UNITED STATES of America, Appellee, v. José GONZÁLEZ, Defendant, Appellant, 311 F.3d 440

BOUDIN, Chief Judge. On this appeal, we face a narrow set of issues arising from a recent amendment of the Maritime Drug Law Enforcement Act (“Maritime Act”), 46 U.S.C. app. §§ 1901 et seq. (2000), intended by Congress to facilitate the prosecution of high-seas drug smuggling on U.S. or stateless vessels. In a nutshell, the issue is whether, by pleading guilty unconditionally to a drug trafficking charge (possession of drugs on a stateless vessel with intent to distribute) the defendant Jose Alberto Gonzalez forfeited any claim that the boat in question was a foreign (rather than a stateless) vessel.

The pertinent facts, derived from the plea agreement, can be stated briefly. On April 27, 1999, Gonzalez and another individual were rescued from a speed boat that was two-thirds submerged on the high seas off the coast of the British Virgin Islands. Summoned by the rescuing vessel, the U.S. Coast Guard responded and on inspection found that the speed boat carried numerous bales of cocaine. Defendant and his companion were indicted for possessing the cocaine, with intent to distribute it, aboard “a vessel without nationality” in violation of 46 U.S.C. app. § 1903(a).

That statute makes possession of cocaine with intent to distribute a federal crime where possession occurs either on board a “vessel of the United States” or on board a “vessel subject to jurisdiction of the United States”; id. § 1903(a); and the statute places “a vessel without nationality” (sometimes called a stateless vessel) in the latter category. Id. § 1903(c)(1)(A). “Vessel without nationality” is further defined to include: (

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; (

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; and (

C) a vessel aboard which the master or person in charge makes a claim of registry and the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality. Id. § 1903(c)(2)(A)-(C). Gonzalez moved to dismiss the indictment on the ground that the speed boat was not a “vessel without nationality” because, inter alia, no claim of registry was requested by an officer of the United States. The United States resisted' the motion on various grounds directed to showing that the speed boat was a stateless vessel.

In due course, a magistrate judge recommended denial of the motion and the district court agreed. Suffice it to say that the issue is complicated. Faced with an adverse ruling by the district court, Gonzalez negotiated a guilty plea. On February 23, 2001, a plea agreement was filed, with an agreed-upon sentence of 72 months, in which Gonzalez admitted the offense with which he was charged. In a change of plea proceeding, Gonzalez then expressly pled to the offense of possessing cocaine on board a vessel subject to the jurisdiction of the United States with intent to distribute.

Thereafter, Gonzalez was sentenced to 72 months. No issues were reserved for appeal. Nevertheless, after sentencing, Gonzalez did file an appeal asserting that the vessel was not in fact a stateless vessel. Ordinarily a guilty plea, entered unconditionally — that is, without reserving an issue or issues for appeal — establishes guilt and forfeits all objections and defenses. United States v. Cordero, 42 F.3d 697, 699 (1st Cir.1994). There are a few exceptions to this principle.

One applies where the claim on appeal is that the district court lacked subject matter jurisdiction over the case, that is to say, where the defendant says that the subject matter of the case falls outside the category of cases that the court is authorized to try. E.g., Cordero, 42 F.3d at 699; United States v. Doyle, 348 F.2d 715, 718-19 (2d Cir.1965) (Friendly, J.). One may ask why this exception exists when so many other objections and defenses in criminal cases, including constitutional issues and prior professions of innocence, are readily forfeited through a knowing and voluntary plea of guilty.

The answer is that courts treat their responsibility to stay within their grant of authority as a matter of extreme importance. United States Catholic Conf. v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 77, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988). In fact, a court is expected to raise the subject-matter jurisdiction objection on its own motion at any stage and even if no party objects. Fed R.Crim. P. 12(b)(2); Fed.R.Civ.P.12(h)(3).

Article III gives to the federal judicial branch authority — that is, subject matter jurisdiction — over all cases arising under the laws of the United States; and by statute Congress has given the federal district courts this authority over federal criminal cases in the first instance. 18 U.S.C. § 3231 (2000). Conventionally, a federal criminal case is within the subject matter jurisdiction of the district court if the indictment charges, as the Gonzalez indictment certainly did, that the defendant committed a crime described in Title 18 or in one of the other statutes defining federal crimes.

