United States v. Rosero , 42 F.3d 166 ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
11-29-1994
United States v. Rosero
Precedential or Non-Precedential:
Docket 93-7600
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 93-7600/7601/7602/7603/7604
____________
UNITED STATES OF AMERICA
v.
MARCO ANTONIO COPETE ROSERO,
Appellant in No. 93-7600
(D.C. Crim. No. 93-00068-2)
____________
UNITED STATES OF AMERICA
v.
MORENO-MENA, LUIS ALBERTO
CARLOS ALBERTO MORENO-VALENCIA,
a/k/a Luis Alberto Moreno-Mena,
Appellant in No. 93-7601
(D.C. Crim. No. 93-00068-3)
____________
UNITED STATES OF AMERICA
v.
JORGE ANTONIO TOVAR,
Appellant in No. 93-7602
(D.C. Crim. No. 93-00068-4)
____________
UNITED STATES OF AMERICA
v.
GABRIEL DE JESUS PINEDA,
a/k/a Richardo Corrales Ramirez,
Appellant in No. 93-7603
(D.C. Crim. No. 93-00068-5
____________
UNITED STATES OF AMERICA
v.
SIMON DE JESUS MOUSSA-AVILA,
Appellant in No. 93-7604
(D.C. Crim. No. 93-00068-6)
____________________
ON APPEAL FROM THE DISTRICT COURT
OF THE VIRGIN ISLANDS
____________________
Argued: April 22, 1994
Before: STAPLETON, ALITO, and WEIS, Circuit Judges
(Opinion Filed: November 29, 1994)
____________________
YVETTE D. ROSS, ESQ. (Argued)
GEORGE W. CANNON, JR., ESQ.
47-A Marshill, Frederiksted
P. O. Box 1548, Frederiksted
St. Croix,
U.S. Virgin Islands 00841-1548
Attorney for Appellant,
Marco Antonio Copete Rosero
THURSTON T. MC KELVIN
Federal Public Defender
PATRICIA SCHRADER-COOKE (Argued)
Assistant Federal Public Defender
P. O. Box 3450
Christiansted, VI 00822
Attorneys for Appellant,
Carlos Alberto Moreno-Valencia
MICHAEL J. SANFORD, ESQ. (Argued)
COON, SANFORD & AMERLING
Chandler's Wharf, Suite 202
Gallows Bay, Christiansted
St. Croix
U.S. Virgin Islands 00824
Attorneys for Appellant,
Jorge Antonio Tovar
BERNADETTE PATRICIA WELCOME, ESQ.
(Argued)
DOUGLAS L. CAPDEVILLE, ESQ.
P. O. Box 4191
2107 Company Street, Lot 4
Christiansted, St. Croix
U.S. Virgin Islands 00822
Attorneys for Appellant,
Gabriel DeJesus Pineda
SCOTT A. BURTON, ESQ. (Argued)
BURTON & OTTO, P.C.
2118 (53A) Company Street
Christiansted, St. Croix
U.S. Virgin Islands 00820
Attorneys for Appellant,
Simon DeJesus Moussa-Avila
HUGH P. MABE, III
United States Attorney
JAMES M. PETERS (Argued)
Assistant United States Attorney
1108 King Street - Suite 201
Christiansted, St. Croix
U.S. Virgin Islands 00820
____________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
These are appeals by five defendants who were convicted
under 46 U.S.C. App. § 1903(a) for the possession, while on a
vessel subject to the jurisdiction of the United States, of a
large quantity of marijuana with the intent to distribute it.
The government's theory at trial was that the vessel was subject
to United States jurisdiction because it was "without
nationality" or stateless under 46 U.S.C. App. § 1903(c)(1)(A)
and (2). Because the district court gave an erroneous
instruction to the jury on the meaning of this statutory element,
we reverse the defendants' convictions and remand for a new
trial.
I.
At approximately 12:30 a.m. on the morning of December
27, 1992, radar on the United States Coast Guard Cutter GALLATIN
detected a vessel a short distance south of Saba Island, which is
part of the Netherlands Antilles and is located east of St.
