# United States Court of Appeals For the First Circuit

No. 16

- 2089
UNITED STATES OF AMERICA , Appellee ,

v. JEFFRI D Á VILA
- REYES , Defendant, Appellant
. No. 16

- 2143
UNITED STATES OF AMERICA , Appellee ,

v. JOS É D. REYES

- VALDIVIA , Defendant, Appellant
.

APPEAL S FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besos a, U.S. District Judge ]

Before Howard, Chief Judge , Lipez and Thompson, Circuit Judges
.Franco L. P é rez - Redondo , Research and Writing Specialist,

with whom Eric Alexander Vos , Federal Public Defender, Vivianne M. Marrero , Assistant Federal Public Defend er , and Liza L. Rosado

Rodr í guez , Research and Writing Specialist, were on brief, for appellant Jos é D. Reyes
- Valdivia. Raymond L. S á nchez

- Maceira on brief for appellant Jeffri D á vila

- Reyes. Thomas F. Klumper , Assistant United States Attorney, with whom Rosa Emilia Rodríguez

- Vélez , United States Attorney, Mariana E. Bauzá

- Almonte , Assistant United States Attorney, Chief, Appellate Division, John A. Mathews II , Assistant United States Attorney, and David C. Bornstein , Assistant United States Attorney, were on brief, for appellee.
January 20, 2 022- 3

- LIPEZ , Circuit Judge
. These consolidated appeals arise from the U.S. Coast Guard's interdiction of a small speed boat in the western Caribbean Sea a nd the subsequent arrest and indictment of the three men on board for drug trafficking under the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. § § 7050 1

- 0 8
. In a motion to dismiss the indictment, appellants José Reyes

- Valdivia and Jeffri D á vila

- Reye s challenged the constitutionality of the
MDLEA in multiple respects
. Most relevant here, they argue d that the statute, which in certain circumstances a llow s U.S. law enforcement to arrest and prosecute foreign nationals for drug crimes committed in international waters, exceeds Congress's authority under Article I of the Constitution
. T he district court denie d the motion to dismiss
. B oth appellants then pleaded guilty pursuant to plea agreements in which each waived his right to appeal if sentenced in accordance with his agreement's sentencing recommendation provision
.

On appeal, appellants renew their consti tutional objections to the ir prosecution
. I n our original decision, we did not reach appellants' "primary argument "

-- that their prosecution

w as unlawful because their vessel was not properly deemed stateless

-- on the ground that "our governing preceden t concerning the protective principle of international law .
. . permit[ted] prosecution under the MDLEA even of foreigners on foreign vessels." United States v. D á vila

- Reyes , 937 F.3d 57, 59 (1st Cir. 2019)- 4

-

(withdrawn). 1 That precedent, we concluded, required that we affirm appellants' convictions.

Appellants then petitioned for panel rehearing and en banc review . W e held their requests in abeyance pending the en banc decision in another drug

- trafficking case involving a constitutional challenge to the MDLEA. See United States v. Aybar

Ullo a , 987 F.3d 1 (1st Cir. 2021) (en banc). Subsequently, b ased on our view t hat the decision in Aybar

- Ulloa "diminished the force of this circuit's precedent on the protective principl e," we concluded that it would no longer be appropriate to rely on that principle to uphold appellants' convictions. Order, Nos. 16

- 2089, 2143 (Mar
. 17, 2021). We therefore granted panel rehearing to address appellants' constitutional challenge to their prosecution under the MDLEA.

W e now hold that Congress exceeded its authority under Article I of the Constitution in enacting § 70502(d)(1)(C) of the
MDLEA . That provision expand s the definition of a " vessel without nationality" beyond the bounds of international law and thus unconstitutionally extends U.S. jurisdiction to foreigners on foreign vessel s . Hence, appellants' convictions must be vaca ted
.

1 The protective principle of international law "permits a nation 'to assert jurisdiction over a person whose conduct outside the nation's territory threatens the nation's security.'" Dávila

Reyes , 937 F.3d at 62 (quoting United States v. Cardales , 168 F.3 d 548, 553 (1st Cir. 1999)).- 5

- I.
W e draw the following facts primarily from appellants' change of plea colloquies and the uncontes ted portions of their Presentence Investigation Reports. See United States v. Vélez

Luciano , 814 F.3d 553, 556 (1st Cir. 2016). 2 In October 2015,

w hile patrolling waters approximately 30 nautical miles southeast of San Andrés Island, Colombia, 3 U.S. Coast Guard officers observed a small vessel 4 moving at a high rate of speed. When the occupants of the vessel became aware of the Coast Guard boat nearby, they began throwing packages and fuel barrels overboard. The Coast Guard officers approached the boat and began to question its occupants, the two appellants and a third co

- defend ant. Reyes
Valdivia, as t he "master " 5 of the vessel , claimed Costa Rican

2 We also draw some facts from statements by Coast Guard officials that were submitted to the district court as attachments to the government's Motion in Limine and Memorandum of Law in Support of Jurisdiction. See United Stat es v. Reyes
- Valdivia , No. 3:15

- cr - 00721

- FAB (D.P.R. Mar. 25, 2016), ECF No. 46
. We note that all citations to the district court's electronic docket in this case will hereafter be cited using the short

- form
" Reyes
- Valdivia , ECF No. __ ( filing date)
. "

3 A lt hough part of Colombia, San Andrés Island is located off the coast of Nicaragua.

4 The government's Motion in Limine describes the vessel as a 35

- foot "low profile, open hull, 'go

- fast

- type' vessel." Reyes
Valdivia , ECF No. 46, at 3 ( Mar. 25, 2016).

5 The term "master" is synonymous with "captain." It is a legal term of art meaning the person "to whom are committed the government, care, and direction of the vessel and cargo." Kennerson v. Jane R., Inc. , 274 F. Supp. 28, 30 (S.D. Tex. 1967). The statement of facts attached to Reyes

- Valdivia's plea agreement- 6

-

nationality for the vessel but did not provide any documentation to support that claim
. 6

The Coast G uard officers boarded and searched the vessel pursuant to a provision of an agreement between the United States and Costa Rica "Concerning Cooperation to Suppress Illicit Traffic." See Reyes
- Valdivia , ECF No. 46

- 2 , at 1 (Mar. 25, 2016) ( Dep't of State Certification ) . The officers did not find any contraband, but a chemical test detected traces of cocaine. Based on that evidence, the Coast Guard detained the three men

-- all citizens of Costa Rica

-- and took them to the U.S. Naval Base at
Gu antánamo Bay, Cuba, and then eventually to Puerto Rico. At some point, t he United States contacted the government of Costa Rica requesting confirmation of the vessel's registry or nationality , and Costa Rica subsequently responded that it could not confir m

does not identify him as the "master" of the vessel, see Reyes
Valdivia , ECF No. 68, at 11 (Apr. 4, 2016), but a statement from a Coast Guard officer reports that Reyes

- Valdivia identified himself as such, see id. , ECF No. 46

- 1, at 1 (Mar. 25, 2016) (Statement of Officer Luis Rosado).

6 The Coast Guard reported that Reyes

- Valdivia initially stated that "there was no nationality for the vessel" before a sserting Costa Rican nationality. Reyes
- Valdivia , ECF No. 46

- 1, at 1 (Mar. 25, 2016) (Statement of Officer Luis Rosado). However, this statement was not cited in the U.S. Department of State Certification as a basis for identifying the vessel as stateles s. The Certification reported only that "[t]he master made a claim of Costa Rican nationality for the go fast vessel." Id. , E CF No. 46

- 2 , at 1 (Mar. 25, 2016). Nor was the statement included in the government's version of the facts in the appellants' ple a agreements. See infra
.- 7

-

the vessel's registry. Th e United States thus determined that, pursuant to § 70502(d)(1)(C) of the MDLEA , the boat was "without nationality" and subject to U.S. jurisdiction
. 7

All three defendants were charged with two counts of trafficking cocaine in violation of the MDLEA. Reyes

- Valdivia and
D á vila

- Reyes moved to dismiss the indictment for lack of jurisdiction , 8 arguing that the MDLEA , particularly § 70502(d)(1)(C), is unconstitutional . In their view, § 70502(d)(1)(C) exceed s Congress's authority under Article I of the Constitution , and it violate s the Due Process Clause of the Fifth Amendment because it is unconstitutionally vague, subject to arbitrary enforcement, and criminalize s conduct that ha s no nexus with the United St ates. The district court denied the motion.

Reyes
- Valdivia and D áv ila

- Reyes both subsequently agreed to plead guilty to one count of possession with intent to distribute five or more kilograms of cocaine in violation of the

7 Section 70502(c)(1)(A) of the MDLEA provides that "a vessel without nationality" is "subject to the jurisdiction of the United States." 46 U.S.C. § 70502(c)(1)(A). As explained below, § 70502(d)(1)(C) defines a "vessel without nationality " to include any 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)(C).

8 Reyes
- Valdivia filed the motion, and the district court granted Dávila

- Reyes's motion to join.- 8

-

MDLEA. See 46 U.S.C. § 70503 (a)(1). 9 Both men agreed to waive appellate review if sentenced in accordance with the sentencing recommendation provisions in their plea agreements
. Ultimately, the district court sentenced Dávila

- Reyes consistently with his agreement (a 120

- month term) , but sentenced Reyes

- Valdivia to a term longer than proposed in his agreement (70 months instead of 57) because it found that he should be given a two

- level enhancement for being the "captain" of the vessel. See U.S.S.G. § 2D1.1(b)(3)(C).

Reyes
- Valdivia's motion for reconsideration was denied. Both Reyes

- Valdivia and D á vila

- Reyes then appealed. We affirmed their convictions on the basis that the protective principle permitted their prosecution.
II.

As noted, t his court's en banc decision i n United States

v. Aybar

- Ulloa led us to withdraw our prior opinion and reconsider appellants' claims. In Aybar

- Ulloa , the en banc court held that "international law accepts the criminal prosecution by the United States of persons .
. . wh o [are] seized by the United States while trafficking cocaine on a stateless vessel on the high seas." 987

9 The third defendant also pleaded guilty to this count and was sentenced to a 57

- month term of imprisonment. He did not file an appeal.- 9

-

F.3d at 3. 10 In so holding, the court bypassed our circuit's precedent on the protective principle, which could have provided a straightforward basi s for affirming the conviction, and instead addressed a more complex issue of international law. Notably, the en banc court did not achieve unanimity on the legal basis for U.S. jurisdiction over foreign nationals apprehended on vessels conceded to be sta teless. See infra . The choice of a non

unanimous analytical path over reliance on the protective principle is one basis for our conclusion that Aybar

- Ulloa weakened our circuit's protective principle jurisprudence.

In addition, statements in both the majority and concurring opinions in Aybar

- Ulloa more directly suggest skepticism about applying the protective principle to a foreign vessel whose occupants a re foreign nationals allegedly involved in drug trafficking, at least absent acquiescence by the flag nation. The majority observed that one of our primary precedents on the protective principle

-- United States v. Cardales , 168 F.3d 548 (1st Cir. 1999)

- - "can be read as applying only to the circumstance where a foreign flag nation consents to the application of United States law to persons found on that nation's flagged vessel." Aybar

- Ulloa , 987 F.3d at 3. In our prior opinion

10 Generally, there is a consensus that "high seas" denotes areas outside any country's territorial waters. See , e.g. , United States v. Carvajal , 924 F. Supp. 2d 219, 234 (D.D.C. 2013), aff'd sub nom. United States v. Miranda , 780 F.3d 1185 (D.C. Cir. 2015).- 10

-

in this case, we assumed that appellants' vessel was Costa Rican, as they had asserted, but we concluded that our precedent nonetheless required us to uphold their prosecution based on the protective principle. The Aybar

- Ulloa majority's posited reading of Cardales , however, woul d foreclose reliance on the protective principle here because the record contains no consent from the Costa Rican government to the prosecution.

The Aybar

- Ulloa concurring opinion aired an even broader uncertainty about the protective principle. In descri bing Aybar

Ulloa 's contentions, the concurrence noted the long

- ago observation by then

- Judge Breyer that there is a "'forceful argument' against application of [ the ] protective principle to encompass drug trafficking on the high seas." Id. at 15 (Barron,
J. , concurring) (quoting United States v. Robinson , 843 F. 2 d 1, 3 (1st Cir. 1988) (Breyer, J.)); see also id. at 20 (referencing the same skepticism about the protective principle with a citation to Robinson ). Both Aybar

- Ulloa opinions, then, caused the p anel to doubt its reliance on the protective principle to uphold Reyes

Valdivia and Dávila

- Reyes 's prosecution under the MDLEA. See also Aaron J. Casavant, In Defense of the U.S. Maritime Drug Law Enforcement Act: A Justification for the Law's Extraterritorial Reach , 8 Harv. Nat'l Sec. J. 191, 213 (2017) (noting that commentators have rejected the protective principle to support MDLEA prosecutions, "positing that 'the cases that see the MDLEA- 11

-

as an exercise of protective jurisdiction fundamental ly misconceive the principle'" (quoting Eugene Kontorovich, Beyond the Article I Horizon: Congress's Enumerated Powers and Universal Jurisdiction Over Drug Crimes , 93 Minn. L. Rev. 1191, 123 1 (2009) (emphasis omitted)) ) ; but see id. at 222

- 23 (noting "a ci rcuit split over whether the crime of maritime drug trafficking warrants the use of the protective principle"); id. at 225 (stating that "the protective principle of international law is broad enough to encompass maritime drug trafficking").

Apart from any reference to the protective principle, both Aybar

- Ulloa opinions include statements indicating that the prosecution of a foreign national seized on the high seas under U.S. drug

- trafficking laws would not be proper unless the targeted activity and seizure occurred on a stateless vessel. The majority, for example, concludes a passage on the reasonable expectations of "those who set out in stateless vessels" by noting: "Simply put, if a person intent on drug trafficking on the high seas wants to be prosecut ed in his own country should he be caught, he should sail under that country's flag." Aybar

- Ulloa , 987 F.3d at 9. The majority subsequently describes its holding as limited "to vessels flouting order and custom on the high seas by eschewing the responsib ilities and protections of the flag

- state system." Id. at 13; see also id. at 8 (quoting United States v. Furlong , 18 U.S. (5 Wheat.) 184, 198 (1820), for the proposition that "the- 12

-

distinction between foreign vessels and stateless vessels serves to avoid 'offensive interference with the governments of other nations'"). In the same vein, the concurring opinion in Aybar

Ulloa notes the "fair amount of support" for the view that Congress lacks authority under Article I's Define and Punish Clause "to subject foreign nationals to our criminal laws" for acts occurring

on foreign vessels on the high seas. Id. at 15 (Barron, J., concurring). 11

In sum, we see in Aybar

- Ulloa multiple signals that the majority of judges on our court do not view the protective principle as support ing U.S. jurisdiction over drug

- trafficking

11 Elsewhere, the Aybar

- Ulloa concurrence notes that "the application of the MDLEA to Aybar[

- Ulloa]'s conduct in this case"

-- i.e., conduct aboard a stateless vessel

-- would likely be consistent with international law,

[e]ven if we were to assume that the law of nations places limits on Congress's power under the Define and Punish Clause to subject foreign nationals on foreign vessels in international waters to our domestic criminal laws, and even if we were to assume that the United States may not assert protective jurisdiction over drug trafficking merely because it occurs on stateless vessels in international waters, see Robinson , 843 F.2d at 3

- 4. 987 F.3d at 20 . Although the Aybar

- Ulloa concurrence does not take a position on those hypotheticals, we view them

-- and the reiterated citation to Robinson

-- to indicate a level of doubt about the applicability of the p rotective principle, at a minimum, to drug

- trafficking activity by foreign nationals on foreign vessels.- 13

-

activity conducted on the high seas by foreign nationals on foreign vessels. 12 Hence, in light of Aybar

- Ulloa , we decline to rely on the protect ive principle to uphold appellants' convictions. Rather, the question we must answer is whether

-- as the United States claims

-- appellants' vessel was properly deemed stateless, bringing the vessel and its occupants within the scope of the holding in Ay bar

- Ulloa
.

Before addressing that question, however, we re view and elaborate on our reasons , set forth in the withdrawn panel opinion, for rejecting the government's argument that appellants waived their claims of constitutional error. See Dávila

- Reyes , 937 F.3d
at 60

- 61.
III.

