United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2014 Decided March 20, 2015

No. 13-3032

UNITED STATES OF AMERICA,

APPELLEE

v.

LUIS ALBERTO MUNOZ MIRANDA, ALSO KNOWN AS DAVID,

ALSO KNOWN AS EL GORDO,

APPELLANT

Consolidated with 13-3036

Appeals from the United States District Court

for the District of Columbia

(No. 1:10-cr-00106-5)

(No. 1:10-cr-00106-2)

Douglas J. Behr, appointed by the court, argued the cause 

for appellants. With him on the briefs was Elita C. Amato, 

appointed by the court.

John-Alex Romano, Attorney, U.S. Department of Justice, 

argued the cause and filed the brief for appellee. David M. 

Lieberman, Attorney, U.S. Department of Justice, entered an 

appearance.
2

Before: SRINIVASAN, Circuit Judge, and EDWARDS and 

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: Luis Alberto Munoz 

Miranda and Francisco Jose Valderrama Carvajal, citizens of 

Colombia, pleaded guilty to drug conspiracy charges under the 

Maritime Drug Law Enforcement Act (MDLEA). They 

contend on appeal that the MDLEA is unconstitutional as 

applied to their conduct, that the MDLEA fails to reach 

extraterritorially to encompass their conduct in Colombia, and 

that the facts in the record fail to support acceptance of their 

guilty pleas. We reject their challenges and affirm their 

convictions. 

Appellants waived all but one of the arguments they now 

raise when they entered pleas of guilty without reserving any 

right to appeal their convictions. With respect to their 

remaining claim, concerning whether vessels used by the drug 

conspiracy were “subject to the jurisdiction of the United 

States” within the meaning of the MDLEA, that issue 

implicates the district court’s subject-matter jurisdiction and 

thus could not be waived by appellants’ guilty pleas. On the 

merits of the issue, however, appellants’ statements of 

stipulated facts fully support the district court’s conclusion that 

the relevant vessels were subject to the jurisdiction of the 

United States.

I.

On April 23, 2010, a federal grand jury indicted Munoz 

Miranda and Valderrama Carvajal, along with others not 

before us on appeal, for participating in an international drug 

smuggling conspiracy in violation of the MDLEA, 46 U.S.C. 
3

§§ 70501 et seq. The indictment charged appellants with 

conspiring to distribute a controlled substance on board 

“vessel[s] subject to the jurisdiction of the United States.” Id. 

§ 70503(a)(1). The drug smuggling operation used “go-fast” 

boats (small boats capable of traveling undetected and at high 

speeds) to move drugs from Colombia to various Central 

American countries. From 2006 to 2010, the smuggling 

organization transported large quantities of drugs in numerous 

shipments. 

Neither Munoz Miranda nor Valderrama Carvajal planned 

to, or did, leave Colombia in furtherance of the conspiracy. 

Valderrama Carvajal served as an organizer of the smuggling 

operations, and Munoz Miranda provided logistical support. 

In 2011, Colombian officials arrested Munoz Miranda and 

Valderrama Carvajal. They were extradited to the United 

States shortly thereafter. 

In the district court, Munoz Miranda and Valderrama 

Carvajal moved to dismiss their indictments on a number of 

grounds. They claimed that the ships used by the conspiracy 

did not satisfy the statutory definition of vessels “subject to the 

jurisdiction of the United States,” 46 U.S.C. § 70502(c), 

because the ships were in Colombian waters at the time of 

capture. Appellants further contended that, because their 

conspiratorial acts did not take place on board any vessel, the 

MDLEA does not reach their conduct. They also challenged 

the constitutionality of the MDLEA on two grounds, claiming 

(i) that Congress lacks Article I authority to criminalize their 

extraterritorial conduct, and (ii) that applying the statute 

against them without demonstrating a nexus to the United 

States violates their due process rights. On October 11, 2012, 

the district court orally denied appellants’ motions to dismiss.
4

The next day, appellants moved to enter guilty pleas under 

Federal Rule of Criminal Procedure 11. Each appellant 

executed an unconditional guilty plea agreement that did not 

“reserve[] in writing the right to have an appellate court review 

an adverse determination of a specified pretrial motion.” Fed. 

R. Crim. P. 11(a)(2). Appellants entered joint statements of 

stipulated facts in support of their respective guilty pleas. 

They both stipulated that, from 2006-2010, they were 

“co-conspirator[s] in a drug trafficking organization which . . . 

transported narcotics from Colombia on stateless go-fast 

vessels through international waters.” J.A. 93, 128.

Appellants’ statements of stipulated facts also differed in 

certain respects. Munoz Miranda identified one particular 

shipment as an example of the conspiracy’s use of stateless 

vessels to transport drugs: a shipment intended to travel from 

Colombia to Honduras “on board a go-fast boat” that was “not 

registered in Colombia and did not fly a Colombian flag.” 

