### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JULY 8, 2003 THOMAS K. KAHN CLERK

* Honorable Richa

rd F. Suhrheinric

h, United States Cir

cuit Judge for the

Sixth Circuit, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-12797

________________________ D. C. Docket No. 01-10024-CR-SH UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus RODCLIFFE HUGH MCPHEE, Defendant-Appe llant.

________________________ Appeal from the United States District Court for the Southern District of Florida

_________________________ (July 8, 2003) Before CARNES, MARCUS and SUHRH EINRICH * , Circuit Judges. MARCUS, Circuit Judge: Rodcliffe Hugh McPhee (“McPhee”) appeals his 57-month sentence imposed upon his con

viction for conspira

cy to possess wit

h intent to distribute1 Fed. R. Crim. P. 11(a )(2) provides: With the consent of the court and the government, a defendant may enter a conditio

nal ple a of guilty

or nolo contender

e, reserving in writin g the ri ght to have an ap pellate court re

view an adverse determination

of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea. Fed. R. Crim. P. 11(a)(2). McPhee’s plea a

greement state

s in pertinent part: “The defendant is entering a conditional guilty plea pursuant to Federal Rule of Criminal Procedur

e 11(a)(2), whe

reby he expr

essly reserves the ri ght to appeal the district court’s adverse ruling on the defendant’s motion to dismiss the indictment for lack of subject matter jurisdiction.” 2 100 kilograms or m

ore of marij uana, while on boar d a vessel subject t

o the jurisdiction of the United States, in violation of the Maritime Drug Law Enforcemen

t Act (“MDL

EA”), 46 U.S .C. app. § 1903(j ). McPhee enter ed a conditional plea of gui

lty to Count One o f a two-count indict ment, express

ly reserving the right t

o appeal the district

court’s denial of

his motion to dism

iss the indictment under Fed. R. Crim. P. 11(a)(2). 1 On appeal, McPh ee raises only t

he issue of whether the

district court err

ed in finding that the ve ssel Notty was subject to the jurisdiction o f the United State s under § 1903. Afte r thoroughly revi

ewing the record and the pa

rties’ briefs,

we conclude that the

district court did not err in finding that the Notty

was a vessel subje

ct to the jurisdict

ion of the United Sta

tes, and accordingly affirm.3

Generally,

the district court’ s denial of a mot ion to dismiss an ind

ictment is reviewed only for an abuse o f discretion. See United States v. N oriega , 117 F.3d 1206, 1211 (11th Cir. 1997). However, we review de novo the distri ct court’s interpret ation and applicati on of the s tatutory pr ovision s concerni ng the cou rt’s subject matte

r jurisdiction , and review for clear error the district court’s factual findings with resp ect to jurisdiction

. See United States v. Tinoco , 304 F.3d 1088, 1114 (11th Cir. 200 2), cert. denied sub n om. , Hernandez v. United States , _ U.S. _, 123 S. Ct. 1484, 155 L. Ed. 2 d 231 (2003). The relevant facts are straightforward. On May 1, 2001, the United States Coast Guard Cutter

s Bear and Tampa , which had been conducting law enforcement surveillance in an a rea of the Caribbe

an Sea between e

astern Cuba and the Bahamas, maneuvered into position to intercept a go-fast vessel named the Notty . When the Bear directed the Notty

to heave to, the Notty

increased speed and attempted to ev ade the Coast Guard Cut ters and air surveill ance. During the high-spee

d chase that followe

d, Coast Guard per

sonnel observed the crew of the Notty

throwing packages overboard as the Notty maneuvered in a zigzag pattern. The Tampa

moved into position and fired warning s hots in front of the Notty , but the Notty

proceeded to use eva

sive maneuvers

for approxima

tely2 These sections provide: (a) Vesse ls of United States or vessels subject to jurisdiction of United States It is unlawful for any person on board a vessel