The government contends that Reyes

- Valdivia and D á vila

Reyes waived their right to appeal in two distinct ways: by the express appellate waiver provisions in their plea agreements and by entry of unconditional guilty pleas to drug trafficking in violation of the MDLEA. With respect to Reyes

- Valdivia, the government is wrong in arguing that h is appeal is barred by his plea agreement. As described above , the district court declined

12 Of course, consent by the flag nation changes the calculus, as acknowledged by one commentator who has advocated for use of the protective principle in the context of drug

- trafficking on the high seas. See Casavant, supra , at 223 (noting that "consent of the flag or coastal state" is a "check on the exercise of U.S. criminal jurisdiction").- 14

-

to follow the parties' recommended term of 57 months and instead sentenced him to a 70

- month term of imprisonment. Because Reyes
Valdivia's sentence exceeded the recommendation, the waiver provision plainly does not apply. 13

Dávila

- Reyes, however, received a 120

- month sentence that aligns with the recommendation in his plea agreement . He argues that, despite the enforceable waiver, we should exercise our inherent authority to consider his claims to avoid " a miscarriage of j ustice." United States v. Teeter , 257 F.3d 14, 25

- 26 (1st Cir. 2001)
. He contends that his appeal raises "important questions of law and [of] first impression"

-- including the constitutionality of § 70502(d)(1)(C) of the MDLEA

-- and that preventing him from bringing his appeal would be unjust.

We agree that the constitutional issue Dávila

- Reyes raises is significant and that the other factors allowing us to exercise our discretion to disregard the appellate waiver also are sufficiently present. See , e.g. , United States v. Ortiz

- Vega , 860 F.3d 20, 27

- 28 (1st Cir. 2017). Particularly important is the lack of prejudice to the government, given Reyes

- Valdivia's

13 The government contends that Reyes

- Valdivia is nonetheless bound by the waiver provision because he failed to explain in his opening brief why it is inapplicable. However, it is apparent on the face of the plea agreement that Reyes

- Valdivia was not sente nced in accordance with the sentencing recommendation provision, and he was not obligated to make that obvious point in his opening brief. See United States v. Colón

- Rosario , 921 F.3d 306, 310

- 11 (1st Cir. 2019).- 15

-

presentation of the same issues as Dávila

- Reyes. See id. at 27.
Moreover , the potential for relief should not depend on the happenstance that the district court added an enhancement to Reyes

Valdivia's sentence. Thus, we exercise our discretion and decline to enforce Dávila

- Reyes's appellate waiver.

Nor do appellants' guilty plea s foreclos e their right to challenge the constitutionality of the MDLEA. The Supreme Court held in Class v. United States th at "a guilty plea by itself" does not bar "a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal." 138 S. Ct. 798, 803 (2018)
. In their briefing and oral argument, appellants present claims that are permissible under Class
. Although they conceded through their guilty pleas that the MDLEA, by its terms, allows the governm ent to prosecute them under U.S. law, they argue that Congress exceeded constitutional limits with the enact ment of the applicable provision. In other words, appellants contend that their convictions were within the scope of the statute but nonetheless un constitutional. Such claims may proceed notwithstanding an unconditional guilty plea. See id. at 805 (holding that a guilty plea does not bar claims that challenge "the Government's power to criminalize [the defendant's] (admitted ) conduct" because " [ t ] h ey thereby call into question the Government's power to 'constitutionally prosecute him'" (quoting United States v. Broce , 488 U.S. 563, 575 (1989) ) )
.- 16

- The government asserts that Class does not apply here because appellants "admitted without qualification that their vessel was one 'subject to the jurisdiction of the United States,'" without limiting the basis for jurisdiction to § 70502(d)(1)(C) (whose text is reproduced in footnote 7)
. 14 Appellee's Supp. Br. at 18

- 19
. In making that assertion, the government cites to the appellants ' general acknowledgment of guilt at their change

- of

plea hearing but disregards their specific admissions. T he prosecution

-- and, accordingly, appellants' admissions of guilt

-- w as premised on their vessel's statelessness under § 70502(d)(1)(C). T he indictment stat ed generally that jurisdiction was based on appellants' vessel being one without

14 The statutory phrase "a vessel subject t o the jurisdiction of the United States" in the MDLEA concerns legislative jurisdiction

-- in other words, Congress's authority to enact l egislat ion "regulat [ing] drug trafficking on [] ships"

-- rather than the subject

- matter jurisdiction of the federal c ourts. United States v. González , 311 F.3d 440, 443 (1st Cir. 2002); see also United States v. Prado , 933 F.3d 121, 130 (2d Cir. 2019) (adopting and elaborating on this interpretation and rejecting the alternativ e approach of other circuits ). But see United States v. Miranda , 780 F.3d 1185, 1192 (D.C. Cir. 2015) (agreeing with the Fifth and Eleventh Circuits that "the question of whether a vessel is 'subject to the jurisdiction of the United States' is a matter o f subject

- matter jurisdiction"). "Unlike Congress's employment in other statutes of one

- factor jurisdictional elements such as 'by a Federal Reserve Bank,' or 'affect[ing] interstate commerce,' the facts that may cause a vessel to be 'subject to the juris diction of the United States' [under the MDLEA] involve numerous complex alternatives, which are spelled out at length in § 70502 under 'Definitions.'" Prado , 933 F.3d at 149. Although appellants assert that their challenge to their prosecution implicate s subject

- matter jurisdiction, our precedent, as noted above, holds otherwise.- 17

-

nationality, see 46 U.S.C. § 70502(c)(1)(A), 15 but the Department of State Certification that subsequently was filed s pecif ied that "the Government of the United States determined the vessel was without nationality in accordance with 46 U.S.C. § 70502(d)(1)(C) , " Reyes
- Valdivia , ECF No. 46

- 2, at 3 (Mar. 25, 201 6) ( Dep't of State Certification ) (emph asis added)
. Appellants' plea agreements also identified § 70502( c )(1)( A )

-- i.e., the subsection referring to vessels "without nationality"

-

- as the basis for U.S. jurisdiction , s ee id. , ECF Nos. 68, 72, at 1

- 2 ( Apr. 4, 2016), and the "Government's Version of the Facts," incorporated into those agreements, set forth the facts concerning the vessel's status in language track ing the requirements of § 70502(d)(1)(C) : the master's claim of Costa Rican nationality and the response from the government of Costa Rica " that it could neither confirm nor refute the registry of the suspect vessel , " i d. at 11
. The same facts were recounted by the government at the change

- of

- plea hearing. See id. , ECF No. 117, at 26 ( Oct. 3 , 2016)
. 16 The government's Motion in Limine and Memorandum of Law

15 As previously noted, § 70502(c)(1) lists "a vessel without nationality" among the list of vessels that are "subject to the jurisdiction of the United States." 46 U.S.C. § 7 0502(c)(1)(A). Other types of vessels on the list include "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," id. § 70502(c)(1)(C), and "a vessel in the c ustoms waters of the United States," id. § 70502(c)(1)(D).

16 At the plea hearing, the government was asked to "give a brief explanation of the theory to be presented to prove each- 18

-

in Support of Jurisdiction 17 likewise asked the district court to

" find, as a matter of law, that [ appellants' ] vessel was subject to the jurisdiction of the United States , as defined in

. . . Sections 7 0502 (c)(1)(A) and (d)(1)(C ). " I d. , ECF No. 46, at
4 ( Mar. 25, 2016)
. 18

Defendant guilty if a trial were to be held." Id. at 25. In relevant part, the prosecutor stated:

The vessel was tracked by aircraft a nd eventually came to a stop. The U.S. Coast Guard boarding team approached the vessel and commenced right of approach questioning. The master claimed Costa Rican nationality for the vessel but provided no registration [] paperwork, and there was no indic ia of nationality on the vessel. The Government of Costa Rica was approached. They responded they could neither confirm nor refute the registry of [the] suspect vessel. The vessel was determined to be one without nationality. Id. at 25

- 26.

17 In a 1996 amendment to the MDLEA, Congress stated that jurisdictional issues under the statute "are preliminary questions of law to be determined solely by the trial judge." 46 U.S.C. § 70504(a); see also González , 311 F.3d at 442

- 43. Appellants moved t o change their pleas a week after the government filed the Motion in Limine, and the district court therefore did not rule on it. See Reyes
- Valdivia , ECF Nos. 59, 63 (Apr. 1, 2016).

18 The government has continued to rely on § 70502(d)(1)(C) before us. In its initial brief, the government quoted the provision in full and then described appellants' admission consistently with the provision's terms

-- i.e., "that Costa Rica did not confirm the registry of their vessel (which had no indicia of nationality) and that their vessel was determined to be one without nationality." Appellee's Br. at 36. In addition, in asserting that the MDLEA provided sufficient and unambiguous notice of the MDLEA's applicability to appellants, the government- 19

- A p p ellants thus pleaded guilty based on the government's assertion of jurisdiction pursuan t to § 70502(d)(1)(C) , in accordance with the facts stated in their plea agreements
. In other words, they admitted th at they "did what the indictment alleged" and that the government accurately described the facts giving rise to U.S. jurisdiction under § 70502(d)(1)(C)
. Class , 138 S. Ct. at 804
. Hence, their challenge to the constitutionality of § 70502(d)(1)(C) does not "contradict the terms of the indictmen t or the written plea agreement," and, as in Class , the constitutional cla i m can "be 'resolved without any need to venture beyond th [ e] record
. '" I d. (quoting Broce , 488 U.S. at 575)
. A ppellants' constitutional challenge is premised on the f acts set forth by the government and legal principles that, they claim, invalidate § 70502(d)(1)(C) 's definition of a "vessel without nationality" as a basis for subjecting them to U.S. jurisdiction. We need n ot go outside the existing record to address th at question of law
. Consequently, appellants' guilty pleas do not bar this direct appeal. See id. at 805.

The government also appears to argue , however, that it is entitled to sidestep appellants' claim that § 70502(d)(1)(C) is

stated: "The absence of an assertion by the Costa Rican government rendered the Appellants' boat a 'vessel without nationality,' [ 46 U.S.C.] § 70502(d)(1), and thus a 'vessel subject to the jurisdiction of the United States,' id. § 70502(c)(1)(A)." Id. at 38.- 20

-

unconstitutional because , it says, the ir vessel could have been deemed without nationality based on other jurisdictional theories and other facts
. I n its supplemental brief, the govern ment asserts that Reyes
- Valdivia's failure to produce registration paperwork or otherwise substantiate his verbal claim of nationality w ould suffice to "render[] the vessel stateless as a matter of domestic and international law
. " Appellee's Supp. Br. at 9 (emphasis omitted)
. 19 The government further notes that the vessel could be deemed stateless because it "had no indicia of nationality other than the master's say

- so, and even he presented conflicting information, having initially stated the vessel ha d no nationality." Id. at 11 (internal quotation marks omitted). But the se jurisdictional theories are not the basis on which the government relied to arrest and prosecute appellants , and to o btain their guilty pleas
. T he defendants therefore had no rea son or opportunity to consider those rationales for deeming their vessel stateless before decid ing t o forgo their right to contest the MDLEA charges , 20 which relied on the undisputed facts establishing

19 This theory a lso plays a part in the government's defense of § 70502(d)(1)(C), and we address it in that context in Section V.C.
20 I n his supplemental brief, Reyes

- Valdivia challenges the government's assertion that the vessel bore no indicia of nationality. He contends that "[p]hotos of the vessel clearly show the civil ensign of Costa Rica painted, albeit vertically, on the port and starboard sides of the ship's bow," and he points out that "the Costa Rica ensign was prominent enough for a Mari ne Patrol Aircraft [ ' MPA ' ] to recognize it from overhead."- 21

-

statelessness under § 70502(d)(1)(C). 21 It is now simply too late for the government to proffer alternative bases for jurisdiction
. Cf. United States v. Mitchell

- Hunter , 663 F.3d 45, 50 n.7 (1st Cir. 2011) (stating that jurisdiction under the MDLEA may be established "any time prior to trial " (em phasis added)).

In sum, neither of the government's waiver

- of

- appeal arguments has merit
.
Appellant s ' Supp. Br. at 18 n.4. The assertion of visibility from the air was based on the statement of Customs Officer Luis Rosado recounting that the MPA had detected a go

- fast vessel "with a C osta Rican flag painted on the bow." Reyes
- Valdivia , ECF No. 46

- 1, at 1 (Mar
. 25, 2016). The government properly points out that appellants admitted in their plea agreements to a version of the facts stating that their vessel bore no indicia of nationali ty and argues that appellants "may not pursue any contention on appeal that 'would contradict' that admission." Appellee's Supp. Response Br. at 5 (quoting United States v. Sarmiento

- Palacios , 885 F.3d 1, 4 (1st Cir. 2018)). However, the government, too, must abide by the facts on which it relied to obtain appellants' pleas.

21 We also note that the government has argued, on the one hand, that "[t]he MDLEA is .
. . clear about how the United States decides whether a vessel is stateless," citing 46 U.S .C. § 70502(d), Appellee's Br. at 35, but, on the other hand, has not identified a statutory provision that matches its newly offered theories of jurisdiction. As described more fully infra , the two other circumstances for classifying a vessel as "without nationality" expressly stated in § 70502(d)(1)

-- the denial of a claim by the named country and the master's refusal to make a claim upon request
-- do not apply here. See 46 U.S.C. § 70502(d)(1)(A), (B). Although § 70502(d)(1)'s categories of stateles s vessels are non - exclusive (the provision states that "the term 'vessel without nationality' includes " the three listed examples (emphasis added)), the government cannot reasonably expect defendants to assess their options if it invokes a particular statu tory basis for jurisdiction but reserves the right to shift theories

-- including to theor ies beyond the statute's express language.- 22

- IV. We must consider one last issue before reaching the merits of appellants' claims. As our colleague notes in his

concurrence , t he jurisdictional provision relied on by the government to prosecute appellants, 46 U.S.C. § 7 0502(d)(1) (C), refers t o a vessel master 's having made a claim of registry , but Reyes
- Valdivia claimed Costa Rican nationality , not registry. T he parties initially appeared to agr ee that § 70502(d)(1)(C) nonetheless applies to the facts of this case. In a supplemental brief submitted in response to questions from the court, however, appellants argued for the first time that the provision is inapt where the master of the vessel ass erts only a nationality claim.

We are unpersuaded that this distinction between a claim of registry and a claim of nationality pr ovides a basis for vacating appellants' convictions. Although the terms "nationality" and "registry , " in formal usage, are not interchangeable, 22 t he MDLEA treats them as such throughout

22 In general, the "nationality" of a vessel refers to the country that has certain " international rights and duties .
. . i n connection with a given ship and its users." Herman Meyers, The Nationality of Ships 129 (1967). The term "registration" refers to the recording of nationality "on land and under the supervision of a government body." Id. ; see also id. at 129

- 30 ("The purpose of a register is to declare the nationality of a vessel engaged in trade with foreign nations, and to enable her to assert that nationality wherever found." (quoting The Mohawk , 70 U.S. (3 Wall.) 566, 571 (1865))).- 23

-

§ 70502
. Section 70502(e), for example, jointly defines a "claim of nationality or registry" to "include[] only" :

(1) possession on board the vessel and production of doc uments evidencing the vessel's nationality as provided in article 5 of the 1958 Convention on the High Seas; [ 23 ] (2) flying its nation's ensign or flag; or (3) a verbal claim of nationality or registry by the master or individual in charge of the vessel. 46 U.S.C. § 70502(e). By allowing the act of flying a national flag or the possession of documents of nationality to suffice as a claim to either nationality or registry , the MDLEA effectively
treat s the distinction between nationality and registry as irr elevant. Congress's use of the two terms interchangeably , or at least inconsistently, is even more evident in § 70502(d)(1)(C) , where the rejection of a master's claim of registry is premised on the named country's failure to confirm nationality
.