Croix. An officer on the GALLATIN then sighted this vessel and
observed that it had no lights except for a flashing light that
it appeared to be using to signal another vessel. The GALLATIN,
which was operating without lights for law enforcement purposes,
approached to within 400 yards of the other vessel and
illuminated its search light. Two vessels, a small open boat
and a larger vessel, were then seen heading in opposite
directions. The smaller boat headed west toward St. Croix, and
the GALLATIN pursued the larger vessel, a 45-foot fishing boat,
for about 30 or 40 minutes. During this time, the fishing vessel
engaged in various evasive maneuvers and failed to respond to
numerous requests to stop that were transmitted in English,
Spanish, and French by radio and by means of the GALLATIN's
"loudhailer," which can be heard for a quarter of a mile. The
fishing vessel also failed to respond to the international signal
to stop that was transmitted using the GALLATIN's whistle.
During the chase, persons on board the fishing boat were seen
throwing something overboard.
When the fishing boat eventually stopped, all of those
on board came out of a cabin and sat on a lifeboat on the ship's
bow. A boarding party from the GALLATIN then approached the
fishing boat. Two nameplates bearing the name TUTO and the
number CP-3891A were affixed on either side of the cabin of the
fishing vessel by means of wire strung through bolt holes. This
vessel, which we will call the TUTO, did not bear the name of any
port or country and was not flying any flag. After the vessel
was later seized and taken to St. Croix, the flags of three
nations, Colombia, Honduras, and Brazil, were discovered on
board.
When the boarding party neared the TUTO, an officer
from the GALLATIN asked who was in charge, but the TUTO crew
members did not respond. The officer asked for permission to
board, and the TUTO crew members motioned for the GALLATIN party
to come on board. Members of the boarding party detected a
strong smell of marijuana, and they observed numerous large bales
on the TUTO's deck.
Through an interpreter, an officer from the GALLATIN
asked if the master of the TUTO was on board, and the six members
of the TUTO's crew responded in unison that he had departed in
the smaller vessel. The officer then asked the TUTO crew members
the nationality of their ship, and they answered, again in
unison, that they and their ship were Colombian. When the
officer asked if their vessel had any documentation, one of the
crew members answered, and the officer was directed to the cabin,
where Colombian registration papers for a vessel named the EDGAR
were found. These papers bore a registration number, CP-3-189-A,
that was similar to but different from that on the TUTO'S
nameplates, and the papers contained an expiration date of
September 2, 1990.
Based on what he had seen, the officer in charge of the
GALLATIN boarding party concluded that the TUTO was a stateless
vessel, but because the crew had said that the vessel was
Colombian, a decision was made to seek a "statement of no
objection" or "SNO" from the Colombian government. Therefore, at
about 10 a.m., the GALLATIN party returned to their ship to await
the SNO. A short time later, the GALLATIN was told that an SNO
had been received. According to the declaration of a State
Department official, officials of the Colombian government,
"after being advised of a claim of Colombian registry for M/V
TOTU (sic)," had stated that they could not confirm that the
vessel was registered under the laws of Colombia and "agreed that
the M/V TUTO was a stateless vessel." At about 11:15 a.m., the
GALLATIN party again boarded the TUTO, arrested the crew, and
seized the vessel and its cargo of 200 bales of marijuana.
The six TUTO crew members were subsequently taken to
St. Croix and were indicted for one count of possession, while on
a vessel subject to the jurisdiction of the United States, of
approximately 10,000 pounds of marijuana with the intent to
distribute it, in violation 46 U.S.C. App. § 1903(a). In
addition to filing other pretrial motions, the defendants moved
for dismissal of the indictment on the ground that the TUTO was
not stateless. A magistrate judge recommended that the question
of the TUTO'S status as a stateless vessel not be decided before
trial but that the defendants be given the opportunity to move
for judgments of acquittal on this basis at the close of the
prosecution's case. The district court took this approach.
