UNITED STATES of America, Appellee, v. Javier Joaquin Alarcon PRADO, Luis Armando Valencia Bautista, Hector Valencia Bautista, Defendants-Appellants., 933 F.3d 121

Leval, Circuit Judge: Defendants Joaquin Alarcon Prado, Hector Valencia Bautista, and Luis Armando Valencia Bautista appeal from the judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, J. ), convicting them, on their pleas of guilty, of conspiracy to distribute cocaine, and of possession of cocaine with intent to distribute, while on board a stateless vessel subject to the jurisdiction of the United States in violation of the Maritime Drug Law Enforcement Act, ("MDLEA" or "the Act"), 46 U.S.C. §§ 70501 et seq.

The guilty pleas (and the judgments of conviction) are set aside because of the failure to follow Rule 11, Fed. R. Crim. P., in the guilty plea procedure. The indictment is dismissed because the government did not demonstrate that the vessel was subject to the jurisdiction of the United States. BACKGROUND The district court conducted a hearing in part to determine whether the vessel on board which drugs were found was subject to the jurisdiction of the United States.

The theory of the government was that the vessel was subject to the jurisdiction of the United States because it was without nationality, i.e., not registered in any nation. The government's evidence submitted at the hearing consisted entirely of the sworn complaint of Andres Mahecha, a detective of the New York City Police Department on a task force of the United States Department of Homeland Security ("DHS"), supplemented by exhibits including a video and photographs taken by the Coast Guard showing the interception of the vessel.

According to Mahecha's account, on June 19, 2015, officers of the United States Coast Guard patrolling the waters of the Pacific Ocean, off the coast of Central America, received a tip from Homeland Security that a Colombian drug cartel "was sending a go-fast carrying a large shipment of cocaine from Colombia towards Costa Rica." App'x 13. A "go-fast" is a small, rapid speed boat, which, because of its speed and low profile, is often used in drug trafficking.

Coast Guard officers in a reconnaissance plane spotted a small craft moving at high speed in international waters approximately 300 nautical miles off the border between Nicaragua and Costa Rica. A Coast Guard cutter then sped to the area and sent out a helicopter and an interceptor launch in pursuit of the go-fast. When the go-fast failed to stop after the firing of warning shots, the helicopter crew fired on the vessel and disabled its engines. As the go-fast came to a stop, one of its occupants was observed throwing bundles into the sea.

Officers on the launch boarded the go-fast and there encountered the three defendants, the only persons aboard. They also found twelve bundles later determined to contain approximately 680 kilograms of cocaine. Mahecha's complaint states, "All three of the defendants claimed to be of Ecuadorian nationality. [ ] In response to questioning by members of the Boarding Team, none of the defendants claimed to be the master or individual in charge of the Go-Fast. ...

The Boarding Team also did not find any registration documents [i.e., documents indicating that it was registered as a vessel of any nation] onboard the Go-Fast." App'x 14. His affidavit adds that "[t]he Go-Fast was not flying any flag, nor did it have any signs of registry painted on the side of the vessel." Id . According to the Government's memorandum of law filed in the district court, the boarding team removed the cocaine and defendants from the go-fast, and then set fire to the go-fast and sank it, concluding that it was a navigation hazard.

The defendants were arrested, transported to Guantanamo Bay in Cuba, and from there flown to New York to be charged and tried. Affidavits submitted by defendants Hector Bautista and Javier Prado differ from Mahecha's account in a few respects. While Mahecha's affidavit stated that the go-fast was "not flying any flag," App'x 14, the defendants' affidavits asserted that the go-fast had an image of the Ecuadorian flag printed on the side of the vessel (which is corroborated by a video made by the Coast Guard boarding party that was attached to Mahecha's affidavit).

There is no evidence that the officers inquired of the defendants as to the nationality or registration of the vessel, and both Javier Prado and Hector Bautista asserted in their affidavits that the officers did not make any such inquiry. Nor is there evidence (or a contention by the government) that the Coast Guard officers communicated with the registry of Ecuador or any other nation to determine whether the vessel was registered. PROCEDURAL HISTORY Following indictment, the defendants moved for various forms of relief, including dismissal of the indictment.

The court conducted a hearing to determine whether the vessel was stateless, at which point it received the evidence described above. On the basis of that evidence, the court concluded that the go-fast was stateless and therefore subject to the jurisdiction of the United States under 46 U.S.C. § 70502(c)(1)(A). Accordingly, it declined to dismiss the indictment. The defendants moved for reconsideration, but, while the motion was pending, they entered pleas of guilty. They were sentenced to 24 months of imprisonment and three years of supervised release. The defendants then brought these appeals.

DISCUSSION Notwithstanding their having pleaded guilty, the defendants contend their convictions should be overturned, and the indictment dismissed, because the government failed to show that the go-fast was stateless and subject to the jurisdiction of the United States, as required by 46 U.S.C. § 70503(e)(1). I. The Requirements of the MDLEA The MDLEA, in

Section 70503, captioned "Prohibited Acts," prohibits possession of a controlled substance with intent to distribute "even though ... committed outside the territorial jurisdiction of the United States," if the prohibited act is committed aboard a "covered vessel." "Covered vessel" is defined to include three categories of vessels-one being a "vessel subject to the jurisdiction of the United States." The pertinent clauses are as follows: (

a) Prohibitions.-While on board a covered vessel , an individual may not knowingly or intentionally- (1) manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance; ... (

b) Extension Beyond Territorial Jurisdiction.-Subsection (

a) applies even though the act is committed outside the territorial jurisdiction of the United States. ... (

e) Covered Vessel Defined.-In this

section the term "covered vessel " means- (2) any other vessel if the individual is a citizen of the United States or a resident alien of the United States. (1) a vessel of the United States or a vessel subject to the jurisdiction of the United States ; or 46 U.S.C. § 70503 (emphasis added).

Section 70502, captioned "Definitions," defines "vessel subject to the jurisdiction of the United States" to include a "vessel without nationality," as well as several other categories of vessels including, most prominently, vessels that are in, or entering, or have departed from, the waters of the United States, and, only if the foreign nation consents, vessels that are in the waters of a foreign nation or are registered in a foreign nation. See id. at § 70502(c)(1). Whether a vessel is "without nationality" is addressed by § 70502(

d) and can turn on the outcome of a "claim of nationality or registry." (

d) Vessel Without Nationality.-

(1) In general.- In this chapter, the term "vessel 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 registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.

(2) Response to claim of registry. - The response of a foreign nation to a claim of registry under paragraph (1)(

A) or (

C) may be made by radio, telephone, or similar oral or electronic means, and is proved conclusively by certification of the Secretary of State or the Secretary's designee. (

e) Claim of Nationality or Registry. - A claim of nationality or registry under this

section includes only- (1) possession on board the vessel and production of documents evidencing the vessel's nationality as provided in

article 5 of the 1958 Convention on the High Seas; (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. Id . § 70502 (emphasis added).

Section 70504, captioned "Jurisdiction and venue," of which part (

a) was added to the MDLEA in 1996 , provides: (

a) Jurisdiction. - Jurisdiction of the United States with respect to a vessel subject to this

chapter is not an element of an offense. Jurisdictional issues arising under this

chapter are preliminary questions of law to be determined solely by the trial judge. (b)Venue. - A person violating

section 70503 or 70508 - (1) shall be tried in the district in which such offense was committed; or (2) if the offense was begun or committed upon the high seas, or elsewhere outside the jurisdiction of any particular State or district, may be tried in any district.

Section 70506(

c) provides: (

c) Simple possession. -

(1) In general.- Any individual on a vessel subject to the jurisdiction of the United States who is found by the Secretary, after notice and an opportunity for a hearing, to have knowingly or intentionally possessed a controlled substance within the meaning of the Controlled Substances Act ( 21 U.S.C. 812 ) shall be liable to the United States for a civil penalty not to exceed $5,000 for each violation. The Secretary shall notify the individual in writing of the amount of the civil penalty.