Yet, t h is variation in terminology does not undermine what is otherwise Congress 's clear intention to require verification when a master identifies a vessel a s "foreign"

-- whether by claiming nationali ty or registry

-- and thereby seeks to avoid the jurisdiction possessed by the United
States (and all nations) over stateless vessel s . As we shall

23 Article 5 sta tes, in part, that "[e]ach State shall issue to ships to which it has granted the right to fly its flag documents to that effect." United Nations Convention on the High Seas art. 5, Apr. 29, 1958 ( "1958 Convention on the High Seas" ) , 13 U.S.T. 2312.- 24

-

explain, we think it evident that Congress used the term " claim of registry" in the first part of § 70 5 0 2 (d)(1)(C) to also encompass

a " claim of nationality"

-- a common , albeit imprecise, choice of language
. More than fifty years ago, on e scholar noted the tendency to use the term registr ation to signify the broader concept of nationality
. See Herman Meyers, The Nationality of Ships 28 (1967) (noting that "[t]he phrase 'registered in' , and other word combinations in which the term register is used," are sometimes i mprecisely "used as synonymous with nationality"); id. at 127 (noting that, because "in the great majority of cases" nationality and registration , along with documentation and flying the flag , "occur in combination," "the differences between the terms have sometimes been neglected and a pars pro toto [a part taken for the whole] use of the word registration
. . . is by no means rare in the doctrine or in the sources of international law"). Indeed, a claim of registry i s al so a claim of nationality
. See supra note 2 2
. Thus, t he variable word choice in § 70502(d)(1)(C) does not have the import that it might have in other contexts. See generally DePierre v. United States , 564 U.S. 70, 83 (2011) (noting the usual assumption that a legislature intends different meanings when it uses different words, but also recognizing that "Congress sometimes uses slightly different language to convey the same message").- 25

- Importantly, notwithstanding the prior reference to a claim of registry in § 70502(d)(1)(C) , Congress's ultimate demand in that same provision is for confirmation of nationality
. W e can detect no reason why Congress would require affirmative confirmation when a vessel's master makes a claim o f registry , while allow ing a claim of nationality to stand on its own. Excluding claims of nationality from the provision 's scope would allow drug traffickers to evade the verification requirement simply by asserting a claim of nationality. Appellants at tribute that glaring loophole to Congress's deference to foreign nations and its intention to stay within the bounds of international law
. They note that a claim of nationality "presents a more complicated scenario since not all national ships are registe red," making it more difficult for the claimed nation "to confirm or refute the nationality claim." Appellants' Supp. Br. at 8

- 9. A ppellants do not explain , however, why that concern would prompt Congress , in effect, to nullify the verification provision by encouraging vessel masters to claim foreign nationality rather than registry. Inescapably, then, the reference in the first part of § 70502(d)(1)(C) solely to "a claim of registry " must be attributable to the not infrequent pract ice of treating a "claim of registry" and a "claim of nationality" as essentially
synonymous , even though the former term is technically narrower than the latter.- 26

- Our view that § 70502(d)(1)(C) is not reasonably construed as limited to claims of registry is reinforced when the provision is considered in the context of the MDLEA as a whole and in light of its legislative history. See , e.g. , Abramski v. United
States , 573 U.S. 169, 179 n.6 (2014) ("[A] court should not interpret each word in a statute with blinders on, refusing to look at the word's function within the broader statutory context."); United Sav. Ass'n of Tex. v. Timbers of Inwood Forest
Assocs. , Ltd. , 484 U.S. 365, 371 (1988) ("Statutory construction

. . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme

-- because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produ ces a substantive effect that is compatible with the rest of the law." (citations omitted) ). T he
MDLEA reflects Congress 's intention to enable the aggressive prosecut ion of maritime drug trafficking. S ee 46 U.S.C. § 70501 ("Congress finds and declares th at . . . trafficking in controlled substances aboard vessels is a serious international problem, is universally condemned, and presents a specific threat to the security and societal well

- being of the United States .
. . ."). Indeed, § 70502(d)(1)(C) was among several provisions added to the MDLEA in 1996 to "expand the Government's prosecutorial effectiveness in drug smuggling cases." H.R. Rep. No. 104

- 854, at- 27

-

142 (1996) (Conf. Rep.) , reprinted in 1996 U.S.C.C.A.N. 42 92 , 4 337
. Given this statutory backdrop, the majority observed in United
States v. Matos
- Luchi that "Congre ss did not expect courts to render a cramped reading of the statute." 627 F.3d 1, 7 (1st Cir. 2010)
. In addition, other portions of the MDLEA's legislat ive history indicate that Congress's specific reference to a claim of registry in subsections ( A ) and ( C ) of § 70502(d)(1)

-- both involv ing the claimed nation's response (or lack thereof) 24

-- may reflect the fact that registry claim s appear to have been the

common way in which drug

- trafficking defendants assert ed their foreign nationality. The re are multiple references to the difficulty faced by prosecutors in producing "judicially admissible documentary evidence" of the foreign natio n's "consent [to board] or denial of a claim of registry ." S. Rep. No. 99

- 530, at 15 (1986) (emphasis added) ; s ee also , e.g. , USCG A uthorization s and Load Line s : Hearing on H.R. 1362 Before the S. Subcomm. on Merchant Marine of the Comm. on Commerce, Sci
. & Transp., 99th Cong. 39

- 40 (1986) (Responses of Adm. James Gracey to questions

24 Lik e § 70502(d)(1)(C), see supra note 7, subsection (d)(1)(A) specifically references a claim of registry, stating that a "vessel without nationality" includes any vessel "aboard which the master or individual in charge makes a claim of registry that is denie d by the nation whose registry is claimed."- 28

-

from Sen. Hollings)
. 25 But whatever the exact explanation for the chosen language, g iven th e legislative background, together with

25 This hearing, in May 1986, preceded the adoption that year of the MDLEA. Asked to "describe the kinds of problems the Coast Guard and federal prosecutors have encountered" in responding to jurisdictional object ions from accused drug traffickers at trial, Admiral Gracey responded, in part, as follows:

The princip[al] problems that have arisen involve the difficulty of proving vessel status. For [e]xample, if upon inquiry by the Coast Guard, a vessel makes a clai m of registry, the U.S. must confirm that registry with the claimed flag state. If the flag state denies registry, the vessel is stateless, i.e., a "vessel subject to the jurisdiction of the United States" .
. . . At this point, the U.S. may under intern ational law take law enforcement action against that vessel. However, to prove the element of the offense in court, the U.S. must obtain a formal certification from the claimed flag state attesting that the vessel is not registered in that state. On the other hand, i[f] the claimed state verifies registry, the U.S. obtains that state's consent to take law enforcement action. .
. . However, to prove the element of the offense in court, the United States must obtain a formal certification from the flag st ate verifying registry and confirming its consent for the U.S. to take law enforcement action. The difficulties in obtaining these documents from foreign governments in a timely manner, and in a form acceptable to our courts under the Federal Rules of Evi dence, have been considerable. USCG Authorizations and Load Lines: Hearing on H.R. 1362 Before the S. Subcomm. on Merchant Marine of the Comm. on Commerce, Sci. & Transp., 99th Cong. 39

- 40. A focus on registry as the common indicator of nationality also a ppears in the legislative history of the MDLEA's predecessor, the Marijuana on the High Seas Act, Pub. L. No. 96

- 350, 94 Stat.- 29

-

Congress's blending of the concepts of nationality and registry elsewhere in the MDLEA, a reading of § 70502(d)(1)(C) that excludes claims of nationality would " produce[] a substantive effect that is [in]compatible with the rest of the law." United Sav. A ss'n of
Tex. , 484 U.S. at 371
.

W e note , in addition, that t his court ha s treated claims of registry and nationality synonymously in multiple cases
. For example, i n Matos
- Luchi , the majority cit ed § 70502(d)(1)(A) and (C)

-- both of which refer only to a claim of registry

-- as applicable to a "claim of nationality [that] is made but rejected [ (d)(1)(A)] or not back ed up by the nation invoked [(d)(1)(C)]
. " 627 F.3d at 6 ; see also U nited States v. Cuevas

- Esquivel , 905 F.2d 510 , 513

- 14 (1st Cir. 1990) ( noti ng the absence of a claim of nationality but cit ing to a provision in an earlier codification of the MDLEA that reference d only registry (46 U.S.C. App. § 1903(c)(2)(A) ) ) ; United States v. Maynard , 888 F.2d 918, 925 (1st Cir. 1989) ( "Since a 'claim of nationality' was made, the

1159 (1980). See , e.g. , Stopping "Mother Ships"

-- A Loophole in Drug Enforcement: Hearing Before the S. Subcomm. t o Investigate Juvenile Delinquency of the Comm. on the Judiciary, 95th Cong., at 52 (1978) (Statement of Morris Busby, Acting Deputy Assistant Sec. of State for Oceans and Fisheries Affairs) (noting the "well

established principle under international law .
. . that a c ountry may exercise jurisdiction on the high seas over a vessel without nationality, one that is not registered in any foreign state"); id. at 53 (explaining that, when the master or crew make "a claim of nationality," the Coast Guard's protocol involves c ontacting the claimed flag state to "request[] that the government verify the registry of the vessel").- 30

-

[vessel] can be classified as a stateless vessel only if the 'claim is denied by the flag nation whose registry is claimed.'" (quoting § 1903(c) ( 2)(A) ) )
.

Other courts have likewise used the terms interchangeabl y. S ee United States v. Alarcon Sanchez , 972 F.3d 156, 162

- 63 (2d Cir. 2020) (stating that "[a] claim of registry may be made" by "'a verbal claim of nationality or registry,'" quoting 46 U.S.C. § 70502(e) and relying on § 70502(d) (1) (C) in discussing the master's assertion of nationality); United States

v. Prado , 933 F.3d 121, 130 (2d Cir. 2019) ("[A] verbal assertion of nationality by the master constitutes a claim, which is then tested by a U.S. officer's inquiry of the nation's registry authority."); United States v. Hills , 748 Fed. App'x 252, 253 (11th Cir. 2018) (per curiam) (finding that the defendant's vessel was without nationality based on § 70502(d)(1)(C) where the defendant "told [the Coast Guard] that he was the master of the ves sel and identified the vessel as Costa Rican"); United States v. Rosero , 42 F.3d 166, 171 (3d Cir. 1994) (referring to "a false claim of nationality or registry" even though the provision at issue , 46 U.S.C. App. § 1903(c)(2)(A), referred only to "a claim of registry") ; id. at 174 ( " [T] he prosecution can establish that a vessel is stateless by showing that the master or person in charge- 31

-

made a claim of nationality or registry that was denied by the flag nation whose registry was claimed." ). 26

W e therefor e see no basis for departing from our prior understanding of § 70502(d)(1)(C)'s scope. 27 Congress's reference solely to claims of registry in the first part of § 70502(d)(1)(C) is not reasonably construed to exc lude from that subsection 's verification requirement claims of nationality that are phrased without reference to registration
. 28

26 The government in this case also blended the two concepts. Despite the claim solely of nationality, the United States asked Costa Rica to confirm "r egistry or nationality." Costa Rica then "replied that it could not confirm [the] vessel's registry." See Reyes
- Valdivia , ECF No. 46

- 2 , at 1 (Mar. 25, 2016) ( Dep't of State Certification )
.

27 In so concluding, we note that, contrary to appellants' assertion, the statutory imprecision here is not an instance of ambiguity requiring application of the rule of lenity. The rule of lenity, which "requires that ambiguity in a criminal statute be reso lved in favor of the accused," United States v. Jimenez , 507 F.3d 13, 20 (1st Cir. 2007), "does not apply if the ambiguous reading relied on is an implausible reading of the congressional purpose," Caron v. United States , 524 U.S. 308, 316 (1998). As we h ave described, Congress clearly intended to subject a claim of nationality that is not premised on registry to the same verification requirement as a claim of registry. Accordingly, the rule of lenity does not come into play. See Moskal v. United States , 498 U.S. 103, 108 (1990) ("[W]e have always reserved lenity for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to the language and structure, legislative history, and motivating policies of the sta tute." (internal quotation marks omitted)).

28 Although we do not rely on waiver in rejecting appellants' belated argument that § 70502(d)(1)(C) does not apply to the facts of this case, we note that a request for supplemental briefing does not revive a cla im that a party has failed to preserve. See United States v. Galíndez , 999 F.3d 60, 69 n.10 (1st Cir. 2021).- 32

- V. Having addressed these threshold issues, w e turn to appellants' c onstitutional challenge to 46 U.S.C. § 70502(d)(1)(C)
. As described above , we have construed t h at provision to allow U.S. authorities to deem a vessel "without nationality"

-- i.e., stateless

-- when a claim of either registry

or nationality asserted by the vessel's occupants is neither confirmed nor denied by the claimed country
. See , e.g. , Matos
Luchi , 627 F.3d at 6
. Under Ayba r - Ulloa , a determination of statelessness has a significant consequence: it permits prosecution under U.S. law of any foreign national aboard the

vesse l. See 987 F.3d at 3. Appellants contend that § 70502(d)(1)( C ) exceed s Congress's authority under the "D efine and P unish C lause" of Article I, which gives Congress the power "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." U.S. Const. art. I, § 8, cl. 10.

I t is undisputed that the "vessel without nationality" provisions of the MDLEA were enacted solely pursuant to Congress's authority to "define and punish . . . Felo nies committed on th e high S eas " ("the Felonies C lause"). 29 S ee United States v.

29 Although it m ay be more accurate to refer to the "Felonies Clause" as the "Felonies Sub

- Clause," given that it is contained within the Define a nd Punish Clause, we use the "Felonies Clause" designation for simplicity.- 33

-

Cruickshank , 837 F.3d 1182, 1187 (11th Cir. 2016) (stating that the MDLEA "was enacted under Congress's authority provided by the Felonies Clause"). Appellants argue that the definition of "vess el without nationality" in § 70502(d)(1)(C) conflicts with international law and thus authorizes the arrest and prosecution of foreign nationals aboard vessels on the high seas that the Constitution does not permit
. This assertion of U.S. jurisdiction is incompatible with the Constitution, appellants c ontend , because Congress's authority under the Felonies C lause is constrained by international law
. Put another way, appellants ask us to conclude that , under longstanding principles of inter national law , their vessel was not properly deemed stateless , an d because Congress's authority in this instance is limited by international law, appellants' arrest s and prosecution w ere unconstitutional.

We review appellants ' challenge to the constitutionality of a federal statute de novo. See United States v. Booker , 644 F.3d 12, 22 (1st Cir. 2011). We begin by describing existing law on the MDLEA , and then consider the origins and meaning of the
D efine and P unish C lause generally , and the Felonies C lause specifically , before assessing whether § 70502(d)(1)(C) of the MDLEA violates the jurisdictional limits imposed by the Felonies
C lause
.- 34

-

A. Statutory Background and Overview of Case Law on the MDLEA

The MDLEA makes it unlawful for persons "on board a covered vessel . . . [to] knowingly or intentionally . . . manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance." 46 U.S.C. § 70503(a)(1). The MDLEA's prohibitions apply " even though the act is committed outside the territorial jurisdiction of the United States," id. § 70503(b), and " a covered vessel " includes, inter alia, any "vessel subject to the jurisdiction of the United States," id. § 70503(e)(1). 30 As relevant here, the Act defines "vessel subject to the jurisdiction of the United States" to include any "vessel without nationality." Id. § 70502(c)(1) (A)
.

A vessel is expressly considered " without nationality "

-- or stateless

-- under the MDLEA in three circumstances
. First, th at label applies when "the master or individual in charge fails," when asked by U.S. law enforcement, "to make a claim of nationality or registry for th [e] vessel." Id. § 70502(d)(1)(B). As noted above, a claim of nationality or registry can be made by presenting documents demonstrating nationality, "flying [the claimed] nation's ensign or flag," or verbally asserting nationality or

30 Another subsection of the statute defines "covered vessel" to include "any other vessel if the individual [allegedly engaged in drug activity] is a citizen of the United States o r a resident alien of the United States." 46 U.S.C. § 70503(e)(2). At issue in this case is U.S. jurisdiction over foreigners, and we therefore do not consider the MDLEA's application to U.S. nationals.- 35

-

registry. Id. § 70502(e)(1)

- (3). Second, a vessel is considered stateless if its master does mak e a claim of nationality or registry, but the nation identified denies the claim when contacted by U.S. officials. Id. § 70502(d) (1) (A). T hird , a vessel is considered stateless w hen the country whose nationality is claimed "does not affirmatively and unequivocally assert that the vessel is of its nationality." Id. § 70502(d) (1) ( C). This last situation

-- the foundation for appellants' arrest and prosecution

-- is the focus of the constitutional challenge now before us
. 31

Despite the frequency with which MDLEA cases arise in this circuit, w aiver a nd other threshold procedural issues have prevented us from fully addressing the merits of a challenge under Article I to any portion of the MDLEA. Se e United States v. Sarmiento

- Palacios , 885 F.3d 1, 3

- 4 (1st Cir. 2018) (finding a challenge to the constitutionality of the MDLEA waived wher e the defendant failed to develop the argument and conceded tha t "the MDLEA is a valid exercise of Congress's Article I powers"); United
States v. D í az - Doncel , 811 F.3d 517, 518 (1st Cir. 2016) (holding , before Class , that the defendant had waived the right to challenge the constitutionality of the MDLEA on appeal by e ntering an

31 A vessel also may be treated as stateless under the MDLEA if it displays more than one country's flag "and us[es] them according to convenience." 1958 Convention on the High Seas, supra , art. 6 (incorporated into the MDLEA at 46 U.S.C. § 70502(c)(1)(B)).- 36

-

unconditional guilty plea ); United States v. Nueci

- Pena , 711 F.3d 191, 196

- 98 (1st Cir. 2013) ( addressing defendant's Article I challenge to the MDLEA under plain error review because the argument was not raised in the district court and concluding that there was no plain error in light of the lack of First Circuit and Supreme Court precedent addressing the constitutionality of the MDLEA); United States v. Cardales

- Luna , 632 F.3d 731, 737

- 38 (1 st Cir. 2011) (holding that, because the constitutionality of the MDLEA did not implicate the court's subject matter jurisdiction, it was not appropriate for the court to raise the issue sua sponte).
I n Aybar

- Ulloa , the en banc court was presented with a preserved constitutional challenge. Th e defendant argued that Article I did not give Congress the authority to assert U.S. jurisdiction over stateless vessels that ha ve no nexus to the United States , basing his argument on the asserted existence of a nexus requirement in international law
. Se e 987 F.3d at 15 (Barron, J., concurring) (elaborating Aybar

- Ulloa 's constitutional claim). The en banc court did not address Congress's authority under the Constitution, however, because it conclud ed that international law permits the United States to pr osecute foreign nationals engaged in drug trafficking on a ny stateless vessel , at least when U.S. authorities have boarded and seized the vessel pursuant to the right of boarding recognized under international- 37

-

law
. Id. at 6, 14. 32 The court expressly did not "reach the question of whether the application of the MDLEA to Aybar [

- Ulloa] would be constitutional were international law otherwise." Id. at 3. Aybar

- Ulloa does not govern this case
. U nlike the defendant there

-- who admitted that h is vessel was stateless

-- Reyes
Valdivia and Dávila

- Reyes insist that their vessel was not properly deemed "without nationality
. " They assert that the method of determining statelessness in § 70502(d)(1)( C ) expands U.S. jurisdiction beyond the bounds per mitted by the Constitution
.