One of the defendants pled guilty, but the other five
went to trial before a jury.1 The court rejected the defendants'
argument that the indictment should be dismissed because the TUTO
was not stateless. The court stated that "the Prosecution had
presented sufficient evidence that the seized vessel was
stateless under 46 U.S.C. App. § 1903 to allow the question of
statelessness to be submitted to the jury." This question was
submitted to the jury pursuant to jury instructions that we will
discuss below, and the jury found all five of the defendants
guilty. They were sentenced to lengthy terms of imprisonment,
and these appeals followed.
II.
A. The chief question presented in these appeals
concerns the meaning of the term vessel "without nationality"
under 46 U.S.C. App. § 1903. The provision under which the
defendants were convicted, 46 U.S.C. App. § 1903(a), applies to,
1
. The District Court of the Virgin Islands had jurisdiction
under 18 U.S.C. § 3241, which gives that court concurrent
jurisdiction with the federal district courts over "offenses
against the laws of the United States committed upon the high
seas." While the TUTO may not have been on "the high seas" when
it was stopped near Saba, there was ample evidence, including the
statement of the crew members that the ship had departed from
Barranquilla, Colombia, to show that a violation of 18 U.S.C.
App. § 1903(a) had occurred on "the high seas."
among others, any person "on board a vessel subject to the
jurisdiction of the United States." The term "vessel subject to
the jurisdiction of the United States" is defined in 46 U.S.C.
App. § 1903(c)(1)(A)2 as including "a vessel without
2
. This provision states in full:
For purposes of this section, a "vessel
subject to the jurisdiction of the United
States" includes -
(A) a vessel without nationality;
(B) a vessel assimilated to a vessel
without nationality in accordance with
paragraph (2) of article 6 of the 1958
Convention on the High Seas;
(C) a vessel registered in a foreign
nation where the flag nation has consented or
waived objection to the enforcement of United
States law by the United States;
(D) a vessel located within the customs
waters of the United States; and
(E) a vessel located in the territorial
waters of another nation, where the nation
consents to the enforcement of United States
law by the United States.
Consent or waiver of objection by a foreign
nation to the enforcement of United States
law by the United States under subparagraph
(C) or (E) of this paragraph may be obtained
by radio, telephone, or similar oral or
electronic means, and may be proved by
certification of the Secretary of State or
the Secretary's designee.
46 U.S.C. App. § 1903(c)(1).
Article 6, paragraph (2) of the 1958 Convention on the High
Seas, to which reference is made in 46 U.S.C. App. §
1903(c)(1)(B), provides:
nationality,"3 and the latter term is defined in 46 U.S.C. App. §
1903(c)(2) as follows:
For purposes of this section, a "vessel
without nationality" includes
(A) a vessel aboard which the master or
person in charge makes a claim of registry,
which claim is denied by the flag nation
whose registry is claimed; and
(..continued)
A ship which sails under the flags of
two or more States, using them according to
convenience, may not claim any of the
nationalities in question with respect to any
other State, and may be assimilated to a ship
without nationality.
Convention on the High Seas of 1959, 13 U.S.T. 2312, T.I.A.S. No.
5200, Art. 6(2).
In this case, the prosecution relied solely on the
theory that the TUTO was "without nationality" under 46 U.S.C.
App. § 1903(c)(1)(A).
3
. The First, Fifth, and Eleventh Circuits have held that, when
the facts bearing on whether a vessel is "without nationality"
are in dispute, this question should be resolved at trial. See
United States v. Piedrahita-Santiago, 931 F.2d 127, 129 (1st Cir.
1991); United States v. Potes, 880 F.2d 1475, 1478 n.1 (1st Cir.
1989); United States v. Ayarza-Garcia, 819 F.2d 1043, 1048-49
(11th Cir.), cert. denied, 484 U.S. 969 (1987); United States v.
Canales, 744 F.2d 413, 434 (5th Cir. 1984); see also United
States v. Nukida, 8 F.3d 665, 670 (9th Cir. 1993). We agree with
these holdings. See Fogel v. Chestnutt, 668 F.2d 100, 105-07 (2d
Cir. 1981), cert. denied, 459 U.S. 828 (1982); footnote 1, supra.
Our decision in United States v. Wright-Barker, 784 F.2d 161, 170
(3rd Cir. 1986), does not compel a contrary result because the
question at issue was not addressed by the court in that case.
