1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-29-1994

United States v. Rosero

Precedential or Non-Precedential:

Docket 93-7600

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

Nos. 93-7600/7601/7602/7603/7604 

____________ 

UNITED STATES OF AMERICA 

v. 

MARCO ANTONIO COPETE ROSERO, 

Appellant in No. 93-7600 

(D.C. Crim. No. 93-00068-2) 

____________ 

UNITED STATES OF AMERICA 

v. 

MORENO-MENA, LUIS ALBERTO 

CARLOS ALBERTO MORENO-VALENCIA, 

a/k/a Luis Alberto Moreno-Mena, 

Appellant in No. 93-7601 

(D.C. Crim. No. 93-00068-3) 

____________ 

UNITED STATES OF AMERICA 

v. 

JORGE ANTONIO TOVAR, 

Appellant in No. 93-7602 

(D.C. Crim. No. 93-00068-4) 

____________ 

UNITED STATES OF AMERICA 

v. 

GABRIEL DE JESUS PINEDA, 

a/k/a Richardo Corrales Ramirez, 

Appellant in No. 93-7603 

(D.C. Crim. No. 93-00068-5 

____________ 

UNITED STATES OF AMERICA 
v. 
SIMON DE JESUS MOUSSA-AVILA, 

Appellant in No. 93-7604 

(D.C. Crim. No. 93-00068-6) 

____________________ 

ON APPEAL FROM THE DISTRICT COURT 

OF THE VIRGIN ISLANDS 

____________________ 

Argued: April 22, 1994 

Before: STAPLETON, ALITO, and WEIS, Circuit Judges

(Opinion Filed: November 29, 1994) 

____________________ 

 YVETTE D. ROSS, ESQ. (Argued) 

 GEORGE W. CANNON, JR., ESQ. 

 47-A Marshill, Frederiksted 

 P. O. Box 1548, Frederiksted 

 St. Croix, 

 U.S. Virgin Islands 00841-1548 

 Attorney for Appellant,

 Marco Antonio Copete Rosero

 THURSTON T. MC KELVIN 

 Federal Public Defender 

 PATRICIA SCHRADER-COOKE (Argued) 

 Assistant Federal Public Defender 

 P. O. Box 3450 

 Christiansted, VI 00822 

 Attorneys for Appellant,

 Carlos Alberto Moreno-Valencia

 MICHAEL J. SANFORD, ESQ. (Argued) 

 COON, SANFORD & AMERLING 

 Chandler's Wharf, Suite 202 

 Gallows Bay, Christiansted 

 St. Croix 

 U.S. Virgin Islands 00824 

 Attorneys for Appellant,

 Jorge Antonio Tovar

 BERNADETTE PATRICIA WELCOME, ESQ. 

 (Argued) 

 DOUGLAS L. CAPDEVILLE, ESQ. 
 P. O. Box 4191 

 2107 Company Street, Lot 4 

 Christiansted, St. Croix 

 U.S. Virgin Islands 00822 

 Attorneys for Appellant,

 Gabriel DeJesus Pineda

 SCOTT A. BURTON, ESQ. (Argued) 

 BURTON & OTTO, P.C. 

 2118 (53A) Company Street 

 Christiansted, St. Croix 

 U.S. Virgin Islands 00820 

 Attorneys for Appellant,

 Simon DeJesus Moussa-Avila

 HUGH P. MABE, III 

 United States Attorney 

 JAMES M. PETERS (Argued) 

 Assistant United States Attorney 

 1108 King Street - Suite 201 

 Christiansted, St. Croix 

 U.S. Virgin Islands 00820 

 

 

 

 ____________________ 

 OPINION OF THE COURT 

 ____________________ 

ALITO, Circuit Judge: 

 These are appeals by five defendants who were convicted 

under 46 U.S.C. App. § 1903(a) for the possession, while on a 

vessel subject to the jurisdiction of the United States, of a 

large quantity of marijuana with the intent to distribute it. 

The government's theory at trial was that the vessel was subject 

to United States jurisdiction because it was "without 

nationality" or stateless under 46 U.S.C. App. § 1903(c)(1)(A) 

and (2). Because the district court gave an erroneous 
instruction to the jury on the meaning of this statutory element, 

we reverse the defendants' convictions and remand for a new 

trial. 

I. 