Accordingly, to prosecute a criminal offense in violation of the MDLEA, the government must establish, as a "preliminary question of law to be determined by the court," that the vessel on which the offense was committed was a covered vessel, which can be "a vessel subject to the jurisdiction of the United States." One way of proving that-the path undertaken by the government in this case-is by showing that the vessel was "without nationality" as defined in § 70502(d). That

section offers three ways in which a vessel can be shown to be without nationality. These require that U.S. law enforcement officers take prescribed steps.

If there is a "claim of nationality or registry," which can be asserted either by "possess[ing] on board the vessel and produc[ing] ... documents evidencing the vessel's nationality"; by "flying the nation's ensign or flag"; or by "a verbal claim of nationality or registry" by the "master or individual in charge." 46 U.S.C. § 70502(e), then the U.S. law enforcement officer can establish statelessness by seeking verification from the registry of the nation whose registry is claimed; if that registry office either "denies" registration or "does not affirmatively and unequivocally" confirm it, the vessel is deemed "without nationality." Alternatively, an officer of the United States may "request" of the master or person in charge to know whether there is a claim of nationality or registry, and if that person fails to make a claim of registry, then the vessel is deemed "without nationality." II.

Whether the Government Showed the Vessel Was "Subject to the Jurisdiction of the United States"

Section 70504(

a) imposes the obligation on the trial judge to determine, as a "preliminary question[ ] of law," whether the vessel in question was subject to the jurisdiction of the United States. As § 70504(

a) requires that the trial judge make this determination as a preliminary matter, (i.e., prior to a jury trial), the defendants' motion to dismiss the indictment was superfluous in this respect. At the hearing on that question, the burden was on the government to show that the vessel was subject to the jurisdiction of the United States. See, e.g. , United States v. Perlaza , 439 F.3d 1149, 1160 (9th Cir. 2006) ("For the Government to prosecute someone under the MDLEA, the Government must satisfy ... [the] 'statutory jurisdiction' requirement."); United States v.

Tinoco , 304 F.3d 1088, 1114 (11th Cir. 2002) (same). If an indictment was premised on the vessel having been stateless and neither side offered any evidence on that subject, the court would have no basis for concluding that the vessel was subject to the jurisdiction of the United States and would be compelled to dismiss the indictment. The Coast Guard officers faced the question whether the prohibition of the Act applied on board the go-fast when they boarded it in international waters and found a cargo of a controlled substance aboard. The crucial issue became whether the go-fast was registered in any nation.

If it was registered, then the vessel was not a covered vessel that was "subject to the jurisdiction of the United States," and the prohibition set forth in MDLEA did not apply. If the vessel was not registered in any nation, then the MDLEA did apply and the defendants' conduct violated U.S. law. The detailed provisions of the statute, reviewed above, offered various ways for determining statelessness.

With respect to the making of a verbal claim of registration by the master (or individual in charge), the formulation of § 70502(e)(3), as to how a claim of registry is made, and that of § 70502(d)(1)(B), as to how a vessel's statelessness is shown, differ in an important respect. Under clause (e)(3), 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. On the other hand, the absence of a master's claim of registration does not, by itself, establish absence of registration.

It is only if "on request " of a duly authorized officer, the master "fail[s] to make a claim of nationality or registry," that statelessness is established. The Coast Guard boarding party's inattention to the terms of the statute virtually doomed the prosecution to failure at the investigation stage. If the go-fast was, in fact, not registered in any nation, its status as "subject to the jurisdiction of the United States" could easily have been demonstrated to the satisfaction of the MDLEA's standards if the boarding party had followed statutorily specified procedure.

In the absence of indicia of registration such as flying a nation's flag, presenting registration papers, or a volunteered assertion of national registration by the master, the statute calls on the investigating officer to ask the master (or individual in charge) whether the vessel is registered in any nation. See 46 U.S.C. § 70502(d)(1)(B).

If that request is made, and the master makes no claim of registry in response, that would establish that the vessel is a "vessel without nationality" and thus "subject to the jurisdiction of the United States." If, on the other hand, there is a claim of registry (such as an assertion of registry by the person in charge, the flying of a nation's flag, or the presence on board of documents indicating registry), it is then incumbent on the Coast Guard officers to communicate ("by radio, telephone, or similar oral or electronic means," see id. § 70502(d)(2) ) with the registry office of the nation claimed to seek confirmation.

Id . § 70502(d)(1)(c). Unless the registry office "affirmatively and unequivocally assert[s]" that the vessel is registered, its failure to do so conclusively establishes statelessness under the statute. Id .

The problem for the government in this prosecution was that the Coast Guard officers first failed to follow the procedures by which statelessness can be established, and then destroyed the vessel without having secured a vessel identification number (or other means of identifying the vessel), which made it impossible for the government to establish subsequently by other means that the vessel was without nationality.

The district court found that the vessel was subject to U.S. jurisdiction because the defendants, despite having "every reasonable opportunity, and every good reason, to make a claim of nationality," failed to do so. United States v. Prado , 143 F. Supp. 3d 94, 99 (S.D.N.Y. 2015). That reasoning was not consistent with the statute. As explained above, failure to volunteer a claim of nationality does not suffice.

Section 70502(d)(1)(

B) makes clear that it is only if the master or person in charge fails "on request of an officer of the United States" to make a claim that the failure establishes statelessness. Id . (emphasis added). That statutory distinction is only logical. The failure of the master of a vessel to state the vessel's nationality when asked supports a strong logical inference of statelessness. On the other hand, mere silence in the absence of a request for information supports no inference at all.

In any event, the statute clearly provides that statelessness is established by the master's failure to assert a claim only when that failure is in response to a request. The District Court further found that "the go-fast had minimal, if any, identifying features[,] [so that] [a]ttempting to trace the vessel back to any possible [registry] documents on land would ... have been a futile exercise, since there was no meaningful identifying information that could be provided to the Ecuadorian authorities." Id. at 99.

There was, however, no evidentiary basis for the conclusion that the vessel had "no meaningful identifying information." Neither the Mahecha affidavit, nor any other evidence before the court, showed that the vessel lacked a means of identification. It is a common practice in the manufacture of vessels to identify each newly built hull with a "hull identification number" or "HIN," akin to a VIN for vehicles. Such identification has been legally required by Coast Guard regulations for all boats built in the United States since at least 1983. Hull identification number display, 33 C.F.R. § 181.29 (1983).

As with VINs, there is no requirement that such HINs be large or conspicuously displayed. See id. § 181.29(c) ("Each hull identification number must be carved, burned, stamped, embossed, molded, bonded or otherwise permanently affixed to the boat so that alteration, removal, or replacement would be obvious. If the number is on a separate plate, the plate must be fastened in such a manner that its removal would normally cause some scarring of or damage to the surrounding hull area. A hull identification number must not be attached to parts of the boat that are removable.").

The government made no contention that the rules or practices in other countries are different. Neither the Mahecha affidavit, nor the grainy video made by the Coast Guard officers, nor any other evidence showed that the go-fast lacked an HIN. While the Mahecha affidavit stated that the go-fast had no "signs of registry painted on the side of the vessel," App'x 14, it made no assertion demonstrating the absence of an HIN (or other means of identification).

The District Court also concluded that the display of the flag of Ecuador affixed to the side of the vessel, as shown on the Coast Guard's video, was not large or prominent enough to qualify as flying Ecuador's flag (which under § 70502(e)(2) qualifies as a claim of nationality). Prado , 143 F. Supp. 3d at 100-01. The court cited no authority for such a size or prominence requirement. We need not pass on the correctness of that ruling as a matter of law because nothing turns on it.

Even if the go-fast was not flying the flag, that alone would be insufficient to establish that it was stateless and subject to the jurisdiction of the United States. Under § 70502(c), the absence of a claim of registry does not establish that the vessel is "without nationality." To establish statelessness in the absence of a claim of registry, the United States officers must make a request of the master or person in charge for a claim of registry.

And if a claim is made in any of the ways specified by the statute, the United States officers must seek verification from the claimed "nation of registry." 46 U.S.C. § 70502(d)(1)(C).

