Last March, we wrote an article about what it means to “fly” your nation’s flag under the MDLEA. The article, among other things, summarized the 11th Circuit’s decision in U.S. v. Obando, 891 F.3d 929 (11th Cir. 2018) and looked at how some of the other Circuits address the issue.
In a recent decision by the 11th Circuit mainly addressing the Confrontation Clause and whether it bars the admission of a non-testifying codefendant’s confession where the confession did not directly inculpate the defendant, the court confirmed that Obando is still good precent regarding what it means to “fly” a nation’s flag. U.S. v. Anugulo Leones, et al., No. 22-12456, 2024 WL 340324 (11th Cir. Jan. 30, 2024).
The facts of the case, as recited in the government’s brief on appeal, center on a Coast Guard interdiction approximately 100 miles south of Panama. During the boarding, a Coast Guard boarding team found over two dozen fuel barrels, and observed that the vessel’s deck appeared hollow and noted recent paintwork around its engines. To investigate beneath the deck, Coast Guard personnel drilled an exploratory hole and uncovered cocaine. Upon dismantling the deck, they found a total of 430 kilograms of cocaine. The defendants were thereafter brought to the Middle District of Miami and prosecuted for violations of the MDLEA. Following the lower court’s denial of defendants’ motions to dismiss, on appeal, the defendants argued that the district court erred in denying their motions to dismiss because the vessel was not stateless–as determined by the Coast Guard–since it had a registration number and images of a Costa Rican flag on its hull. On appeal, the government argued that Obando is binding precedent and that the defendants did not provide a plausible basis for reconsidering the decision en banc.1U.S.A., Plaintiff-Appellee, v. Luis Elias Angulo LEONES et al., Defendants-Appellants., 2023 WL 3674809 (C.A.11), 10-11.
Since the section addressing the Obando precedent is short in Anugulo Leones, we’ve included a majority of it below:
C. Obando decision
The MDLEA grants the United States extraterritorial jurisdiction over vessels that fail to make a claim of nationality. Obando, 891 F.3d at 933; 46 U.S.C. § 70502. The MDLEA provides three methods for making a claim of nationality:
*3 (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.
46 U.S.C. § 70502(e). We held in Obando that a flag painted on the hull of a vessel is not “flying” the flag for the purpose of making a “claim of nationality or registry.” Obando, 891 F.3d at 933.
U.S. v. Anugulo Leones, et al., No. 22-12456, 2024 WL 340324, at *2–3 (11th Cir. Jan. 30, 2024). Since Obando is binding precedent in the 11th Circuit, the Court held that the defendants’ arguments were foreclosed and their convictions were affirmed.
Take-away: In the 11th Circuit, a painted flag on the side of a vessel is not considered “flying” a nation’s flag for the purpose of claiming nationality or registry under Section 70502.
- 1U.S.A., Plaintiff-Appellee, v. Luis Elias Angulo LEONES et al., Defendants-Appellants., 2023 WL 3674809 (C.A.11), 10-11.