W e have passed upon some related questions , such as whether another of the "without nationality" provision s of the
MDLEA is consistent with international law , see M a tos
- Luchi , 627 F.3d at 6

- 7 ( noting that 46 U.S.C. § 70502(d)(1)(B) is consistent

32 The concurring judge in Aybar

- Ulloa declined to join the majority's approach, finding "no clear support in either case law or commentary for the comparatively modest proposition that persons on stateless vessels that a foreign country's officials have s eized and boarded pursuant to their recognized right to visit it are subject to that country's territorial jurisdiction under international law." 987 F.3d at 18 (emphasis added). More particularly, the Aybar

- Ulloa concurrence observed that international law experts have "long noted the disagreement that exists over" whether "the prevailing view of the law of nations is that the interdicting country acquires the same territorial jurisdiction over the vessel's occupants as it acquires over the vessel itself ." Id. at 17. Given this lack of support for the majority's approach, and related concerns, see id. at 20

- 22, the concurring opinion instead rejected Aybar

- Ulloa 's challenge based on "the more than two

- century
- old precedent" addressing "the United States ' power to prosecute defendants of a range of citizenships and circumstances" "for their felonious conduct on stateless vessels in international waters." Id. at 22, 26 (relying on United States v. Holmes , 18 U.S. (5 Wheat.) 412 (1820)).- 38

-

with international law allowing a vessel to be deemed stateless if the master refuses to claim a nationality), 33 and whether the MDLEA's flag

- nation consent provisions provide due process , see Cardales , 168 F.3d at 5 53 (holding that "due process is satisfied when the foreign nation in which the vessel is registered authorizes the application of United States law to the persons on board the vessel")
. Along with Aybar

- Ulloa , t hese cases provide a useful backdrop to our discussion of the constitutionality of § 70502(d)(1)(C), but they do not answer the question now before

us. Although several of our sister circuits have addressed whether the MDLEA is , in general, a constitutional exercise of Congress's authority un der the Felonies C lause , it appears that no circuit has considered the specific authority for § 70502(d)(1)(C)'s definition of a "vessel without nationality
. " Instead , courts have assumed that the MDLEA applies only to vessels that would be subject to U.S . jurisdiction under international

33 In Matos
- Luchi , the panel majority made the broad statement that "the MDLEA is consistent with international law." 627 F.3d at 6. Read in context, however, that statement refers only to the jurisdictional provision at issue there

-- § 70502(d)(1)(B). The discussion tha t follows focuses on deeming a vessel stateless when there is an attempt "to avoid national identification," and concludes by asserting that "the instances specified by Congress

-- pertinently, the refusal 'aboard' the vessel to claim nationality, 46 U.S.C . § 70502(d)(1)(B)

-- are not departures from international law but merely part of a pattern consistent with it." Id. at 7 (emphasis added).- 39

-

law, i.e., U.S. vessels and those meeting the international law definition of statelessness
. See , e.g. , United States v. Ballestas , 795 F.3d 138, 146

- 47 (D.C. Cir. 2015) (holding that Congress ha d authority under the Fel onies C lause to punish a defendant for conduct committed by his co

- conspirators aboard a
sta teless vessel on the high seas); United States v. Campbell , 743 F.3d 802, 810 (11th Cir. 2014) (stating that "we have long upheld the authority of Congress to 'extend[] the criminal jurisdiction of this country to any stateless vessel in international waters engaged in the distribution of controlled substances ' " (quoting United States v. Marino

- Garcia , 679 F.2d 1373, 1383 (11th Cir. 1982)) (alteration in original) ); United States v. Estupinan , 453 F.3d 1336, 1338 (11th Cir. 2006) (holding that the MDLEA's punishment of drug trafficking "on board a vessel subject to the jurisdict ion of the United States" is within Congress's constitutional authority); United States v. Moreno
- Morillo , 334 F.3d 819, 824 (9th Cir. 2003) (citing United States v. Davis , 905 F.2d 245, 248 (9th Cir. 1990), for the proposition that "this court clearly has held that the MDLEA is constitutional" in a case where the stateless ness of the vessel was uncontested)
. We have thus found no precedent squarely address ing the argument that appellants make here: that the definition of a "vessel without nationality" in § 70502(d)(1)(C) is broader than the definition of- 40

-

a stateless vessel under international law and is therefore unconstitutional
. 34

Thus, although we draw on prior cases addressing the constitutionality of the MDLEA and its relationship with international law, the issue before us appears to be one of first impression for the federal courts
. B . Constitutional Limits on Congress's Authority to Define and Punish Felonies As described above, a ppellants contend that § 70502(d)(1)(C) of the MDLEA defines "vessel without nationality" to encompass vessels

-- including their own -- that are not in fact without nationality under international law. A conflict exists , they expla in , because the provision treat s a vessel as

34 Although the same MDLEA provision was at issue in United States v. Bravo , the defendants argued only that their prosecution was flawed because the government failed to satisfy a nexus requirement

-- i.e., "that the marijuana transported in the vessel would affect the United States." 489 F.3d 1, 7 (1st Cir. 2007). We rejected the challenge, stating that "[w]e do not read the MDLEA to require a jurisdictional nexus." Id. Hence, we were not confronted with the argument asserted here

-- that Congress acted beyond its constitutional authority in adopting § 70502(d)(1)(C). We note that the author of Bravo subsequently rejected the position taken in that case. See United States v. Trinidad , 839 F.3d 112, 116 (1st Cir. 2016) (Torruella, J., dissenting) ("I can no longer support the approach taken by this and our sister circuits in embracing the sweeping powers asserted b y Congress and the Executive under the [MDLEA.]"). Trinidad also involved § 70502(d)(1)(C), but the defendant there did not challenge the government's determination that his vessel was "without nationality" under that provision or argue that "his plea agreement must be vacated because Congress exceeded its constit utional authority under Article I in enacting the MDLEA." Id. at 113 n.1.- 41

-

stateless despite a claim of nationality being made through a method long acceptable under international law

-- specifically, in their case, the master's verbal claim

-- if the named country does
not " affirmatively and unequivocally assert that the vessel is of its nationality." 46 U.S.C. § 70502(d)(1)(C). In other words, appellants maintain that § 70502(d)(1)(C) rejects a claim of nationality in circumstances where international law accepts the claim
. According to appellants, because of this disconnect between the MDLEA and international law , U.S. authorities who rely on the definition of a "vessel without nationality" contained in § 70502(d)(1)(C) will impermissibly arrest and prosecute foreign nationals on a foreign vessel

-- which is what they say occurred in this case.

Appellants' assertion of improper arrest and prosecution depends on two propositions involving international law: first, that Congress's authority to "define and punish . . . Felonies committed on the high S eas , " U.S. Const. art. I, § 8, cl. 10 , is limited by principles of international law and, second, that § 70502(d)(1)(C) allows the United States to de em vessels stateless even when they would not be deemed stateless under i nternational law . If both proposition s are correct , § 70502(d)(1)(C) would unconstitutional ly permit U.S. authorities
to assert jurisdiction over vessels that would not be stateless under international law. In that scenario, the United States would- 42

-

be imposing its law on foreign individuals on foreign vessels

-- an extension of jurisdiction that ordinarily is impermissible
. See , e.g. , Aybar

- Ulloa , 987 F.3d at 5 (noting that "the flag

- state system guarantees freedom of navigation in international waters, as states generally may not interfere with the passage on the high seas of ships lawfully flying the flag of another state" (citing Richard A. Barn es, "Flag States," in The Oxford Handbook on the Law of the Sea 313 (Rothwell et al. eds. 2015) ) ) ; id. at 12 (noting "the presumption of exclusive flag

- state jurisdiction" over vessels with identified nationality)
.

Hence, resolv ing this case requires us first to examine the intersection between the Felonies Clause and international law. To be clear, the claim here is not that international law i tself constrain s Congress 's authority to enact statutes . 35 Rather, appellants contend that the Fe lonies C lause of the Constitution , by original design, requires Congress to adhere to th e jurisdictional limits of international law with respect to

35 The MDLEA states that a person charged under the statute "does not have standing to raise a claim of failure to comply with international law as a basis for a defense." 46 U.S.C. § 70505. The provision further states that "only .
. . a foreign nation" may ra ise such a claim and that "[a] failure to comply with international law does not divest a court of jurisdiction and is not a defense to a proceeding under this chapter." Id. This bar does not apply here precisely because defendants are not arguing that i nternational law itself constrains Congress's authority.- 43

-

determining stateless ness . 36 W e thus begin our discussion by examining how the F ramers would have understood the auth ority given to Congress by the Felonies C lause
.

1. The Constitution and International Law
T he delegates who gathered to draft the Constitution had a primary goal of improving the new nation's ability to meet its obligations to other countries under international law
. See Ryan Goodman & Derek P. Jinks, Filartiga's Firm Footing: International Human Rights and Federal Common Law , 66 Fordham L. Rev. 463, 464 (1997) ("[T]he Framers held the Constitutional Convention in large part due to the perceived inability of the Confederation to uphold American obligations under i nternational law."). 37 W hen the Governor of Virginia , Edmund Randolph , introduced the "Virginia Plan" that was to become the basis for the Constitution, 38 he

36 Of course, where possible, we construe statutes to be consistent with international law. See Murray v. The Schooner Charming Betsy , 6 U.S. (2 Cranch) 64, 118 (1804); Garcia v. Sessions , 856 F.3d 2 7, 41 (1st Cir. 2017).

37 In Filartiga v. Pena
- Irala , 630 F.2d 876 (2d Cir. 1980), the Second Circuit held that plaintiffs could bring actions under the Alien Tort Statute ("ATS") "based on modern human

- rights laws absent an express cause of action created by an additional statute." Jesner v. Arab Bank, PLC , 13 8 S. Ct. 1386, 1398 (2018). The plaintiffs in Filartiga were the family members of a young man who had been tortured and murdered by Paraguayan police officers, one of whom was living in New York. T he suit was filed in the United States District Court for the Eastern District of New York, and the appeals court found jurisdiction existed under the ATS.

38 The Virginia Plan was a set of fifteen "republican Principles" introduced by Randolph for discuss ion at the Constitutional Convention. 1 Records of the Federal Convention of- 44

-

criticized the Articles of Confederation because they did not allow the federal government to punis h states that "act[] against a foreign power contrary to the laws of nations or violate[] a treaty" or to c ompel states to punish their citizens who violate the law of nations by, for example, "invad[ing]" the rights of an ambassador
. 1 Records of the Fed eral Convention of 1787 24

- 25 ( Max Farrand ed., 1911) (hereinafter " Farrand's Records ")
. Likewise, James Madiso n wrote to James Monroe in 1784 that "[n] othing seems to be more difficult under [the Articles of Confederation] than to impress on the attention of our [state] Legislatures a due sense of those duties which spring from our relations to foreign nations." Letter from James Madison to James Monroe (Nov. 27, 1784), in 2 The Writings of James Madison 93 (Gaillard Hunt ed., 1901).

These statements reflect the F ramers' concern that,

w ithout the power to "enforce national treaties against recalcitrant states, compel their compliance with the law of

1787 27

- 28 (Max Farrand ed., 1911). It described in general terms the governmental structure that was later adopted in significant part by the Constitution: a bicameral legislat ure, a national executive (albeit one elected by the legislature), and a judiciary with, among other powers, the authority to "determine Piracies, Captures, [and] Disputes between Foreigners and Citizens." Id. Before introducing this plan, Randolph liste d five ways in which the Articles of Confederation did not fulfill "the objects for which it was framed." Id. at 24. The first of these, as explained above, was its failure to ensure compliance with international law. Id. at 24

- 25.- 45

-

nations, punish offenses against that law, regulate foreign commerce, and so on, the new republic would be unable to obtain commercial advantages and, given its military weakness and perilous geographic situation, would face external threats."
Da vid M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Const itution, the Law of Nations, and the Pursuit of International Recognition , 85 N.Y.U. L. Rev. 932, 980 (2010);

see also id. at 934

- 35 ( explaining that "[d]iplomatic frustrations resulting from state violations of the Treaty of Peace [with England], in parti cular, helped create the atmosphere of crisis that motivated profederal forces to organize and write a constitution ")
.

In drafting a new constitution, the F ramers thus aim ed "to provide a national monopoly of authority in order to assure respect for inte rnational obligations." Stewart Jay, The Status of the Law of Nations in Early American Law , 42 Vand . L. Rev. 819, 829 (1989). The F ramers were "commit[ted] to protecting sovereign interests through rigorous enforcement of the law of nations
. " Douglas J. Sylvester, International Law as Sword or Shield? Early American Foreign Policy and the Law of Nations , 32 N.Y.U. J. Int'l L. & Pol. 1, 9 (1999); see also Jesner v. Arab Bank, PLC , 138 S. Ct. 1386, 1417 (2018) (Gorsuch, J., concurring) ("[W]hen t he framers gathered to write the Constitution they included among their chief priorities endowing the national government with- 46

-

sufficient power to ensure the country's compliance with the law of nations.") ; Golove & Hulsebosch , supra , at 988 (stating that the F ramers "carefully designed the new Constitution to ensure that the new nation would uphold its duties under the law of nations"); Louis Henkin, Foreign Affairs and the U nited States Constitution 234 (2d ed. 1996) (" The Framers assumed that the new fed eral government would carry out the obligations of the United States under international law." ) ; Anthony J. Bellia Jr. & Bradford R. Clark, The Law of Nations as Constitutional Law , 98 Va. L. Rev. 729, 751 (2012) ("Of all the rights that can belong to a na tion, sovereignty is, doubtless, the most precious, and that which others ought the most scrupulously to respect, they would not do it an injury." (quoting 1 Emmerich de Vattel, The Law of Nations , bk. II, § 54, at 138 (London, J. Newberry et al., 1759), " the most well

- known work on the law of nations in England and America at the time of the Founding," id. at 749)) ; Beth Stephens, The Law of Our Land: Customary International Law as Federal Law after Erie , 66 Fordham L. Rev. 393, 397 ( 1997 ) (stating that " the intent of the framers, incorporated into the Constitution, was to ensure respect for international law by assigning responsibility for enforcement of that law to the three branches of the federal government ")
. Laws governing i nteractions on the high seas were of particular concern : "The framers of the Constitution were familiar with [the law of the sea] and proceeded with it in mind.- 47

-

Their purpose was not to strike down or abrogate the system, but to place the entire subject . . . under national control, because of its intimate relation to navigation and to interstate and foreign commerce." Panama R. Co. v. Johnson , 264 U.S. 375, 386 (1924)
. Th e F ramers' commitment to international law principles

was both pragmatic and ideological
. S ee Jay , s upra , at 822 (explaining that, "[i ]n the eighteenth century a consensus existed that the law of nations rested in large measure on natural law," and thus the F ramers viewed following the law of nations as a moral imperative) ; Beth Stephens , Federalism and Foreign Affairs: Congress's Power to "Define and Punish .
. . Offenses Against the Law of Nations " , 42 Wm. & Mary L. Rev. 447, 465 (2000) (describing the F ramers' belief that " [ e ] nforcement of international law norms

was . . . a moral obligation")
. Indeed, the F ramers believed that to be a "nation," the United States must honor the law of nations. 39

39 At the time of the founding, the phrase "law of nations" was generally used to refer to customary international law (i.e., law established by universal practice rather than by agreement in a treaty). See United States v. Bellaizac

- Hurtado , 700 F.3d 1245, 1251 (11th Cir. 2012) (stating that "[w]e and our sister circuits agree that the eighteenth

- century phrase, the 'law of nations,' in contemporary terms, means customary international law," and collecting cases). However, it was also used as a broader ter m for international law, including treaties. See Sarah H. Cleveland & William S. Dodge, Defining and Punishing Offenses under Treaties , 124 Yale L.J. 2202, 220 6

- 0 7 (2015) (arguing that "Offences against the Law of Nations" includes treaty violations ). In this case, where no treaty is at issue, we need not consider the precise meaning of the term "law of nations" as used by the F ramers, and- 48

-

See Chief Justice John Jay, Charge to the Grand Jury of the District of New York (Apr. 4, 1790), reprinted in N .H. Gazette (Portsmouth 1790) (stating, in a charge to a grand jury, that "[w]e ha d become a nation

-- as such, we were responsible to others for the observance of the Laws of Nations"). Hence, as they embarked

on drafting a c onstitution , the F ramers saw a federal system capable of uphold ing international law as an imperative for the United States to achieve equal status in the community of nations.
See Aybar

- Ulloa , 987 F.3d at 26 (Barron, J., concurring) ("The founding generation was attentive to the strictures of the law of nations.").

