Eleventh Circuit Determines Painted Flag does not Equate to Flying a Flag
United States v. Obando, 2018 U.S. App. LEXIS 14806, 2018 WL 2454470 (11th Cir. 2018).
By: Christopher Warren
- BACKGROUND
On November 17, 2016, the United States Coast Guard Cutter Edmonton spotted the Siempre Malagrita, a 32-foot vessel in international waters near the coast of Guatemala. A Marine Patrol Aircraft observed the crew jettisoning packages into the water and the Edmonton launhed a vessel to investigate these packages. It was later determined that the small package was cocaine.The guardsmen approached the Siempre Malagrita and identified the four man crew. The guardsmen also determined that Marcillo-Mera was the master of the vessel. The three crew members are citizens of Ecuador.The guardsmen attempted to determine the nationality of the vessel but none of the occupants made a verbal claim of nationality. Additionally, the master of the ship claimed not to know the vessel’s nationality.The guardsmen pointed to a flag on the hull of the ship and believed it to be a Colombian flag. However, Marcillo-Mera told the guardsmen it was the flag of Ecuador. It is pertinent to note the similarities in the flags.THE FLAG OF ECUADOR
THE FLAG OF COLOMBIA
The Coast Guard sent an action request to the government of Ecuador to determine the ship’s nationality. In the request, the Coast Guard stated that the vessel lacked a claimed nationality but it acknowledged a flag state claim via “vessel markings.” Ecuador could not confirm the nationality of the vessel; and the Coast Guard failed to reach out to Colombia.The Coast Guard determined that the vessel was without nationality subject to the jurisdiction of the United States under the Maritime Drug Law Enforcement Act (46 U.S.C. § 70502(c)(1)(A)) (MDEA). The guardsmen arrested the crew members.After the government charged the crew members with drug offenses, Marcillo-Mera moved to dismiss the charges on the basis that the United States lacked jurisdiction. He asserted that the Colombian flag painted on the Siempre Malgarita “was a claim of [Colombian] nationality in and of itself” and that “the Coast Guard contacted the incorrect flag state” when it instead communicated with Ecuadorian officials.The District Court denied their motion and the crew members conditionally plead guilty to conspiracy to possess with intent to distribute a controlled substance, but reserved the right to challenge.
- STANDARD OF REVIEW
The issue was reviewed de novo.
- DISCUSSION
The Court of Appeals divided its discussion into two parts.
- A Flag Painted on a Vessel Does Not Fly
The court stated that the Maritime Drug Law Enforcement Act grants the U.S. jurisdiction over “vessel[s] without nationality.” Id. § 70502(c)(1)(A). The Act provides that a vessel is without nationality if “the master or individual in charge fails, on request of an officer of the United States ..., to make a claim of nationality or registry for that vessel.” Id. § 70502(d)(1)(B). The MDEA stipulates three exclusive methods for the master or individual in charge to make a “claim” of nationality. These three methods are: 1) possession on board the vessel and production of documents evidencing the vessel’s nationality, 2) flying its nation’s flag or ensign, 3) a verbal claim of nationality or registry by the master or individual in charge of the vessel. The government bears the burden of establishing jurisdiction.With regards to the first point, the crew members acknowledged that they failed to produce documents evidencing the vessel’s nationality. Additionally, they agreed that they failed to make a verbal claim of such nationality. However, the crew contended that the painted flag on the side of the vessel constituted a claim of Colombian nationality that obliged the Coast Guard to ask Colombian officials whether the vessel was registered there and whether Colombia consented to the exercise of jurisdiction by the United States. The court held that this did not constitute “flying” a flag. The court reasoned that flying requires the flag be capable of freely moving in the air. To be sure, the ordinary meaning of a term will yield when the term has “a technical meaning” or is a “term[ ] of art,” see Scalia & Garner, supra, at 73 (emphasis omitted), but the meaning that the phrase “flying a flag” carries in the maritime context confirms that a vessel’s flag must be able to move freely in the air.Furthermore, maritime treatises confirm that a vessel’s flag must be hoisted in the air. When discussing the perils of a flying flag, a treatise states that flags may not be a reliable “indicator” of nationality because it can be “easily changed,” The Nationality of Ships (1967). It also explains that there may be times “when flying the flag cannot reasonably be required,” such as in the presence of “heavy gales” or if a “flag[ ] [is] blown overboard.” Id. at 164–65. Neither of these perils is relevant to painted flags.Federal statutes also indicate that flag flies only when hoisted in the air and laws dealing with the same subject ... should if possible be interpreted harmoniously.” Scalia & Garner, supra, at 252. For example, one statute provides that “[w]hen flags of two or