 At approximately 12:30 a.m. on the morning of December 

27, 1992, radar on the United States Coast Guard Cutter GALLATIN 

detected a vessel a short distance south of Saba Island, which is 

part of the Netherlands Antilles and is located east of St. 

Croix. An officer on the GALLATIN then sighted this vessel and 

observed that it had no lights except for a flashing light that 

it appeared to be using to signal another vessel. The GALLATIN, 

which was operating without lights for law enforcement purposes, 

approached to within 400 yards of the other vessel and 

illuminated its search light. Two vessels, a small open boat 

and a larger vessel, were then seen heading in opposite 

directions. The smaller boat headed west toward St. Croix, and 

the GALLATIN pursued the larger vessel, a 45-foot fishing boat, 

for about 30 or 40 minutes. During this time, the fishing vessel 

engaged in various evasive maneuvers and failed to respond to 

numerous requests to stop that were transmitted in English, 

Spanish, and French by radio and by means of the GALLATIN's 

"loudhailer," which can be heard for a quarter of a mile. The 

fishing vessel also failed to respond to the international signal 

to stop that was transmitted using the GALLATIN's whistle. 

During the chase, persons on board the fishing boat were seen 

throwing something overboard. 
 When the fishing boat eventually stopped, all of those 

on board came out of a cabin and sat on a lifeboat on the ship's 

bow. A boarding party from the GALLATIN then approached the 

fishing boat. Two nameplates bearing the name TUTO and the 

number CP-3891A were affixed on either side of the cabin of the 

fishing vessel by means of wire strung through bolt holes. This 

vessel, which we will call the TUTO, did not bear the name of any 

port or country and was not flying any flag. After the vessel 

was later seized and taken to St. Croix, the flags of three 

nations, Colombia, Honduras, and Brazil, were discovered on 

board. 

 When the boarding party neared the TUTO, an officer 

from the GALLATIN asked who was in charge, but the TUTO crew 

members did not respond. The officer asked for permission to 

board, and the TUTO crew members motioned for the GALLATIN party 

to come on board. Members of the boarding party detected a 

strong smell of marijuana, and they observed numerous large bales 

on the TUTO's deck. 

 Through an interpreter, an officer from the GALLATIN 

asked if the master of the TUTO was on board, and the six members 

of the TUTO's crew responded in unison that he had departed in 

the smaller vessel. The officer then asked the TUTO crew members 

the nationality of their ship, and they answered, again in 

unison, that they and their ship were Colombian. When the 

officer asked if their vessel had any documentation, one of the 

crew members answered, and the officer was directed to the cabin, 

where Colombian registration papers for a vessel named the EDGAR 
were found. These papers bore a registration number, CP-3-189-A, 

that was similar to but different from that on the TUTO'S 

nameplates, and the papers contained an expiration date of 

September 2, 1990. 

 Based on what he had seen, the officer in charge of the 

GALLATIN boarding party concluded that the TUTO was a stateless 

vessel, but because the crew had said that the vessel was 

Colombian, a decision was made to seek a "statement of no 

objection" or "SNO" from the Colombian government. Therefore, at 

about 10 a.m., the GALLATIN party returned to their ship to await 

the SNO. A short time later, the GALLATIN was told that an SNO 

had been received. According to the declaration of a State 

Department official, officials of the Colombian government, 

"after being advised of a claim of Colombian registry for M/V 

TOTU (sic)," had stated that they could not confirm that the 

vessel was registered under the laws of Colombia and "agreed that 

the M/V TUTO was a stateless vessel." At about 11:15 a.m., the 

GALLATIN party again boarded the TUTO, arrested the crew, and 

seized the vessel and its cargo of 200 bales of marijuana. 

 The six TUTO crew members were subsequently taken to 

St. Croix and were indicted for one count of possession, while on 

a vessel subject to the jurisdiction of the United States, of 

approximately 10,000 pounds of marijuana with the intent to 

distribute it, in violation 46 U.S.C. App. § 1903(a). In 

addition to filing other pretrial motions, the defendants moved 

for dismissal of the indictment on the ground that the TUTO was 

not stateless. A magistrate judge recommended that the question 
of the TUTO'S status as a stateless vessel not be decided before 

trial but that the defendants be given the opportunity to move 

for judgments of acquittal on this basis at the close of the 

prosecution's case. The district court took this approach. 