J.A. 94. That shipment never left Colombia because it was 

stolen before it could be moved. Valderrama Carvajal 

identified the same shipment as an example of the conspiracy’s 

actions, and also described a second shipment as an additional 

example. The latter shipment departed Colombia on board a 

go-fast boat that “was not registered in Colombia or any other 

nation, and contained no registration identification.” J.A. 

129. Colombian authorities intercepted that vessel when it 

ran aground on Roncador Island, a remote Colombian island in 

the Caribbean Sea. 

At their plea hearing, appellants confirmed that they 

knowingly and voluntarily entered pleas of guilty and waived 

any right to appeal. On October 12, 2012, the district court 

accepted both guilty pleas based on appellants’ joint statements 

of stipulated facts. But before their sentencing could take 
5

place, appellants filed a joint motion for reconsideration of 

their original motions to dismiss. 

On February 20, 2013, the district court issued an opinion 

denying reconsideration and memorializing the reasons for its 

oral denial of the original motions to dismiss. The court first 

explained that, as established by appellants’ factual 

stipulations, the two vessels identified as examples of the 

conspiracy’s use of stateless boats—the vessel intercepted off 

of Roncador Island and the vessel intended to transport the 

stolen shipment—were both “without nationality” under the 

MDLEA’s definition and thus were “subject to the jurisdiction 

of the United States.” 46 U.S.C. § 70502(c)(1), (d). With 

respect to the extraterritorial reach of the statute, the court held 

that the MDLEA’s conspiracy provision applies 

extraterritorially to encompass appellants’ conduct. Finally, 

the court determined that the MDLEA, as applied to appellants, 

was a valid exercise of Congress’s authority to define and 

punish “Felonies committed on the high Seas,” U.S. Const. art. 

I, § 8, cl. 10, and that the MDLEA’s extraterritorial application 

worked no infringement of appellants’ due process rights. 

II.

Munoz Miranda and Valderrama Carvajal appeal the 

district court’s denial of their motions to dismiss and their 

related joint motion for reconsideration, as well as their 

judgments of conviction. Appellants raise both constitutional 

and statutory claims. 

For each of appellants’ arguments, we must first determine 

whether appellants’ unconditional guilty pleas waived their 

right to appeal the issue. “It is well settled that a voluntary 

and intelligent plea of guilty made by an accused person, who 

has been advised by competent counsel, may not be collaterally 
6

attacked.” Bousley v. United States, 523 U.S. 614, 621 (1998) 

(internal quotation marks omitted). A defendant who pleads 

guilty can do so conditionally, reserving the ability to raise 

particular challenges on appeal. See Fed. R. Crim. P. 

11(a)(2). Here, though, appellants entered unconditional 

guilty pleas, thereby waiving all challenges amenable to 

waiver. See United States v. Delgado-Garcia, 374 F.3d 1337, 

1341 (D.C. Cir. 2004). Appellants therefore make no claim 

that their guilty pleas reserved their ability to press the 

arguments they now present.

Appellants instead contend that their arguments are 

immune from waiver. “There are two recognized exceptions” 

to the rule that an unconditional guilty plea waives a 

“defendant[’s] claims of error on appeal.” Id. First, a 

challenge to the district court’s subject-matter jurisdiction—to 

the court’s power to hear a given case—can never be waived or 

forfeited. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 

(2006); United States v. Cotton, 535 U.S. 625, 630 (2002); 

Delgado-Garcia, 374 F.3d at 1341. Second, certain 

constitutional challenges asserting a “right not to be haled into 

court at all” cannot be waived through a guilty plea. 

Blackledge v. Perry, 417 U.S. 21, 31 (1974); see also Menna v. 

New York, 423 U.S. 61, 62 (1975) (per curiam); 

Delgado-Garcia, 374 F.3d at 1341.

Appellants contend that either the subject-matter 

jurisdiction exception or the so-called Blackledge/Menna

exception insulates each of their arguments from waiver. For 

the most part, we disagree. With regard to all but one of 

appellants’ claims, we find that appellants’ unconditional 

guilty pleas effected a waiver. One of their arguments, 

however, goes to the district court’s subject-matter jurisdiction 

and cannot be waived: the argument that the vessels in 

question are not “subject to the jurisdiction of the United 
7

States” within the meaning of the MDLEA. 46 U.S.C. 

§ 70502(c). While we thus reach the merits of that issue, we 

conclude, contrary to appellants’ argument, that the vessels are 

in fact “subject to the jurisdiction of the United States.”

A.

Appellants contend that the MDLEA is unconstitutional as 

applied to their conduct in two respects. First, appellants 

argue that Congress lacks power under the High Seas Clause of 

Article I to criminalize their actions in furtherance of the 

charged conspiracy because their conduct did not itself take 

place on the high seas. See U.S. Const. art. I, § 8, cl. 10 

(granting Congress authority to “define and punish . . . 

Felonies committed on the high Seas”). Second, appellants 

contend that application of the MDLEA to their extraterritorial 

conduct violates their Fifth Amendment due process rights in 

the absence of a demonstrated nexus between their actions and 

the United States. Cf. United States v. Ali, 718 F.3d 929, 943 

(D.C. Cir. 2013) (noting that “this Circuit has yet to speak 

definitively” on whether “due process may impose limits on a 

criminal law’s extraterritorial application”). We do not reach 

the merits of those claims because we conclude they were 

waived by appellants’ unconditional guilty pleas.