. . . subject to 4 twenty more minutes. Eventually , the Notty

stopped and a Coast G

uard party fro

m the Bear boarded the vessel. McPhee and two othe

r co-defendants,

Darron Lloyd

Rolle and Dave Mar

io Williams, were found aboard the Notty . Although all three claimed Bahamian nationality and the master of the Notty claimed that t

he vessel was regi stered in the Bahamas, no registration was found on board the vessel. When inquiry directed at Bahamian authorities did not result in an affirmative and unequivocal assertion that the vessel was registered in the Bahamas, the Coast Guard deemed the vessel stateless , arrested the defendants, and brough t them to Key

West, Florida. The Coa

st Guard recover

ed a total of ninety

-four bales of m

arijuana (weighing 2,092 pounds

) which had been thr

own overboard during

the hot pursuit. McPhee was indict

ed, along with the ot

her two crew m

embers, for conspiracy to pos sess marijua na with intent to distr

ibute (Count One) a

nd possession of mar

ijuana with intent

to distribute (Count T

wo) while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. app. §§ 1903(j) and 1903(a). 2 On October 30, 20 01, McPhee and the co-the jurisdiction of the United States

. . . to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.

. . . (j) Attempt or conspiracy Any person who attempts or conspires to commit any o ffense defined in this chapter shall be subject to the same penalt

ies as those prescribed

for the offense, thecommission of which was the object of the att emp t or con spi racy. 46 U.S.C. app. § 1903(a), (j). 5 defendants filed a j oint motion to dism iss the indictme

nt, challenging the government’s assertion that the vessel upon which they had been apprehended was subject to the jur

isdiction of the Unite

d States. They

claimed, in e ssence, that the Notty had never left the t

erritorial wate

rs of the Baham

as and, therefor

e, that the United States did not

have authority t

o arrest them.

(McPhee and his co

defendants did not dispute that the Bahamian government could not verify that their vessel was registered in the Bahamas.) The government responded, however, that the Notty

was subject to A

merican jur

isdiction because it w

as “without nationality,” that is, it was a “ stateless vessel” t

hat had been interce

pted in international waters, and, that even if the vessel had been intercepted in Bahamian waters, the Bahamas and the United States had entered into an agreement that allowed the United States to exercise jurisdiction over stateless vessels located more than three miles from Bahamian land.3 Section 1903(c)(1)(E) provides: “[A] ‘vessel subject to the jurisdiction of the United

States’ includes-- . . . (E) a vessel located in the territorial waters of another nation, where the nation consents to the enforcement of United States law by the United States.” 46 U.S.C. app. § 6 Soon thereafter, on November 30, 2001, the district court conducted an evidentiary hea

ring on the motion t

o dismiss and, at

the conclusion of the h

earing, invited the partie s to supplement their p leadings in supp ort of their positi ons. On December 26, 2001, the district court denied the defendants’ motion, finding that the Notty was indeed subject to the jurisdiction of the United States because it was a vessel without nati

onality seized i

n international wat

ers, and that, in a

ny event, the Bahamian G

overnment conse

nted to enforcem

ent of Americ

an law by the United States in Bahamian t erritorial waters. See 46 U.S.C. app.§ 1903(f) (“A ll jurisdictional issue s arising under this ch apter are prelim

inary questions of

law to be determined solely by the trial judge.”) ; see also Tinoco , 304 F.3d at 1111-12 (holding that 46 U.S .C. app. § 1903, w hich allows the cour

t to decide whether

the MDLEA’s jurisdiction and venue requirements are m et as a matter of law, does not violate defendant ’s due process or j ury trial rights ). After the de

nial of this motion, as noted

, McPhee entere

d a conditional plea of

guilty to Count One . This appeal ensued. McPhee urges that t

he statutory re

quirements for

subject matt

er jurisdiction imposed by 46 U.S.C. app. § 1903(c )(1)(E) 3 were not met because, at the ti

me of1903(c)(1)(E).