Because of the Coast Guard's failure to follow statutorily prescribed steps that might have established statelessness at least to the satisfaction of the MDLEA's standards, followed by the Coast Guard's destruction of the vessel, it became virtually impossible for the government to demonstrate to the court in the statutorily mandated preliminary hearing that the vessel was subject to the jurisdiction of the United States and therefore that the MDLEA applied.

Because the evidence presented by the government to the court in support of the preliminary determination required by § 70504 was legally insufficient to support a finding that the go-fast was without nationality and subject to the jurisdiction of the United States, the District Court's finding that the go-fast was subject to the jurisdiction of United States must be vacated. III. Did the government's failure to demonstrate that the vessel was without nationality mean that the court was without subject matter jurisdiction?

The government argues that its failure to prove the vessel was subject to the jurisdiction of the United States makes no difference because of the rule that a defendant's guilty plea waives all defects other than to the court's subject matter jurisdiction. Defendants respond that the rule cited by the government does not apply because the government's failure to show that the vessel was "subject to the jurisdiction of the United States" is a defect as to the court's subject matter jurisdiction.

Accordingly, they argue that the federal court lacked subject matter jurisdiction to hear the case, and their guilty pleas did not constitute a waiver of the defect. Although defendants did not make this contention until these appeals, they rely on the proposition that an "objection that a federal court lacks subject-matter jurisdiction may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y&H Corp. , 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citations omitted). " Rule 12(h)(3) [Fed R. Crim.

P.] instructs: 'Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.' " Id . We reject the defendants' argument. Although the MDLEA's term, "a vessel subject to the jurisdiction of the United States," has caused confusion, we think it certain for numerous reasons that its function is not to confer subject matter jurisdiction on the federal courts, but rather to specify the reach of the statute beyond the customary borders of the United States. "Jurisdiction" is a chameleon word.

The Supreme Court has described it as having "many, too many, meanings." Id . at 510, 126 S.Ct. 1235 (quoting Steel Co. v. Citizens for Better Env't , 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ). Among its possible meanings, the two here in contention are described in the language of legal scholarship as "judicial jurisdiction" (or "jurisdiction to adjudicate") and "legislative jurisdiction" (or "jurisdiction to prescribe"). Judicial jurisdiction raises the question whether a case comes within the judicial power of the court, so that the court possesses the legal power to adjudicate the case.

Legislative, or prescriptive, jurisdiction concerns itself with the reach of a nation's (or any political entity'

s) laws. With respect to conduct occurring outside of a nation's territory, it asks whether the nation possesses, or has exercised, legislative power over those acts. The question whether U.S. statutes reach foreign conduct arises relatively infrequently in the business of the U.S. courts.

In contrast, jurisdiction to adjudicate, commonly referred to in the jurisprudence of the federal courts as "subject matter jurisdiction," is an issue that arises on a daily basis in the United States federal courts, because they are courts of limited jurisdiction and are charged with an "an independent obligation to ensure that they do not exceed the scope of their jurisdiction." See Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428, 434, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011).

As the result of their daily preoccupation with the issues of subject matter jurisdiction, the federal courts have an instinctive inclination to assume that threshold statutory references to "jurisdiction" refer to their subject matter jurisdiction. As discussed below, in subpart 2, the Supreme Court has warned against indulging that inclination. A persuasive opinion of the First Circuit, United States v.

Gonzalez , 311 F.3d 440 (1st Cir. 2002) (Boudin, J.), demonstrates that the MDLEA's reference poses the question whether its prohibition on drug possession extends to the vessel in question - not whether a prosecution under the statute falls within the subject matter jurisdiction of the federal courts. We agree. The factors that compel our agreement with Gonzalez are: (

i) A general provision of United States law, 18 U.S.C. § 3231, which defines the subject matter jurisdiction of the federal courts in relation to criminal statutes, confers subject matter jurisdiction on the federal courts for such a prosecution. (ii) The Supreme Court, recognizing the many different senses of the word "jurisdiction," has repeatedly warned against construing provisions that limit a statute's coverage as references to subject matter jurisdiction unless that meaning was "clearly state[d]" in the statute.

See Arbaugh , 546 U.S. at 515-16, 126 S.Ct. 1235. (iii) The natural meaning of the words of the statute, if they are read in context in the manner in which the various provisions and

definitions fit together, make clear that the term "vessel subject to the United States" specifies the reach, or coverage, of the statute and does not in any way address the jurisdiction of the court. (iv) Interpreting the phrase as a limitation on the court's jurisdiction , rather than on the reach of the statute , would give the prohibitory clauses a highly expansive and improbable meaning that would affront the sovereignty of other nations. (

v) The numerous federal statutes that confer subject matter jurisdiction on federal courts uniformly express that concept through very different formulations. (vi) Perhaps most important, the terms "subject to the jurisdiction of the United States" and "vessel subject to the jurisdiction of the United States" appear repeatedly in the MDLEA and other provisions of the same Title 46 (which governs Shipping), in contexts where those phrases refer unmistakably to the reach of United States laws (as exercises of legislative jurisdiction) and not to the jurisdiction of the courts. (vii) The decisions of other courts that have treated the provision as a limitation on court jurisdiction have either not recognized that it could have another meaning or have not recognized that the same phrase is used incompatibly with their

interpretation repeatedly throughout title 46, as well as in a parallel provision of the very same MDLEA. 1. The statutory law governing the subject matter jurisdiction of federal courts over federal criminal prosecutions. The question whether the federal courts have subject matter jurisdiction over a prosecution of a criminal offense defined by the statutes of the United States is simply and conclusively answered by 18 U.S.C. § 3231.

It states in clear, unambiguous words, "The district courts of the United States have original jurisdiction ... of all offenses against the laws of the United States." If the indictment alleges an offense under U.S. criminal statutes, the courts of the United States have jurisdiction to adjudicate the claim. If the facts fail to show a violation, the court enters judgment for the defendant. It does not dismiss the case for lack of jurisdiction, leaving the case unadjudicated. See United States v.

Yousef , 750 F.3d 254, 259 (2d Cir. 2014) ("Federal courts have subject-matter jurisdiction over federal criminal prosecutions by virtue of 18 U.S.C. § 3231, which vests the district courts with the power to hear 'all offenses against the laws of the United States.' "); see also Lauritzen v. Larsen , 345 U.S. 571, 575, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) (holding that because "[a] cause of action under [federal] law was asserted here, ... the [federal] court had power to determine whether it was or was not well founded in law and in fact"); United States v.

Williams , 341 U.S. 58, 65, 71 S.Ct. 595, 95 L.Ed. 747 (1951) ("The District Court had jurisdiction of offenses against the laws of the United States. 18 U.S.C. § 3231 .... Hence, it had jurisdiction of the subject matter, to wit, an alleged violation of a federal conspiracy statute, and, of course, of the persons charged."); Lamar v.

United States , 240 U.S. 60, 65, 36 S.Ct. 255, 60 L.Ed. 526 (1916) (Holmes, J.) ("[N]othing can be clearer than that the district court ... acts equally within its jurisdiction whether it decides a man to be guilty or innocent under the criminal law, and whether its decision is right or wrong."); United States v. Shellef , 507 F.3d 82, 96 (2d Cir. 2007) ("The district court had jurisdiction over the prosecution of Shellef and Rubenstein pursuant to 18 U.S.C. § 3231 because they were charged with violating federal criminal laws.").

As the offense specified in § 70503 is undoubtedly an "offense under the laws of the United States," § 3231 confers subject matter jurisdiction of prosecutions under § 70503 on the district courts. To conclude that the district court nonetheless lacked jurisdiction of this prosecution of an offense under the laws of the United States, we would need to conclude that the MDLEA somehow displaced, superseded, or limited § 3231 's express grant of jurisdiction.

If it were the intention of the MDLEA to place limits on the federal courts' subject matter jurisdiction to adjudicate such a case notwithstanding their clear empowerment by § 3231 to do so, one would expect the limiting statute to say something to the effect of "notwithstanding § 3231," or "notwithstanding any other provision of law." But there is not a word in the MDLEA to suggest that it conflicts with, limits, or supersedes § 3231 's universal grant of subject matter jurisdiction to the federal courts over criminal offenses specified in federal statutes.