With this bac kdrop , we think it apparent that the F ramers viewed international law as a restraint on Congress's enumerated
powers bearing on foreign relations . As John Quincy Adams explained, "[t]he legislative powers of Congress are . . . limited to specific grants c ontained in the Constitution itself, all restricted on one side by the power of internal legislation within the separate States, and on the other, by the laws of nations ." John Quincy Adams, The Jubilee of the Constitution 71 (1839) (emphasis added)
.

we henceforth use the modern term "international law" to refer to the body of law that includes both customary intern ational law and treaties.- 49

- There is a particular justification for in terpreting the Define and Punish Clause in relation to the F ramers' understanding of international law principles
. T he D efine and P unish C lause , of which the Felonies C lause is a part , refers to "Offences against the Law of N ations," "Piracies ," and " Felonies"

-- all concepts taken directly from international law. See Banco Nacional de Cuba

v. Sabbatino , 376 U.S. 398, 451 & n.13 (1964) (White, J., dissenting) ( noting that the language of the D efine and P unish
C lause shows the F ramers' belief that "the law of nations is a part of the law of the land"); Golove & Hulsebosch , supra , at 1009 (stating that "[t]his deliberate borrowing suggest [s] that the established principles of the law of nations might define the scope of the [congressional] powers themselves"). These phrases , found in the leading international law treatises of the day , were f amiliar shorthand for complex international law concepts . T heir use in the Constitution is thus strong evidence that the F ramers intended the D efine and P unish C lause to align with the international law understanding of those terms
. See 3 Emmerich de Vattel, The Law of Nations 295 (17 58 ) (Charles G. Fenwick trans., 1916) (referencing "offen s es against the L aw of N ations"); 4 William Blackstone, Commentaries * 67

- 71 (discussing "offen c es against the law of nations," and defining "piracy" as one such offense ) ; 3 Sir Edward Coke, The Institutes of the Laws of England- 50

-

111 (1 644 ) (describing "Pirac ies , and felonies . . . done on the sea")
. International law thus informs our inquiry into the meaning of the Define and Punish Clause and, specifically, the Felonies portion of the Clause
.

2 . The Meaning of the Felonies Clause As noted above, t he Define and Punish Clause grants Congress the following authority: " To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." U.S. Const. art. I, § 8, cl. 10. We discuss below primarily the text that precedes the comma

-- i.e., the authority with respect to "Piracies and Felonies committed on the high Seas
. " That is so because, a s we have noted, it is undisputed in this case that the MDLEA was enacted pursuant to Congress's authority under the Felonie s C lause . Although the reference to "Piracies"

-- a crime "committed on the high Seas" and appearing alongside the term "Felonies"

-- necessarily plays a role in our analysis , the separate clause re ferencing "Offences against the Law of Nations," which ap plies to crimes committed both on land and at sea, sheds no light on the scope of U.S. jurisdiction on the high seas. We therefore focus solely on the authority specifically given to Congress over crimes "on the high Seas."

That focus requires us to determine what th e F ramers intended by the words they chose. In so doing, we seek guidance- 51

-

on the F ramers' understanding of international law principles, including international law terminology, from contemporaneous

sources. See U.S. Steel Corp. v. Multistate Tax Comm'n , 434 U.S. 452, 461

- 62 & n.12 (1978) (explaining the F ramers' separate use of the terms "treaty," "compact , " and "agreement" in Article I of the Constitution by reference to treatises on international law with whic h the F ramers would have been familiar); Waring v. Clarke , 46 U.S. 441, 441 n.1 (1847) (stating that "[t]he Constitution . . . refers to the law of nations for the meaning of" the terms "admiralty" and "maritime," and thus interpreting those terms in light of their meaning in international law); see also Zivotofsky ex rel. Zivotofsky v. Kerry , 576 U.S. 1, 12 (2015) (looking to "prominent international scholars" from "the time of the founding" to elucidate the meaning of the Reception Clause, Article II,

sec tion 3, of the Constitution).

Just as it does today, at the time the F ramers were drafting the Constitution the term "Felonies" meant serious crimes, such as treason, murder, arson, burglary, robbery, and
rape. See Blackstone , supra , at *94; 2 Timothy Cunningham, A New and Complete Law Dictionary 23

- 28 (3d ed. 1783). Before the Constitution became the governing law , all such crimes, whether committed on land or at sea, were defined by state statutes or state common law and punished in state courts. In the only statement at the Constitutional Convention regarding the inclusion- 52

-

of the term "Felonies," James Madison explained that, "[i]f the laws of the states were to prevail on [ the meaning of "Felonies"], the citizens of different stat es would be subject to different punishments for the same offence at sea. There would be neither uniformity nor stability in the law." 5 Debates on the Federal Constitution 437 (Jonathan Elliot ed., 2d ed. 1836)
. As voiced by Madison, then, t he constitu tional drafters recognized the need to
creat e a uniform system of crimes and punishments on the high seas that would apply to all U.S. citizens
. There was no mention , however, of conduct committed by foreign ers on foreign vessels
.

Nonetheless, t he independent inclusion of "Piracies" in the D efine and P unish C lause provides a clue to the F ramers' intent regarding U.S. jurisdiction over felonies committed on foreign vessels . The separate reference s to "Piracies" and "Felonies" i nesca pably reflects t he F ramers ' view that Congress's power over each category was meant to be distinct. S ee generally The Federalist No. 42 , at 2 33 (James Madison) (E.M. Scott ed., 1898) (discussing the ne cessity of defining each term)
. That distinction has its origin in international law.

P iracy , as defined by international law

-- i.e., "robbery upon the sea," United States v. Smith , 18 U.S. 153, 162- 53

-

(1820) 40

-- is a c rime of "universal jurisdiction, " 41 meaning that it c an be punished by any country no matter where it is committed

or by whom. At the time the Constitution was drafted , this feature of p iracy under international law was well established. See

40 A more expansive definition of the universal crime of piracy, updated to include the realm of aviation, is as follows:

Piracy includes any illegal act of violence, detention or depredation committed for private ends by the crew or passengers of a private ship (or aircraft) against another ship (or aircraft) or persons or property on board it, on (or over) the high seas[.] R.R. Churchill & A.V. Lowe, The Law of the Sea 209

- 10 (3d ed. 1999).

41 As stated in modern internationa l law, the doctrine of universal jurisdiction provides that "a nation may prosecute certain serious offenses even though they have no nexus to its territory or its nationals, and no impact on its territory or its citizens." Cardales

- Luna , 632 F.3d at 740 (Torruella, J., dissenting); see also Restatement (Third) of Foreign Relations Law of the United States § 404 (1987) ( noting that " [a] state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern," even where there is no nexus between the offense and the state). Crimes may be universal jurisdiction offenses if they are "contrary to a peremptory norm of international law" and are "so serious and on such a scale that they can j ustly be regarded as an attack on the international legal order." Kontorovich, Beyond the Article I Horizon , supra , at 1224 n.228 (quoting Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law 178

- 79 (Stephe n Macedo ed., 2004)). At present, in addition to piracy, the crimes generally recognized as subject to universal jurisdiction are the "slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and pe rhaps certain acts of terrorism. " See Restatement (Third) of Foreign Relations Law of the United States § 404. Drug trafficking is not recognized as a universal jurisdiction crime. Aybar

- Ulloa , 987 F.3d at 14.- 54

-

Blackstone , supra , at *71 (stating that "every community has a right" to punish piracy because it "is an offense against the universal law of society" ) ; 1 James Kent, Commentaries on American
Law 174 ( 1826) (stating that "piracy, under the law of nations, is an offence against all n ations, and punishable by all") . As Justice Story explained in an early piracy case :

Pirates may, without doubt, be lawfully captured on the ocean by the public or private ships of every nation; for they are, in truth, the common enemies of all mankind , and, as such, are liable to the extreme rights of war. And a piratical aggression by an armed vessel sailing under the regular flag of any nation may be justly subjected to the penalty of confiscation for such a gross breach of the law of nations.
Th e Marianna Flora , 24 U.S. (11 Wheat.) 1, 40

- 41 (1825); see also Cardales

- Luna , 632 F.3d at 741 (Torruella, J., dissenting) ( "Until recently, piracy was the only crime which was punishable by all nations
. . . . " ) ; United States v. Yousef , 327 F.3d 56, 104 (2d Cir. 2003) ("The class of crimes subject to universal jurisdiction traditionally included only piracy.").

That the F ramers understood the term "Pirac ies " to refer to the specific offense subject to universal jurisdiction is supported by their statements describing piracy as a term borrowed from international law
. For example, at the Virginia Convention, James Madison explained that " Piracies " was "[a] technical term of the law of nations
. " 3 Farrand's Records , supra , at 332
. Thus, by- 55

-

separating the term "Piracies" from "Felonies , " t he F ramers plainly intended to refer to the specifi c crime that, under international law, could be punished by Congress even when it was committed by foreign nationals on foreign vessels
.

Just as plainly, then, t he phrase " Felonies committed on the high S eas" was intended to refer ence other types of serious crimes committed on vessels
. At the time, i t was a well

- accepted principle of international law that countries could enact statutes criminalizing conduct on the high seas other than p iracy, but only

as to a given country's own nationals or on vessels over which the country could exercise jurisdictio n pursuant to international law
. See Blackstone , supra , at *71 (describing acts that would be punished as felonies only if committed by an English "subject" at sea); Letter from Thomas Jefferson to Edmond Charles Genet (June 17, 1793) (explaining that a country's jurisdiction over crimes such as murder "on the high seas
. . . reaches its own citizens only"); William Rawle, A View of the C onstitution of the United States of America 10 7 (2d ed. 1829) (explaining that Congress's power to punish felonies a pplies to anyone " except the citizens or subjects of a foreign state sailing under its flag ," but that
p iracy is "punishable in our courts, and in the courts of all nations" (emphasis added)) ; Henry Wheaton, Elements of International Law 1 6 4 ( Richard Henry Dana, Jr., ed., 8th e d. 1866) ( observing that countries could enact laws punishing conduct at- 56

-

sea , but such conduct could "only be tried by that State within whose territorial jurisdiction" or "on board of whose vessels, the offence thus created was commi tted")
.

Confusingly, these other serious crimes , which would be denominated felonies if committed on land , were often referred to as "piracies " when committed on the high seas , even though they were not "Piracy" as defin ed by international law
. See Wheaton , supra , (explaining that "[t]here are certain acts which are considered piracy by the internal laws of a State, to which the law of nations does not attach the same signification"); Hon. John Marshall, Speech Delivered in t he House of Representatives (Mar
. 7, 1800), at 10 ("A statute may make any offence piracy, committed within the jurisdiction of the nation passing the statute, and such offence will be punishable by that nation
. "); Kent, supra , (explaining that, under inte rnational law, "[t]he statute of any government may declare an offence committed on board its own vessels to be piracy, and such an offence will be punishable exclusively by the nation which passes the statute"). As one scholar explains, the term piracy " had a popular meaning of serious or capital offense on the high seas," Eugene Kontorovich, The "Define and Punish" Clause and the Limits of Universal Jurisdiction , 103 N w. L. Rev. 149 , 166 (2009), and the term was thus used colloquially to refer to any fel ony committed at sea ,
s ee John Marshall Speech at 10 ("It is by confounding general- 57

-

piracy with piracy by statute, that indistinct ideas have been produced, respecting the power to punish offences committed on the high seas
. ").

T he F ramers' se paration of "Piracies" and " Felonies " in the D ef ine and P unish C lause avoids this confusion and reserv es the precise meaning of "Piracy" under international law for that specific crime
. T he F ramers' use of the separate terms "Piracies" and "Felonies" thus manifests an inten t to distinguish between crim es with different jurisdictional limits under international law : classic p irac y , which can be punished no matter where committed or by whom, and Felonies , which can be punished only if committed by U.S. nationals 42 or on vessels subject to U.S. jurisdiction under international law
. As noted in the Aybar

- Ulloa concurrence, "the United States itself early on took the position before the Supreme Court that the Define and Punish Clause" "is

42 As stated supra , we do not address here the MDLEA's application to U.S. citize ns and resident aliens. However, the sources quoted above indicate that the F ramers would have understood the Felonies Clause to permit U.S. authorities to exercise jurisdiction over U.S. nationals on foreign vessels in at least some circumstances. See S kiriotes v. Florida , 313 U.S. 69, 73 (1941) (stating that "the United States is not debarred by any rule of international law from governing the conduct of its own citizens upon the high seas or even in foreign countries when the rights of other nations or their nationals are not infringed"); United States v. Kaercher , 720 F.2d 5, 5 (1st Cir. 1983) (per curiam) (quoting the Restatement of Foreign Relations Law of the United States for the proposition that "[a] state has jurisdiction to prescribe a rule of l aw . . . attaching legal consequences to conduct of a national of the state wherever the conduct occurs" (alteration and omission in original)).- 58

-

impliedly limited by the law of nations in ways that constr ain Congress's authority to rely on that Clause to subject foreign nationals to our criminal laws for conduct that they engage [in] while they are on foreign vessels

-- even when those vessels are on the high seas." 987 F.3d at 16 n.7, 15 (Barron, J., con curring) ;

see id. at 16 n.7 ( quoting the argument of Mr. Blake on behalf of the United States in United States v. Palmer , 16 U.S. (3 Wheat.) 610, 620 (1818): "A felony, which is made piracy by municipal statutes, and was not such by the law of nations, can not be tried by the courts of the United States, if committed by a foreigner on board a foreign vessel, on the high seas; because the jurisdiction of the United States, beyond their own territorial limits, only extends to the punishment of crimes which are piracy by the law of nations.").

3. Jurisdiction on the High Seas under International Law Given t he F ramers ' clear intention to draw a jurisdictional distinction between " Pirac ies" and " Felonies , " the question of when a vessel sailing on the high seas may be subject to U.S. jurisdiction under international law

-- i.e., the question at the heart of this case

-- has constitutional significance
. It is a bedrock principle of the international law of th e sea, recognized long before the founding of this country, that "all nations have an equal and untrammelled right to navigate on the high seas." Marino

- Garcia , 679 F.2d at 1380; see also United- 59

-

States v. Maine , 475 U.S. 89, 96 n.11 (1986) (explaining that "since the days of Grotius, the principle of the freedom of the high seas found an ever wider currency" and "crystallized into a universally accepted principle of international law" by "the beginning of the ni neteenth century" (quoting Yehuda Z. Blum, Historic Titles in International Law § 61, at 242

- 43 (1965))); Hugo Grotius, The Freedom of the Seas 44 (Ralph V.D. Magoffin
trans. , 1916) ("It is clear . . . that he who prevents another from navigating the sea h as no support in law."); U nited Nations Convention on the Law of the Sea ( " UNCLOS " ) art. 90, Dec. 10, 1982, 1833 U.N.T.S. 397. 43 To ensure this right of free navigation ,

43 Although the Senate has not ratified the UNCLOS, it was signed by the President and is generally recognized b y the United States as reflecting customary international law, i.e., universal practice. See United States v. Alaska , 503 U.S. 569, 588 n.10 (1992) (acknowledging the U.S. government's position that the UNCLOS provisions are part of customary internationa l law); see also Aybar

- Ulloa , 987 F.3d at 5 n.2 (citing the UNCLOS "as evidence of the customs and usages of international law"); United States v. Hasan , 747 F. Supp. 2d 599, 635 (E.D. Va. 2010) ("[T]he United States has consistently accepted UNCLOS as customary international law for more than 25 years."). Moreover, "many of the provisions of the [UNCLOS] follow closely provisions in the 1958 conventions to which the United States is a party and which largely restated customary law as of that time." Re statement (Third) of Foreign Relations Law of the United States , Part V, Introductory Note; see also Mayag ü ezanos por la Salud y el Ambiente v. United States , 198 F.3d 297, 304 n.14 (1st Cir. 1999) (referring to the "UNCLOS only to the extent that it incor porates customary international law," and noting that, as a signatory, "the United States 'is obliged to refrain from acts that would defeat the object and purpose of the agreement'" (quoting Restatement (Third) of Foreign Relations Law of the United State s § 312(3))). The UNCLOS provisions defining a stateless vessel discussed infra have long been part of the international law of the sea and are largely identical to those in- 60

-

" international law generally prohibits any country from asserting jurisdiction over fo reign vessels on the high seas," and "vessels are normally considered within the exclusive jurisdiction of the country whose flag they fly." 44 Marino

- Garcia , 679 F.2d at 1380;

see also Aybar

- Ulloa , 987 F.3d at 5; John Marshall Speech at 5 (stating that "th e opinion of the world is, that a fleet at sea, is within the jurisdiction of the nation to which it belongs").