4 Section 1903(c) a

lso provides in rel

evant part: (1) . . . [A] “vessel subjec t to the jurisdiction of the United States” includes-- (A) a ves sel wit hou t na tio nal ity;

. . . (2) For

pur pos es o f th is s ect ion , a “v ess el w ith out nat ion ali ty” includes--

. . . (C) a vessel aboard which the master or perso n in charge makes a claim

of registry and the

claimed nation of registry does not affirmativel y

and unequivocall

y assert tha

t the vessel is of its nationality. . . . 46 U.S.C. app. § 1903(c)(1)(A), (2)(C). 7 the seizure, the Notty

was located within

the territorial of

waters of the Ba

hamas, and, the Bahamian Government had not consented to the enforcement of Am erican law by the Unit

ed States in its ter

ritorial waters.

We need only decide one issue today -- whether, at the time of seizure, the Notty was a stateless vessel located within international waters. Because we are satisfied that it was, the Notty was a vessel subject to the jurisdiction of the United States, and accordingly, we need not answer the m

ore difficult questi

ons of whether the B ahamian Gover nment consented to the enfor

cement of Am

erican law by

the United States i

n the territorial wat

ers of the Baham

as, or whether th

e United States ha

d jurisdiction to seize a stateless v

essel without consent

, within Baham

ian territorial w

aters. 45 Lieutenant W alsh testi fied that a v essel must generally be “12 m iles” from a foreign

nationto be in int ernational waters, alt hough “[t]her e are some countries that claim less than 12 miles.” Testimony of Lieutenant Walsh before the district court (November 30, 2001), at 19. He explained that the Bahamas claims a twelve-mile territorial water boundary. See id

. 8 In United States v. M

arino-Garcia

, we concluded that “international law permits any nation to subject stateless vessels on the high seas to its jurisdiction,” and, consequently, that “all persons aboard vessels engaged in drug trafficking that [fail] to unm

istakably acce

de to the authority

of a single sovereign

while traversing the high seas [are] subject to the criminal jurisdiction of the United States.” 5 679 F.2d 1373, 1383-84 ( 11th Cir. 1982); see also33 C.F.R. § 2.05-1 (defining “high seas” (with exceptions not relevant here) as “all waters which are neither territori

al seas nor interna

l waters of the U

nited States or of a

ny foreign country”); 33 C.F.R. § 2.05-5(b) (defining “territorial seas” of foreign countries as “waters wi

thin the belt that is ad

jacent to its coast

and whose breadth a

nd baseline are recognized by

the United States”

). The United S

tates generally

recognizes the territorial seas of foreign nations up t o twelve nautical m

iles adjacent to recognized foreign coasts. See United States: Pr oclamation on an

Exclusive Economic Zone , 22 I.L.M. 46 1, 462 (March 10, 1 983) (“The U nited States will respect only those territorial sea claims of other

s in excess of 3 nautical miles, to a maximum of 12 nautical miles, which accord to the U.S. its full rights under6 As explained by the Government, although the United States is not a party to the Conventi on , the Government “generally recog nizes [the Convention] as customary international law apart from the deep sea-bed mining provisions.” See Government’s Supp l. Response in Opposition to Defendants’ M

otion to Dismiss, submit

ted to the district c

ourt on December

10, 2001, at 6; see also H.R. Conf. Rep. No. 107-777, at § 104 (2002) (“The United States, although not a party to the [Conventio

n], has consistently maintained that specific provisions . . . rep resent customary international law.”). 9 international law in the territorial sea.”); United S tates Ocean Polic

y, Statem ent by President Reagan,

22 I.L.M. 464,

464 (March 10, 1983)

