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Title United States v. Rosero

Date 1994

By Alito

Subject Misc

Contents

Page 1

LEXSEE 42 F.3D 166

UNITED STATES OF AMERICA v. MARCO ANTONIO COPETE ROSERO, Appellant in No. 93-7600; UNITED STATES OF AMERICA v. MORENO-MENA, LUIS ALBERTO CARLOS ALBERTO MORENO-VALENCIA, a/k/a Luis Alberto Moreno-

Mena, Appellant in No. 93-7601; UNITED STATES OF AMERICA v. JORGE ANTONIO TOVAR, Appellant in No. 93-7602; UNITED STATES OF AMERICA v. GABRIEL DE JESUS PINEDA, a/k/a Richardo Corrales Ramirez, Appellant in No. 93-7603; UNITED STATES OF AMERICA v. SIMON DE JESUS MOUSSA-AVILA, Appellant in No. 93-

7604

Nos. 93-7600/93--7601/93-7602/93--7603/93-7604

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

42 F.3d 166; 1994 U.S. App. LEXIS 33554; 31 V.I. 317

April 22, 1994, Argued

November 29, 1994, Filed

PRIOR HISTORY: **1 ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS. (D.C. Crim. No. 93-00068--2). (D.C. Crim. No. 93-00068--

3). (D.C. Crim. No. 93-00068--4). (D.C. Crim. No. 93-

00068-5). (D.C. Crim. No. 93-00068--6).

LexisNexis(R) Headnotes

COUNSEL: YVETTE D. ROSS, ESQ. (Argued), GEORGE W. CANNON, JR. ESQ. 47-A Marshill, Frederiksted, P. O. Box 1548, Frederiksted, St. Croix, , U.S. Virgin Islands 00841-1548, Attorney for Appellant.

Marco Antonio Copete Rosero, THURSTON T. MC KELVIN, Federal Public Defender, PATRICIA SCHRADER-COOKE (Argued), Assistant Federal Public Defender, P. O. Box 3450, Christiansted, VI 00822, Attorneys for Appellant.

Carlos Alberto Moreno-Valencia, MICHAEL J. SANFORD, ESQ. (Argued), COON, SANFORD & AMERLING, Chandler's Wharf, Suite 202, Gallows Bay, Christiansted, St. Croix, U.S. Virgin Islands 00824, Attorneys for Appellant.

Jorge Antonio Tovar, BERNADETTE PATRICIA WELCOME, ESQ. (Argued), DOUGLAS L. CAPDEVILLE, ESQ. P. O. Box 4191, 2107 Company Street, Lot 4, Christiansted, St. Croix, U.S. Virgin Islands 00822, Attorneys for Appellant.

Gabriel DeJesus Pineda, SCOTT A. BURTON, ESQ.

(Argued), BURTON & OTTO, P.C. 2118 (53A) Company

Street, Christiansted, St. Croix, U.S. Virgin Islands **2

00820, Attorneys for Appellant.

Simon DeJesus Moussa-Avila, HUGH P. MABE, III, United States Attorney, JAMES M. PETERS (Argued), Assistant United States Attorney, 1108 King Street - Suite

201, Christiansted, St. Croix, U.S. Virgin Islands 00820. JUDGES: Before: STAPLETON, ALITO, and WEIS, Circuit Judges.

OPINIONBY: ALITO

OPINION: *167 OPINION OF THE COURT

ALITO, Circuit Judge:

These are appeals by five defendants who were con- victed under 46 U.S.C. App. § 1903(a) for the possession, while on a vessel subject to the jurisdiction of the United States, of a large quantity of marijuana with the intent to distribute it. The government's theory at trial was that the vessel was subject to United States jurisdiction because it was "without nationality" or stateless under 46 U.S.C. App. § 1903(c)(1)(A) and (2). Because the district court gave an erroneous instruction to the jury on the mean- ing of this statutory element, we reverse the defendants' convictions and remand for a new trial.