 One of the defendants pled guilty, but the other five 

went to trial before a jury.1 The court rejected the defendants' 

argument that the indictment should be dismissed because the TUTO 

was not stateless. The court stated that "the Prosecution had 

presented sufficient evidence that the seized vessel was 

stateless under 46 U.S.C. App. § 1903 to allow the question of 

statelessness to be submitted to the jury." This question was 

submitted to the jury pursuant to jury instructions that we will 

discuss below, and the jury found all five of the defendants 

guilty. They were sentenced to lengthy terms of imprisonment, 

and these appeals followed. 

 II. 

 A. The chief question presented in these appeals 

concerns the meaning of the term vessel "without nationality" 

under 46 U.S.C. App. § 1903. The provision under which the 

defendants were convicted, 46 U.S.C. App. § 1903(a), applies to, 

 

1. The District Court of the Virgin Islands had jurisdiction 

under 18 U.S.C. § 3241, which gives that court concurrent 

jurisdiction with the federal district courts over "offenses 

against the laws of the United States committed upon the high 

seas." While the TUTO may not have been on "the high seas" when 

it was stopped near Saba, there was ample evidence, including the 

statement of the crew members that the ship had departed from 

Barranquilla, Colombia, to show that a violation of 18 U.S.C. 

App. § 1903(a) had occurred on "the high seas." 
among others, any person "on board a vessel subject to the 

jurisdiction of the United States." The term "vessel subject to 

the jurisdiction of the United States" is defined in 46 U.S.C. 

App. § 1903(c)(1)(A)2 as including "a vessel without 

 

2. This provision states in full: 

 For purposes of this section, a "vessel 

subject to the jurisdiction of the United 

States" includes - 

 (A) a vessel without nationality; 

 (B) a vessel assimilated to a vessel 

without nationality in accordance with 

paragraph (2) of article 6 of the 1958 

Convention on the High Seas; 

 (C) a vessel registered in a foreign 

nation where the flag nation has consented or 

waived objection to the enforcement of United 

States law by the United States; 

 (D) a vessel located within the customs 

waters of the United States; and 

 (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. 

 Consent or waiver of objection by a foreign 

nation to the enforcement of United States 

law by the United States under subparagraph 

(C) or (E) of this paragraph may be obtained 

by radio, telephone, or similar oral or 

electronic means, and may be proved by 

certification of the Secretary of State or 

the Secretary's designee. 

46 U.S.C. App. § 1903(c)(1). 

 Article 6, paragraph (2) of the 1958 Convention on the High 

Seas, to which reference is made in 46 U.S.C. App. § 

1903(c)(1)(B), provides: 
nationality,"3 and the latter term is defined in 46 U.S.C. App. § 

1903(c)(2) as follows: 

 For purposes of this section, a "vessel 

without nationality" includes

 (A) a vessel aboard which the master or 

person in charge makes a claim of registry, 

which claim is denied by the flag nation 

whose registry is claimed; and 

(..continued) 

 A ship which sails under the flags of 

two or more States, using them according to 

convenience, may not claim any of the 

nationalities in question with respect to any 

other State, and may be assimilated to a ship 

without nationality. 

Convention on the High Seas of 1959, 13 U.S.T. 2312, T.I.A.S. No. 

5200, Art. 6(2). 

 In this case, the prosecution relied solely on the 

theory that the TUTO was "without nationality" under 46 U.S.C. 

App. § 1903(c)(1)(A). 

3. The First, Fifth, and Eleventh Circuits have held that, when 

the facts bearing on whether a vessel is "without nationality" 

are in dispute, this question should be resolved at trial. See

United States v. Piedrahita-Santiago, 931 F.2d 127, 129 (1st Cir. 

1991); United States v. Potes, 880 F.2d 1475, 1478 n.1 (1st Cir. 

1989); United States v. Ayarza-Garcia, 819 F.2d 1043, 1048-49 

(11th Cir.), cert. denied, 484 U.S. 969 (1987); United States v. 

Canales, 744 F.2d 413, 434 (5th Cir. 1984); see also United 

States v. Nukida, 8 F.3d 665, 670 (9th Cir. 1993). We agree with 

these holdings. See Fogel v. Chestnutt, 668 F.2d 100, 105-07 (2d 

Cir. 1981), cert. denied, 459 U.S. 828 (1982); footnote 1, supra. 

Our decision in United States v. Wright-Barker, 784 F.2d 161, 170 

(3rd Cir. 1986), does not compel a contrary result because the 

question at issue was not addressed by the court in that case. 