(“[T]he United States wil

l recognize the right

s of other states in th

e waters off the

ir coasts, as ref

lected in the [United Nations Co

nvention on the Law o f the Sea], so long as the rights and freedoms of th

e United States an

d others under intern

ational law are r

ecognized by such coastal states. ”); see also United Nations Convention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1245, 1 272, Part II § 2, Art. 3 (“E very State has

the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, m easured from

baselines determ

ined in accordance

with this Convention.”). 6 McPhee offers two arguments in support of his claim that the Notty was in Bahamian territ orial wa ters at the time o f its se izure an d his ar rest. Fi rst, he s ays that the district cou

rt clearly er

red in finding the coor

dinates plotted by

Lieutenant Thomas F. Walsh on the Tampa ’s navigation char t, Governme

nt Exhibit 1, to be the most accurate source of information regarding the position of the Tampa at the7 At oral argument, McPhee conceded that this location was not accurate. 10 time the Notty

was boarded. He suggests that the district court wrongly accepted the chart, which placed the Notty approximately

17 miles east of

Cay Santo Domingo and in international waters at the time it was boarded, over two other sources of information about the Notty ’s location: the L aw Enforcem

ent Checklist, which placed the Tampa

at a position three miles north of Cuba at that time; 7 and the Miami Command Center Chronological Phone Log, which placed the Tampa approximately

ten miles north o f the nautical char t position and within tw

elve miles of Cay Verde and Cay Santo Domingo, i.e. , well within Bahamian territorial waters. Second, he argues that even if the Notty was not intercepte

d within twelve miles of a known Bahamian landmark, it wa s still in Bahamian territorial waters because it was wi

thin twelve mil

es of Saint Vincen

t Rock, which, he

contends, is a Bahamian island from which Bahamian t erritorial waters radiat e. After thorough review of the record, we can find no clear error in the district court’s determ

ination that the naviga

tion chart was the “

most accurate

source of information” as to the Notty ’s location at the time of its inte rception. At the evidentiary hea

ring, the Governm

ent offered the te stimony of L ieutenant Walsh, Operations Officer and Navigator on the Tampa at the time of the intercept ion. Lieutenant Walsh testified that Go vernment Exhib

it 1 was the chart t

hat was on11

board the Tampa

at the time of the pursuit of the Notty , and that the chart indicated that the Tampa

was located “[j]ust over 17 miles east of Cay Santo Domingo,” unambiguously in international waters at the time of its interception. He explained that it was his job to ensure that he was cognizant of the Tampa ’s position wherever it was

on the high seas, and t

hat late in the eveni

ng of April 30, 2001 a

nd early morning of May 1, 2002, he plotted the Tampa ’s pursuit of the Notty according to coordina

tes provided by a “

Global Positioning Sy

stem” (“ GPS”) on the navigation chart. Walsh explaine d that a GPS “

receives inform

ation from satellites . . . [which] is processed and that information is displayed . . .as numbers [that can be] transfer r[ed] to [a] chart or [] m

ap.” He added tha

t the boarding vessel and the Notty were “no m

ore than 1,000 ya

rds or half mil

e from [the] plotted position” of the Tampa at that time.When questioned about the different coordinates provided on the Command Center Phone Log, he explained that the information found in the Log is not accurate, as demonstrated by the fact that it indicates a po sition close to or in viol ation of standing order

s “not [to] ta

ke the ship into water l

ess than six mete

rs.” He also obse

rved that the navigat

ion chart indicates the accurate position because it was recorded on board the Tampa contemporaneou

sly with the inte

rception , while the Phone L og was prepared by12

individuals in Miam

i based on coordinates

transmitted to t

hem via satelli

te from the Tampa

. McPhee argues, nevertheless, tha t the district court c

ommitted c

lear error in crediting the testimon y of Lieutenan t Walsh and t he navigat ion chart. We disagree. “Under the clearly erroneous standard, we m ust affirm the district court unless review of the

entire record lea

ves us ‘with the definite and firm conviction that a mistake has been committed.’” United States v. E ngelhard Corp. , 126 F.3d 1302, 1305 (11th Cir.1997) (quoting Anderson v. Besse mer City , 470 U.S. 564, 573, 105 S. Ct. 1504,