To preserve this system of flag

- state jurisdiction, "every vessel must sail under the flag of one and only one state; those that sail under no f lag . . . enjoy no legal protection."
Matos
- Luchi , 627 F.3d at 5 ; see also , e.g. , Aybar

- Ulloa , 987 F.3d at 6 (noting that "international law renders stateless vessels 'susceptible to the jurisdiction of any State'" (quoting Barnes,
supra , at 314)); United States v. Pinto

- M ejia , 720 F.2d 248, 260 (2d Cir. 1983) (explaining that "a stateless vessel, which does not sail under the flag of one state to whose jurisdiction it has submitted, may not claim the protection of international law and does not have the right to travel the high seas with impunity"); United States v. Rubies , 612 F.2d 397, 403 (9th Cir. 1979) ("'In

the 1958 Convention on the High Seas, which has been ratified by the United State s. See supra , arts. 5 & 6.

44 Although the nationality of a vessel is often referred to as its "flag," there is no requirement that a vessel fly a physical flag to maintain its nationality. See Matos
- Luchi , 627 F.3d at 5. Rather, "[s]hips have the nation ality of the State whose flag they are entitled to fly." UNCLOS art. 91, § 1 (emphasis added).- 61

-

the interest of order on the open sea, a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the open sea is freedom for such vessels only as sail under the flag of a State
. '" (quoting Lassa Oppenheim, International Law 546 (7th ed. 1948)) )
. Therefore, it has long been understood that the United States

-- and any other country
-- may exercise jurisdiction over vessels that are considered stateless under international law. W e confirmed that understanding in Aybar

- Ulloa
. See , e.g. , 987 F.3d at 12 ("[S]tateless vessels are treated as subject to the exercise of authority by any nation.") ; s ee also , e.g. , Matos
- Luchi , 627 F.3d at 6 (noting that " international law
. . . treats the 'stateless vessel' concept as informed by the need for effective enforcement," and, hence, "a vessel may be deemed 'stateless,' and subject to the enforcement jurisdiction of any nation on the scene, if it fails to display or carry insign ia of nationality and seeks to avoid national identification"); Andrew W. Anderson , Jurisdiction over Stateless Vessels on the High Seas: an Appraisal Under Domestic and International Law , 13 J. Mar. L. & Com. 323, 337 (1982) ("[T]he extension of United St ates jurisdiction over stateless vessels seems not only to be a reasonable claim but completely consistent with both customary and treat y international law." ).- 62

- These general principles of jurisdiction on the high seas are not disputed in this case, and, in deed, the Supreme Court applied these principles in the decades immediately following the Constitution's adoption. In 1790, Congress passed a law making murder and robbery committed by "any person" on the high seas punishabl e under U.S. law. See Palmer , 1 6 U.S. (3 Wheat.) at 626.
It was an open question , however, whether the statute extended to conduct by foreigners on foreign vessels. When he was a
congressman, John Marshall argued that the D efine and P unish C lause

can never be construed to make to the government a grant of power, which the people making it , did not themselves possess. It has already been shown that the people of the United States have no jurisdiction over offences, committed on board a foreign ship, against a foreign nation. Of co nsequence, in framing a government for themselves, they cannot have passed this jurisdiction to that government. John Marshall Speech at 24

- 25
.

N ot surprisingly, then, the Supreme Court in United
States v. Palmer , in an opinion written by now Chief Justi ce Marshall, held that the statute did not extend U.S. jurisdiction to foreigners on foreign vessels for the common law form of robbery , as distinguished from classic p iracy
. S ee 16 U.S. (3 Wheat.) at 630

- 3 4 . T he Court reiterated its holding on the statute's reach two years later , concluding that it did not criminalize the murder of a foreigner on a foreign vessel on the- 63

-

high seas because Congress knew it "had no right to interfere" in such cases
. Furlong , 18 U.S. (5 Wheat.) at 198 ; see also id. at 197 (observing that "punishing [murder] when committed within the jurisdiction, or, (what is the same thing,) in the vessel of another nation, has not been acknowledged as a right, much less an obligation") . By contrast, the Supreme Court r ecogniz ed the classic form of p iracy as "a crime within the acknowledged reach of the punishing power of Congress" even when "committed by a foreigner upon a foreigner in a foreign ship , " i d. at 197 , and noted in other cases that " [ m ] urders committed by an d against foreigners on stateless vessels .
. . could be prosecuted in the United States," Aybar

- Ulloa , 987 F.3d at 7 (citing United States

v. Klintock , 18 U.S. (5 Wheat.) 144, 151 (1820) and United States

v. Holmes , 18 U.S. (5 Wheat.) 412, 417

- 18 (1820)). 45

Thus, in light of the se well

- established limitations on Congress's ability to criminalize the conduct of foreign nationals

45 As noted above, the concurring opinion in Aybar

- Ulloa also reports the historical support, in caselaw and commentary, for the contention that Congress lacks authority under the Define and Punish Clause to punish foreign nationals for conduct committed on foreign vessels, "even when those vessels are on the h igh seas." 987 F.3d at 15

- 16 & n.7 (Barron, J., concurring); see also id. at 22

- 26 (discussing the cases "decided just decades after the Constitution's ratification" that "dealt with the United States' power to prosecute defendants of a range of citizensh ips and circumstances who shared the attribute of having been indicted in our country pursuant to our criminal justice system for murder, robbery, or other wrongdoing on the high seas").- 64

-

aboard foreign vessels on the high seas , 46 the question that arises when the United States seeks to impose its law on foreigners on the high seas is how to identify a vessel that is not within an y other country's jurisdiction

-- potentially exposing those aboard
to every country's jurisdiction
. 47 In other words, when may a vessel be characterized as stateless? S tateless vessels do not appear to have been a primary focus a t the time of the F ramers, and we have found no explicit statements in their deliberations on when a vessel should be deemed stateless. That silence, of course, is unsurprising , given the focus on avoiding improper intrusions into the affairs of foreign nations.

A s we have concluded, however, there can be no doubt that the Constitution's drafters intended that Congress's

46 There are, of course, exceptions to the broad principle that Congre ss cannot extend U.S. criminal jurisdiction to crimes like common law robbery or murder committed by foreigners against foreigners on foreign vessels. For example, a country may prosecute such crimes with the consent of the foreign nation. See Matos
- Luch i , 627 F.3d at 7; see also 46 U.S.C. § 70502(c)(1)(C). But these exceptions are not pertinent here.

47 We use the word "potentially" because we declined in Aybar

Ulloa to decide "whether the United States may prosecute a foreign citizen engaged in drug trafficking on a stateless vessel where the United States never boarded and seized the vessel." 987 F.3d at 14. We note, in addition, the observation in the Aybar

- Ulloa concurrence that the Third and Fourth Restatements of Foreign Relations Law of the U nited States do not "establish that the prevailing view of the law of nations is that the interdicting country acquires the same territorial jurisdiction over the [stateless] vessel's occupants as it acquires over the vessel itself." Id. at 17 (Barron, J. , concurring).- 65

-

authority under the Def ine and Punish Clause , including the Felonies portion of it, be constrained by currently applicable inte rnational law whenever Congress invokes th at Clause to assert its authority over foreign nationals and their vessels on the high

seas . The F ramers soug ht to ensure that Congress would respect the sovereignty of other nations, and the limits placed on the prosecution of other countries' nationals is an essential component of the international system of mutual respect
. Necessarily, then, that constraint applies when Congress passes legislation deeming vessels on the high seas stateless. If the Constitution instead permitted Congress to define a vessel as stateless in any way it wished, the re would be a risk th at Congress

c ould contraven e international norms determining when a country
may prosecute felonies committed by foreign nationals on the high

seas. It therefore follows that the Felonies C lause requires Congress to abide by international law principles in defining stateless ness . W e thus review those principles
.

4. Statelessness under International Law International law allows each nation to decide for itself the process through which it will grant its nationality to a vessel. See Lauritzen v. Larsen , 345 U.S. 571, 584 (1953) ("Each state under international law may determine for itself the conditions on which it will grant its nationality to a merchant ship, thereby accepting responsibility for it and acquiring- 66

-

authority over it.") ; UNCLOS art. 91, § 1 ("Every State sha ll 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.") ; 5 J
. H. W. Verzijl, International Law in Historical Perspective 146 (1972) (describing an 1801 proclamation by the King of England regarding the conditions under which merchant ships may fly the British flag , and noting "[t]he general principle

. . . that it is within the domestic jurisdiction of any State

. . . to determine on what conditions it will allow a s ea - going vessel to fly its flag and thus grant her its 'nationality'" ). The simplest definition of a stateless vessel under international law is thus a vessel that has not been granted nationality by any state. Pursuant to that definition, a vessel will lack nationality, for example, "if no state has ever authorized [the vessel] to fly its flag, if a state has cancelled its authorization, or if the political entity that authorized a ship to fly its flag is not recognized as an international person."
Rose ro , 42 F.3d at 171; see also id. ("[A] vessel is without nationality if it is not authorized to fly the flag of any state.") ; Matos
- Luchi , 627 F.3d at 16 (Lipez, J., dissenting) ("Under international law, a stateless vessel is simply one that does not have a valid grant of nationality from any country.").

Authorities encountering a vessel on the high seas would not be aware of some of these circumstances

-- e.g., if a state- 67

-

has cancelled a vessel's registration

-- and thus will be una ble
to de finitively de termine nationality by sight ev en if a vessel is flying a flag. Nonetheless, international law recognizes a presumption of nationality in th e flag

- flying situation, among others. We have noted that "[b]y custom, a vessel claims nationality b y flying the flag of the nation with which it is affiliated or carrying papers showing it to be registered with that nation." Matos
- Luchi , 627 F.3d at 5 (citing Lassa Oppenheim, International Law § 261, at 594

- 96 (H. Lauterpacht ed., 8th ed. 1955) ); see a lso United States v. Bustos
- Guzman , 685 F.2d 1278, 1280 (11th Cir. 1982) (per curiam) (noting that flying a flag is generally "prima facie proof" of nationality under international law); The Chiquita , 19 F.2d 417, 418 (5th Cir. 1927) ("The flag under which a merchant ship sails is prima facie proof of her nationality.").

Absent a flag or papers, "a vessel may also traditionally make an oral claim of nationality when a proper demand is made."
Matos
- Luchi , 627 F.3d at 5; see also Aybar

- Ulloa , 987 F.3d at 5 (quoting Matos
- Luchi , 627 F.3d at 5); United States v. Obando , 891
F .3d 929, 939 (11th Cir. 2018) (Black, J., specially concurring) (noting that, under "longstanding principles of admiralty law," the master "speak[s] on behalf of the ship" and must be the one to make a verbal claim of nationality ); The Little Charles , 26 F
. Cas. 979, 982 (Marshall, Circuit Justice, C.C. Va. 1818) ( " T he- 68

-

vessel acts and speaks by the master .") ; Anderson, supra , at 341 (noting that a vessel may claim nationality "by showing its flag, presenting its documents, or making some other outward or or al claim to a nationality " (emphasis added)). The MDLEA itself recognizes this form of asserting nationality, stating that "[a] claim of nationality or registry under this section includes

. . . a verbal claim of nationality or registry by the master or individual in charge of the vessel." 46 U.S.C . § 70502(e)(3)
.

I nternational law also recognizes two specific circumstances in which a vessel may be deemed stateless regardless of its actual status and absent any effort to determine its nationality: when the vessel refuses to claim any nationality or when it claims more than one nationality. See Matos
- Luchi , 627 F.3d at 6

- 7 (stating that "a vessel may be deemed 'stateless' .
. . if it fails to display or carry insignia of nationality and seeks to avoid national identification" by "refus[ing], without reasonable excuse, to reveal its" nationality (quoting Me yers, supra , at 322) (internal quotation marks omitted)); UNCLOS art. 92, § 2 (stating that "[a] ship which sails under the flags of two

or more States . . . may be assimilated to a ship without nati onality ") ; The Commander's Handbook on the Law of Naval Operations ¶ 3.11.2.4 (2017), https://www.gc.noaa.gov/pdfs/CDRs_HB_on_Law_of_Naval_Operations_ AUG17.pdf (stating that "[ a ] vessel may be assimilated to a vessel- 69

-

without nationality," inter alia, "when the vessel makes multiple claims of nationality
. . . or the master's claim of nationality differs from the vessel's papers")
. 48

H ence, whether authorities are s eeking to ascertain nationality in the first place

-- by examining documents or eliciting a verbal claim

-- or to resolve a concern about nationality that was declared by means of a flag, they may need close contact with the vessel and its master . I t is t herefore

48 The 2017 version of the Commander's Handbook

-- applicable to the U.S. Navy, Marine Corps, and Coast Guard

-- also states that a vessel may be "treated as one without nationality" when, among other factors, it displays no "identifyin g characteristics , " when

-- consistent with § 70 5 0 2 (d)(1)

-- the master makes no claim of nationality or registry, or when "[t]he claim of registry or the vessel's display of registry is either denied or not affirmatively and unequivocally confirmed by the State whose registry is claimed." Commander's Handbook ¶ 3.11.2. 3 (2017), supra ; see also id. , References 4 (listing MDLEA, 46 U.S.C. §§ 70501

- 70507). Interestingly, t he Handbook's previous version, in effect when appellants were detained, did not include the failure

- to
- verify scenario that mirrors § 70 5 0 2 (d)(1)(C) of the MDLEA. Rather, its list of characteristics of a stateless vessel all relied on inconsistencies in a vessel's presentation of nationality to observers or the absence of, or refusal to provide, identification. See Commander's Handbook ¶ 3.11.2. 4 (2007), https://www.marines.mil/Portals/1/Publications/MCTP%2011

- 10B%20(%20Formerly%20MCWP%205

- 12.1).pdf?ver=2017

- 07

- 11

- 151548

- 683 (providing "a partial list of factors that should be conside red in determining whether a vessel is appropriately assimilated to stateless status: (1) No claim of nationality; (2) Multiple claims of nationality; (3) Contradictory claims or inconsistent indicators of nationality (e.g. master's claim differs from vess el's papers; homeport does not match nationality of flag); (4) Changing flags during a voyage; (5) Removable signboards showing different vessel names and/or homeport; (6) Absence of anyone admitting to be the master; displaying no name, flag, or other ide ntifying characteristics; and (7) Refusal to claim nationality").- 70

-

understood that international law 's so

- called "right of visit" permits authorities to inquire, board, and conduct a limited search "designed to elicit information about the vessel's identification and registration." Cuevas

- Esquivel , 905 F.2d at 513 ; see also Aybar

- Ulloa , 987 F.3d at 6 (recognizing that a "clearly

- marked law enforcement ship of any state may board [a private ship] .
. . if there is reason to suspect that the ship
. . . is without nationality" (quoting Restatement (Third) of Foreign Relations Law of the United States § 522(2)(b) (1987) ) (omissions in original) ) ; United States v. Cortes , 588 F.2d 106, 109 (5th Cir. 1979) (stating that, under international law, "stateless vessels are subject to this type of examination")
. 49 The question in this appeal , addressed in Section V . C infra , is whether international law

49 The "right of visit" under international law allows a "warship" (which would include a law enforcement ship like the Coast Guard vessel here) to stop and question a foreign ship if "there is reasonable ground for suspecting that the ship is engaged in piracy," slave trading, or illegal broadcasting, "is without nationality," or, although flying a foreign flag, is actually of the same nationality as the warship. UNCLOS art. 110, § 1. Howev er, the right of visit does not provide an independent ground for exercising jurisdiction over a vessel, and certainly does not allow a state to apply its domestic laws to those aboard that vessel. Rather, it is simply a mechanism for a state to investiga te suspected wrongdoing and then take actions within its authority under international law. See , e.g. , Penelope Mathew, Address

- Legal Issues Concerning Interception , 17 Geo. Immigr. L.J. 221, 224

- 25 (2003) (discussing the limited nature of the right of visit and noting that "a State would have to rely on some positive basis of jurisdiction .
. . to exercise jurisdiction over persons on a stateless ship")
.- 71

-

permits Congress to dictate the results of such an i nquiry as provided in § 70502(d)(1)(C) of the MDLEA
.

5. Summary : T he Felonies Clause and Stateless Vessels Our review of the law governing jurisdiction on the high seas thus reveals c lear signs in multiple sources

-- the historical record , the well

- established perspective in the late eighteenth century on the role of individual nations in the international sphe re, and contemporaneous legal precedent

-- that the F ramers' invocation of international law terminology in the Define and Punish Clause was deliberate. Seeking to ensur e their new nation's compliance with international law, the F ramers invoked principles drawn from that law in drafting the De fine and P unish C lause generally and the Fel onies C lause specifically. In particular , they knew the distinction in international law between "P iracies , " which can be punished by any country wherever they occur , and other serious crimes on the high seas , which can be punished by a country only when committed by individuals subject to its jurisdiction
. T he F ramers' goal of incorporat ing respect for international norms into the federal system thus makes clear that , under the Felonies Clause , Congress's authority to set the boundaries of domestic law on the high seas must be consistent with international law principles
. P ursuant to those principles, the key to determining whether Congress can apply domestic law to foreign nationals on a

non - U.S. vessel on the high seas ordinarily will depend on whether- 72

-

international law would deem th e vessel to be "without nationality"

-- i.e., stateless. Finally, international law recognizes that an oral claim by t he vessel's master constitutes prima facie proof of the vessel's nationality.