Cf. United States v. Martinez-Hidalgo, 993 F.2d 1052, 1057 & n.10 

(3rd Cir. 1993)(stating that the disposition in Wright-Barker was 

inconsistent with the approach taken in Piedrahita-Santiago). 

"`[Q]uestions which merely lurk in the record, neither brought to 

the attention of the court nor ruled upon, are not to be regarded 

as having been so decided as to constitute precedents.'" Grant 

v. Shalala, 989 F.2d 1332, 1341 (3rd Cir. 1993), quoting Webster 

v. Fall, 266 U.S. 507, 511 (1925). 
 (B) any vessel aboard which the master 

or person in charge fails, upon request of an 

officer of the United States empowered to 

enforce applicable provisions of United 

States law, to make a claim of nationality or 

registry for that vessel. 

46 U.S.C. App. § 1903(c)(2) (emphasis added). The statute then 

addresses the concept of a "claim of nationality or registry" as 

follows: 

 For purposes of this section, a claim of 

nationality or registry only includes

 (A) possession on board the vessel and 

production of documents evidencing the 

vessel's nationality in accordance with 

article 5 of the 1958 Convention on the High 

Seas;4

 (B) flying its flag nation's ensign or 

flag; or 

 (C) a verbal claim of nationality or 

registry by the master or person in charge of 

the vessel. 

46 U.S.C. App. § 1903(c)(3) (emphasis added). 

 

4. Article 5(1) reads as follows: 

 Each State shall fix the conditions for 

the grant of its nationality to ships, for 

the registration of ships in its territory, 

and for the right to fly its flag. Ships 

have the nationality of the State whose flag 

they are entitled to fly. There must exist a 

genuine link between the State and the ship; 

in particular, the State must effectively 

exercise its jurisdiction and control in 

administrative, technical and social matters 

over ships flying its flag. 

Convention on the High Seas of 1958, 13 U.S.T. 2312, T.I.A.S. No. 

5200, Article 5(1). 
 In interpreting these provisions, we first note that 46 

U.S.C. App. § 1903(c)(2) does not attempt to provide an 

exhaustive definition of the term "vessel without nationality." 

Instead, this provision states that this term "includes" vessels 

that fall within the categories set out in subsections (A) and 

(B). The word "include" means "to. . . list. . .as a part or 

component of a whole or of a larger group, class, or aggregate." 

Webster's Third New International Dictionary 1143 (1971). Thus, 

if the term "includes" in 46 U.S.C. App. § 1903(c)(2) is 

interpreted in accordance with ordinary usage, the categories set 

out in subsections (A) and (B) are merely parts or components of 

the entire set of vessels without nationality. This 

interpretation is reinforced by the contrast between the term 

"includes" in 46 U.S.C. App. § 1903(c)(2) and the phrase "only 

includes" in 46 U.S.C. App. § 1903(c)(3). This contrast dispels 

any suggestion that the statutory drafters sloppily used the term 

"includes" in 46 U.S.C. App. § 1903(c)(2) when they meant to say 

"only includes." Consequently, it seems clear from the statutory 

language that the term "vessel without nationality" encompasses, 

not only those vessels that come within the categories described 

in subsections (A) and (B), but other vessels as well. 

 Unfortunately, neither the text of 46 U.S.C. App. § 

1903 nor its legislative history5 makes clear precisely which 

 

5. See S. Rep. No. 530, 99th Cong., 2d Sess. (1986), reprinted 

in 1986 U.S.C.C.A.N. 5986; H.R. Rep. No. 547, 99th Cong., 2d 

Sess. (1986); Drug Interdiction and Military Readiness: Hearings 

Before the Subcommittee on Coast Guard and Navigation of the 

House Committee on Merchant Marine and Fisheries, 99th Cong., 1st 

Sess. (1985). 
other vessels Congress had in mind when it employed the term 

"vessel without nationality."6 This concept, however, has a 

reasonably well developed meaning under international law. 

"Where Congress uses terms that have accumulated settled meaning 

under either equity or the common law, a court must infer, unless 

the statute otherwise dictates, that Congress means to 

incorporate the established meanings of these terms." NLRB v. 

Amax Coal Co., 453 U.S. 322, 329 (1981). See also Community of 

Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989). This 

same principle logically applies when Congress uses a term that 

has acquired a settled meaning under customary international law. 