Sec 13B Wright, Miller & Cooper, Federal Practice and Procedure § 3575, at 244-45 (2d ed.1984). In such a case subject matter jurisdiction, that is to say, authority to decide all other issues presented within the framework of the case, exists. Thus, unless Congress provided otherwise, subject matter jurisdiction existed in the present case because Gonzalez was charged in district court under

section 1903, which is a federal criminal statute. By the same token, the stateless vessel issue was forfeited by an unconditional guilty plea — again, unless Congress provided otherwise. This was certainly this court’s view prior to the amendment of the statute. And if a defendant did seek to preserve an issue, he might easily find the prosecutor refusing to bargain. In 1996, Congress amended the Maritime Act. It did so among other things by expanding the definition of what constitutes a stateless vessel, 46 U.S.C. app. § 1908(c)(2)(C), and also by adding a provision reading in pertinent part as follows: Jurisdiction of the United States with respect to vessels subject to this

chapter is not an element of any offense. All jurisdictional issues arising under this

chapter are preliminary questions of law to be determined solely by the trial judge. 46 U.S.C. app. § 1903(f). The key question is whether this terse provision converted the stateless vessel issue into one implicating the subject matter jurisdiction of the district court and prevented it from being forfeited in connection with a plea of guilty. Nothing in the wording of the statute suggests such an intention. The term “jurisdiction” is notoriously malleable and is used in a variety of contexts {e.g., personal jurisdiction) that have nothing whatever to do with the court’s subject matter jurisdiction.

See Hugi, 164 F.3d at 380-81. In very general terms, “jurisdiction” means something akin to “authority over.” Black’s Law Dictionary 855 (7th ed.1999). Here, the word evidently refers to the substantive reach of the statute — applying to some vessels but not others — and not to the subject matter jurisdiction of the court.

In other words, Congress asserted its own authority to regulate drug trafficking on some ships but not all ships and, in this context, used the word “jurisdiction” loosely to describe its own assertion of authority to regulate; it does the same thing whenever it fixes an “affects interstate commerce” or “involved a federally insured bank” as a condition of the crime. See note 1 above. But such conditions have nothing whatever to do with the subject matter of the federal district court; they are routine questions as to the reach and application of a criminal statute.

Nor does legislative history suggest that Congress had in mind the court’s subject matter jurisdiction or that it meant to prevent a guilty plea from being given its normal effect. The legislative history does not refer to subject matter jurisdiction or reveal any purpose to limit guilty pleas. On the contrary, the general purpose of the amendments was to facilitate prosecutions or, as the President’s signing statement put it, to “strengthen[ ] the hand of prosecutors in drug smuggling cases.” 32 Weekly Comp. Pres. Doc. 2212 (Oct. 28, 1996).

One way in which the statute did this was to remove from the jury and confide to the judge an issue that had nothing to do with whether the defendant did possess drugs with an intent to distribute. To make the vessel’s status an issue that could never be the subject of an effective and binding guilty plea would greatly complicate proceedings rather than facilitate the enforcement of the drug laws. It would mean in practical terms that the district judge would have to try the issue every time in order to put it completely to rest.

Admittedly two circuits have treated the amendment as making vessel status an issue of district court subject matter jurisdiction, although only one involved the forfeiture issue. See United States v. Bustos-Useche, 273 F,3d 622, 626 (5th Cir.2001); United States v. Tinoco, 304 F.3d 1088, 1105 (11th Cir.2002). But neither decision made a detailed examination of the problem; both leapt, we think too quickly, from the bare reference to jurisdiction to the assumption that Congress was talking about the subject matter jurisdiction of the court.

Certainly by providing for a judge to decide the vessel issue rather than jury, Congress has introduced a possible Sixth Amendment objection to the statute. See United States v. Gaudin, 515 U.S. 506, 512-16, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). A defendant might claim, if the issue were tried, that he was entitled to a jury trial on whether the boat was a stateless vessel; on the other hand there are lots of issues (e.g., recusal of the judge, suppression of evidence, standing to assert a defense, constitutional challenge to a statute) normally not tried to the jury.

In all events, Gonzalez’ guilty plea made the mode of trial here a moot issue. To sum up, the unconditional guilty plea forfeited Gonzalez’ claim that the speed boat was other than a stateless vessel. Although the result would likely be the same even if we reached the merits (as the concurring opinion forcefully suggests) the question whether such a claim can be forfeited is an important recurring issue that needs to be resolved. Having resolved it in favor of forfeiture, it is enough to hold that Gonzalez had no more than an arguable claim which he bargained away in favor of an agreed-upon sentence. Affirmed. .

Valencia v. United States, 923 F.2d 917, 921 (1st Cir.1991). But see United States v. Pinto-Mejia, 720 F.2d 248, 256-261 (2d Cir.1983). In accord with Valencia are numerous other cases holding that threshold or nexus elements may be forfeited through a guilty plea. See Hugi v. United States, 164 F.3d 378, 380-381 (7th Cir.1999) (interstate commerce requirement); Mack v. United States, 853 F.2d 585, 586 (8th Cir.1988) (bank federally insured). .

Similarly, the House Conference Report stated: "The Conference substitute establishes new law enforcement provisions which expand the Government’s prosecutorial effectiveness in drug smuggling cases.... Jurisdictional issues would always be issues of law to be decided by the trial judge, not issues of fact to be decided by the jury.” H.R. Conf. Rep. 104-854, at 142 (1996), reprinted in 1996 U.S.C.C.A.N. 4292, 4337.