See Gonzalez, 311 F.3d at 442 ("[U]nless Congress provided otherwise, subject matter jurisdiction existed in the present case [charging the defendant with criminal violation of § 70503 ] because [the defendant] was charged in district court under ... a federal criminal statute."). 2. The Supreme Court's guidance for interpreting ambiguous statutory requirements instructs that such a requirement does not go to subject matter jurisdiction absent a "clear statement" to that effect.

The term "jurisdiction" can carry a variety of meanings; "In very general terms, 'jurisdiction' means something akin to 'authority over.' " Gonzalez , 311 F.3d. at 443 (quoting BLACK'S LAW DICTIONARY 855 (7th ed. 1999)). The Supreme Court has repeatedly addressed the problem that arises when a litigant advocates interpreting an ambiguous statutory requirement as a limitation on the subject matter jurisdiction of the federal courts. See Henderson , 562 U.S. 428, 131 S.Ct. 1197, 179 L.Ed.2d 159 ; Reed Elsevier, Inc. v.

Muchnick , 559 U.S. 154, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) ; Arbaugh , 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097. In each of these cases, the Court insisted that statutory limitations should not be understood to limit the subject matter jurisdiction of the courts unless that is the "clearly" stated intention of the statute. And in each of these cases, the Court concluded that the contested ambiguous usage did not refer to the subject matter jurisdiction of the federal courts.

See Arbaugh , 546 U.S. at 515, 126 S.Ct. 1235 (cautioning that ambiguous statutory requirements should not be interpreted as limiting the power to adjudicate unless "the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional" (emphasis added)). The Henderson opinion re-emphasized Arbaugh 's test, stating, "In Arbaugh , we applied a 'readily administrable bright line' rule .... [W]e look to see if there is any 'clear' indication that Congress wanted the rule to be 'jurisdictional.' " Henderson , 562 U.S. at 435-36, 131 S.Ct. 1197.

In Reed Elsevier , the Court summarized, "Our recent cases evince a marked desire to curtail ... drive-by jurisdictional rulings." Reed Elsevier , 559 U.S. at 161, 130 S.Ct. 1237 (internal quotation marks omitted). The Court has explained that its requirement of a clear statement is justified by the "unfairness and waste of judicial resources ... entailed in tying [a] requirement to subject-matter jurisdiction." Arbaugh , 546 U.S. at 515, 126 S.Ct. 1235.

When a statutory requirement is treated as an obstacle to the court's subject matter jurisdiction, the court's jurisdiction may be challenged for the first time and new arguments raised long after the court has entered judgment. See id. at 506, 126 S.Ct. 1235. That is what the Supreme Court seeks to avoid, except where Congress has clearly stated a contrary intention. 3.

The words "vessel subject to the jurisdiction of the United States" specify how far the prohibitions reach into circumstances potentially conflicting with the sovereignty of other nations and make no apparent reference to the limited subject matter jurisdiction of the district courts . The natural meaning of the statutory words, if read in context rather than in isolation, clearly specifies (and limits) the scope, reach, or coverage of the statutory prohibition, without reference to the court's jurisdiction.

Section 70503(

a) make it a criminal offense to possess controlled substances (with intent to distribute) if the possession occurs "on board a covered vessel " (emphasis added). "Covered vessel[s]" include three categories: (

i) a vessel of the United States; (ii) a vessel on which the individual who possesses the drugs with intent to distribute is a citizen or resident of the United States; (iii) a vessel subject to the jurisdiction of the United States. See id. at § 70503(e). "Vessel subject to the jurisdiction of the United States" is an umbrella term, which specifies categories of vessels that are neither vessels of the United States nor vessels on which the person in possession of the drugs is a United States citizen or resident.

This category is tailored to exercise Congressional regulatory authority in circumstances where the regulatory interest of the United States is clear, and to avoid exercising regulatory authority where doing so would cause conflict with the sovereignty of other nations. The category includes "vessels without nationality"; vessels that are in, or entering, or have departed from United States waters; and, only if the foreign nation consents to the enforcement of the United States law (or waives objection), vessels registered in a foreign nation, or in the waters of a foreign nation. See id. at § 70502(c)(1).

The coverage therefore generally excludes non-U.S. vessels in the waters of another nation, and vessels registered in another nation, unless that nation consents or waives objection. The MDLEA thus makes clear in what circumstances vessels are covered by the statute's prohibition. If the vessel falls outside the prescribed coverage, it is not a "covered vessel" and the prohibition specified in § 70503 does not apply to it.

None of this in any way addresses the jurisdiction of the United States courts, which is normal, because (as demonstrated above) the jurisdiction of the United States courts over "all offenses against the laws of the United States" is provided by another statute. See 18 U.S.C. § 3231.

The function of the term "vessel subject to the jurisdiction of the United States" is to identify those vessels that fall into one of the three categories of vessels that are "covered." Specifying the circumstances in which a nation's laws apply extraterritorially typifies a legislature's exercise of legislative jurisdiction by defining the statute's reach. The general subject of legislative jurisdiction encompasses at least three legislative concerns: (

i) whether it is consistent with international law to so extend the reach of the nation's laws; (ii) whether doing so respects comity among nations, or would cause undesired friction with foreign nations; and, finally, (iii) exactly how the extraterritorial reach of the statute is defined. The relevant provisions of the MDLEA evince concern for each of these. With respect to "vessel[s] subject to the jurisdiction of the United States," the limits Congress imposed on the reach of the MDLEA to stateless vessels in international waters reflect concern for both international law and prescriptive comity.

See McCulloch v. Sociedad Nacional de Marineros de Honduras , 372 U.S. 10, 21, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963) (finding that the National Labor Relations Act does not apply to foreign-flagged vessels because of, inter alia , "the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship" and "possibility of international discord" that would arise from the "concurrent application of the [NLRA] and the Honduran Labor Code"); see also Lauritzen v.

Larsen , 345 U.S. 571, 577, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) ("While some [shipping laws] have been specific in application to foreign shipping and others in being confined to American shipping, many give no evidence that Congress addressed itself to their foreign application and are in general terms which leave their application to be judicially determined from context and circumstance. By usage as old as the Nation, such statutes have been construed to apply only to areas and transactions in which American law would be considered operative under prevalent doctrines of international law.").

Congress here took pains to avoid interference with vessels regulated by other nations (absent the other nation's consent), such as by excluding from coverage vessels registered in other nations in international waters and vessels within the territorial waters of other nations, and by specifying the particular facts that can demonstrate that a vessel is without nationality and thus subject to the jurisdiction of the United States.

In so doing, it specified the extent to which the law overcomes the "presumption against extraterritoriality," that U.S. laws are generally presumed to have only domestic effect unless Congress clearly manifests a contrary intention. See Morrison v. Nat'l Australia Bank Ltd. , 561 U.S. 247, 255, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) (holding that "[w]hen a statute gives no clear indication of an extraterritorial application, it has none"); see also RJR Nabisco, Inc. v. European Cmty. , --- U.S. ----, 136 S. Ct. 2090, 2093, 195 L.Ed.2d 476 (2016).

The MDLEA specifies that its substantive prohibition applies extraterritorially "even though the [prohibited] act is committed outside the territorial jurisdiction of the United States." 46 U.S.C. § 70503(b). Defining the extent of extraterritorial application of a law is an exercise of prescriptive jurisdiction. The Supreme Court has chastised us before for treating a question of the prescriptive reach of a U.S. statute as if it placed a limit on the subject matter jurisdiction of the federal courts.