Appellants contend that their constitutional challenges fall 

within the subject-matter jurisdiction exception to waiver. 

We disagree. While appellants point to decisions from our 

sister circuits holding that certain facial challenges to the 

constitutionality of a statute implicate subject-matter 

jurisdiction, see, e.g., United States v. Saac, 632 F.3d 1203, 

1208 (11th Cir. 2011), those decisions do not address whether 

as-applied constitutional challenges can be waived, see United 

States v. Phillips, 645 F.3d 859, 863 (7th Cir. 2011). Article 

III vests federal courts with authority to decide cases “arising 
8

under . . . the Laws of the United States,” U.S. Const. art. III, 

§ 2, cl. 1, and Congress has granted the district courts general 

subject-matter jurisdiction over “all offenses against the laws 

of the United States” under 18 U.S.C. § 3231. Appellants do 

not dispute that the MDLEA was validly enacted and that it 

constitutes a “law[] of the United States” for purposes of 18 

U.S.C. § 3231. They instead argue that application of the 

MDLEA to their particular conduct offends the Constitution in

two ways. But those arguments do not call into question the 

district court’s subject-matter jurisdiction over this case 

pursuant to Article III and 18 U.S.C. § 3231.

Our decision in Delgado-Garcia is controlling on this 

score. There, the defendants raised precisely the same due 

process challenge pressed by appellants here, contending that 

their convictions violated the Fifth Amendment because the 

government “did not prove a ‘nexus’ between [their] conduct 

and the United States,” which “they claim[ed] the Fifth 

Amendment’s due process clause requires.” Delgado-Garcia, 

374 F.3d at 1341. We held that the defendants had waived 

that constitutional claim by entering unconditional guilty pleas, 

and we rejected the defendants’ argument that their challenge 

fell within the subject-matter jurisdiction exception to the 

waiver rule. Id. at 1342. The defendants’ “Fifth Amendment 

claim,” we explained, “is irrelevant to the court’s Article III 

subject matter jurisdiction. The Constitution by its terms 

leaves it solely to Congress to allocate that power by statute, 

and there is no claim in this case that this jurisdictional grant is 

somehow independently unconstitutional.” Id. 

That conclusion governs the resolution of appellants’ 

parallel Fifth Amendment claim here. And there is no reason 

to reach any different conclusion with respect to appellants’ 

as-applied challenge concerning Congress’s Article I authority 

under the High Seas Clause. For both challenges, the question 
9

whether the MDLEA can be constitutionally applied to 

appellants’ conduct is a merits question within the district 

court’s authority to decide, not an antecedent question going to 

the district court’s subject-matter jurisdiction over the case.

It is equally clear that the Blackledge/Menna exception 

fails to immunize appellants’ constitutional claims from 

waiver. Together, Blackledge and Menna stand for the 

proposition that certain constitutional challenges are immune 

from waiver regardless of whether they raise issues of 

subject-matter jurisdiction. In Blackledge, the Court held that 

a due process challenge arising from repetitive, vindictive 

prosecution for the same crime could not be waived by guilty 

plea in a situation in which the alleged violation was apparent 

on the face of the indictment. 417 U.S. at 30. In Menna, the 

Court reached the same conclusion in the context of a double 

jeopardy challenge to an “indictment [that] was facially 

duplicative of [an] earlier offense of which the defendant had 

been convicted and sentenced.” United States v. Broce, 488 

U.S. 563, 575 (1989) (describing Menna); see Menna, 423 U.S. 

at 62-63 & n.2. Blackledge and Menna involved 

circumstances in which the defendant claimed a constitutional 

“right not to be haled into court at all” as opposed to asserting a 

“deprivation of constitutional rights that occurred prior to the 

entry of the guilty plea.” Blackledge, 417 U.S. at 30 (internal 

quotation marks omitted); see Broce, 488 U.S. at 574;

Delgado-Garcia, 374 F.3d at 1342-43. 

Appellants contend that their due process and Article I 

challenges fall within the Blackledge/Menna exception. Once 

again, our decision in Delgado-Garcia forecloses their 

argument. We held there that the Blackledge/Menna 

exception did not encompass the same due process claim 

advanced by appellants here. Such a challenge “is a claim that 

the due process clause limits the substantive reach of the 
10

conduct elements” of the statute that the defendants were 

charged with violating, “not a claim that the court lacks the 

power to bring them to court at all.” 374 F.3d at 1343. As a 

result, “[e]ven if the prosecution of [the defendants] violated 

the Fifth Amendment for this reason, [they] would still need to 

come to ‘court to answer the charge brought against’ them.” 

Id. (quoting Blackledge, 417 U.S. at 30). 