We therefore think that it is reasonable to assume that the 

residual category of vessels "without nationality" under 46 

U.S.C. App. § 1903(c)--i.e., those not within subsections 

(c)(2)(A) or (B)-- are those that would be regarded as without 

 

6. Nor have we found guidance in the text or legislative history 

of a predecessor provision, 21 U.S.C. § 955b(d) (repealed 1986). 

This provision stated without elaboration: 

 "Vessel subject to the jurisdiction of 

the United States" includes a vessel without 

nationality or a vessel assimilated to a 

vessel without nationality, in accordance 

with paragraph (2) of article 6 of the 

Convention of the High Seas, 1958. 

See also S. Rep. No. 855, 96th Cong., 2d Sess. (1980), reprinted 

in 1980 U.S.C.C.A.N. 2785; H.R. Rep. No. 323, 96th Cong., 2d 

Sess. (1980); A Bill to Facilitate Increased Enforcement by the 

Coast Guard of Laws Relating to the Importation of Controlled 

Substances: Hearings Before the Subcommittee on Coast Guard and 

Navigation of the House Committee on Merchant Marine and 

Fisheries, 96th Cong., 1st Sess (1979); 125 Cong. Rec. 20082. 
nationality or stateless under international law.7 We therefore 

turn to the meaning of a vessel that is "without nationality" or 

stateless under international law. 

 B. Under international law, "[s]hips have the 

nationality of the State whose flag they are entitled to fly." 

Convention on the High Seas of 1958, 13 U.S.T. 2312, T.I.A.S. No. 

5200, art. 5(l). See also, e.g., Restatement (Third) of the 

Foreign Relations Law of the United States § 501 ("A ship has the 

nationality of the state that registered it and authorized it to 

fly the ship's flag. . . ."). Therefore, a vessel is without 

nationality if it is not authorized to fly the flag of any state. 

See H. Meyers, The Nationality of Ships 309 (1967). This 

situation may arise if no state has ever authorized a particular 

ship to fly its flag, if a state has canceled its authorization, 

or if the political entity that authorized a ship to fly its flag 

is not recognized as an international person. See id. at 309-

323; 1 L. Oppenheim, International Law § 260 (8th ed. 1955) 

There may be other situations in which ships would be regarded as 

without nationality under international law, but we will not 

attempt to provide a comprehensive catalog here. For present 

purposes, it is enough to note that, under international law, the 

core of the concept of a vessel that is "without nationality" or 

stateless is that the vessel lacks authorization to fly the flag 

of any recognized state. Thus, any vessel that falls within this 

 

7. See also H.R. Rep. No. 323, supra, at 22 ("The terms of art 

used in the proposed [1980] amendment are defined so as to 

comport with international law. . . ."). 
category is "without nationality" under 46 U.S.C. App. § 

1903(c)(2), whether or not that vessel also satisfies subsections 

(A) or (B) of that provision. 

 These subsections add to the concept of a "stateless" 

vessel under international law and appear to be designed to make 

it practicable for Coast Guard ships to ascertain whether a 

suspicious vessel encountered at sea is stateless. Without 

subsections (A) and (B), establishing that a vessel is without 

nationality -- i.e., that no state authorizes it to fly its flag 

-- would present the difficulties often associated with proving a 

negative. 

 Subsections (A) and (B) attempt to alleviate these 

difficulties by placing upon the master or person in charge of 

the vessel in question the burden of making a claim of 

nationality or registry. If the master or person in charge makes 

a false claim of nationality or registry (46 U.S.C. App. § 

1903(c)(2)(A)), or if, upon request, the master or person in 

charge, fails to make any claim, the ship is deemed to be 

stateless. 46 U.S.C. § 1903(c)(2)(B). 

 In summary, then, we interpret 46 U.S.C. App. § 

1903(c)(2) to mean that a vessel is "without nationality" if (a) 

the vessel is "stateless" under international law, which 

generally will mean that the vessel is not authorized by any 

state to fly its flag or (b) that the vessel falls within 

subsections (A) or (B). With this understanding of 46 U.S.C. 