In Morrison , our court had dismissed for lack of subject matter jurisdiction a civil suit alleging violation of the antifraud provision of the Securities Exchange Act of 1934 because we concluded that the statute did not apply to the wholly foreign facts. See Morrison, 561 U.S. at 254, 130 S.Ct. 2869. The Supreme Court corrected our reasoning, explaining that the extent of the statute's extraterritorial reach is not an issue related to the court's jurisdiction: "[T]o ask what conduct § 10(

b) reaches is to ask what conduct § 10(

b) prohibits, which is a merits question. Subject-matter jurisdiction, by contrast, refers to a tribunal's power to hear a case." Id . (internal quotation marks omitted).The point was also made by Judge Friendly in Fogel v. Chestnutt , 668 F.2d 100 (2d Cir. 1981) : "[W]hen the plaintiff bases his cause of action upon

an act of Congress[,] [the jurisdiction of the court] cannot be defeated by a plea denying the merits of his claim." Id . at 106 (first alteration in original) (quoting Fair v. Kohler Die & Specialty Co. , 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913) (Holmes, J.)). Similarly, the question posed by § 70503 whether its prohibition reaches the vessel on the high seas where the contraband cargo was found-is a question of prescriptive jurisdiction. This is not to say that the MDLEA is devoid of potential confusions.

In 1996, after many years of its prohibition on possession of controlled substances on vessels "subject to the jurisdiction of the United States," Congress added the provisions now identified as § 70504(

a) that "[j]urisdiction of the United States ... is not an element of an offense," and that "[a]ll jurisdiction issues arising under this

chapter are preliminary questions of law to be determined solely by the trial judge." 46 U.S.C. § 70504(a). As discussed further below, this amendment has misled some courts to reason that, if the vessel's status as "subject to the jurisdiction of the United States" is not an element of the offense , it must be a limitation on the court's subject matter jurisdiction. See United States v. Miranda , 780 F.3d 1185, 1195 (D.C. Cir, 2015) ; United States v. Bustos-Useche , 273 F.3d 622, 626 (5th Cir. 2001). There are, however, strong reasons to reject that

interpretation of the amendment. First, if Congress had intended this addition to change drastically the meaning of the prohibition on possession of narcotics on vessels subject to the jurisdiction of the United States, this would have been an oddly obscure and indirect way to go about saying something that would have been so easy to state in straightforward fashion. The provisions of § 70504(

a) were enacted a year after the Supreme Court decided in United States v. Gaudin , 515 U.S. 506, 522-23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), that an "element of the offense" must be submitted to the jury. Presumably that is why Congress described the "jurisdiction of the United States" as "not an element of an offense" in prescribing that it "be determined solely by the trial judge." However, Congress's evident desire to exclude these issues from jury consideration did not amount to a congressional statement that they now involved the court's subject matter jurisdiction.

Describing the issue as "not an element of an offense" is not to say that it is not an element of legislative jurisdiction--a so-called "jurisdictional element"-specifying what is needed so that the reach of the statutory prohibition extends to conduct occurring outside the territorial borders. There is a significant conceptual difference between provisions of a criminal statute that identify the offensive conduct prohibited and provisions that specify the conditions necessary for the statute to reach that conduct. The Supreme Court later explicitly recognized the difference in Torres v.

Lynch , --- U.S. ----, 136 S.

Ct. 1619, 1630, 194 L.Ed.2d 737 (2016), noting the distinction between a statute's "jurisdictional element"-the portion of the statute "connect[ing] the law to one of Congress's enumerated powers, thus establishing legislative authority"-and the "substantive elements," which "describe the evil Congress seeks to prevent." It is true, as Judge Boudin observed in Gonzalez , 311 F.3d at 444, that by allocating "jurisdictional issues" to the judge, "Congress [ ] introduced a possible Sixth Amendment objection to the statute." But as of 1996, the Supreme Court had made no such ruling, and there is no reason to suppose that Congress believed it could not, consistent with the Constitution, give the court the sole authority to determine a jurisdictional element.

There is likewise no reason to interpret the words of the statute to mean anything other than what they seem on their face to convey. The MDLEA's legislative history contains no suggestion "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." Gonzalez , 311 F.3d at 443.

The conference report on the 1996 Coast Guard Authorization Act, by which what is now § 70504 was added, evidences an intent to strengthen the effectiveness of the MDLEA in combating drug trafficking on the high seas: The Conference substitute [for diverging Senate and House versions of the bill] establishes new law enforcement provisions which expand the Government's prosecutorial effectiveness in drug smuggling cases. Claims of foreign registry must be "affirmatively and unequivocally" verified by the nation of registry to be valid.

People arrested in these international situations would not be able to use as a defense that the U.S. was acting in violation of international law regarding recognition of registry at the time of the arrest. ... 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. 142 Cong. Rec. H11485 § 1138 (Sept. 27, 1996).

The President's signing statement similarly announces a goal to "strengthen drug interdiction by clarifying U.S. jurisdiction over vessels in international waters." Presidential Statement on Signing the Coast Guard Authorization Act of 1996, 1996 PUB. PAPERS 1869 (Oct. 19, 1996).

Interpreting the statutory reference to "jurisdiction of the United States" as meaning the subject matter jurisdiction of the federal courts, thus enabling defendants who had pleaded guilty to reopen the issue of statelessness long after their pleading guilty (at a time when the government might no longer be able to prove the necessary facts to establish jurisdiction), would weaken, not strengthen the Act's effectiveness in drug interdiction. The meaning of § 70503 did not change as a result of the addition of a requirement that the court decide jurisdiction as a matter of law. 4.

Interpreting the phrase, "a vessel subject to the jurisdiction of the United States," as meaning a restriction on the jurisdiction of federal courts to hear a case (rather than as a limitation on the reach of the statute), would give the prohibitory terms of the statute a highly expansive, bizarre, unlikely meaning that would affront the sovereignty of other nations.

Interpreting the phrase, "vessel subject to the jurisdiction of the United States" as a limitation on the jurisdiction of the U.S. courts (rather than as a limitation on the reach of the statute), apart from the fact that it distorts the clear apparent meaning of the statute's words, causes bizarre distortions to the meaning of the statute that Congress is highly unlikely to have intended.

For example, the jurisdiction of the court to adjudicate the prosecution would turn on the government's ability to prove that the vessel was "covered" for one of the three categories of "covered vessel[s]," but not for the other two.

Thus, if the prosecution is brought on the theory that the vessel is a "vessel of the United States" (because the vessel is "owned in any part by an individual who is a citizen of the United States," see 46 U.S.C. § 70502(b)(2) ), or on the theory that the "individual [in possession of the drugs] is a citizen of the United States," see id. at §§ 70503(e)(1), (2), the court would have jurisdiction regardless of whether the government proved the facts necessary for coverage. If the government failed to prove that the vessel was covered, the court would exercise jurisdiction and acquit the defendant.

On the other hand, if the prosecution were premised on the vessel being "without nationality" (one of the categories of vessels that are "subject to the jurisdiction of the United States"), the failure of the government to prove that the vessel was unregistered would not result in acquittal, but would deprive the court of jurisdiction to enter a judgment of acquittal. There is no apparent reason why Congress would have wanted to make the jurisdiction of the court turn on satisfactory proof of coverage for one of the three categories of covered vessels, but not for the other two.

Interpreting "subject to the jurisdiction of the United States" as a limitation on the jurisdiction of the court, rather than on the reach of the statute, would have still more bizarre consequences for the meaning of the statute. If that phrase is a limit on the jurisdiction of the court, rather than on the reach of the statute, it would mean that the statute prohibits drug possession on foreign-registered vessels and on vessels in the waters of foreign nations, regardless of whether those nations consented.

The United States Coast Guard would be authorized to enforce violations by boarding such vessels in the waters of foreign nations, seizing the drugs, and arresting foreign nationals in possession. The only limitation on enforcement would be the unavailability of a court to impose criminal penalties. Passing a law purporting to criminalize drug possession by aliens on vessels registered in other nations or in the waters of other nations would create the very sort of affront to other nations that Congress clearly sought to avoid by the way it tailored the statute's coverage.

The words of the statute show a clear intent of Congress's that the statute not apply in such circumstances that would affront the sovereignty of other nations. That intent is realized only if "vessel subject to the jurisdiction of the United States" is construed as a limitation on the reach of the statute. Finally, it would have been inexplicably strange for Congress to criminalize drug possession in those circumstances, only to deny the courts authority to adjudicate the prosecutions for the violations. 5.