At approximately 12:30 a.m. on the morning of December 27, 1992, radar on the United States Coast Guard Cutter GALLATIN *168 detected a vessel a short distance south **3 of Saba Island, which is part of

42 F.3d 166, *168; 1994 U.S. App. LEXIS 33554, **3;

31 V.I. 317

Page 2

the Netherlands Antilles and is located east of St. Croix. An officer on the GALLATIN then sighted this vessel and observed that it had no lights except for a flashing light that it appeared to be using to signal another ves- sel. The GALLATIN, which was operating without lights for law enforcement purposes, approached to within 400 yards of the other vessel and illuminated its search light. Two vessels, a small open boat and a larger vessel, were then seen heading in opposite directions. The smaller boat headed west toward St. Croix, and the GALLATIN pur- sued the larger vessel, a 45-foot fishing boat, for about

30 or 40 minutes. During this time, the fishing vessel engaged in various evasive maneuvers and failed to re- spond to numerous requests to stop that were transmitted in English, Spanish, and French by radio and by means of the GALLATIN's "loudhailer," which can be heard for a quarter of a mile. The fishing vessel also failed to respond to the international signal to stop that was transmitted us- ing the GALLATIN's whistle. During the chase, persons on board the fishing boat were seen throwing something overboard.

When the fishing boat eventually **4 stopped, all of those on board came out of a cabin and sat on a lifeboat on the ship's bow. A boarding party from the GALLATIN then approached the fishing boat. Two nameplates bearing the name TUTO and the number CP-3891A were affixed on either side of the cabin of the fishing vessel by means of wire strung through bolt holes. This vessel, which we will call the TUTO, did not bear the name of any port or country and was not flying any flag. After the vessel was later seized and taken to St. Croix, the flags of three na- tions, Colombia, Honduras, and Brazil, were discovered on board.

When the boarding party neared the TUTO, an officer from the GALLATIN asked who was in charge, but the TUTO crew members did not respond. The officer asked for permission to board, and the TUTO crew members motioned for the GALLATIN party to come on board. Members of the boarding party detected a strong smell of marijuana, and they observed numerous large bales on the TUTO's deck.

Through an interpreter, an officer from the GALLATIN asked if the master of the TUTO was on board, and the six members of the TUTO's crew responded in unison that he had departed in the smaller vessel. The officer then asked the **5 TUTO crew members the nationality of their ship, and they answered, again in uni- son, that they and their ship were Colombian. When the officer asked if their vessel had any documentation, one of the crew members answered, and the officer was directed to the cabin, where Colombian registration papers for a vessel named the EDGAR were found. These papers bore

a registration number, CP-3--189-A, that was similar to but different from that on the TUTO'S nameplates, and the papers contained an expiration date of September 2,

1990.

Based on what he had seen, the officer in charge of the GALLATIN boarding party concluded that the TUTO was a stateless vessel, but because the crew had said that the vessel was Colombian, a decision was made to seek a "statement of no objection" or "SNO" from the Colombian government. Therefore, at about 10 a.m., the GALLATIN party returned to their ship to await the SNO. A short time later, the GALLATIN was told that an SNO had been received. According to the declaration of a State Department official, officials of the Colombian govern- ment, "after being advised of a claim of Colombian reg- istry for M/V TOTU (sic)," had stated that they could not confirm that **6 the vessel was registered under the laws of Colombia and "agreed that the M/V TUTO was a stateless vessel." At about 11:15 a.m., the GALLATIN party again boarded the TUTO, arrested the crew, and seized the vessel and its cargo of 200 bales of marijuana. The six TUTO crew members were subsequently taken to St. Croix and were indicted for one count of possession, while on a vessel subject to the jurisdiction of the United States, of approximately 10,000 pounds of marijuana with the intent to distribute it, in violation 46

U.S.C. App. § 1903(a). In addition to filing other pretrial motions, the *169 defendants moved for dismissal of the indictment on the ground that the TUTO was not state- less. A magistrate judge recommended that the question of the TUTO'S status as a stateless vessel not be decided before trial but that the defendants be given the opportu- nity to move for judgments of acquittal on this basis at the close of the prosecution's case. The district court took this approach.

