to elicit a response and information as to the nationality of individuals because that is important to the coast guard whether it's important to the statute is a different question but it's important to the coast guard for there were no other reason concert notification asking made it somewhat but also to elicit those kinds of answers that will say where's your home port and in this circumstance to elicit from the defendants any indication that any of these markings that were on the boat were actually a indication of the boat was ecuadorian none of that was done and you would think to fast wouldn't survive in the here that it's not designed to ever for and can continue to fly whether that is true as a matter of nautical construction i don't think is as ever  established in the in the record but that's why the statute also provides other methods by which they could they have claimed nationality including aside from the verbal claim providing any type of registration papers so it's not as true there is nothing in the record showing that those specific words arise but there were requests made of the defendant and opportunities for the masters to hear why you were defending what seems to be the highly indefensible actions of the coast guard in failing to to request if they didn't think the the flag was of was a was a flag that complied and then they should have asked i don't understand why you're making this argument has nothing to do with this case this case turns on whether the statutes reference to the jurisdiction of the united states is something that is not a waiver ball and that can be raised one hundred years after the defendants have pleaded guilty or waiving every waived so nothing turns on whether the coast guard acted properly or improperly i don't see how anything that you've said shows that they acted properly when they didn't do they didn't make a re having that nobody having volunteered the information and if you're right to think that the affixed flag didn't qualify as flying the flag then they had to ask do you have a nationality does this vessel h nationality of registry in which case they could have checked and effect would or said no we don't recognize it or failed to make an affirmative statement that it is registered they could do what they did they didn't do that i don't know why you're arguing this that has nothing to do with the resolution of this case where they acted well or better so you're the government you don't want to be against the government but it has nothing to do with the issue before us i completely remove your honor that anything about this case turned on the arguments that you're making you would lose my bonus least because the coast guard did not do what i was supposed to do i believe the issue is a completely different thing which is when the statute we speaks of the vessel being within the jurisdiction of the united states meaning at the united states can go and seize the drugs and arrest the people and so on whether that is talking about the jurisdiction of courts such as such as under thirteen thirty one in thirteen thirty two which talks about courts to the united states having jurisdiction to hear these cases but i certainly i agree with your honor your honors point as to what this case turns on and lucky for us at least from your honors perspective this case does not turn on the application of the m d o and ultimately whether its procedures were followed it does turn entirely on whether this court or the district court has subject matter because they waive them by virtue of their unconditional guilty plea and you say this is just like in to no one in the statute talks about making a false statement in a matter within the jurisdiction of the united states that doesn't mean that somebody who pleads guilty to that can twelve years later say hey the matter wasn't within the jurisdiction of the united states i get my guilty plea back and that and that and the prosecution should be thrown out absolutely right and your argument is that this is exactly like that this is it talks about a vassal within the jurisdiction of the united states as defined in what needs to what needs to be true for the united states to succeed in a prosecution it's not talking about whether the court i can  judge laval let me see in my in my rebuttal time if i can persuade you that the d c circuit had it right and the first circuit has it wrong this is not like a thousand and one in a thousand and one cases whether the statement is within the jurisdiction united states is an element that's proven to the jury beyond a reasonable doubt it's not a question there is a good question whether the will of the subsequently added statute the the the part that says it doesn't go to the jury that wasn't part of the original statute so there are two question that arises two questions arise one is whether taking it away from the jury is consistent with a pretty and constitutional a maybe that's unconstitutional and has to go to the jury but another question is does a subsequent amendment of the statute like that change the meaning of the statute as it was originally passed the words jurisdiction of the united states were in the statute before the pr n that says it doesn't go to the jury and so does so are you arguing that the statute meant one thing when it was originally passed but it means a different thing after congress said oh no we don't want jury are deciding those that i think we want the court to decide that excellent well it seemed well wouldn't it be wouldn't it be wouldn't it be self evident if it were a matter of the court's jurisdiction questions of the court's jurisdiction never go to the jury why would you you don't put it to the jury if it really were a question of the court's jurisdiction but nothing about the words of the statute suggests that it goes to the court's jurisdiction well before the amendment you're talking about all the courts have held tha it did it was a question for the jury had to be