The verbal formulations of statutes conferring subject matter jurisdiction on the courts uniformly adopt a very different terminology. It is further instructive to compare the language of the MDLEA with the many acts of Congress that do confer subject matter jurisdiction on the federal courts.

Section 3231, which confers subject matter jurisdiction in the federal courts in criminal cases, and the many statutes of

Chapter 85 of the Judicial Code, Title 28, U.S. Code, that confer subject matter jurisdiction on the federal courts in civil cases, uniformly employ a forthright formulation, clearly stating, with tiny variations, "The district courts ... shall have ... jurisdiction of [a specified category of case]." The MDLEA contains no such language. The point is not merely that the MDLEA's formulation differs from that used by Congress to confer jurisdiction on the federal courts.

The MDLEA not only uses a very different formulation, but one which, on its face, contains neither a "clear statement" of intent to affect the jurisdiction on the federal courts, nor even a less-than-clear statement of such intent. If Congress had intended, either implicitly in enacting §§ 70502 and 70503, or in the 1996 amendment, to limit the subject matter jurisdiction of the federal courts, there is every reason to believe it would have used a formula that communicated the intended message.

The proposition that the federal courts will have jurisdiction of a specified category of cases is so easy to state in clear, simple language, that it would be inexplicably astonishing if Congress, desiring to achieve that objective, had done such a bad job of stating it in the statutory language. 6. Other provisions of the MDLEA and of Title 46 use the formulation of § 70503 in circumstances that cannot refer to the subject matter jurisdiction of the federal courts.

Perhaps what most persuasively demonstrates that § 70503 's use of the phrase "vessel subject to the jurisdiction of the United States" is not intended to confer subject matter jurisdiction on the federal courts is that other provisions of the MDLEA and Title 46 employ the same terminology referring to vessels and waters "subject to the jurisdiction of the United States" in a manner that cannot refer to the subject matter jurisdiction of the U.S. courts.

Other statutes throughout Title 46, the shipping title of the United States Code, use the phrase "subject to the jurisdiction of the United States" to refer to the waters where the provisions of United States laws will apply. These provisions do not contemplate proceedings in the federal courts. Some of these references authorize the Secretary to prescribe regulations governing shipping in waters "subject to the jurisdiction of the United States." Their context clearly refers to the reach of U.S. law and not to the subject matter jurisdiction of the U.S. courts.

The most pertinent to our inquiry is another provision of this very statute.

Section 70506(

c) of the MDLEA, enacted in 2010, which, like § 70503(a), prohibits drug possession on "a vessel subject to the jurisdiction of the United States," applies in circumstances in which the federal courts will play no role whatsoever. Mere possession of a controlled substance (i.e., without intent to distribute) on "a vessel subject to the jurisdiction of the United States," is declared to be a "violation," to be enforced in administrative proceedings conducted by the Secretary. Thus, another

section of the same statute employs the same phrase ("a vessel subject to the jurisdiction of the United States") in the same context (prohibiting drug possession on board the vessel), having no reference to the subject matter jurisdiction of the United States courts, as the proceedings it authorizes will not be conducted in the United States courts.

To accept the defendants' argument that "a vessel subject to the jurisdiction of the United States," as used in §§ 70502 and 70503, means a limitation on the subject matter jurisdiction of the federal district courts, one would need to construe these words as having a drastically different meaning from the same words used in the same context to define a less serious violation specified in § 70506. See Sorenson v.

Sec. of the Treasury of the U.S. , 475 U.S. 851, 860, 106 S.Ct. 1600, 89 L.Ed.2d 855 (1986) ("The normal rule of statutory construction assumes that identical words used in different parts of the same act are intended to have the same meaning." (internal quotation marks omitted)). 7. No prior court decisions have advanced persuasive arguments for construing this statute as a limitation of the jurisdiction of the federal courts.

While in a few instances courts have treated the MDLEA's reference to a "vessel subject to the jurisdiction of the United States" as a limitation on the subject matter jurisdiction of the federal courts, the majority of those decisions have simply assumed reflexively that a reference to "jurisdiction" means the subject matter jurisdiction of the court, without considering any possible alternative meaning.

Only three opinions of Courts of Appeals, Gonzalez , 311 F.3d 440, Bustos-Useche , 273 F.3d 622, and Miranda , 780 F.3d 1185, have confronted the question whether the reference was to the reach of the statute or to the jurisdiction of the court, and only Bustos-Useche and Miranda have reached the latter conclusion. We turn to the decisions of the various Circuits that treat this language as referring to the subject matter jurisdiction of the court. The majority of opinions dealing with convictions for violation of the MDLEA have been, not surprisingly in view of its geographic situation, in the Eleventh Circuit.

Defendants cite the Eleventh Circuit's decision in United States v. De La Garza , 516 F. 3d 1266 (11th Cir. 2008), as having concluded that the MDLEA's reference to "the jurisdiction of the United States" means the subject matter jurisdiction of the federal courts. This is incorrect. The De La Garza decision did not conclude that the phrase means "within the subject matter jurisdiction of the United States courts." The De La Garza decision merely noted that the Circuit had previously, in United States v.

Tinoco , 304 F.3d 1088, 1107 (11th Cir. 2002), "interpreted the 'on board a vessel subject to the jurisdiction of the United States' portion of the MDLEA as a congressionally imposed limit on courts' subject matter jurisdiction." De La Garza , 516 F.3d at 1271. The De La Garza opinion recognized in a footnote that the government was challenging Tinoco 's

interpretation and was arguing that the statutory reference to "jurisdiction" "deals with the territorial jurisdiction of the United States and not the adjudicatory power of the federal courts." Id . at 1271-72 n.3. The court avoided deciding the question, concluding that it "need not decide the issue to resolve this appeal" because, regardless of which

interpretation of "jurisdiction" was correct, it had been established in the district court proceedings that the vessel was subject to the jurisdiction of the United States. Id. The previous Tinoco opinion had not interpreted the statutory phrase as referring to the subject matter jurisdiction of the courts; it had simply adopted that

interpretation from prior rulings of the Eleventh Circuit in United States v. Medina , 90 F.3d 459 (11th Cir. 1996), and United States v. Ayarza-Garcia , 819 F.2d 1043 (11th Cir. 1987). Medina and Ayarza-Garcia , in turn, had simply assumed that the statutory reference to "jurisdiction" meant the subject matter jurisdiction of the federal courts without considering any alternative meaning. See Medina , 90 F.3d at 463 ; Ayarza-Garcia, 819 F.2d at 1048.

The question, as seen by the court in all three cases, was whether a factual issue necessary to establish the subject matter jurisdiction of the court should be decided by the court, or submitted to the jury as an element of the offense. Ayarza-Garcia and Medina had ruled that a factual issue necessary to the determination of the court's subject matter jurisdiction should be treated as an "element" of the crime and submitted to the jury. Medina , 90 F.3d at 463-64 ; Ayarza-Garcia, 819 F.2d at 1048.

Subsequent to those decisions, however, and prior to the Tinoco case, Congress amended the MDLEA by adding the provision of § 70504(

a) that "[j]urisdiction of the United States ... is not an element of an offense ," and that "[j]urisdictional issues ... are preliminary questions of law to be determined solely by the trial judge." 46 U.S.C. § 70504(a) (emphasis added). The Tinoco court viewed the intervening amendment of the statute as a Congressional rejection of Medina's ruling that factual issues involved in the determination of the court's jurisdiction should go to the jury.

Tinoco thus, while continuing to assume that "jurisdiction of the United States" referred to the subject matter jurisdiction of the United States courts, concluded that the issue was "solely one of subject matter jurisdiction for the court to decide, and not an element of the MDLEA substantive offense." Tinoco , 304 F.3d at 1112 (emphasis added).

In sum, throughout the history of MDLEA litigation in the Eleventh Circuit, the court never decided whether the MDLEA's reference to "a vessel subject to the jurisdiction of the United States" refers to the reach of the United States statute or to the subject matter jurisdiction of the United States court to adjudicate the criminal prosecution. The Circuit's most recent case, De La Garza , the only case in which the question was raised, explicitly left the issue unresolved.