One of the defendants pled guilty, but the other five went to trial before a jury. n1 The court rejected the defen- dants' argument that the indictment should be dismissed because **7 the TUTO was not stateless. The court stated that "the Prosecution had presented sufficient evi- dence that the seized vessel was stateless under 46 U.S.C. App. § 1903 to allow the question of statelessness to be submitted to the jury." This question was submitted to the jury pursuant to jury instructions that we will discuss below, and the jury found all five of the defendants guilty. They were sentenced to lengthy terms of imprisonment, and these appeals followed.

n1 The District Court of the Virgin Islands had jurisdiction under 18 U.S.C. § 3241, which gives that court concurrent jurisdiction with the federal district courts over "offenses against the laws of the

42 F.3d 166, *169; 1994 U.S. App. LEXIS 33554, **7;

31 V.I. 317

Page 3

**8 II.

United States committed upon the high seas." While the TUTO may not have been on "the high seas" when it was stopped near Saba, there was ample evidence, including the statement of the crew mem- bers that the ship had departed from Barranquilla, Colombia, to show that a violation of 18 U.S.C. App. § 1903(a) had occurred on "the high seas."

means, and may be proved by certifi- cation of the Secretary of State or the Secretary's designee.

46 U.S.C. App. § 1903(c)(1).

Article 6, paragraph (2) of the 1958 Convention on the High Seas, to which reference is made in 46

U.S.C. App. § 1903(c)(1)(B), provides:

A ship which sails under the flags of

A. The chief question presented in these appeals con- cerns the meaning of the term vessel "without nationality" under 46 U.S.C. App. § 1903. The provision under which the defendants were convicted, 46 U.S.C. App. § 1903(a), applies to, among others, any person "on board a vessel subject to the jurisdiction of the United States." The term

"vessel subject to the jurisdiction of the United States" is defined in 46 U.S.C. App. § 1903(c)(1)(A) n2 as in- cluding "a vessel without nationality," n3 and the latter term is defined *170 in 46 U.S.C. App. § 1903(c)(2) as follows:

n2 This provision states in full:

For purposes of this section, a "vessel subject to the jurisdiction of the United States" includes -

(A) a vessel without nationality;

(B) a vessel assimilated to a vessel without nationality in accordance with paragraph (2) of article 6 of the 1958

Convention on the High Seas;

(C) a vessel registered in a foreign nation where the flag nation has con- sented or waived objection to the en- forcement of United States law by the United States;

(D) a vessel located within the cus- toms waters of the United States; and

(E) a vessel located in the territo- rial waters of another nation, where the nation consents to the enforcement of United States law by the United States.

Consent or waiver of objection by a foreign nation to the enforcement of United States law by the United States under subparagraph (C) or (E) of this paragraph may be obtained by radio, telephone, or similar oral or electronic

**9

two or more States, using them accord- ing to convenience, may not claim any of the nationalities in question with re- spect to any other State, and may be assimilated to a ship without national- ity.

Convention on the High Seas of 1959, 13 U.S.T.

2312, T.I.A.S. No. 5200, Art. 6(2).

In this case, the prosecution relied solely on the theory that the TUTO was "without nationality" under 46 U.S.C. App. § 1903(c)(1)(A).

n3 The First, Fifth, and Eleventh Circuits have held that, when the facts bearing on whether a ves- sel is "without nationality" are in dispute, this ques- tion should be resolved at trial. See United States v. Piedrahita-Santiago, 931 F.2d 127, 129 (1st Cir.

1991); United States v. Potes, 880 F.2d 1475, 1478

n.1 (1st Cir. 1989); United States v. Ayarza-Garcia,

819 F.2d 1043, 1048-49 (11th Cir.), cert. denied,

484 U.S. 969 (1987); United States v. Canales, 744

F.2d 413, 434 (5th Cir. 1984); see also United States v. Nukida, 8 F.3d 665, 670 (9th Cir. 1993). We agree with these holdings. See Fogel v. Chestnutt,

668 F.2d 100, 105-07 (2d Cir. 1981), cert. denied,

459 U.S. 828 (1982); footnote 1, supra. Our deci- sion in United States v. Wright-Barker, 784 F.2d

161, 170 (3rd Cir. 1986), does not compel a con- trary result because the question at issue was not addressed by the court in that case. Cf. United States v. Martinez-Hidalgo, 993 F.2d 1052, 1057

& n.10 (3rd Cir. 1993)(stating that the disposition in Wright-Barker was inconsistent with the approach taken in Piedrahita-Santiago). "'Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be regarded as having been so decided as to constitute precedents.'" Grant v. Shalala, 989 F.2d 1332, 1341

(3rd Cir. 1993), quoting Webster v. Fall, 266 U.S.