That conclusion not only governs appellants’ parallel due 

process claim, but it also applies to appellants’ Article I 

challenge. The latter argument amounts to a contention that 

the High Seas Clause “limits the substantive reach of the 

conduct elements” of the MDLEA. Id. Even if application 

of the MDLEA to appellants’ conduct exceeded the legislative 

power granted by the High Seas Clause, they “would still need 

to come to ‘court to answer the charge brought against’ them.” 

Id. (quoting Blackledge, 417 U.S. at 30). In Blackledge and 

Menna, by contrast, the very act of haling the defendants into 

court completed the constitutional violation. We therefore 

conclude that neither of appellants’ constitutional claims 

qualify for the Blackledge/Menna exception. As a result, 

appellants cannot raise those claims in this court.

B.

In addition to their constitutional claims, appellants raise 

two arguments under the terms of the MDLEA. First, they 

contend that the MDLEA’s conspiracy provision, 46 U.S.C. 

§ 70506(b), does not apply extraterritorially to encompass their 

charged conduct in Colombia. Because the 

Blackledge/Menna exception applies only to constitutional 

challenges, appellants can avoid waiver only if their statutory 

argument goes to the subject-matter jurisdiction of the court. 

See Menna, 423 U.S. at 62 (“Where the State is precluded by 

the United States Constitution from haling a defendant into 
11

court on a charge, federal law requires that a conviction on that 

charge be set aside even if the conviction was entered pursuant 

to a counseled plea of guilty.” (emphasis added)).

The extraterritorial reach of a statute ordinarily presents a 

merits question, not a jurisdictional question. The Supreme 

Court’s decision in Morrison v. National Australia Bank Ltd., 

561 U.S. 247 (2010), is illustrative. That case addressed 

whether § 10(b) of the Securities Exchange Act of 1934, 15 

U.S.C. § 78j(b), reaches extraterritorially to cover misconduct 

in connection with securities traded on foreign exchanges. 

The Court concluded that the statute failed to encompass the 

alleged misconduct, but the Court first held that the question of 

the statute’s extraterritorial reach is not an issue of

subject-matter jurisdiction. Id. at 253-54. “[T]o ask what 

conduct § 10(b) reaches,” the Court explained, “is to ask what 

conduct § 10(b) prohibits, which is a merits question.” Id. at 

254. “Subject-matter jurisdiction, by contrast, refers to a 

tribunal’s power to hear a case.” Id. (internal quotation marks 

omitted). The district court in Morrison thus had 

subject-matter jurisdiction “to adjudicate the question whether 

§ 10(b) applies to [the defendant’s] conduct.” Id.

Appellants identify no reason for any different conclusion 

here. Just as in Morrison, to ask “what conduct [the MDLEA] 

reaches is to ask what conduct [the MDLEA] prohibits, which 

is a merits question,” not a question of subject-matter 

jurisdiction. Id. Nothing in the terms of the MDLEA 

suggests any intention by Congress to depart from that 

ordinary understanding. The district court therefore had 

jurisdiction “to adjudicate the question whether [the MDLEA] 

applies to [appellants’] conduct.” Id. It follows that the 

subject-matter jurisdiction exception affords appellants no 

relief from the waiver rule for unconditional guilty pleas.
12

C.

In their second claim under the statute, appellants contend 

that their charged offenses did not involve “vessel[s] subject to 

the jurisdiction of the United States” as defined by the 

MDLEA. 46 U.S.C. § 70502(c). Unlike appellants’ other 

arguments, this one, we conclude, goes to the district court’s 

subject-matter jurisdiction. Appellants therefore may raise 

(and we must address) the issue notwithstanding their entry of 

unconditional guilty pleas. On the merits, we affirm the 

district court’s conclusion that the relevant vessels qualify as 

“subject to the jurisdiction of the United States.” Id.

1.

The MDLEA prohibits manufacturing, distributing, or 

possessing with intent to distribute drugs “on board” (i) a 

“vessel of the United States,” (ii) a “vessel subject to the 

jurisdiction of the United States,” or (iii) “any vessel if the 

[defendant] is a citizen of the United States or a resident alien 

of the United States.” 46 U.S.C. § 70503(a). The charges 

against appellants solely involve the second category. The 

statute’s definition of “vessel[s] subject to the jurisdiction of 

the United States” encompasses certain non-United States 

vessels, including “vessel[s] without nationality.” Id. 

§ 70502(c)(1)(A).

The MDLEA prescribes that, in cases involving “vessels 

subject to the jurisdiction of the United States,” the question 

whether the vessels at issue qualify as “subject to the 

jurisdiction of the United States” is a threshold question to be 

resolved by the district court, not a question for the jury: 

“Jurisdiction of the United States with respect to a vessel 

subject to this chapter is not an element of an offense. 

Jurisdictional issues arising under this chapter are preliminary 
13

questions of law to be determined solely by the trial judge.” 

46 U.S.C. § 70504(a). If the “preliminary question” whether 

the vessels in issue are “subject to the jurisdiction of the United 

States” goes to the district court’s subject-matter jurisdiction, it 

is immune from waiver. 