App. § 1903(c)(2) in mind, we now consider the jury instructions 

given in this case. 
 C. The district court properly instructed the jury 

that the prosecution could establish that the TUTO was a vessel 

"without nationality" by showing that the requirements of 46 

U.S.C. App. § 1903(c)(2)(A) or (B) had been met. However, at the 

urging of the prosecution, the court then added: 

 You may also consider the totality of 

the evidence in determining whether a vessel 

is stateless or without nationality. You may 

consider but you are not limited in 

considering whether the vessel was flying a 

flag, whether it had its home port shown on 

the hull, whether it was or had been validly 

registered under the law of any nation, 

whether it displayed a registration number 

identified with a specific country, whether 

there was a fake claim of country or 

registry. You may consider all of these 

factors but you are not limited. 

App. C-381A. 

 The apparent purpose of this instruction was to explain 

to the jury how a vessel might qualify as one "without 

nationality" even if it did not fall within 46 U.S.C. App. § 

1903(c)(2)(A) or (B). As we have attempted to show, a vessel can 

so qualify if it is stateless under international law. The 

instruction given by the district court, however, did not 

correspond with the meaning of a stateless vessel under 

international law. Instead it implied --incorrectly -- that the 

jury could find that the TUTO was stateless based on an 

unstructured weighing of the totality of the evidence, including 

the factors that the court specifically mentioned.8 We are not 

 

8. This implication appears to be precisely what the government 

intended. See, e.g., A-142A (Gov't. district court brief arguing 

that the determination of statelessness "must be based on the 
aware of any support for such a rule in either international law 

or the law of this country. 

 In its brief on appeal,9 its district court briefs,10

and its jury instruction requests,11 the government relied on a 

list of court of appeals decisions as authority for the 

proposition that a "totality of the evidence" test was proper.12 

(..continued) 

totality of the circumstances"); Gov't's Requested Jury 

Instruction No. 4. And the district court agreed with the 

government's position. See C-176A to C-183A; C-236A to-C237A. 

9. See Gov't Br. at 12-13. 

10. See, e.g., A-142A; Gov't's Response to Defendant Pineda's 

Motion to Suppress at 5-6. 

11. See Gov't's Requested Jury Instruction No 4. 

12. The government relied on the following cases: United States 

v. Cuevas-Esquivel, 905 F.2d 510, 513 (1st Cir.) (vessel 

stateless because master or person in charge, on request, did not 

make claim of nationality or registry that satisfied 46 U.S.C. 

App. § 1903(c)(2)); cert. denied, 498 U.S. 969 (1987); United 

States v. Fuentes, 877 F.2d 898 (11th Cir. 1989); United States 

v. Victoria, 876 F.2d 1009 (1st Cir. 1989) (vessel stateless 

under 46 U.S.C. App. § 1903(c)(2)(B) because it failed on request 

to make a claim of nationality or registry); United States v. 

Ayarza-Garcia, 819 F.2d 1043 (11th Cir. 1987) (ship assimilated 

to one without nationality because conflicting claims of 

nationality made), cert. denied, 484 U.S. 969 (1987); United 

States v. Gonzalez, 810 F.2d 1538, 1541-42 (11th Cir. 1987) 

(vessel stateless, apparently because it sailed under authority 

of two nations and made false claim of nationality); United 

States v. Matute, 767 F.2d 1511, 1512-13 (11th Cir. 1985) (ship 

assimilated to one without nationality because sailing under 

hybrid Colombian/Venezuelan flag); United States v. Marquez, 759 

F.2d 864, 867 (11th Cir. 1985) (vessel stateless on ground not 

registered anywhere); United States v. Martinez, 700 F.2d 1358, 

1367 (11th Cir. 1983) (ship assimilated to one without 

nationality because conflicting claims of nationality made); 

United States v. Marino-Garcia, 679 F.2d 1373, 1378 n.3 (11th 

Cir. 1982) (vessel stateless based on false assertion of 

nationality and conflicting indicia of nationality), cert. 

denied, 459 U.S. 1114 (1983). 
We have studied these cases, and we do not believe that they 

support the government's position. While it is certainly true 

that most of these decisions, in considering whether a particular 

vessel had been shown to be stateless, rely on one or more of the 

factors enumerated in the jury instruction at issue, none of the 

decisions employs a test resembling that advocated by the 

government and accepted by the district court. Instead, most of 

these decisions rely on one or more of the enumerated factors in 

determining whether the requirements of 46 U.S.C. App. § 

1903(c)(2)(A) or (B) (or a related statutory provision) had been 

met. While we will not discuss all of the cases cited by the 

government, we will discuss one representative case to illustrate 

the error in the government's reading of these precedents. 