Cf. United States v. Martinez-Hidalgo, 993 F.2d 1052, 1057 & n.10
(3rd Cir. 1993)(stating that the disposition in Wright-Barker was
inconsistent with the approach taken in Piedrahita-Santiago).
"`[Q]uestions which merely lurk in the record, neither brought to
the attention of the court nor ruled upon, are not to be regarded
as having been so decided as to constitute precedents.'" Grant
v. Shalala, 989 F.2d 1332, 1341 (3rd Cir. 1993), quoting Webster
v. Fall, 266 U.S. 507, 511 (1925).
(B) any vessel aboard which the master
or person in charge fails, upon request of an
officer of the United States empowered to
enforce applicable provisions of United
States law, to make a claim of nationality or
registry for that vessel.
46 U.S.C. App. § 1903(c)(2) (emphasis added). The statute then
addresses the concept of a "claim of nationality or registry" as
follows:
For purposes of this section, a claim of
nationality or registry only includes
(A) possession on board the vessel and
production of documents evidencing the
vessel's nationality in accordance with
article 5 of the 1958 Convention on the High
Seas;4
(B) flying its flag nation's ensign or
flag; or
(C) a verbal claim of nationality or
registry by the master or person in charge of
the vessel.
46 U.S.C. App. § 1903(c)(3) (emphasis added).
4
. Article 5(1) reads as follows:
Each State shall fix the conditions for
the grant of its nationality to ships, for
the registration of ships in its territory,
and for the right to fly its flag. Ships
have the nationality of the State whose flag
they are entitled to fly. There must exist a
genuine link between the State and the ship;
in particular, the State must effectively
exercise its jurisdiction and control in
administrative, technical and social matters
over ships flying its flag.
Convention on the High Seas of 1958, 13 U.S.T. 2312, T.I.A.S. No.
5200, Article 5(1).
In interpreting these provisions, we first note that 46
U.S.C. App. § 1903(c)(2) does not attempt to provide an
exhaustive definition of the term "vessel without nationality."
Instead, this provision states that this term "includes" vessels
that fall within the categories set out in subsections (A) and
(B). The word "include" means "to. . . list. . .as a part or
component of a whole or of a larger group, class, or aggregate."
Webster's Third New International Dictionary 1143 (1971). Thus,
if the term "includes" in 46 U.S.C. App. § 1903(c)(2) is
interpreted in accordance with ordinary usage, the categories set
out in subsections (A) and (B) are merely parts or components of
the entire set of vessels without nationality. This
interpretation is reinforced by the contrast between the term
"includes" in 46 U.S.C. App. § 1903(c)(2) and the phrase "only
includes" in 46 U.S.C. App. § 1903(c)(3). This contrast dispels
any suggestion that the statutory drafters sloppily used the term
"includes" in 46 U.S.C. App. § 1903(c)(2) when they meant to say
"only includes." Consequently, it seems clear from the statutory
language that the term "vessel without nationality" encompasses,
not only those vessels that come within the categories described
in subsections (A) and (B), but other vessels as well.
Unfortunately, neither the text of 46 U.S.C. App. §
1903 nor its legislative history5 makes clear precisely which
5
. See S. Rep. No. 530, 99th Cong., 2d Sess. (1986), reprinted
in 1986 U.S.C.C.A.N. 5986; H.R. Rep. No. 547, 99th Cong., 2d
Sess. (1986); Drug Interdiction and Military Readiness: Hearings
Before the Subcommittee on Coast Guard and Navigation of the
House Committee on Merchant Marine and Fisheries, 99th Cong., 1st
Sess. (1985).
other vessels Congress had in mind when it employed the term
"vessel without nationality."6 This concept, however, has a
reasonably well developed meaning under international law.
"Where Congress uses terms that have accumulated settled meaning
under either equity or the common law, a court must infer, unless
the statute otherwise dictates, that Congress means to
incorporate the established meanings of these terms." NLRB v.
Amax Coal Co., 453 U.S. 322, 329 (1981). See also Community of
Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989). This
same principle logically applies when Congress uses a term that
has acquired a settled meaning under customary international law.