In Miranda , 780 F.3d 1185, the District of Columbia Circuit did confront the meaning of the statutory phrase and concluded that it constitutes a limitation on the subject matter jurisdiction of the district courts. The opinion without doubt presents a dazzlingly imaginative array of arguments, but we find them unpersuasive. The essential core of its reasoning begins with the justified perception that the interception of vessels on the high seas by United States law enforcement officers presents a risk of violations of international law and affronts to other nations.

On that basis, the Miranda opinion assumes that that Congress must have wanted defendants who pleaded guilty to remain free thereafter to invoke jurisdiction-related objections to their convictions, so as to better protect the interests of foreign nations with respect to comity and international law and that Congress therefore must have intended the "jurisdiction of the United States" provision of § 70503 to mean the subject matter jurisdiction of the court, as that understanding would free defendants to raise these objections even long after the entry of judgment against them.

See id. at 1194 ("In that setting, it is eminently understandable why Congress would want the '[j]urisdiction of the United States with respect to a vessel' to be insulated from waiver or forfeiture by a defendant, and would also want courts in every case-and at every level of review-to assure that the requirement is satisfied."(emphasis added and internal citations omitted) (quoting 46 U.S.C. § 70504(a) ). The opinion cites no evidence in support of its speculation that Congress was concerned to free criminal defendants after pleading guilty to raise for affronts to comity and international law.

That proposition, furthermore, is both far-fetched and inconsistent with explicit provisions of the MDLEA.

Section 70505 specifies that a defendant "does not have standing to raise a claim of failure to comply with international law as a basis for a defense." It adds that "a failure to comply with international law does not divest a court of jurisdiction and is not a defense." 46 U.S.C. § 70505. It is very difficult to reconcile the intentions Miranda attributes to Congress with the provisions Congress enacted. The government has no need, furthermore, to rely on defendant-drug traffickers to protect the Nation's interest in its foreign relations.

The Departments of State and Justice are both parts of the executive branch. If a particular prosecution would cause undesirable friction with a foreign nation because of Coast Guard transgressions on another nation's maritime sovereignty, the government can simply drop the prosecution without need for the defendant to serve as a protesting ambassador, and without need for the court's approval to achieve a diplomatic objective. Cf. Kiobel v.

Royal Dutch Petroleum Co ., 569 U.S. 108, 116, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013) (reasoning that the unique role of the Executive branch in foreign relations should lead courts to be cautious in "impinging" on the Executive's management of foreign affairs); United States v. Curtiss-Wright Export Corp ., 299 U.S. 304, 320, 57 S.Ct. 216, 81 L.Ed. 255 (1936) (recognizing that the executive branch is the "sole organ of the federal government in the field of foreign relations"). A further serious flaw in the Miranda opinion's assessment is its unawareness that, as explained above in

Part III(

c) at page 50, the same shipping title of the United States Code repeatedly uses the phrase-"subject to the jurisdiction of the United States"-to mean legislative jurisdiction, including a nearly identical usage in the MDLEA to prescribe a variant of the prohibited conduct where the reference cannot be to the subject matter jurisdiction of the federal court as the court will have no role in the prosecution.

While quoting from the Supreme Court's Arbaugh opinion to the effect that "[i]f the Legislature clearly states that a threshold limitation on the statute's scope shall count as jurisdictional, then courts will be duly instructed," Miranda , 780 F.3d at 1192 (quoting Arbaugh, 546 U.S. at 515-16, 126 S.Ct. 1235 ), the Miranda opinion obscures the intended thrust of the Arbaugh triad, which is that threshold statutory requirements should be construed as limitations on subject matter jurisdiction only if that intention is "clearly stated" in the statute.

Nor does it acknowledge that its justification for construing the statute as a limitation on the courts' subject matter jurisdiction is the very reason given by the Supreme Court for its admonishment not to interpret unclear coverage limitations in that manner-to wit, the uncertainty, waste, and lack of finality that result because this

interpretation allows a dissatisfied party to reopen the issue long after the issuance of a final judgment. See Arbaugh , 546 U.S. at 515, 126 S.Ct. 1235. Miranda argues that congressional intention to refer to subject matter jurisdiction is clearly stated, indeed "self-evident," because § 70504(

a) groups references to "jurisdiction" together with the provision relating to venue, which "by nature speaks to the authority of the district court to hear a case." Id . at 1196 (The "entire provision, including the references to 'jurisdiction' self-evidently concerned the authority of district courts, not the legislative authority of Congress." (emphasis added)). We respectfully disagree. If § 70504 were being construed in isolation, the argument would have more force.

But the mere fact that § 70504 's reference to jurisdiction is grouped with a provision for venue does not negate and alter the meaning of the jurisdictional provision it refers to in § 70503. The grouping in § 70504 makes perfect sense with regard to the MDLEA's grouping of subjects. Sections 70502 and 70503 specify the definition of the offense and the reach of the statute.

Section 70504 turns to issues for trial, designating the proper district for trial and telling how issues are to be divided as between judge and jury. The grouping of issues in § 70504 furnishes no reason to interpret the language of §§ 70502 and 70503 as meaning anything other than what it appears on its face to say. Miranda further argues that "when Congress establishes a so-called 'jurisdictional element' addressing the reach of its legislative authority, Congress does not use the term 'jurisdiction' in the statute." Id . at 1195.

Miranda illustrates the proposition by referring to statutes criminalizing conduct when committed "by ... 'an officer, director, agent or employee ... with any Federal Reserve bank' " or making it unlawful to possess in a school zone a firearm "that has moved in or that otherwise affects interstate or foreign commerce." Id . (quoting 18 U.S.C. §§ 656, 922(q)(2)(A) ). The opinion then asserts that the notion of a "jurisdictional element" is not an appropriate way to refer to a statutory term defining the reach of the statute but is rather a mere colloquialism used by lawyers and judges. Id .

It is simply incorrect that the use of the word "jurisdiction" with reference to the reach of the statute is merely a colloquialism that Congress would not employ in a statute. As discussed above, the terms "legislative jurisdiction," "prescriptive jurisdiction," and "jurisdiction to prescribe" are well-recognized in legal scholarship, and in such documents as the American Law Institute's Restatement of Foreign Relations Law, especially with reference to the reach of the nation's laws beyond its territorial borders. See Reese, supra note 6, at 1587; Childress, supra note 6.

And Congress used "jurisdiction" numerous times in Title 46 to refer to the reach of the U.S. law. Second, while Miranda is correct that most statutes set forth the jurisdictional elements by naming them, rather than referring to them as "jurisdictional," there is an obvious reason why § 70503 uses the term "subject to the jurisdiction of the United States," elsewhere enumerating the facts that define the reach of that 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 jurisdiction of the United States" involve numerous complex alternatives, which are spelled out at length in § 70502 under "Definitions." To have included all those complexities in § 70503 together with the offense element would have been unwieldy and confusing.

A final illogic we find in Miranda 's arguments is that, while giving great importance to this altogether understandable use of a different approach to the identification of "jurisdictional elements" than in other statutes, Miranda dismisses without discussion the government's observation that the MDLEA formulation, if construed as conferring subject matter jurisdiction on the courts, differs drastically from the virtual blueprint statutory formulation that is used again and again in the United States Code to confer subject matter jurisdiction on the federal courts. Id . at 1195. (See discussion above at III(4)).

The reasoning of the Fifth Circuit in Bustos-Useche , 273 F.3d 622, was far simpler than in Miranda. As in our case and in Miranda , the defendant in Bustos-Useche had pleaded guilty without reservation to a violation of § 70503 in that he possessed controlled substances with intent to distribute on board a vessel subject to the jurisdiction of the United States. The vessel was alleged to be subject to the jurisdiction of the United States not because it was stateless but because Panama, the nation of registry, had given "express permission for the enforcement of United States laws on the vessel." Id . at 624.