 The first factor listed in the jury instruction at 

issue was "whether the vessel was flying a flag." In its 

appellate brief, the government defends this portion of the 

instruction by citing, among other cases, United States v. 

Fuentes, 877 F.2d 895, 900 (11th Cir.), cert. denied, 493 U.S. 

943 (1989). There, the court held that a ship was without 

nationality under 46 U.S.C. App. § 1903(c)(2)(B) because the 

master or person in charge failed, upon request, to make a claim 

of nationality or registry within the meaning of 46 U.S.C. App. § 

1903(c)(3). Under this latter provision, one means of making a 

claim of nationality or registry is by "flying [the] flag 

nation's ensign or flag" (46 U.S.C. App. § 1903(c)(3)(B)), and 

it was in this context that the Fuentes court relied on the fact 

that the ship in that case flew no flag. See Fuentes, 877 F.2d 
at 900. Thus, Fuentes does not stand for the proposition that a 

ship may be found to be stateless based on an unstructured 

weighing of the totality of the evidence. And the same is true 

of the other cases on which the government relies. 

 D. While we are convinced that the jury instruction 

discussed above was incorrect, it is a closer question whether 

the defendants preserved valid objections to it. Rule 30 of the 

Federal Rules of Criminal Procedure states that "[n]o party may 

assign as error any portion of [a jury] charge . . . 

unless that party objects thereto before the jury retires to 

consider its verdict, stating distinctly the matter to which that 

party objects and the grounds of the objection." Here, there is 

no question that the defendants objected, but we must also 

consider the adequacy of their explanations of the grounds for 

their objections. In this regard, we have explained: 

 The specificity requirement [of Rule 30] 

imposes a strict standard on defense counsel, 

but it is not a mere formalism. United 

States v. Castro, 776 F.2d 1118, 1128-29 (3d 

Cir. 1985), cert. denied, 475 U.S. 1029, 106 

S. Ct. 1233, 89 L.Ed.2d 342 (1986). Without 

a clearly articulated objection, a trial 

judge is not apprised sufficiently of the 

contested issue and the need to cure a 

potential error to avoid a new trial. Id. at 

1129 (citing United States v. Graham, 758 

F.2d 879, 883 (3d Cir.), cert. denied, 474 

U.S. 901, 106 S. Ct. 226, 88 L.Ed.2d 226 

(1985)). 

Government of Virgin Islands v. Knight, 989 F.2d 619, 631 (3d 

Cir.), cert. denied, 114 S. Ct. 556 (1993). 
 Whether the defendants complied with Rule 30 in this 

case is not entirely free from doubt. Just as the government's 

interpretation of the term "vessel without nationality" was 

incorrect, the clearest alternative interpretation advanced by 

the defendants was also erroneous. Under this interpretation, 

which was embodied in the instructions requested by one of the 

defendants, a vessel could be found to be "without nationality" 

only if the requirements of 46 U.S.C. App. § 1903(c)(2)(A) or (B) 

were met.13 As we have explained, however, this interpretation 

is plainly inconsistent with the statutory language. Moreover, 

it is not clear that any of the defense attorneys ever provided 

the district court with a complete and correct interpretation of 

the term "vessel without nationality." 

 Nevertheless, defense counsel, in objecting to the 

court's charge, did provide a clear and accurate explanation as 

to why that charge was not supported by the authorities upon 

which the government relied. To take one example, counsel for 

defendant Tovar stated that he had read the cases cited by the 

government and had found that the factors enumerated in the 

court's charge had been "mentioned" in those cases merely as 

"ancillary facts" and not as "the reason for the determination " 

or the "deciding factor." C-180A. See also, e.g., C-234A to C236A. Other defense attorneys made similar arguments (see id. at 

C-179A), and it appears that defense counsel were generally 

deemed by the district court as having joined in each other's 

 

13. See Defendant Tovar's Proposed Jury Instruction No. 1. 
arguments. We also note that the government has not argued on 

appeal that we should review the portion of the instruction at 

issue under a plain error standard.14 For these reasons, we hold 

that the defendants preserved valid objections to the erroneous 

portion of the instructions. That error was not harmless since 

it concerned the meaning of one of the elements of the offense 

and, as discussed below (see page 21, infra), the evidence 

relating to this element was close. The defendants' convictions 

must therefore be reversed. 