The courts of appeals that have addressed the issue 

disagree on whether United States jurisdiction over a vessel 

under § 70504(a) presents a question of subject-matter 

jurisdiction. The Eleventh Circuit understands the MDLEA’s 

“on board a vessel subject to the jurisdiction of the United 

States” requirement to be a “congressionally imposed limit on 

courts’ subject matter jurisdiction, akin to the 

amount-in-controversy requirement contained in 28 U.S.C. 

§ 1332.” United States v. De La Garza, 516 F.3d 1266, 1271 

(11th Cir. 2008); see United States v. Tinoco, 304 F.3d 1088, 

1107 (11th Cir. 2002). The Fifth Circuit agrees. See United 

States v. Bustos-Useche, 273 F.3d 622, 626 (5th Cir. 2001). 

The First Circuit has reached the opposite conclusion, holding 

that Congress used the term “jurisdiction” in § 70504(a) 

“loosely” to “describe its own assertion of authority to 

regulate,” as it does “whenever it fixes an ‘affects interstate 

commerce’ or ‘involved a federally insured bank’ as a 

condition of the crime.” United States v. Gonzalez, 311 F.3d 

440, 443 (1st Cir. 2002). Such issues, the First Circuit 

reasoned, “have nothing whatever to do with the subject matter 

jurisdiction of the federal district court,” but instead “are 

routine questions as to the reach and application of a criminal 

statute.” Id.

We agree with the Fifth and Eleventh Circuits and 

conclude that, under § 70504(a), the question whether a vessel 

is “subject to the jurisdiction of the United States” is a matter 

of subject-matter jurisdiction. In a series of decisions, the 

Supreme Court has addressed whether a threshold statutory 
14

condition like § 70504(a) speaks to the district courts’ 

subject-matter jurisdiction. See Henderson ex rel. Henderson 

v. Shinseki, 131 S. Ct. 1197 (2011); Reed Elsevier, Inc. v. 

Muchnick, 559 U.S. 154 (2010); Arbaugh, 546 U.S. 500; 

Eberhart v. United States, 546 U.S. 12 (2005) (per curiam). 

Those decisions contemplate “a ‘readily administrable bright 

line’ rule for deciding such questions.” Henderson, 131 S. Ct. 

at 1203 (quoting Arbaugh, 546 U.S. at 515-16). “If the 

Legislature clearly states that a threshold limitation on a 

statute’s scope shall count as jurisdictional, then courts will be 

duly instructed and will not be left to wrestle with the issue.” 

Arbaugh, 546 U.S. at 515-16 (footnote omitted). “But when 

Congress does not rank a statutory limitation on coverage as 

jurisdictional, courts should treat the restriction as 

nonjurisdictional in character.” Id. at 516.

That approach indicates that the question whether a vessel 

is “subject to the jurisdiction of the United States” goes to 

subject-matter jurisdiction. The issue is framed as a 

“threshold limitation on [the] statute’s scope,” and “the 

Legislature clearly state[d] that” it should “count as 

jurisdictional.” Arbaugh, 546 U.S. at 515. Congress 

prescribed that the “[j]urisdiction of the United States with 

respect to a vessel” is a “[j]urisdictional issue[].” 46 U.S.C. 

§ 70504(a). Congress also deemed that “jurisdictional issue” 

to be a “preliminary question[] of law . . . determined solely by 

the trial judge.” Id. The “preliminary question” set out in 

§ 70504(a) thus operates precisely in the nature of a condition 

on subject-matter jurisdiction: subject-matter jurisdiction 

presents a question of law for resolution by the court, and 

courts have an “obligation to determine whether subject-matter 

jurisdiction exists” as a preliminary matter. Arbaugh, 546 

U.S. at 514. Congress not only specified that the “jurisdiction 

of the United States with respect to a vessel” is a threshold 

question determined by the court, but also that it is “not an 
15

element of the offense,” 46 U.S.C. § 70504(a), fortifying its 

jurisdictional character. See Arbaugh, 546 U.S. at 514 

(distinguishing statutory conditions that function as 

“element[s] of a claim” from those that go to subject-matter 

jurisdiction, and explaining that courts resolve the latter 

whereas juries resolve the former). 

In addition, “context . . . is relevant to whether a statute 

ranks a requirement as jurisdictional,” Reed Elsevier, 559 U.S. 

at 168, and here, the context of § 70504(a) strongly suggests a 

requirement of subject-matter jurisdiction. To understand 

why, it is important first to recognize that “[b]randing a rule as 

going to a court’s subject-matter jurisdiction” is “of 

considerable practical importance for judges and litigants.” 

Henderson, 131 S. Ct. at 1202. If the “jurisdiction of the 

United States with respect to a vessel” presents a requirement 

of subject-matter jurisdiction, the requirement would be 

immune from waiver or forfeiture by a defendant, and courts 

would bear an independent obligation in every case—and at 

every level of appellate review—to assure its satisfaction, 

regardless of whether a party were to raise it. See id.; 

Arbaugh, 546 U.S. at 514. On the other hand, if the 

requirement is non-jurisdictional, a court could forgo 

addressing it unless it is timely advanced by a party, and a 

defendant could either forfeit the issue by overlooking it or 

waive it by electing not to press it. See Henderson, 131 S. Ct. 

at 1202; Arbaugh, 546 U.S. at 514.

