In one of the first decisions since the First Circuit issued its opinion in Dávila-Reyes, a District Court for the District of Puerto Rico denied multiple MDLEA defendants’ motions to dismiss in U.S. v. Puello-Morla, et al., 2023 WL 7185323 (D.P.R. November 1, 2023) (Arias-Marxuach). In their motions, defendants argued that because the vessel’s master claimed Dominican Republic nationality for the vessel, it was not stateless and thus, not subject to United States jurisdiction. They also argued that the MDLEA is unconstitutional.
The facts are common to most Coast Guard interdictions in the Caribbean. On 26 September 2022, U.S. Coast Guard (USCG) personnel intercepted a go-fast vessel (GFV) approximately 30-45 miles northwest of Puerto Rico. During the right-to-visit (ROV) boarding, one of the vessel’s four occupants identified himself as the master and told the USCG boarding team that he, the other occupants, and the vessel all had Dominican Republic nationality. The Dominican Republic government, however, denied registration of the vessel.
The defendants were indicted for violations of the MDLEA and during the pendency of the case, the United States Department of State (DOS) issued a jurisdictional certificate, which asserted U.S. jurisdiction over their vessel pursuant to 46 U.S.C. § 70502(c)(1) and 18 U.S.C. § 2237(e)(3). The defendants moved to dismiss the indictment arguing that “because the vessel’s master claimed Dominican Republic nationality for the vessel, the vessel is not stateless and therefore not subject to United States jurisdiction.” Puello-Morla, 2023 WL 7185323, at *1.
Judge Arias-Marxuach first addressed the MDLEA’s definition of “vessel[s] without nationality” stating that the “statutory list of examples of a vessel without nationality [in Section 70502(d)(1)] is non-exhaustive. In other words, there are instances other than those listed in § 70502(d)(1) where a vessel may be considered ‘without nationality’ (often referred to as being ‘stateless’).” Puello-Morla, 2023 WL 7185323, at *2 (citing U.S. v. Dávila-Reyes, 2023 WL 6519518, at *14 (1st Cir. 2023)).
In providing an example of when a vessel is considered stateless outside the specific examples provided in § 70502(d)(1), the District Court used the First Circuit’s recent decision in Dávila-Reyes to make its point:
In Dávila-Reyes, the master of a vessel claimed orally that the vessel’s nationality was Costa Rican, but, when contacted, “Costa Rica could not confirm the vessel’s registry.” [Dávila-Reyes, 2023 WL 6519518, at at *16]. Further, the defendants’ “vessel had no registration paperwork” and “no other indicia of nationality on board.” Id. Given these facts, the First Circuit held that the vessel could be stateless for purposes of the MDLEA. Id. at *16-17. The First Circuit reasoned that:
[U]nder both [the MDLEA] and international law, ‘[t]he controlling question is whether at the point at which the authorities confront the vessel, it bears the insignia or papers of a national vessel or its master is prepared to make an affirmative and sustainable claim of nationality.’
Id. at *17 (emphasis in original) (quoting Matos-Luchi, 627 F.3d at 6). The court concluded that although the master of the vessel claimed Costa Rican nationality, the fact that he was not “in a position to provide evidence of it” allowed the vessel to be found stateless under the MDLEA. Id. (emphasis in original).
Puello-Morla, 2023 WL 7185323, at *3. Like the facts of Dávila-Reyes, in this case the DOS’s certificate revealed that, despite a verbal claim of Dominican Republic nationality by the GFV’s master, the GFV did not display any indications of nationality, the occupants were unable to provide evidence of the claimed nationality during the interdiction, and the Dominican Republic government denied registry for the vessel. Considering these facts, the court concluded that the vessel lacked nationality under the MDLEA because the master’s oral claim of nationality was “insufficient to establish nationality without evidence to corroborate it.” Puello-Morla, 2023 WL 7185323, at *3–4.
Take-away: At least in the First Circuit, MDLEA defendants must be able to “back up [their] oral claim[s]” of nationality. If the defendants are unable to evidence that their vessel is entitled to fly the flag of the claimed nation, the vessel will be treated as stateless under international law and the MDLEA. Simply claiming a nationality for the vessel without evidence to corroborate that claim is not “prima facie proof of nationality.” Puello-Morla, 2023 WL 7185323, at *4.