1511, 84 L. Ed. 2 d 518 (1985)). Furth ermore, “ we allot substantial defere

nce to the factfind

er, in this case,

the district court,

in reaching credibility determinations with respect to witness testimony.” EEOC v. Joe’s Stone Crab, Inc. , 220 F.3d 1263, 1285- 86 (11th Cir. 2000) ( citing Stano v. Butterworth , 51 F.3d 942, 944 (11th Cir. 1995) (holding that we defer even beyond clear er

ror review to tri

al court findings rel

ating to witness cre

dibility determinations)). “As long as the district court’s findings are plausible, we m ay not reverse the district court even if we would have decided the case differently.” Englehard , 126 F.3d at 1305 (c iting Anderson , 470 U.S. at 574, 105 S. Ct. at 1511). As the Supre

me Court expla

ined, deference

to the district court

is importa nt to th e prope r funct ionin g of the judici ary:13

The trial judge’ s major role is the determi

nation of fact, an

d with experience in fulf

illing that role com

es expertise. Du

plication of the trial judge’s efforts in the court o f appeals would ver y likely contribute only ne

gligibly to the accuracy of fac t determinatio

n at a huge cost in diversion of

judicial resources. In addition, the parties to a case on appeal hav

e already bee

n forced to concentr

ate their energies and resour

ces on persuading the trial judge that the ir account of the facts is the correct one; requiring them to persuade three more judges at the appel

late level is requir

ing too much. Anderson , 470 U.S. at 574 -75, 105 S. Ct. a t 1512. McPhee has not pointe

d us to anything in the

record demonst

rating that the district court’s findings were erroneous, let alone clearly erroneous. “‘ Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’” Solomon v. Liberty County Comm ’rs , 221 F.3d 1218, 1227 (11th Cir.2000) (quoting Anderson , 470 U.S. at 574, 105 S. Ct. at 1511). Here, the district court was presented with a substantial body of evidence to support its finding tha

t the navigation char

t was the more

reliable source f

or discerning the location of the Notty . As discussed, supra , Lieutenant W alsh testified that the most accurate way to determine the location of the Notty when it was apprehended was by using the Tampa ’s navigation char t from the tim

e of the event, and that the Ph one Log location co uld not be expected to be as accurate. McPhee offered precious little to co ntradict Lieutena

nt Walsh’s test

imony as to the precise geographic location of the Notty at the time of seizure.8 McPhee does not dispute that if we find that the Notty was not within Bahamian terr itor ial waters at the time of the interception, we need not reach whether the Bahamian Government

had consented

to the enforcement of American law by the United States as require d by § 1903(c)(1)(E).

9 The Government argued that the Notty was in internation

al waters or on the

“high seas” because “Saint Vincent Rock is a rock. If it was an island, it would be called Saint

Vincent Island, notSaint Vincent Rock.” Ultimately, we must determine whether it is a rock or an island according to the statutory

definitions provid

ed by the Ar

chipelagic Ac

t. We note in

passin g that for some purposes,the label is not alto gether satisfy

ing. Thus, for exa

mple, in the metaphysical sense, we can discern no reason why something could not be both a rock and an island at the same time. See Paul 14 McPhee also suggests , however, that he can prevail eve

n if the navigation chart position is considered accurate, because the position it provides still places the Notty within Bahami

an territorial w

aters and the Baham

ian government d

id not consent to the enfor

cement of Am

erican law withi

n its territorial w

aters. 8 This turns entirely o

n whether Saint V

incent Rock, whic

h, according to the n

avigation chart, was located within twelve miles of the Notty at the time of t

he interception, is a “rock” or an “island” for the purposes of determining Baham ian territorial waters. If Sa

int Vincent Rock is a

Bahamian “

island” from w

hich the twelve-m

ile Bahamian territorial boundary could radiate, then the Notty was within Bahamian territorial wat

ers at the time

of the interception;

however, if it is

a “rock,” th

en the Notty was in international waters or at “high seas” at that time. Both sides agree that this determ