more nations are displayed, they are to be flown from separate staffs of the same height,” 4 U.S.C. § 7(g) (emphasis added), that when “flags are flown from adjacent staffs, the flag of the United States should be hoisted first and lowered last,” id. § 7(f) (emphases added), and that “[t]he flag, when flown at half-staff, should be first hoisted to the peak,” id. § 7(m) (emphases added). And the statute does not use the term “flying” to refer to the display of flags that are not hoisted in the air. It instead uses different verbs like “drap[ing],” id. § 7(b), “display[ing],” id. § 7(i) & (k), and “cover[ing],” id. § 7(n), to describe that kind of use. Furthermore, a related statute explains that the “flag patch” worn by military and emergency personnel should be “affixed to the[ir] uniform[s].” Id. § 8(j) (emphasis added). “Flying” refers to a particular method of displaying a flag, and the Maritime Drug Law Enforcement Act uses this specific word instead of the more general term “displaying.”The crew members contended that flying a flag refers to any kind of depiction of flag that suggest the nationality of a vessel. They highlighted the form used by the Coast Guard to communicate with foreign governments in this kind of maritime interception which suggests the possibility of a “flag state claim via” a “flag painted on the stern of the vessel.” The court dismissed this argument by pointing out that it failed to consider whether this is considered flying under the Act in question. The Court then cited United States v. Prado, F.Supp.3d 94 (S.D.N.Y. 2015), in which the Southern District of New York ruled that a “small emblem of what appear[ed] to be an Ecuadorian flag ... affixed to [a] boat[ ],” id. at 97, was not “flying ... within the meaning of the [Act],” id. at 101 (citation and internal quotation marks omitted). The district court declined to adopt the argument of the government “that a piece of fabric must wave in the air.” Id. at 100. Instead, it explained that the phrase “ ‘flying a nation’s ensign or flag’ ... at a minimum refer[s] to a display sufficiently prominent as to put a United States official on notice of another country’s interests” before it concluded that the particular emblem in question was “not remotely large or prominent enough.” Id. (alteration adopted) (citation omitted).Not only was this functionalist analysis unnecessary in the light of the ordinary meaning of the phrase “flying a flag,” but the opinion in Prado also highlighted the inherent difficulty of dispensing with the requirement of a hoisted flag when it grappled with the question whether the “emblem” on the vessel in question was “enough to put a reasonable official on notice that [another country’s] interests might be affected.” In contrast, a flag hoisted in the air avoids these line drawing problems and provides certainty to both American officials on the high seas and the courts that second-guess their decisions.The crew further argued that interpreting “flying” in such a way may create international law because vessels registered in countries that permit painted flag will be “deemed stateless by American vessels and boarded.” However, the court pointed out that the Act provides alternative methods of claiming nationality including a verbal claim of nationality or registry.
- The Crew Members’ Alternative Arguments Are Unpersuasive
The crew members also asserted several reasons why the United States lacked jurisdiction. All were found without merit.The crew members first contended that the court should overlook the stipulation that no crew member made a claim of nationality and determine that that Marcillo-Mera’s “statement that the vessel’s flag was ‘Ecuadorian’ ... [was] tantamount to a claim of nationality” that obligated “the Coast Guard to contact the government of Colombia;” but this reasoning was wholly unpersuasive. Parties may “stipulate to facts that bear on our jurisdictional inquiry.” Iguaran, 821 F.3d at 1337 (emphasis omitted) (citation and internal quotation marks omitted). Also, because the parties stipulated that no crewmember made a claim of nationality, the panel refuse to ignore this stipulation on appeal and act as a factfinder in the first instance.Second, crew members contended that the government was estopped from asserting that there was no claim of nationality because the Coast Guard contacted Ecuador suggesting that guardsmen thought that the defendants had asserted nationality. This was flawed because the fact that the Coast Guard elected to communicate with Ecuadorian officials does not necessarily imply that the guardsmen thought that the defendants had satisfied their burden of asserting nationality under the Act. Second, the crew members voluntarily stipulated to the fact that they made no verbal claim of nationality; and there is no suggestion that the government dishonestly induced this stipulation or changed its position mid-litigation.Finally, crew members maintained that the guardsmen acted in bad faith because they failed to contact the Colombian government. Once again, the court pointed to the crew members failure to state a claim of nationality, and Marcillo-Mera’s statement that the flag was Ecuadorian.