 E. The defendants contend, however, that we must go 

further and order the entry of judgments of acquittal because the 

government's evidence was insufficient to establish that the TUTO 

was stateless. We hold, however, that prosecution's evidence was 

sufficient to create a jury question under either 46 U.S.C. App. 

§ 1903(c)(2)(A) or (B). 

 As previously noted, under subsection (A), the 

prosecution can establish that a vessel is stateless by showing 

that the master or person in charge made a claim of nationality 

or registry that was denied by the flag nation whose registry was 

claimed. Here, the crew of the boat that we have been referring 

to as the TUTO told the GALLATIN boarding party that their vessel 

was Colombian, and that vessel bore the name TUTO and a 

registration number. The Colombian government could not confirm 

that the TUTO was registered under the laws of Colombia. Based 

on these facts, a rational jury could conclude (a) that one or 

 

14. See Gov't Br. at 3, 26-27. 
more of the crew members were "in charge" of the boat and (b) 

that their oral statement, coupled with the markings on their 

boat, constituted a claim that the boat was registered in 

Colombia under the name and number that it bore,15 and that the 

Colombian government denied that claim. While a rational jury 

could interpret this evidence differently, we believe that the 

proof was sufficient to satisfy subsection (A). 

 Similarly, we hold that the evidence was sufficient to 

satisfy subsection (B). Under this provision, as noted, if the 

master or person in charge fails, upon request, to make any claim 

of nationality or registry, the vessel may be regarded as 

stateless. By clear implication, we believe, this provision 

applies when the master of a ship flees and leaves no one in 

charge, and in this case, a rational jury could certainly find 

that that is exactly what occurred. Accordingly, we hold that 

the evidence was sufficient to prove that the TUTO was stateless, 

and the defendants are not entitled to judgments of acquittal.16 

 

15. The markings on a vessel cannot constitute a claim of 

nationality or registry. See 46 U.S.C. App. § 1903(c)(3). 

However, when a claim of nationality or registry is made without 

providing either the name or registration number of the vessel -- 

for instance, by making an oral claim of nationality without 

providing any further information (see 46 U.S.C. App. § 

1903(c)(3)(C)) or by simply flying a flag (see 46 U.S.C. App. § 

1903(c)(3)(B)) -- it stands to reason that the United States 

officials who wish to verify the claim may rely on the ship's 

markings in order to carry out that procedure. Otherwise, the 

apparent purposes of subsections (A) and (B) would be undermined. 

16. The defendants also argue that they are entitled to 

dismissal of the indictment because the term "vessel" in 46 

U.S.C. App. § 1903(c)(2) is unconstitutionally vague, but we see 

no merit in this argument. 
 III. 

 For the reasons explained above, the judgments entered 

by the district court are reversed, and this case is remanded for 

a new trial or other proceedings consistent with this opinion. 

(..continued) 

 In addition, the defendants maintain that the district court 

committed trial errors besides the one discussed in the text of 

this opinion, but we reject these arguments. The defendants' 

contention that the prosecution was required to prove a "nexus" 

between the offense with which they were charged and the United 

States is foreclosed by our decision in United States v. 

Martinez-Hidalgo, 943 F.2d 1052, 1056 (3d Cir. 1993), which we do 

not believe is materially distinguishable. The defendants' 

argument that the Coast Guard was obligated to obtain the consent 

of the government of the Netherlands Antilles before stopping, 

boarding, or seizing the TUTO within the territorial waters of 

that country is inconsistent with 46 U.S.C. App. § 1903(b), which 

provides that "[a] failure to comply with international law in 

the enforcement of this chapter may be invoked solely by a 

foreign nation, and a failure to comply with international law 

shall not divest a court of jurisdiction or otherwise constitute 

a defense to any proceeding under this chapter." See also S. 

Rep. No. 530, 99th Cong., 2d Sess.11 (1986), reprinted in 1986 

U.S.C.C.A.N. 5986, 6001. We do not agree with the defendants 

that the district court abused its discretion under Fed. R. Evid. 

403 in refusing to exclude certain evidence, and we find no error 

in the district court's use of the term "unhesitatingly" in its 

instruction on reasonable doubt. See Victor v. Nebraska, 114 S. 

Ct. 1239, 1290 (1994); United States v. DeLazo, 497 F.2d 1168, 

1171 n.5 (3d Cir. 1974).