ination must be m

ade in accordance

with the definition of

“island” provided in The 1993 A

rchipelagic Wa

ters and Maritim

e Jurisdiction Act of

the Bahamas (the “Act” or the “ Archipelagic Act”). 9Simon and Art Garfunkel, I am a Rock , on Sounds of S ilence ( Col umb ia 1 966 ) (“A win ter ’s d ay,

ina deep and dark December. I am alone, g azing from my

window, to

the streets below

, on a freshly fallen silent shroud of snow. I am a rock, I am an island. I’ve bui lt w all s, a for tre ss d eep a nd m ight y, that none may penetrate. I have no ne ed of friendship, friendship causes pain. It’s laughter and it’s loving I disdain. I am a rock, I am an island.Don’t talk of love. Well I’ve heard the word before. It’s sleeping in my memory. I won’t disturb the slumber of feelings that have died. If I ne ver loved, Inever would have cried. I am a rock, I am an island. I have my books and my poetry to protect me. I am shielded in my armor. Hiding in my room, safe within my womb, I touch no one and no one tou ches me. I am a rock , I am an island. And a rock feels no pain. And an island never cries.”). Of course, neith

er Simon nor Garf

unkel has been ide

ntified as a nautic

al expert. 15 The district court began its analysis by taking judicial notice of the fact that the Bahamas c

laims a twelve-mile territ orial limit, a

nd found that at the tim

e of the interception the Notty

was over twelve m

iles from Cay

Santo Domingo,

the closest Bahamian island. See Archipelagic Ac t, at § 4(1), (3)

(“The terr

itorial sea of The Bahamas comprises those areas of the sea having as their inner limits the baselines described in this sec

tion and as their outer

limits a line es

tablished seaward

from those baselines ever

y point of which i s at a distance of tw elve miles fr

om the nearest point of the appropriate baseli ne . . . [in part

defined as] base

lines from which the breadth of

the territorial se

a of The Baham

as . . . mea

sured [from]the low water line along the coast of each island.”). Applying the definitions provided in the Archipelagic

Act, the distric

t court determ

ined that, “[h

]aving heard the testimony of

Lieutenant Joseph K

ramek, having

examined the c

hart marking depicting St. Vincent Rock, and having r eviewed the Baham

ian Archipelagic [Act], the Co

urt concludes that St. Vincent Rock doe s not constitute an isla nd for10 Lieutenant Wa lsh testified in re

levant part as fo

llows: Q. [Government

counsel] Now, s ome what to the northeast . . . there is an indication of

Saint Vincent

Rock, do you s

ee that? A. [Lieutenant Walsh] Yes, sir, I do. Q. Are you familiar with whether or not that is a Bah ami an territory o r not? A. My un ders tan din g is t hat is n ot B aham ian ter rit ory. Q. What is th e basis for t hat underst anding? A. Based upon the sy mbol that is drawn on

the chart. Q. And what is that sy mbol? A. It resembles

a plus. Q. Okay. And w

hat does that plus me

an on nautical ch

arts? A. There could

be a possible

-- very shallow waters. It could at times have rocks in the vicinity of the surface of the water. Testimony of Lieutenant Walsh before the district court (November 30, 2001), at 44-45. 16 purposes of measuring the Bahamas’ twelve-m ile territorial limit.” The district court’s finding that Saint Vincent Rock is not an island is a fi nding of fact that we review for clear error. See Tinoco , 304 F.3d at 1114. Contrary to Mc