Those practical considerations ordinarily weigh in favor of 

construing a threshold statutory condition to be 

non-jurisdictional. See Henderson, 131 S. Ct. at 1202. Here, 

however, there are strong reasons to conclude that Congress 

intended the “jurisdiction of the United States with respect to a 

vessel” to be non-waivable and non-forfeitable by a defendant 

and to be independently confirmed by courts regardless of 
16

whether it is raised. In particular, Congress made the 

requirement a jurisdictional one in order to minimize the extent 

to which the MDLEA’s application might otherwise cause 

friction with foreign nations.

The MDLEA defines certain non-United States vessels as 

“subject to the jurisdiction of the United States,” including a 

“vessel without nationality,” a “vessel registered in a foreign 

nation if that nation has consented or waived objection to the 

enforcement of United States law by the United States,” or a 

“vessel in the territorial waters of a foreign nation if the nation 

consents to the enforcement of United States law by the United 

States.” 46 U.S.C. § 70502(c)(1)(A), (C), (E). With respect 

to the first of those categories, the statute in turn defines a 

“vessel without nationality” to include a “vessel aboard which 

the master or individual in charge makes a claim of registry 

that is denied by the nation whose registry is claimed,” and a 

“vessel aboard which the master or individual in charge makes 

a claim of registry and for which the claimed nation of registry 

does not affirmatively and unequivocally assert that the vessel 

is of its nationality.” Id. § 70502(d)(1)(A), (C). The 

MDLEA goes on to set forth certain methods for ascertaining 

the “[c]onsent or waiver of objection by a foreign nation to the 

enforcement of United States law by the United States,” or the 

“response of a foreign nation to a claim of registry.” Id. 

§ 70502(c)(2), (d)(2). In short, a foreign nation’s “consent,” 

“waiver,” or “response” plays a central role in determining 

whether a vessel is “subject to the jurisdiction of the United 

States” under the MDLEA.

In that setting, it is eminently understandable why 

Congress would want the “[j]urisdiction of the United States 

with respect to a vessel,” id. § 70504(a), to be insulated from 

waiver or forfeiture by a defendant, and would also want courts 

in every case—and at every level of review—to assure that the 
17

requirement is satisfied. The requirement aims to protect the 

interests of foreign nations, not merely the interests of the 

defendant. It therefore is not a requirement that the defendant 

alone can waive by choice or forfeit by inadvertence. If a 

defendant could waive or forfeit the requirement regardless of 

the interests of a foreign nation whose prerogatives may be 

directly at stake, application of the MDLEA could engender 

considerable tensions in foreign relations.

Suppose, for instance, that a defendant wishes to plead 

guilty and thus has no desire to dispute that a vessel is “subject 

to the jurisdiction of the United States,” even though the vessel 

is “registered in a foreign nation” and “that nation has [not] 

consented or waived objection to the enforcement of United 

States law by the United States.” Id. § 70502(c)(1)(C). Or 

suppose that, in the same circumstances, the defendant 

inadvertently fails to raise the issue in the district court. If a 

court were to decline to address the issue on the theory that the 

defendant had waived or forfeited any objection, application of 

the MDLEA could cause substantial discord with a foreign 

nation. Congress guarded against that risk by rendering the 

“jurisdiction of the United States over a vessel” a condition on 

subject-matter jurisdiction, thereby obligating courts to 

examine the matter regardless of whether a defendant presses 

or preserves it. Compare Cotton, 535 U.S. at 629-31 (holding 

that a defendant’s protection against defective indictments is 

waivable by the defendant and thus does not affect 

subject-matter jurisdiction).

Notably, Congress demonstrated the same sensitivity to 

the interests of affected foreign sovereigns in another provision 

of the MDLEA—enacted contemporaneously with § 70504(a), 

see Pub. L. 104-324, 110 Stat. 3901 (1996)—under which a 

defendant lacks “standing to raise a claim of failure to comply 

with international law as a basis for a defense” because the 
18

defense “may be made only by a foreign nation.” 46 U.S.C. 

§ 70505. Under § 70504(a), similarly, a foreign nation’s 

stake in the application of the MDLEA in cases involving a 

non-United States vessel asserted to be subject to United States 

jurisdiction means that a defendant effectively lacks 

“standing” to waive or forfeit the issue of United States 

jurisdiction over the vessel. Congress, moreover, cabined the 

jurisdictional inquiry to MDLEA cases in which foreign 

relations issues would most likely arise—viz., cases involving 

non-United States “vessels subject to the jurisdiction of the 

United States,” as opposed to cases involving “vessels of the 

United States” or defendants who are United States citizens or 

resident aliens. See id. §§ 70503(a), 70504(a). In the latter 

situations, the determination whether the vessel is “of the 

United States” or the defendant is a United States citizen or 

resident alien would go to an element of the offense, and so 

would be subject to waiver by a defendant who enters an 

unconditional guilty plea.