We therefore think that it is reasonable to assume that the
residual category of vessels "without nationality" under 46
U.S.C. App. § 1903(c)--i.e., those not within subsections
(c)(2)(A) or (B)-- are those that would be regarded as without
6
. Nor have we found guidance in the text or legislative history
of a predecessor provision, 21 U.S.C. § 955b(d) (repealed 1986).
This provision stated without elaboration:
"Vessel subject to the jurisdiction of
the United States" includes a vessel without
nationality or a vessel assimilated to a
vessel without nationality, in accordance
with paragraph (2) of article 6 of the
Convention of the High Seas, 1958.
See also S. Rep. No. 855, 96th Cong., 2d Sess. (1980), reprinted
in 1980 U.S.C.C.A.N. 2785; H.R. Rep. No. 323, 96th Cong., 2d
Sess. (1980); A Bill to Facilitate Increased Enforcement by the
Coast Guard of Laws Relating to the Importation of Controlled
Substances: Hearings Before the Subcommittee on Coast Guard and
Navigation of the House Committee on Merchant Marine and
Fisheries, 96th Cong., 1st Sess (1979); 125 Cong. Rec. 20082.
nationality or stateless under international law.7 We therefore
turn to the meaning of a vessel that is "without nationality" or
stateless under international law.
B. Under international law, "[s]hips have the
nationality of the State whose flag they are entitled to fly."
Convention on the High Seas of 1958, 13 U.S.T. 2312, T.I.A.S. No.
5200, art. 5(l). See also, e.g., Restatement (Third) of the
Foreign Relations Law of the United States § 501 ("A ship has the
nationality of the state that registered it and authorized it to
fly the ship's flag. . . ."). Therefore, a vessel is without
nationality if it is not authorized to fly the flag of any state.
See H. Meyers, The Nationality of Ships 309 (1967). This
situation may arise if no state has ever authorized a particular
ship to fly its flag, if a state has canceled its authorization,
or if the political entity that authorized a ship to fly its flag
is not recognized as an international person. See id. at 309-
323; 1 L. Oppenheim, International Law § 260 (8th ed. 1955)
There may be other situations in which ships would be regarded as
without nationality under international law, but we will not
attempt to provide a comprehensive catalog here. For present
purposes, it is enough to note that, under international law, the
core of the concept of a vessel that is "without nationality" or
stateless is that the vessel lacks authorization to fly the flag
of any recognized state. Thus, any vessel that falls within this
7
. See also H.R. Rep. No. 323, supra, at 22 ("The terms of art
used in the proposed [1980] amendment are defined so as to
comport with international law. . . .").
category is "without nationality" under 46 U.S.C. App. §
1903(c)(2), whether or not that vessel also satisfies subsections
(A) or (B) of that provision.
These subsections add to the concept of a "stateless"
vessel under international law and appear to be designed to make
it practicable for Coast Guard ships to ascertain whether a
suspicious vessel encountered at sea is stateless. Without
subsections (A) and (B), establishing that a vessel is without
nationality -- i.e., that no state authorizes it to fly its flag
-- would present the difficulties often associated with proving a
negative.
Subsections (A) and (B) attempt to alleviate these
difficulties by placing upon the master or person in charge of
the vessel in question the burden of making a claim of
nationality or registry. If the master or person in charge makes
a false claim of nationality or registry (46 U.S.C. App. §
1903(c)(2)(A)), or if, upon request, the master or person in
charge, fails to make any claim, the ship is deemed to be
stateless. 46 U.S.C. § 1903(c)(2)(B).
In summary, then, we interpret 46 U.S.C. App. §
1903(c)(2) to mean that a vessel is "without nationality" if (a)
the vessel is "stateless" under international law, which
generally will mean that the vessel is not authorized by any
state to fly its flag or (b) that the vessel falls within
subsections (A) or (B). With this understanding of 46 U.S.C.
App. § 1903(c)(2) in mind, we now consider the jury instructions
given in this case.