With th at understanding of the applicable law, we turn
to the question of whether Congress exc eed ed its power to " define and punish
. . . Felonies committed on the h igh S eas " in the challenged provision of the MDLEA . C
. Constitutionality of § 70502(d)(1)(C)

The MDLEA reflects Congress's objective of address ing , to the full extent of its authority, the scourge of drugs entering the United St ates from abroad
. See Matos
- Luchi , 627 F.3d at 11 (Lipez, J., dissenting) (noting that the MDLEA and its predecessor, the Marijuana on the High Seas Act, Pub. L. No. 96

- 350, 94 Stat. 1159 (1980), manifest Congress's objective to "give the Justice Department the maximum prosecutorial authority permitted under international law" (quoting S. Rep. 96

- 855, at 2 (1980) ) ) ; id. at 7 ("The MDLEA was responding to repeatedly frustrated efforts to prosecute maritime drug trafficking.")
. Undoubtedly m indful o f the prohibition against applying domestic law to foreigners traveling on foreign vessels on the high seas , Congress plainly sought in the MDLEA provision defining a stateless vessel to reach as broadly as possible through an expansive definition of
state lessness. T he statute , however, can reach no f arther than- 73

-

the authority granted to Congress by the Felonies Clause , which,

as we have determined, is constrained by the norms of international law.

As de tailed above, the MDLEA provides three descriptions for a "vessel without nationality " in § 70502(d)(1). See 46 U.S.C. § 70502(d)(1). 50 Two a re clearly consistent with international law: when the nation whose registry is claimed denies the claim, id. § 70502(d)(1)(A), and when the individual in charge of a vessel fails to make a claim of nationality or registry for the vessel
upon request of an authorized United States officer, id. § 70502 (d)(1)(B) ; see , e.g. , Matos
- Luchi , 627 F.3d at 6 (involving

50 For convenience, we provide here the full text of § 70502(d)(1):

In this chapter, the term "vess el without nationality" includes

-- (A) 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; (B) a vessel aboard which the master or individual in charge fails, on request of an officer of the United States authorized to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and (C) a vessel aboard which the master or individual in charge makes a claim of regis try and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality. 46 U.S.C. § 70502(d)(1).- 74

-

a refusal to make a claim of nationality )
. T he third definition, however

-- the one at issue here

-- allows a vessel to be treated as stateless where there is a c laim of nationality recognized by international law but the identified country neither confirms nor denies th at claim
. See 46 U.S.C. § 70502(d)(1)( C ).

T his provision thus treats a response that reports only that the named country is unable to confirm nationality

-- or the country's failure to respon d at all to U.S. inquiry

-- as evidence that is equivalent to an outright denial of a master's claim of nationality or registry. In other words, § 70502(d)(1)(C) displaces the prima facie showing of nationality that arises from an oral assertion of nationality or registry

-- made in accordance with international law

-- without any affirmative evidence to the contrary. See Bustos
- Guzman , 685 F.2d at 1280 (referring to the "prima facie proof" of nationality that arises from flying a flag); The Chiquita , 19 F.2d at 418 (same) ; 46 U.S.C. § 70502(e) (listing flying a flag and a verbal claim as alternative methods of making a claim of nationa lity)
. In so doing, § 70502(d)(1)(C) ad ds a new category to the limited circumstances in which international law deem s a vessel stateless ( the refusal t o claim a nationality , claim ing more than one nationality , and disavowal of a claim of nationality by t he named country )
. A response stating only that the country is unable to confirm nationality , or the country's failure to provide any response, suffices to nullify even an- 75

-

unequivocal claim of nationality or registry made by the person in charge of the vessel
.

The government contends that this variation on deeming a vessel stateless is implicitly, if not explicitly, recognized in international law. The government asserts that international law requires a vessel not only to make a claim of nationality, but also to "'be in a position to provide evidence of [nationality]
. '" Appellee's Br. at 29 (quoting Matos
- Luchi , 627 F.3d at 6)
. Consequently, the government proposes, an absence of "affirmative[] and unequivocal[]" confirmation from the claimed country may properly be relied upon in deeming the vessel stateless
. Id. at 36.

In making this assertion, the government relies heavily on dicta in Matos
- Luchi , a case in which the defendants had declined to make a claim of n ationality in response to a request from Coast Guard personnel. See 627 F.3d at 2
. 51 As we have described , a voiding national identification is a well

- established basis for deeming a vessel stateless , and it is incorporated in to the MDLEA in § 70502(d)(1)(B). See supra note 50 ; s ee also , e.g. , Meyers, supra , at 322 ("[A] ship which obscures the cognoscibility of its allocation repeatedly, deliberately, and successfully may

51 In Matos
- Luchi , when the Coast Guard approached a small vessel whose crew members were suspe cted of drug trafficking, the crew initially fled and, when subsequently apprehended, "declined to make a claim of nationality" for their vessel. 627 F.3d at 2.- 76

-

be treated as stateless." (internal quotation marks omitted)). However, t he Matos
- Luchi majority went beyond th at indisputable basis for deeming a vessel stateless

-- and the facts before it

-

- to suggest that an oral declaration of nationality is inadequate if the vessel's master provides no other evidence of the claimed nationality
. S ee 627 F.3d at 6
. S tated without examination of the issue, the majority's dicta, which is not binding on another panel, does not support the government's conten tion that international law allows a vessel to be deemed stateless based solely on the absence of confirming evidence of the master's verbal claim. A s the government acknowledges , the MDLEA recognizes "a verbal claim of nationality or registry by the master " as a "claim of nationality or registry" equivalent to flying a flag or producing "documents evidencing the vessel's nationality." 46 U.S.C. § 70502(e). Rejecting a verbal claim of nationality based solely on a lack of substantiating evidence effe ctively negates that distinct method for claiming nationality recognized both by the MDLEA and by international law.

The government also directly invokes international law
t o support its position. In its supplemental b rief, the government cites articl es 17(1) and (2) of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances , Dec. 20 , 1988, 1582 U.N.T.S. 95 ("UN Narcotics Convention") , and article 5(2) of the 1958 Convention on the High- 77

-

Seas, supra , in arguing that the United States may deem a vessel stateless if neither its master nor the claimed nation substantiates a verbal claim of nationality. Neither of these

sources support s tha t proposition. The first cited provision of the UN Narcotics Convention call s for cooperation "to suppress illicit traffic by sea, in conformity with the international law of the sea," id. art. 17(1) , and the second states that a party with "reasonable gr ounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other [p]arties in suppressing its use for that purpose," id. at 17(2). These principles of cooperatio n do not speak to the circumstances in which international law deems a vessel stateless.

The provision of the 1958 Convention on the High Seas cited by the government provides that " each state shall issue to ships to which it has granted the right to fly it s flag documents to that effect
. " The UNCLOS contains a nearly identical provision,

s ee UNCLOS art. 91, § 2 , and a nother UNCLOS provision specifically addresses registration , r equir ing states to "maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size , " i d
. art. 94, § 2(a). Th e government suggests that such provisions
create an expectation that all vessels will carry document s and- 78

-

that, if a vessel 's master does not substantiate a verbal claim with documents or other evidence , the claimed country of nationality "has accepted through its international treaty obligations that th e vessel may be deemed stateless ." Appellee's Supp. Br. at 16.

However, t hese treaty provisions demanding that countries issue documents evidencing vessel nationality say nothing about when a vessel may be deemed stateless . Nor can the provisions reasona bly be construed to provide consent to the exercise of jurisdiction over a signatory's vessel by all other signatories based solely on the master's failure to produce documents in support of a claim of nationality
. Indeed, as we have noted, consent by the country whose nationality is claimed provides a separate basis for jurisdiction under the MDLEA , s ee 46 U.S.C. § 70502(c)(1)(C) , and the statute specifies th at consent "may be obtained by radio, telephone, or similar oral o r electronic means," id. § 70502 (c)(2)(A). The government's theory of implicit consent is at odds with this scheme
.

The government also attempts to i nfer from treaty provisions a principle of international law that when a country both fails to confirm a claim of registration or nationality and the vessel carries no registration or other identifying documents the vessel may be deemed stateless . This theory conflates two discrete international law issues. E ven accepting documentation- 79

-

require ment s a s within customary international law , it does not follow that a country's failure to issue identifying documents or "maintain a regist er " renders a vessel stateless when its master has verbally claim ed that country's nationality . T he relevant question i s not whether the claimed country has satisfied its obligations under international law. Rather, th e question is what type of i nquiry and response suffices to permit the U nited States to deem a v essel stateless despite a claim of nationality recognized by international law
. O n that question, the government cites no source of international law expressly recognizing a lack of documents, or the claimed country's failure to confirm nationality ( instead of a n outright denial ) , as a basis for overcoming the prima facie showing of nationality arising from the master's oral declaration
.

That lack of support for the government's proposition is unsurprising. As we have explained, t he master's oral declaration has long suffic ed under international law to establish a presumption of nationality
. See , e.g. , N.P. Ready, Ship Registrations 3 (3d ed. 1998) ("A vessel may be considered as possessing the nationality of a State even though she is unregistered, possesses no documents evid encing that nationality, nor even flies the flag of that State .") ; see also Aybar

- Ulloa , 987 F.3d at 5 (observing that, "[w]ithout a flag or papers, a vessel may also traditionally make an oral claim of nationality- 80

-

when a proper demand is made" (quoting Matos
- Luchi , 627 F
. 3d at 5)). 52 That presumption is sensibly overcome by the named country's
express denial of the claim , a scenario long embedded in international law.

However, a response stating that the country can neither confirm nor deny the claim, or t he named country's failure to respond at all, may say very little about the veracity of the master's assertion of nationality
. In deed , t he inability to confirm the claim may have more to do with the responding country's bureaucracy than with the vessel's status. The facts in United
States v. Hernandez , 864 F.3d 1292 (11th Cir. 2017), graphically illustrate the problem with § 70 5 0 2 (d)(1)(C). The captain of a vessel told Coast Guard officers that his boat was registered in Guatemala

-- a truthful claim

-- and he and the other three crew

52 In addition to the traditional methods of claiming nationality discussed above

-- flying the flag, presenting documents, and oral declaration

-- authorities may in some instances look to the nationality of the vessel's owner. See , e.g. , The Chiquita , 19 F.2d at 418 ("If [a vessel] is not properly registered, her nationality is still that of her owner."). However, whether the owner's nationality establishes that of the vessel will depend on the practice of the particular country. As discussed above, "a State is absolutely independent in framing the rules concerning the claim of vessels to its flag." Oppenheim (8th ed.), supra , at 595; see also id. (noting that Great Britain "allow[s] only such vessels to sail under [Great Britain's] flags as are the exclusive property of their citizens or corporations established on their territory," while "[o]ther [countries] allow vessels which are the property of foreigners" to do so ); Churchill & Lowe, supra , at 213 n.19 (noting that a country may not register sm all ships but may "regard such ships as having its nationality if they are owned by its nationals").- 81

-

members all identified themselves as Guatemalan citizens
. Id. at 1297. Indeed, at some point, G uatemalan registration documents were found on the vessel. Id. Nonetheless, when asked by the Coast Guard to confirm the registry claim, the government of Guatemala responded that it could neither confirm nor deny it. Id. Although the vessel plainly wa s not stateless , the court rejected the defendants' challenge to their convictions under the MDLEA because Guatemala had not "'affirmatively and unequivocally assert[ed]' the ship's registry
. " I d. at 1299 (quoting § 70 5 0 2 (d)(1)(C)). 53 In other words, the vessel was deemed

53 The defendants in Hernandez contended that jurisdiction under the MDLEA was improper because their vessel was in fact registered and because the Coa st Guard had identifying information about their vessel "that would easily have confirmed its registry," but " failed in bad faith to convey that information " to the Guatemalan government. 864 F.3d at 1299. In rejecting those contentions, the court observe d that "[t]he MDLEA does not state what information the United States must convey to the foreign government during its communication, and it does not state that actual registry overrides the [Department of State] certification's proof of statutory stateles sness." Id. "MDLEA statelessness," the court explained, "does not turn on actual statelessness, but rather on the response of the foreign government." Id. The court further observed that, given the MDLEA's "clear terms" deeming their vessel stateless, "any diplomatic consequences of the criminal prosecution"

-- including any violation of international law

-- were the responsibility of the executive branch and not a basis for undoing the convictions. 864 F.3d at 1297. One defendant in Hernandez also arg ued "that the MDLEA is an unconstitutional assertion of Congressional power because it reaches stateless vessels on the high seas without a proven nexus to the United States"

-- an argument rejected there as foreclosed by Eleventh Circuit precedent. 864 F .3d at 1303. The Hernandez defendants did not make the argument asserted here that § 70502(d)(1)(C) is unconstitutional because Congress acted beyond- 82

-

"stateless" even when verification of its nationality should have been easily accomplished
.

Moreover, where

-- as in Hernan de z and here

-- the master's oral d eclaration of nationality is consistent with the citizenship or nationality of all individuals aboard the vessel, the declaration is particularly forceful
. To reject the master's declaration of nationality in such circumstances b ased solely on the claimed country's failure to provide affirmative and unequivocal confirmation

-- or its failure to respond at all

-- would eviscerate a method long accepted for identifying a vessel's nationality under international law. W e cannot infer displacement of that method merely based o n treaty provisions imposing obligations on signatory countries to register vessels or issue other documents
. 54

That is not to say that the government's emphasis on registration or documentary evidence of nationality is wholly misplaced. International law does, in general, promote a system

its authority under the Felonies Clause in defining a vessel without nationality to include a vessel whos e master makes a verbal claim of nationality that is not affirmatively and unequivocally confirmed by the identified country.

54 Importantly, § 70502(d)(1)(C) on its face applies not only to verbal claims of nationality, but to any claim of registration or nationality, even one based on documentation. By its terms, therefore, it allows the United States to reject a claim of registration or nationality that is supported by documentary evidence based solely on an equivocal response, or no response at all, fro m the identified country.- 83

-

of registration
. 55 I t is reasonable to expect that registered vessels w ould have documents onboard , and , if not, that the claimed country of nationality would be able to eas il y confirm a legitimate claim by checking its registr y . However, not all vessels must be registered. S mall vessels are excluded from the UNCLOS registry requirement , see UNCLOS art. 94, § 2(a), perhaps because some countries typically do not register small vessels

-- whether defined by length or by tonna ge. In the United States, for example, the registration of smaller boats is generally left to individual states. See 46 U.S.C. § 12102(b) (providing that "[a] vessel of less than 5 net tons may engage in a trade without being

55 As we recognized in Aybar

- Ulloa , i t is important that some country exercise jurisdiction over a vessel
. See 987 F.3d at 5
. A flag state

has several responsibilities [under international law], including the responsibility to ensure that its ships comply with domestic and international law and regulations. .
. . Most notably, a state must exercise "jurisdiction and control [over its fleet] in administrative, technical, and social matters." Control includes ensuring that ships are seaworthy and comply with relevant labor regulations and criminal laws. Allyson Bennett, Note, That Sinking Feeling: Stateless Ships, Universal Jurisdiction, and the Drug Trafficking Vessel Interdiction Act , 37 Yale J. Int'l L. 433 , 439 (2012) ( second alteration in original) (footnotes omitted) (citing various provisions of the UNCLOS); see also Purchase of Ships of Belligerents by Neutrals , 6 Op. U.S. Att'y Gen. 638, 640 (1854) ("The law of nations and common sense combine to requi re that every ship shall have a nationality[.]").- 84

-

documented"); id. § 12301 (providing that "[a]n undocumented vessel equipped with propulsion machinery of any kind shall have a number issued by the proper issuing authority in the State in which the vessel principally is operated ") ; se e also U.K. Mar. & Coastguard Agency, Guidance: Vessel Classification and Certification (2018), https://www.gov.uk/guidance/vessel

classification

- and

- certification#certification

- requirements

- for

uk

- vessels (stating that, in the United Kingdom, a certificat e of registry is optional for "small commercial vessel[s]," defined as vessels under 24 meters (roughly 79 feet)) ; R.R. Churchill & A.V. Lowe, The Law of the S ea 213 n.19 (3d ed. 1999) (noting that "a State may not require, or permit, the registration of ships below a certain size " ) ; Meyers, supra , at 160 ("Many states .
. . do not issue documents to ships with a tonnage below a given figure.")
. 56

56 We note that 24 meters (roughly 79 feet) is a cutoff point for the applicability of s everal major international conventions. See , e.g. , International Convention on Tonnage Measurement of Ships art. 4, J une 23, 1969, 1291 U.N.T.S. 4 (exempting "ships of less than 24 metres (79 feet) in length"); International Convention on Load Lines art. 5, Apr. 5, 1966, 9159 U.N.T.S. 134 (same); see also Gudrun Petursdottir, Olafur Hannibalsson & Jeremy M.M. Turner, Par t II: International Conventions and Guidelines on Safety at Sea, in Safety at Sea as an Integral Part of Fisheries Management , Food & Agric. Org. of the United Nations (2001), available at https://www.fao.org/3/X9656E/X9656E01.htm (stating that recommendat ions and conventions developed by the International Maritime Organization and International Labor Organization "are aimed at large vessels, primarily the merchant fleet on international voyages" and observing that "[s]ome conventions explicitly exempt fish ing vessels, and most do not apply to vessels under 24m thus leaving out the majority of fishing vessels and transport boats in the developing countries").- 85

-

Hence, proof of a vessel's nationality via a centralized registry

o r other evidence of registr ation may be unavailable , and a country whose citizens have properly claim ed nationality on behalf of their vessel s thus may be unable either to confirm or deny th ose claim s when contacted by the U.S. Coast Guard or other authorities. 57

Importantly, we do not suggest that international law require s the United States to accept a bare assertion of nationality where there is con flicting evidence and attempts to resolve the conflict prove fruitless
. Although the master's oral declaration con stitutes p rima facie proof of nationality , th at verbal assertion can be undermined by contrary evidence , as is the case for any prima facie showing
. For example, if the vessel 's claimed nationality differs from the nationality of most crew

According to the government, appellants' boat was 35 feet in length. See supra note 4.