The government, relying on the First Circuit’s divided 

decision in Gonzalez, argues that the term “jurisdiction” in 

§ 70504(a) refers to the legislative “jurisdiction” of Congress 

in the sense of a so-called “jurisdictional element,” not to the 

subject-matter jurisdiction of the federal courts. The 

government observes that § 70504(a) speaks in terms of the 

“jurisdiction of the United States,” rather than—as with other 

statutes that define subject-matter jurisdiction—the 

jurisdiction of the “district courts.” E.g., 18 U.S.C. § 3231; 28 

U.S.C. §§ 1331, 1332. For several reasons, we are 

unpersuaded by the government’s argument.

First, the government fails to account for the strong 

reasons to understand § 70504(a) to establish a requirement of 

subject-matter jurisdiction as a means of protecting the 

interests of foreign sovereigns. Construing § 70504(a) only to 
19

pertain to Congress’s legislative “jurisdiction,” for the reasons 

explained, would potentially give rise to foreign relations 

concerns in the application of the MDLEA. It is entirely 

understandable that Congress would define the subject-matter 

jurisdiction of district courts in a manner sensitive to the 

interests of another sovereign. Cf. 18 U.S.C. § 1152 

(establishing an exception from general jurisdiction over 

federal crimes in certain circumstances for “offenses 

committed by one Indian against . . . another Indian” or by an 

Indian “in the Indian country who has been punished by the 

local law of the tribe”); 28 U.S.C. § 1604 (Foreign Sovereign 

Immunities Act).

In addition, when Congress establishes a so-called 

“jurisdictional element” addressing the reach of its legislative 

authority, Congress does not use the term “jurisdiction” in the

statute. See, e.g., 18 U.S.C. § 656 (criminalizing certain 

conduct by an individual who is “an officer, director, agent or 

employee of, or connected in any capacity with any Federal 

Reserve bank”); id. § 922(q)(2)(A) (making it “unlawful for 

any individual knowingly to possess a firearm that has moved 

in or that otherwise affects interstate or foreign commerce at a 

place that the individual knows . . . is a school zone”). Rather, 

“jurisdictional element” is a “colloquialism” used by 

“[l]awyers and judges.” Hugi v. United States, 164 F.3d 378, 

380 (7th Cir. 1999). 

Statutes that establish “jurisdictional elements” not only 

contain no use of the term “jurisdiction,” but, consistent with 

the description “jurisdictional element,” treat the relevant 

condition as an element of the offense to be found by a jury. 

In that sense, “proof of [a jurisdictional element] is no different 

from proof of any other element of a federal crime.” Id. at 

381. By contrast, § 70504(a) specifically provides that the 

“jurisdiction of the United States with respect to a vessel” is 
20

not an element of the offense and is to be determined by the 

court rather than by the jury, signifying that Congress did not 

intend to establish a “jurisdictional element.” To be sure, 

allocation of the issue to the court rather than the jury gives rise 

to a possible Sixth Amendment claim (regardless of whether 

the issue goes to subject-matter jurisdiction), see Gonzalez, 

311 F.3d at 444, but appellants raise no such claim here.

Additionally, a provision’s “placement within” the statute 

can “indicat[e] that Congress wanted that provision to be 

treated as having jurisdictional attributes.” Henderson, 131 S. 

Ct. at 1205; see also Reed Elsevier, 559 U.S. at 164-65; 

Arbaugh, 546 U.S. at 514-15. The placement of § 70504(a) 

reinforces that it pertains to the subject-matter jurisdiction of 

district courts rather than the legislative “jurisdiction” of 

Congress. Congress situated § 70504(a) within a provision 

addressing, per its title, “Jurisdiction and venue.” 46 U.S.C. 

§ 70504; see INS v. Nat’l Cent. for Immigrants’ Rights, Inc., 

502 U.S. 183, 189 (1991) (“[T]he title of a statue or section can 

aid in resolving an ambiguity in the legislation’s text.”). The 

subject of “venue,” addressed in § 70504(b), by nature speaks 

to the authority of a district court to hear a case. The subject 

of “jurisdiction,” addressed in § 70504(a), is best understood 

likewise to address the authority of district courts to hear a case 

rather than Congress’s own authority to regulate. In other 

instances in which Congress uses the term “jurisdiction and 

venue,” the statute indisputably pertains to the jurisdiction of 

the courts. See, e.g., 7 U.S.C. § 941; 29 U.S.C. § 1370; 40 

U.S.C. § 123. Congress did the same in § 70504.

That is particularly evident in light of the history of 

§ 70504. Before 2006, the language of § 70504(a) addressing 

jurisdiction and the language of § 70504(b) addressing venue 

were combined in one statutory subsection. See 46 App. 

U.S.C. § 1903(f) (2000). The provision read:
21

Any person who violates this section shall be 

tried in the United States district court at the 

point of entry where that person enters the 

United States, or in the United States District 

Court of the District of Columbia. Jurisdiction 

of the United States with respect to vessels 

subject to this chapter is not an element of any 

offense. All jurisdictional issues arising under 

this chapter are preliminary questions of law to 

be determined solely by the trial judge.