C. The district court properly instructed the jury
that the prosecution could establish that the TUTO was a vessel
"without nationality" by showing that the requirements of 46
U.S.C. App. § 1903(c)(2)(A) or (B) had been met. However, at the
urging of the prosecution, the court then added:
You may also consider the totality of
the evidence in determining whether a vessel
is stateless or without nationality. You may
consider but you are not limited in
considering whether the vessel was flying a
flag, whether it had its home port shown on
the hull, whether it was or had been validly
registered under the law of any nation,
whether it displayed a registration number
identified with a specific country, whether
there was a fake claim of country or
registry. You may consider all of these
factors but you are not limited.
App. C-381A.
The apparent purpose of this instruction was to explain
to the jury how a vessel might qualify as one "without
nationality" even if it did not fall within 46 U.S.C. App. §
1903(c)(2)(A) or (B). As we have attempted to show, a vessel can
so qualify if it is stateless under international law. The
instruction given by the district court, however, did not
correspond with the meaning of a stateless vessel under
international law. Instead it implied --incorrectly -- that the
jury could find that the TUTO was stateless based on an
unstructured weighing of the totality of the evidence, including
the factors that the court specifically mentioned.8 We are not
8
. This implication appears to be precisely what the government
intended. See, e.g., A-142A (Gov't. district court brief arguing
that the determination of statelessness "must be based on the
aware of any support for such a rule in either international law
or the law of this country.
In its brief on appeal,9 its district court briefs,10
and its jury instruction requests,11 the government relied on a
list of court of appeals decisions as authority for the
proposition that a "totality of the evidence" test was proper.12
(..continued)
totality of the circumstances"); Gov't's Requested Jury
Instruction No. 4. And the district court agreed with the
government's position. See C-176A to C-183A; C-236A to-C237A.
9
. See Gov't Br. at 12-13.
10
. See, e.g., A-142A; Gov't's Response to Defendant Pineda's
Motion to Suppress at 5-6.
11
. See Gov't's Requested Jury Instruction No 4.
12
. The government relied on the following cases: United States
v. Cuevas-Esquivel, 905 F.2d 510, 513 (1st Cir.) (vessel
stateless because master or person in charge, on request, did not
make claim of nationality or registry that satisfied 46 U.S.C.
App. § 1903(c)(2)); cert. denied, 498 U.S. 969 (1987); United
States v. Fuentes, 877 F.2d 898 (11th Cir. 1989); United States
v. Victoria, 876 F.2d 1009 (1st Cir. 1989) (vessel stateless
under 46 U.S.C. App. § 1903(c)(2)(B) because it failed on request
to make a claim of nationality or registry); United States v.
Ayarza-Garcia, 819 F.2d 1043 (11th Cir. 1987) (ship assimilated
to one without nationality because conflicting claims of
nationality made), cert. denied, 484 U.S. 969 (1987); United
States v. Gonzalez, 810 F.2d 1538, 1541-42 (11th Cir. 1987)
(vessel stateless, apparently because it sailed under authority
of two nations and made false claim of nationality); United
States v. Matute, 767 F.2d 1511, 1512-13 (11th Cir. 1985) (ship
assimilated to one without nationality because sailing under
hybrid Colombian/Venezuelan flag); United States v. Marquez, 759
F.2d 864, 867 (11th Cir. 1985) (vessel stateless on ground not
registered anywhere); United States v. Martinez, 700 F.2d 1358,
1367 (11th Cir. 1983) (ship assimilated to one without
nationality because conflicting claims of nationality made);
United States v. Marino-Garcia, 679 F.2d 1373, 1378 n.3 (11th
Cir. 1982) (vessel stateless based on false assertion of
nationality and conflicting indicia of nationality), cert.
denied, 459 U.S. 1114 (1983).
We have studied these cases, and we do not believe that they
support the government's position. While it is certainly true
that most of these decisions, in considering whether a particular
vessel had been shown to be stateless, rely on one or more of the
factors enumerated in the jury instruction at issue, none of the
decisions employs a test resembling that advocated by the
government and accepted by the district court. Instead, most of
these decisions rely on one or more of the enumerated factors in
determining whether the requirements of 46 U.S.C. App. §
1903(c)(2)(A) or (B) (or a related statutory provision) had been
met. While we will not discuss all of the cases cited by the
government, we will discuss one representative case to illustrate
the error in the government's reading of these precedents.