After the entry of judgment based on a guilty plea, the defendant argued on appeal that U.S. jurisdiction was not established because Panama's consent was given only after U.S. officers had seized the cocaine. Accordingly, he argued that he never possessed the cocaine at a time when the vessel was subject to the jurisdiction of the United States because the vessel did not become so subject until after he was no longer in possession. Id . at 625. The government argued that by pleading guilty without reservation, the defendant had waived the claim.

The Fifth Circuit reasoned that whether the defendant had waived the claim turned on "whether the jurisdictional requirements of [the MDLEA] are merely substantive elements of the crime or prerequisites of the district court's subject matter jurisdiction." Id. at 626.

Recognizing that the 1996 amendment provided that jurisdiction of the United States is not an element of the offense and is to be determined by the trial judge, the court concluded on that basis in a single sentence that the determination of jurisdiction of the United States "is a prerequisite to the court's jurisdiction" and that the defendant was "therefore not foreclosed from raising the issue on appeal." Id. The court nonetheless went on to affirm his conviction on the ground that Panama's consent, even delivered subsequent to the seizure of the cocaine, established the jurisdiction of the United States.

Id . at 629. As with Miranda , the Bustos-Useche court reached its conclusion that the statute's jurisdictional requirement was a limitation on the court's subject matter jurisdiction without awareness that § 70506(

c) and Title 46 use the same language in circumstances that unmistakably refer to the reach of the statute and cannot mean to define the subject matter jurisdiction of the courts. The Bustos-Useche court, in 2001, furthermore, did not have the benefit of the Supreme Court's later admonition in the Arbaugh triad that statutory references to "jurisdiction" should not be interpreted as limitations on subject matter jurisdiction unless that intention was "clearly stated" in the statute.

And, as discussed above, the fact that Congress did not regard the vessel's subjectivity to the reach of U.S. law as an offense element did not necessarily mean, as the court seemed to assume, that Congress considered this requirement as a limitation on the subject matter jurisdiction of the federal courts. At the time of the 1996 amendments, there was no judge-made law to the effect that Congress could not, consistent with the Sixth Amendment, withdraw a jurisdictional element from jury consideration.

In our view, none of the opinions construing the MDLEA's jurisdictional requirements as a limitation on the subject matter jurisdiction of the federal courts refutes the persuasive reasoning of Gonzalez , especially as supplemented by the MDLEA's and Title 46's usages of the same words in provisions that cannot refer to the subject matter jurisdiction of the courts. IV. Whether Defendants' Guilty Pleas Must Be Vacated Because of Deficiencies in the Plea Proceedings.

The final question before us is whether, even if the MDLEA's jurisdictional requirement pertains to the reach of the statute and not to the subject matter jurisdiction of the court, the defendants' guilty pleas nonetheless should not be treated as waivers of their claim that the jurisdiction of the United States was not shown, because the plea procedure did not adhere to the requirements of Fed. R. Crim. P. 11. The rule advocated by the government-that a guilty plea waives all defects except to the court's jurisdiction-applies only to valid guilty pleas, and the defendants' guilty pleas were defective.

Our court and others have ruled that a defective guilty plea will not necessarily be deemed to waive all objections to a conviction. For example, we ruled in United States v. Gonzalez , 420 F.3d 111, 131-34 (2d Cir. 2005), that two Rule 11 errors in the guilty plea proceeding-a violation of Rule 11(b)(1)(C), which requires the court to "inform the defendant of, and determine that the defendant understands ... the right to a jury trial," Fed. R. Crim.

P. 11(b)(1)(C), in failing to tell the defendant of his right to have the jury determine drug quantity, and a violation of the obligation under Rule 11(b)(3) to determine that there was a "factual basis for the plea" with respect to drug quantity-required that the judgment of conviction be vacated and the defendant be permitted to withdraw his plea. In United States v.

Fisher , 711 F.3d 460, 465 (4th Cir. 2013), the Fourth Circuit found a defendant's guilty plea invalid and permitted him to withdraw because of the reasonable probability that "impermissible government conduct" induced the defendant to plead guilty. Id . at 467-69. And in United States v. Velazquez , 855 F.3d 1021, 1039 (9th Cir. 2017), the Ninth Circuit vacated defendant's guilty plea on the ground that the district court had erroneously denied her motion to substitute counsel. Notwithstanding the provision of Rule 11(

h) that "a variance from the requirements of this rule is harmless error if it does not affect substantial rights," Fed. R. Crim. P. 11(h), we have found in several instances that deficiencies in the Rule 11 proceedings did affect substantial rights and therefore prevailed over the concept that a plea waives all defects. Repeatedly, we have ruled that the court's failure to elicit a factual basis for the conviction would justify vacating the plea. See, e.g., United States v.

Culbertson , 670 F.3d 183, 189-92 (2d Cir. 2012) (vacating defendant's plea of guilty to conspiracy to import cocaine and heroin for lack of sufficient factual basis as to drug quantity); United States v. Adams, 448 F.3d 492, 497-502 (2d Cir. 2006) (vacating defendant's conviction on a plea of guilty to conspiracy to import cocaine and heroin for lack of sufficient factual basis as to the requisite intent, drug quantity, and drug type); Gonzalez , 420 F.3d at 133 ; United States v.

Andrades , 169 F.3d 131, 134-36 (2d Cir. 1999) (vacating defendant's conviction on a plea of guilty to conspiracy to distribute cocaine base for lack of sufficient factual basis as to "identity of defendant's coconspirators or other necessary facts"); Montgomery v. United States , 853 F.2d 83, 85-86 (2d Cir. 1988) (permitting defendant to withdraw plea of guilty to conspiracy to distribute heroin for lack of sufficient factual basis); Godwin v.

United States , 687 F.2d 585, 590-91 (2d Cir. 1982) (finding that defendant's guilty plea was accepted without sufficient factual basis where defendant's statements at the plea proceeding "essentially [denied] the intent element of the offense," and the district court lacked "some basis" in the record "for doubting his account"). In this instance, we find that the plea proceedings departed from the requirements of Rule 11 in two significant related respects. Rule 11(b)(1)(

G) requires that the court "must inform the defendant of, and determine that the defendant understands, ... the nature of each charge to which the defendant is pleading." Fed. R. Crim. P. 11(b)(1)(G).

Rule 11(b)(3) requires the court to "determine that there is a factual basis for the plea." The defendants could not be guilty of the offense unless the vessel on which they possessed drugs was "subject to the jurisdiction of the United States." The theory of the prosecution was that the vessel was subject to the jurisdiction of the United States because it was a "vessel without nationality." In advising the defendants of the nature of the charge, the court did inform them of aspects of the requirements of the charge, such as that they were accused of "conspiracy, that is to say an agreement between each defendant and at least one other person, to violate the Maritime Drug Law Enforcement Act by dealing in cocaine." App'x 388.

But the court made no reference either to the requirement that the vessel have been subject to the jurisdiction of the United States or to the crucial issue of its statelessness. Nor did the defendants demonstrate awareness in their allocutions of the crucial significance of statelessness. Each of them acknowledged having agreed to transport cocaine on a boat that traveled the high seas, but none said anything about the boat's nationality or of its being subject to the jurisdiction of the United States.

The court may have believed it was unnecessary to explain these issues in view of the fact that the defendants had moved through counsel to dismiss the indictment on the ground that statelessness had not been established. But Rule 11 does not allow the court to assume that a pleading defendant understands the charge because its nature has been the subject of discussion and argument by the defendant's counsel. A plea of guilty requires the personal participation of the defendant, and the court is obligated to inform the defendant of the nature of the charge.

In addition, the court failed to determine, as required by Rule 11(b)(3), that there was "a factual basis for the plea." In view of the probability, as a practical matter, that the defendants did understand from their attorneys that statelessness was an issue, this violation was even more problematic. In fact, as discussed at length in the early portions of this opinion, there was no factual basis for the plea, at least so far as could be demonstrated.

Because of the Coast Guard's failure to follow statutorily approved procedures for demonstrating the statelessness of the vessel and its subsequent destruction of the vessel, the government was unable to demonstrate that the vessel was stateless and therefore "subject to the jurisdiction of the United States," unless the defendants themselves supplied the missing information. The defendants never provided

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