Id. That entire provision, including the references to 

“jurisdiction,” self-evidently concerned the authority of district 

courts, not the legislative authority of Congress. 

In 2006, Congress relocated the MDLEA, and in doing so 

separated what was § 1903(f) into two neighboring subsections

within the new § 70504, without any material change to the 

text. There is no reason to conclude that Congress, despite 

making no relevant adjustment to the text, meant to 

fundamentally transform the “jurisdictional” portion so that it 

now speaks to legislative rather than judicial authority. See 

H.R. Rep. 109-170, at 2 (2005) (“The purpose of H.R. 1442 is 

to complete the codification of title 46 . . . . It does so by 

reorganizing and restating the laws currently in the appendix to 

title 46. It codifies existing law rather than creating new 

law.”). Rather, both halves of a provision addressing 

“jurisdiction and venue” continue to pertain to the authority of 

courts.

For those reasons, we conclude that § 70504(a) relates to 

the subject-matter jurisdiction of the district courts. 

Appellants’ entry of unconditional guilty pleas thus could not 

waive the question whether the pertinent vessels are “subject to 
22

the jurisdiction of the United States” within the meaning of the 

MDLEA.

2.

Proceeding to the merits, we reject appellants’ argument 

that the vessels described in their stipulated facts were not 

“subject to the jurisdiction of the United States.” The district 

court concluded that appellants’ charged conduct involved 

“vessels without nationality,” one type of vessel “subject to the 

jurisdiction of the United States.” 46 U.S.C. 

§ 70502(c)(1)(A). While we review de novo the district 

court’s legal conclusion that the vessels in this case meet the 

statutory definition, we review any predicate factual 

determinations for clear error. See Herbert v. Nat’l Acad. of 

Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). We find no 

error—clear or otherwise—in the district court’s decision.

There is no basis for overturning the district court’s 

finding that appellants were both involved with “vessels 

without nationality.” In their factual stipulations, each 

appellant acknowledged that he “was a co-conspirator in a drug 

trafficking organization which, from in or about 2006 and 

continuing until August 25, 2010, transported narcotics from 

Colombia on stateless go-fast vessels through international 

waters to other countries.” J.A. 93, 128 (emphasis added). 

Appellants do not dispute that “stateless” vessels are vessels

“without nationality.” 

Additionally, appellants each gave a “particular” example 

of the conspiracy’s plans to transport drugs from Colombia on 

board “stateless” vessels. J.A. 94, 129. Munoz Miranda 

stipulated that, “[i]n particular,” he and others “planned to 

transport more than 500 grams of cocaine on board a go-fast 

boat leaving from the north coast of Colombia” in November 

2006, and further stipulated that the “boat was not registered in 
23

Colombia and did not fly a Colombian flag.” J.A. 93-94. 

Valderrama Carvajal identified the same example, and also 

described an additional example that involved a “go-fast boat” 

that “did not fly a flag, was not registered in Colombia or any 

other nation, and contained no registration identification.” 

J.A. 128-29. “No one in the crew, including the captain, 

claimed that the go-fast boat was registered in Colombia.” 

J.A. 129. Those stipulations gave the district court an ample 

basis for its determination that appellants’ conspiratorial acts 

involved “vessels without nationality.”

Appellants contend that neither of the vessels highlighted 

as examples in their factual stipulations can count as “vessels 

without nationality” because both boats were in Colombian 

waters when captured. According to appellants, a vessel is 

“without nationality” only when on the high seas, and it ceases 

to qualify as stateless when within any nation’s—here, 

Colombia’s—territorial waters. The district court correctly 

rejected that argument. The statute describes “vessels without 

nationality” in a manner that makes no reference to the situs of 

a vessel when seized. See 46 U.S.C. § 70502(d)(1). Instead, 

the statute contains three nonexclusive examples of “vessels 

without nationality,” each of which turns on the “registry” of 

the vessel. Id. § 70502(d)(1)(A)-(C). That is consistent with 

the general understanding of a stateless vessel under 

international law. See United States v. Rosero, 42 F.3d 166, 

171 (3d Cir. 1994) (“Under international law, ‘[s]hips have the 

nationality of the State whose flag they are entitled to fly.’”) 

(quoting Convention on the High Seas of 1958, 13 U.S.T. 

2312, T.I.A.S. No. 5200, art. 5(1)). If a vessel in fact ventured 

in and out of statelessness depending on where it happened to 

be located when seized, the statute would create a perverse 

incentive for vessels to race to a foreign nation’s territorial 

waters before submitting to interdiction. Congress 

established no such regime under the MDLEA, and the vessels 
24

in this case thus qualify as “without nationality” even though 

they were located in Colombian waters when seized.

* * * * *

For the foregoing reasons, we affirm the district court’s 

denial of appellants’ motions to dismiss and for 

reconsideration. We also affirm the district court’s 

acceptance of appellants’ guilty pleas. 

So ordered.