The first factor listed in the jury instruction at
issue was "whether the vessel was flying a flag." In its
appellate brief, the government defends this portion of the
instruction by citing, among other cases, United States v.
Fuentes, 877 F.2d 895, 900 (11th Cir.), cert. denied, 493 U.S.
943 (1989). There, the court held that a ship was without
nationality under 46 U.S.C. App. § 1903(c)(2)(B) because the
master or person in charge failed, upon request, to make a claim
of nationality or registry within the meaning of 46 U.S.C. App. §
1903(c)(3). Under this latter provision, one means of making a
claim of nationality or registry is by "flying [the] flag
nation's ensign or flag" (46 U.S.C. App. § 1903(c)(3)(B)), and
it was in this context that the Fuentes court relied on the fact
that the ship in that case flew no flag. See Fuentes, 877 F.2d
at 900. Thus, Fuentes does not stand for the proposition that a
ship may be found to be stateless based on an unstructured
weighing of the totality of the evidence. And the same is true
of the other cases on which the government relies.
D. While we are convinced that the jury instruction
discussed above was incorrect, it is a closer question whether
the defendants preserved valid objections to it. Rule 30 of the
Federal Rules of Criminal Procedure states that "[n]o party may
assign as error any portion of [a jury] charge . . .
unless that party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which that
party objects and the grounds of the objection." Here, there is
no question that the defendants objected, but we must also
consider the adequacy of their explanations of the grounds for
their objections. In this regard, we have explained:
The specificity requirement [of Rule 30]
imposes a strict standard on defense counsel,
but it is not a mere formalism. United
States v. Castro, 776 F.2d 1118, 1128-29 (3d
Cir. 1985), cert. denied, 475 U.S. 1029, 106
S. Ct. 1233, 89 L. Ed. 2d 342 (1986). Without
a clearly articulated objection, a trial
judge is not apprised sufficiently of the
contested issue and the need to cure a
potential error to avoid a new trial. Id. at
1129 (citing United States v. Graham, 758
F.2d 879, 883 (3d Cir.), cert. denied, 474
U.S. 901, 106 S. Ct. 226, 88 L. Ed. 2d 226
(1985)).
Government of Virgin Islands v. Knight, 989 F.2d 619, 631 (3d
Cir.), cert. denied, 114 S. Ct. 556 (1993).
Whether the defendants complied with Rule 30 in this
case is not entirely free from doubt. Just as the government's
interpretation of the term "vessel without nationality" was
incorrect, the clearest alternative interpretation advanced by
the defendants was also erroneous. Under this interpretation,
which was embodied in the instructions requested by one of the
defendants, a vessel could be found to be "without nationality"
only if the requirements of 46 U.S.C. App. § 1903(c)(2)(A) or (B)
were met.13 As we have explained, however, this interpretation
is plainly inconsistent with the statutory language. Moreover,
it is not clear that any of the defense attorneys ever provided
the district court with a complete and correct interpretation of
the term "vessel without nationality."
Nevertheless, defense counsel, in objecting to the
court's charge, did provide a clear and accurate explanation as
to why that charge was not supported by the authorities upon
which the government relied. To take one example, counsel for
defendant Tovar stated that he had read the cases cited by the
government and had found that the factors enumerated in the
court's charge had been "mentioned" in those cases merely as
"ancillary facts" and not as "the reason for the determination "
or the "deciding factor." C-180A. See also, e.g., C-234A to C-
236A. Other defense attorneys made similar arguments (see id. at
C-179A), and it appears that defense counsel were generally
deemed by the district court as having joined in each other's
13
. See Defendant Tovar's Proposed Jury Instruction No. 1.
arguments. We also note that the government has not argued on
appeal that we should review the portion of the instruction at
issue under a plain error standard.14 For these reasons, we hold
that the defendants preserved valid objections to the erroneous
portion of the instructions. That error was not harmless since
it concerned the meaning of one of the elements of the offense
and, as discussed below (see page 21, infra), the evidence
relating to this element was close. The defendants' convictions
must therefore be reversed.