Phee’s claim

, the record is re

plete with evidence

that Saint Vincent Rock is not a Bahamian island for the purposes of determining Bahamian territorial wat

ers. In the first

place, Lieutena

nt Walsh testifie

d that Saint Vincen

t Rock is “not Baha

mian territor

y” because the markings on the na vigation chart, which identify Saint Vincent Rock, indicate “very shallow wa ters [and that there could be] rocks in the vicinity of the surface o f the water.” 10 This testimony was bolstered by the t

estimony of

Lieutenant Joseph K

ramek, an at

torney with the United States Coast Gu ard, who explai ned tha t Saint Vincen t Rock “is normall y a11 Lieutenant K ramek testified i

n relevant part i

n these terms: Q. [Governm en tcounsel] On Government’s Exhibit 1A [an enlargement

of Exhibit

1], there is an indication SaintVincent Rock. Do you s

ee that? A. [Lieutenant Kramek] Yes, I do. Q. And

are you familiar w

ith the markings that indicate where Saint Vincent Rock i

s? A. Yes, I am. Q. And what do those markings mean? A. That plus sign indicates that certain times that there m ay b e rocks awash there. However, it is normally a submerged rock. Q. And

is that SaintVinc ent Rock a territory claimed by the Bahamas? A. No, it

is not , sir. Since it is norm ally a subme

rged rock, it would not qualify

as land and therefore you would not extend a territorial sea claim from that position[.] Q. And

are you familiar with the Bahamian law on how t he Bahama claims -- or how the Bahamasdefines territory -- its own ter rit ory? A. Yes, sir, I am

.

. . . A.

. . . I am reading

from the Bahamia

n Archipelagic

Waters and M ar itime and Jurisdiction Act of 1993, which is essentially 17 submerged rock [and therefore] would not qualify as land.” He further explained that it does not satisf

y the definition of

“island” -- a

naturally form

ed area of land which is surrounded by

and above water a

t mean high-wa

ter -- in the Arc

hipelagic Act § 2. He also e

xplained that Saint V

incent Rock does not f

it the definition of low-tide elevation under the Act § 4(5) (“a low-tide elevation is a naturally form ed area of land whic

h is surrounded by a

nd is above water a

t mean low-w

ater but is submerged at m

ean high-water”)

because “it is not a naturally f ormed barrie

r of land which is surrou nded by above water, mean low water.” 11 Furthermore,t he Bahamian statute on how they d

efine their terr

itorial s e a claims. And inthe definition[] section, which is on page 2, paragraph 2, the word “island” means a naturally for me d area of land whichis surrounded by and above water at mean high wa ter. Q. And

based on that

definition, does Saint Vincent Rock qualify as a B aham ian ter rit ory? A. No, it does not, sir.

. . . Q. You

testified that

at times Saint Vincent Rock is awash. Why is it that it does not fit the definition of low tide elevation? A. It doesn’t fit the definition of low tide elevation becau se it is nota naturally formed

barrier of land which is surrounded by above water, mean low water. Testimony of Lieutenant Kramek before the district court (November 30, 2001), at 46-48, 52. 18 McPhee submitt

ed nothing to support a fi nding that Saint Vincent Rock lies within the breadth of the B ahamian terr itorial sea and, th

erefore, no suppor

t for his position that it fits the

definition of the Ac

t § 4(4) (“W

here a low-tide e

levation lies wholly or pa

rtly within the b

readth of sea whic

h would be the terri

torial sea of The Bahamas

if all low-tide el

evations were disr

egarded for the pur

pose of measurement of the breadth thereof, the low-tide elevation shall be treated as an island.”). Other record evi

dence also supports the

district court’s

finding. When the navigation chart and Chart No.1, United States of America Nautical Chart -- Symbol s Abbr eviat ions and Te rms (10th ed. 1997) (“ Chart No. 1 ”) are read together, they indicate that Saint Vincent Ro ck is a rock and not an island.19

Specifically, the navigation chart indicates the presence of Saint Vincent Rock with a plus sign encir

cled by dashes,

which, according

to Chart No. 1 , represents a “[d]angerous underwater rock of uncertain depth.” See Chart No. 1 , at 43. On this unambiguou

s record, we con

clude that the distri

ct court did not clearly err in finding that the Notty was a stateless vessel found in international waters at the time of its int erception by the United St ates Coast Guard. Accordingly, the Notty

was a vessel subject to the jurisdiction of the United States and we affir m. AFFIRMED.