# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2014 Decided March 20, 2015

No. 13

- 3032

U NITED S TATES OF A MERICA

, A PPELLEE

v.

L UIS A LBERTO M UNOZ M IRANDA

, ALSO KNOWN AS D AVID

, ALSO KNOWN AS E L G ORDO

, A PPELLANT

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: S RINIVASAN

, Circuit Judge , and E DWARDS and
S ENTELLE
, Senior Circuit Judges

.

Opinion for the Court filed by Circuit Judge S RINIVASAN

.

S RINIVASAN

, 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 th e 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 co nclusion 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 inter national 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. § 7 0503(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 la rge 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 the ir 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 wat ers 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, claim ing (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 d istrict 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 writi ng 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 a lso 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 take5

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 rea sons 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

o f 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 ex traterritorial 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 Carv ajal 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’ argume nts, 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, m ay not be collaterally6

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. S ee 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
tha t 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
“de fendant[’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 S tates 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 (197 4); 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 jurisdicti on and cannot be waived: the argument that the vessels in question are not “subject to the jurisdiction of the United7

States” within the meaning of the MDLEA. 46 U.S.C. § 7050 2(c) . While we thus reach the merits of that issue, we conclude, contrary to a ppellants’ 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 powe r 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 a nd 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 action s 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 appel lants 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, s ee United States v. Phillips , 645 F.3d 859, 863 (7th Cir. 2011). Article III vests federal courts with authority to decide cases “arising8

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 ra ised 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] t he 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
fe ll 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 so lely 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 question9

whether the MDLEA can be constitutiona lly 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 exc eption 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 jurisd iction. 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 indictme nt. 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 the10

conduct elements” of the statute that the defendants were charged with violati ng, “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 answe r 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 neith er of appellants’ constitutional claims qualify for the Blackledge/Menna exception. A s a result,

a ppellants cannot raise those claims in this court.

B.

In addition to their constitutional claims, appellants raise two arguments under the terms of the MD LEA. 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 t o constitutional challenges, appe llants 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 into11

court on a charge, feder al 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 jurisdiction al 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 cov er 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
tribun al’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 foll ows 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 ] su bject 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 mu st 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 prohibi ts 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 Unit ed 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 no n

- 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 “sub ject 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 preliminary13

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 Unite d States” goes to the district court’s subject

- matter jurisdiction, it
is immune from waiver.

The courts of appeals that have address ed the issue disagree on whether United States jurisdiction over a vessel
under § 70504 (a) presents a question of subje ct

- 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

- cont roversy 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 ‘af fects 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 statutory14

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); Ar baugh , 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 whe n 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

pre scribed 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 an15

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

requ irement 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, t here are strong reasons to conclude that Congress
inte nded 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 of16

whether it is raised. In particular, Congress made the requirement a juri sdictional 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 Unit ed 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 forfeit ure by a defendant, and would also want courts in every case

— and at every level of review

— to assure that the17

requirement is satisfied. The requirement aims to protect the interests of foreign nations, not merely the interests of the
defendant. It therefo re 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
inadverten tly 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. Co ngress 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. C omp are 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 o f 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 the18

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
relation s 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 alien s. 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 wai ver 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 o f 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 subjec t

- 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 und erstand § 70504(a) to establish a requirement of subject

- matter jurisdiction as a means of protecting the interests of foreign sovereigns. Construing § 70504(a) only to19

pertain to Congress’s legislative “jurisdiction,” for the reasons explained, would pot entially 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
loca l 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 individu al 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 “jurisdiction al 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 provide s that the “jurisdiction of the United States with respect to a vessel” is20

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 s ure, 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.

A dditionally , 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, “J urisdiction 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,” addresse d 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 ow n 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 sam e 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 Colu mbia. 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” port ion 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 rat her 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) relate s 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 to22

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

M DLEA.
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
“v essels 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 c ourt’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 u ntil 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” vessel s are vessel s “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 in23

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

- 94.
Valderrama Carvajal identif ied 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, i ncluding 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.”

Appe llants 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 nationalit y” 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 m akes 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 ent itled 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 per verse 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 vessels24

in this case thus qualify as “without nationality” even though they were l ocated in Colombian waters when seized.

* * * * *

For the foregoing reasons, we affirm the district court’s denial of appellants’ motions to d ismiss and for
reconsideration . We also affirm the district court’s acceptance of appellants’ guilty p leas.

So ordered

.