E. The defendants contend, however, that we must go
further and order the entry of judgments of acquittal because the
government's evidence was insufficient to establish that the TUTO
was stateless. We hold, however, that prosecution's evidence was
sufficient to create a jury question under either 46 U.S.C. App.
§ 1903(c)(2)(A) or (B).
As previously noted, under subsection (A), the
prosecution can establish that a vessel is stateless by showing
that the master or person in charge made a claim of nationality
or registry that was denied by the flag nation whose registry was
claimed. Here, the crew of the boat that we have been referring
to as the TUTO told the GALLATIN boarding party that their vessel
was Colombian, and that vessel bore the name TUTO and a
registration number. The Colombian government could not confirm
that the TUTO was registered under the laws of Colombia. Based
on these facts, a rational jury could conclude (a) that one or
14
. See Gov't Br. at 3, 26-27.
more of the crew members were "in charge" of the boat and (b)
that their oral statement, coupled with the markings on their
boat, constituted a claim that the boat was registered in
Colombia under the name and number that it bore,15 and that the
Colombian government denied that claim. While a rational jury
could interpret this evidence differently, we believe that the
proof was sufficient to satisfy subsection (A).
Similarly, we hold that the evidence was sufficient to
satisfy subsection (B). Under this provision, as noted, if the
master or person in charge fails, upon request, to make any claim
of nationality or registry, the vessel may be regarded as
stateless. By clear implication, we believe, this provision
applies when the master of a ship flees and leaves no one in
charge, and in this case, a rational jury could certainly find
that that is exactly what occurred. Accordingly, we hold that
the evidence was sufficient to prove that the TUTO was stateless,
and the defendants are not entitled to judgments of acquittal.16
15
. The markings on a vessel cannot constitute a claim of
nationality or registry. See 46 U.S.C. App. § 1903(c)(3).
However, when a claim of nationality or registry is made without
providing either the name or registration number of the vessel --
for instance, by making an oral claim of nationality without
providing any further information (see 46 U.S.C. App. §
1903(c)(3)(C)) or by simply flying a flag (see 46 U.S.C. App. §
1903(c)(3)(B)) -- it stands to reason that the United States
officials who wish to verify the claim may rely on the ship's
markings in order to carry out that procedure. Otherwise, the
apparent purposes of subsections (A) and (B) would be undermined.
16
. The defendants also argue that they are entitled to
dismissal of the indictment because the term "vessel" in 46
U.S.C. App. § 1903(c)(2) is unconstitutionally vague, but we see
no merit in this argument.
III.
For the reasons explained above, the judgments entered
by the district court are reversed, and this case is remanded for
a new trial or other proceedings consistent with this opinion.
(..continued)
In addition, the defendants maintain that the district court
committed trial errors besides the one discussed in the text of
this opinion, but we reject these arguments. The defendants'
contention that the prosecution was required to prove a "nexus"
between the offense with which they were charged and the United
States is foreclosed by our decision in United States v.
Martinez-Hidalgo, 943 F.2d 1052, 1056 (3d Cir. 1993), which we do
not believe is materially distinguishable. The defendants'
argument that the Coast Guard was obligated to obtain the consent
of the government of the Netherlands Antilles before stopping,
boarding, or seizing the TUTO within the territorial waters of
that country is inconsistent with 46 U.S.C. App. § 1903(b), which
provides that "[a] failure to comply with international law in
the enforcement of this chapter may be invoked solely by a
foreign nation, and a failure to comply with international law
shall not divest a court of jurisdiction or otherwise constitute
a defense to any proceeding under this chapter." See also S.
Rep. No. 530, 99th Cong., 2d Sess.11 (1986), reprinted in 1986
U.S.C.C.A.N. 5986, 6001. We do not agree with the defendants
that the district court abused its discretion under Fed. R. Evid.
403 in refusing to exclude certain evidence, and we find no error
in the district court's use of the term "unhesitatingly" in its
instruction on reasonable doubt. See Victor v. Nebraska, 114 S.
Ct. 1239, 1290 (1994); United States v. DeLazo, 497 F.2d 1168,
1171 n.5 (3d Cir. 1974).