57 That may be what occurred in this case. The Department of State's Certification, which describes the measures taken to verify the master's claim of nationality , indicates that, on the day the Coast Guard encountered the vessel

-- October 29, 2015

-- U.S. offic ials "requested that the Government of the Republic of Costa Rica confirm the registry or nationality of the suspect vessel, and , if confirmed, provide disposition instructions." Reyes
- Valdivia , ECF No. 46

- 2, at 1 (Mar. 25, 2016) ( emphasis added). The Ce rtification reports that, nearly three months later, "the Government of Costa Rica replied that it could not confirm [the] vessel's registry ." Id. (emphasis added). Separately, although not presented as an issue on appeal, the time lag between the defend ants' initial detention and Costa Rica's response to the verification request strikes us as problematic , given that the status of a vessel determines whether U.S. law enforcement officials may proceed with prosecuting the crew members under the MDLEA.- 86

-

members, or if a small vessel is interdicted far from the claimed country, 58 U.S. authorities could properly seek verification of the master's claim. In other words, w here surrounding facts provide legitimate reason to doubt an or al claim of nationality, international law would permit t he United States to treat the vessel as stateless absent the sort of confirmation require d by § 70502(d)(1)(C)
. See , e.g. , Commander's Handbook (2017) , supra , ¶ 3.11.2.4 ( stating that "[a] vessel may be assimilated to a vessel without nationality" if, inter alia, there are contradictory or inconsistent indicators of nationality )
.

Put differently, when U .S. authorities are presented with mixed signals about the nationality of a vessel, it wou ld be permissible under international law for the United States to seek confirmation from the country of asserted nationality and, if none is forthcoming, to treat the vessel as stateless. As we have described, a vessel may be deemed stateless under inter national law both when it "seeks to avoid national identification," Matos
Luchi , 627 F.3d at 6, and when it "sails under the flags of two or

58 Th e government posits such a scenario, asserting that it would be absurd to require countries to accept unconfirmed verbal claims of nationality because "[d]rug traffickers .
. . could falsely claim their vessels are the nationals of a small Micronesian isla nd or, more perplexingly, a country like North Korea with limited diplomatic contacts." Appellee's Supp. Br. at 15. We do not disagree. Our analysis permits further inquiry when a vessel's master claims a nationality that is at odds with surrounding cir cumstances, including the vessel's location or the nationality of the master and crew
.- 87

-

more States," UNCLOS art. 92, § 2

-- two situations that produce ambiguity concerning the vessel's nationality. 59 I nternational law , by inference, likewise permits treating a vessel as stateless when its master makes a verbal claim of nationality that is both

un substantiated and in consistent with other relevant indicators of the vessel's nationality
. As when the master of a vessel avoids claiming a nationality or when a vessel indicates that it is attempting to claim multiple nationalities , conflicting signals of nationality create an ambiguity that properly gives rise to inquiry and, absent confirmation, permits designation of the vessel as "without nationality." 60

59 These two circumstances are reflected in the MDLEA's provisions addressing vessels without nationality. As we have described, § 70502(d)(1)(B) covers the avoidance sc enario, defining a "vessel without nationality" to include one for which the master fails "to make a claim of nationality or registry" upon inquiry. The scenario of multiple identities is covered in § 70502(c)(1)(B), which states that a "vessel subject to the jurisdiction of the United States" includes "a vessel assimilated to a vessel without nationality under paragraph (2) of article 6 of the 1958 Convention on the High Seas." Paragraph (2) of the Convention states: "A ship which sails under the flags o f 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." 1958 Convention on the High Seas , supra , art. 6.

60 As des cribed above, the government in its supplemental briefing suggests that the circumstances here involved mixed signals because, according to a Coast Guard officer's statement, Reyes
- Valdivia initially stated that the vessel lacked a nationality. Although t he government noted the reported disclaimer of nationality in its Motion in Limine in support of jurisdiction, it chose for whatever reason not to include that fact in the version of the facts presented at appellants' change

of

- plea hearing or in appellant s' plea agreements. See supra .- 88

- However, that conflicting

- signals limitation is not p art of § 70502(d)(1)(C) as currently enacted. Rather , as we have described, even where the circumstances offer no rationale for displacing the prima facie showing of nationality established through a verbal claim, § 70502(d)(1)(C) treats a vessel as stateless based solely on the named country's failure to respond "affirmatively and unequivocally" to U.S. inquiry
. The statute on its face is thus inconsistent with international law , 61 and w e have no license to rewrite it to satisfy constitutional requirements.
See Iancu v. Brunetti , 139 S. Ct. 2294, 2301 (2019) ( stating that, although the Court "may interpret 'ambiguous statutory language'

Accordingly, as indicated in our discussion of the government's Class argument, see Section III supra , it may not rely now on that untested fact. Moreover, any attempt to raise a new theory of prosecution at this juncture would raise serious due process questions.

61 Although the government in its briefing at times depicts appellants' claim that § 70502(d)(1)(C) is unconstitutional as an as - applied challenge, that characterization is inapt. The classification of a vessel as stateless based solely on the named country's indecisive response to inquiry, or its failure to respond, is a "constitutional flaw evident in the statutory terms themselves." Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Val id Rule Requirement , 48 Am. U.L. Rev. 359, 365 (1998); cf. Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449

- 50 (2008) ("In determining whether a law is facially invalid, we must be careful not to go beyond the statute's facial requirem ents and speculate about 'hypothetical' or 'imaginary' cases."). The mere fact that a cognizable legal challenge by necessity concerns the application of a statute to individuals does not transform a facial challenge into an as

applied challenge. See gen erally Richard H. Fallon, Jr., As
Applied and Facial Challenges and Third

- Party Standing , 113 Harv. L. Rev. 1321 (2000).- 89

-

to 'avoid serious constitutional doubts,' .
. . '[w]e will not rewrite a law to conform it to constitutional requirements'" (first quoting FCC v. Fox Television Stations, Inc. , 556 U.S . 502, 516 (2009), and then quoting United States v. Stevens , 559 U.S. 460, 481 (2010))) ; see also Jennings v. Rodriguez , 138 S. Ct. 830, 843 (2018) ("Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases.")
. It is up to Congress to narrow the language of § 70502(d)(1)(C) if it so chooses. 62 Even the absence of conflicting evidence of nationality, however, does not mean that foreign nationals engag ed in drug trafficking on the high seas can evade prosecution based solely on

a verbal claim

-- whether true or false

-- of a vessel's nationality. The Coast Guard and other countries' authorities can always ask the claimed c ountry of nationality for consent to arrest and prosecute the individuals onboard. See 46 U.S.C. § 70502(c)(1)(C) (stating that a "vessel subject to the jurisdiction of the United States" includes "a vessel registered

62 We recognize that the three examples of vessels without nationality listed in § 70502(d)(1) are not exclusive, and the government might argue in future cases

-- as the government belatedly argued in this case

-- that a vessel may be properly deemed without nationality under the MDLEA based solely on mixed signals, without the need to make any inquiry of the sort required by § 70502(d)(1)(C). We need not, and therefore do not, consider the viability of such an argument, including whether reliance on a ratio nale for deeming a vessel without nationality that is not expressly described in the MDLEA would raise due process concerns .- 90

-

in a foreign nation if that nation has consented or waived objection t o the enforcement of United States law by the United States"); s ee also , e.g. , Cardales

- Luna , 632 F.3d at 736 (noting that the United States obtained consent from the government of Bolivia, which "waived objection to the enforcement of U.S. laws by the Uni ted States with respect to the vessel
. . . , including its cargo and all persons onboard" (quoting State Department certification)); Matos
- Luchi , 627 F.3d at 18 (Lipez, J., dissenting) (noting that the government in that case had failed to obtain consent from the likely country of nationality, "which could have provided a fallback position in the event that the evidence of statelessness proved deficient")
.

Indeed, i t is common practice for countries, including the United States , to negotiate bilateral and multi

- lateral agreements to facilitate the apprehension of drug traffickers operating on the high seas. See , e.g. , Casavant, supra , at 205 (stating that the U nited States has entered into twenty

- seven such agreements , including with countries in South America, Central America, and the Caribbean, providing a "process by which the two [or more] nations can operate to suppress drug trafficking while also respecting flag state jurisdiction"). 63 The United States

63 As previously noted, the United States relied on such an agreement to board appellants' vessel. The State Department's Cert ification reports that "United States law enforcement personnel boarded the vessel" "pursuant to Article V of the- 91

-

also can address its concerns about maritime drug trafficking by seeking to persuade other countries to take enforcement action against their own vessels and nationals
. See generally James Kraska, Broken Taillight at S ea: The Peacetime International Law of Visit, Board, Search, and Seizure , 16 Ocean & Coastal L.J. 1, 11 (2010) ("Nowhere is collaboration [among countries] so ingrained than in counter

- drug operations at sea."). In this regard , a 20 21 report by the U.S. Department of State noted that the Coast Guard of Costa Rica

-- the claimed flag

- state here

--

" is a successful re gional partner with the United States for maritime interdiction
. " See U.S. Dep't of State, Bureau of Int'l Narcotics & Law Enforc ement Affairs, Int'l Narcotics Control Strategy Report, Vol. 1, Mar
. 2021, at 117; see also id. at 11 9 (" [A] bilateral agreement between the United States and Costa Rica is regularly used in maritime drug interdiction operations[.]").

What the United St ates cannot do consistently with the Constitution, however, is arrest and prosecute foreigners on foreign vessels by relying on a concept of statelessness that conflicts with international law . And that is what § 70502(d)(1)(C) allows
. I t o verride s international law by treating a country's failure to supply an "a ffirma tive[] and
Agreement between the Government of the United States of America and the Government of the Republic of Costa Rica Concerning Cooperation to Su ppress Illicit Traffic." Reyes
- Valdivia , ECF No. 46

- 2, at 1 (Mar. 25, 2016)
.- 92

-

unequivocal[]" confirmation of nationality

-- including a failure to respond at all

-- as evidence sufficient to invalidate an oral claim o f foreign nationality even when th ere are no mixed signals that would call the claim into doubt. That is, the MDLEA treats

a s stateless a vessel that , under international law, would be a vessel with nationality. Accordingly, the p rosecution of foreign nationals traveling on such a vessel for a violation of U.S. law is impermissible under the Felonies C lause of the Constitution, the only source of authority asserted for Congress's adoption of the MDLEA
. See Aybar

- Ulloa , 987 F.3d at 4 ( referring to "Congress's pow er under Article I ' [t]o define and punish Piracies and Felonies committed on the high Seas '" ( quoting U.S. Const.
art. 1, § 8, cl.10) ); Mitchell

- Hunter , 663 F.3d at 49 n.3 ( explicitly stating that " [t]h e MDLEA is derived from Congress' power to ' define an d punish Piracies and Felonies committed on the high Seas'" (quoting U.S. Const. art. 1, § 8, cl.10)); Cruickshank , 837 F.3d at 1187 ( same )
. VI.

The F ramers intended international law to be a constraint on Congress's authority "[ t ] o define and punish
. . . F elonies committed on the h igh S eas . " Two centuries ago, t he Supreme Court held that Congress lacked authority under the Felonies Clause to extend U.S. jurisdiction to felonies committed by foreign nationals on foreign vessels. See Furlong , 18 U.S. (5- 93

-

Wheat.) at 198 ; Palmer , 16 U.S. (3 Wheat.) at 632

- 34 . With § 70502(d)(1)(C), Congress violated this principle, extend ing U.S. jurisdiction beyond the limits of international law and , hence, beyond the authority conferred by the Felonie s Clause
.

In this case, relying on the authority provided by § 70502(d)(1)(C), the Coast Guard treated a vessel whose master made a c laim of Costa Rican nationality cognizable under international law as a " vessel without nationality
. " The United States go vernment improperly relied on that classification

-- in violation of constitutional limits

-- to arrest and prosecute Costa Rican citizens, Re yes - Valdivia an d Dávila

- Reyes . We therefore vacate their convictions and remand the case to the district court with instructions to dismiss the MDLEA charges against them. 64

So ordered.

- CONCURRING OPINION FOLLOWS 64 Because we vacate appellants' convictions based on their Felonies Clause argument, we do not reach their due process challenges to the MDLEA or Reyes

- Valdivia's appeal from the district court's application of the "captain" sentencing enhancement.- 94

- HOWARD , Chief Judge , concurring in the result. As noted in the majority opinion, we withdrew our prior panel opinion and granted panel rehearing after the en banc court issued its opinion in Aybar

- Ulloa . In Aybar

- Ulloa , the en banc court did not address arguments raised by the parties about the protective principle. In light of the now uncertain status of our protective principle precedent, like my colleagues I am reluctant to unquestioningly rely on the protective principle t o affirm the convictions underlying these appeals. Unlike my colleagues, I would not decide these appeals on constitutional grounds.

I would instead reverse these convictions on the basis that the agreed facts do not support the statelessness claim char ged by the government. 65 The government claims the vessel is stateless per 46 U.S.C. § 70502(d)(1)(C), which provides that 'vessels without nationality' include :

65 Although this ground for reversal of the convictions was not initially raised in the appeals, the panel was concerned enough about the mismatch that we requested that the parties brief the issue, and they complied. That the issue was addressed by the par ties through supplemental briefing may not by itself be reason enough for us to bypass appellate waiver

-- including not only the failure to raise the issue on appeal but also, in the case of D á vila

- Reye s, the affirmative waiver of appeal contained in the plea agreement. But the majority's constitutional analysis depends in part on an equivalency between "nationality" and "registry" that it finds in § 70502(d)(1)(C). My disagreement about whether that equivalency exists is consequential, such that it shou ld not be relegated to a dicta detour along the way to finding waiver. At this stage of the proceedings, the gap in the statelessness determination under § 70502(d)(1)(C) is stark enough for me to join the majority, albeit in result only.- 95

-

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. The majority asserts that the facts here meet the criteria described above in § 70502(d)(1)(C ) because § 70502 treats "registry " and "nationality" synonymously
. B ut I find no support for that observation in the text of § 70502 or in our cases.

To reach its conclusion that "registry" and "nationality" are used interchangeably in the statute, the majority argues that interpreting these terms to have independent meanings would leave an incongruous hole in statut ory coverage ; how, the majority wonders, could Congress have intended to cover

a situation in which a master assert s Costa Rican registration, but not Costa Rican nationalit y?

The answer becomes apparent when we examine the overall legal terrain
. Section 70502(d)(1) establishes three avenues to find statelessness. But this list is not exclusive, and leaves in place other ways in which the government can establish lack of nationality. See United States v. Matos
- Luchi , 627 F.3d 1, 4 (1st Cir. 2010 ); id. at 15 (Lipez, J., dissenting) ("As the majority correctly holds, Congress did not intend those three examples [in § 70502(d)(1) ] to be exhaustive. The MDLEA extends to vessels that are considered stateless under international law, even if those vessels do n ot fall within one of the specifically- 96

-

enumerated categories. "); see also United States v. Miranda , 780 F.3d 1185, 1197 (D.C. Cir. 2015) ( "[T]he statute contains three nonexclusive examples of 'vessels without nationality,' each of which turns on the 'regi stry' of the vessel." ); United States v. Rosero , 42 F.3d 166, 171 (3d Cir. 1994) (Alito, J.)
. Thus, giving meaning to all the terms in § 70502(d)(1) does not immunize vessel masters who claim foreign nationality rather than registry.

Here, the master asserted Costa Rican nationality for the vessel; at no point did he assert Costa Rican registry. Accordingly, by its terms, § 70502(d)(1)(C) is not applicable, nor did the government assert an alternative basis for finding statelessness when prosec uting appellants . I would reverse the convictions on that ground and go no further.