proven beyond a reasonable doubt but this court in in peace doma here using the old statute i said that this question went to the court's jurisdiction subject matter and  waived but to your point about the amendment the a met ours yes martin is also different though marson all the cases the government is talking about the government the congress did not do what it did here which is to say the supreme court tells us has instructed that when congress wants to make something jurisdiction in the subject matter jurisdiction since it should use the term jurisdiction here it didn't only use jurisdiction to define the vessel but it has a specific section in seven zero five zero for the title of which is jurisdiction and venue those are not subjects that go to legislative authority or merits they're about the power of the courts where the prosecution takes place and what kinds of offenses can go before the court that's exactly what you would expect congress to do if the if you're quoting from that statute specifically says  that that yours to action is not an element of the offense that's exactly right so if it's not an element of the offense but the government has but it's not subject matter jurisdiction then this strange thing where the government says well if it's not subject to the jurisdiction of the united states you should move to dismiss from what for lack of jurisdiction that's exactly what we did you can't move to dismiss because it's beyond the legislative authority of the congress it's sure it's jurisdictional upping the question of whether it's beyond the legislative authority of congress to question whether it's beyond the authority that congress has exercise i don't think there's any doubt that congress would have the power to to pass statutes governing conduct on this vessel or any vessel because congress has the power to pass that shoots that govern conduct in foreign countries there are lots of these  statutes quite a bunch of them that explicitly say on their face that their process that that it is it is a violation of the law of the united states prosecute to kill citizens of the united states in foreign countries yes my point is congress made a decision to limit what it calls jurisdiction now you know it does say jurisdiction of the united states it doesn't say jurisdiction of the courts i will grant you that but remember this is a statute that is talking about maritime law what congress was saying let me slow down for sec courts are part of the united states so united states includes courts it also includes the coast guard and includes all the branches of the u s government that's what congress was saying no one can do this because it's not subject to the jurisdiction of the united states and the reason they did this is partly what's in the miranda decision congress didn't want these rights to belong soley to the defendant to give up because a defendant who's picked up you know a violent encounter with the coast guard and who gets here will have no jurisdiction may be perfectly willing to say just give me time served i won't make any noises or plead guilty and go home that doesn't protect interests if the government is doing this all over the place so as i think miranda persuasively says congress wanted to insulate this issue from the normal kind of waiver and then a defendant could exercise so just one final point if you do reach the pinnacle in the merits here i happened to see the most famous airplane in this country air force one last night on television and it has a flag that is painted or plastered or stuck on the back of the tail of air force one in both places under the government's theory the president's plane isn't flying the flag of any nation because it's not flapping in the breeze i think that is an untenable and unnatural use of english language i think we would all naturally say that plane is flying the american flag even though it's not flapping in the breeze and so we'd ask you to to reach reach the merits and to vacate the yes line makes it an ecuadorian vessel not subject to the statute and i keep saying that's not true no i didn't  being affixed to the side of the castle is flying the flag but that's simply making a claim of nationality and and the claim of nationality is a here and that's so isn't isn't isn't ecuador and by virtue of flying a and ecuador and flag you have to actually be registered with ecuador and under this statute if you make the claim by flying the flag you are subject to having that verified with ecuador inquiry which did not occur here but on the point the co counsel was making as part of the federal defender's motion for reconsideration they had photographs photographs of u s ships with no flag flying instead the ships were painted on the side of the ship's legs were paid yes the flags were painted on the sides of the ship's retro as opposed to having a flag flying in the wind and regarding the waiver here now we had a ten year mandatory minimum as charged we negotiated a plea with no mandatory minimum even though the guidelines were two thirty five to two ninety three but we negotiated a plea under a pimentel letter so to did say that you were preserving the the issue no the pimentel letter is merely a statement by the government of what they think that what they currently think the guidelines would be it does not purport to waive from from waiving issues i plead guilty perhaps one regarding registration numbers on the side of the boat and registration documents in any club compartment there is no video you can watch the video there is no video of the stern and there's no video of the port the video is only of the storyboard side and as to the issue of whether there was a proper request and whether it was answered i would point out that one of the defendants was completely passed out after the engine was shot out and a second defendant went over the side and he was in the water and there never was any evidentiary hearing here on exactly what was requested we stated in