42 F.3d 166, *170; 1994 U.S. App. LEXIS 33554, **9;

31 V.I. 317

Page 4

507, 511, 69 L. Ed. 411, 45 S. Ct. 148 (1925).

**10

For purposes of this section, a "vessel with- out nationality" includes

(A) a vessel aboard which the master or person in charge makes a claim of reg- istry, which claim is denied by the flag nation whose registry is claimed; and

(B) any vessel aboard which the master or person in charge fails, upon request of an officer of the United States empowered to en- force applicable provisions of United States law, to make a claim of nationality or registry for that vessel.

46 U.S.C. App. § 1903(c)(2) (emphasis added). The statute then addresses the concept of a "claim of nation- ality or registry" as follows:

For purposes of this section, a claim of na- tionality or registry only includes

(A) possession on board the vessel and production of documents evidencing the ves- sel's nationality in accordance with article 5 of the 1958 Convention on the High Seas; n4

n4 Article 5(1) reads as follows:

Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its ter- ritory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link be- tween the State and the ship; in partic- ular, the State must effectively exercise its jurisdiction and control in admin- istrative, technical and social matters over ships flying its flag.

Convention on the High Seas of 1958, 13 U.S.T.

2312, T.I.A.S. No. 5200, Article 5(1).

**11

(B) flying its flag nation's ensign or flag;

46 U.S.C. App. § 1903(c)(3) (emphasis added).

In interpreting these provisions, we first note that 46

U.S.C. App. § 1903(c)(2) does not attempt to provide an exhaustive definition of the term "vessel without national- ity." Instead, this provision states that this term "includes" vessels that fall within the categories set out in subsec- tions (A) and (B). The word "include" means "to. . . list.

. .as a part or component of a whole or of a larger group, class, or aggregate." Webster's Third New International Dictionary 1143 (1971). Thus, if the term "includes" in

46 U.S.C. App. § 1903(c)(2) is interpreted in accordance with ordinary usage, the categories set out in subsections

(A) and (B) are merely parts or components of the entire set of vessels without nationality. This interpretation is reinforced by the contrast between the term "includes" in

46 U.S.C. App. § 1903(c)(2) and the phrase **12 "only includes" in 46 U.S.C. App. § 1903(c)(3). This contrast dispels any suggestion that the statutory drafters sloppily used the term "includes" in 46 U.S.C. App. § 1903(c)(2) when they meant to say "only includes." Consequently, it seems clear from the statutory language that the term

"vessel without nationality" encompasses, not only those vessels that come within the categories described in sub- sections (A) and (B), but other vessels as well.

Unfortunately, neither the text of 46 U.S.C. App.

§ 1903 nor its legislative history n5 makes clear pre- cisely which other vessels Congress had in mind when it employed the term "vessel without nationality." n6 This

*171 concept, however, has a reasonably well devel- oped meaning under international law. "Where Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, un- less the statute otherwise dictates, that Congress means to incorporate the established meanings of these terms." NLRB v. Amax Coal Co., 453 U.S. 322, 329, 69 L. Ed. 2d

672, 101 S. Ct. 2789 (1981). **13 See also Community of Creative Non-Violence v. Reid, 490 U.S. 730, 739,

104 L. Ed. 2d 811, 109 S. Ct. 2166 (1989). This same principle logically applies when Congress uses a term that has acquired a settled meaning under customary in- ternational law. We therefore think that it is reasonable to assume that the residual category of vessels "without nationality" under 46 U.S.C. App. § 1903(c)--i.e., those not within subsections (c)(2)(A) or (B)--are those that would be regarded as without nationality or stateless un- der international law. n7 We therefore turn to the meaning of a vessel that is "without nationality" or stateless under international law.

42 F.3d 166, *171; 1994 U.S. App. LEXIS 33554, **13;

31 V.I. 317

Page 5

n5 See S. Rep. No. 530, 99th Cong., 2d Sess.

(1986), reprinted in 1986 U.S.C.C.A.N. 5986; H.R. Rep. No. 547, 99th Cong., 2d Sess. (1986); Drug Interdiction and Military Readiness: Hearings Before the Subcommittee on Coast Guard and Navigation of the House Committee on Merchant Marine and Fisheries, 99th Cong., 1st Sess. (1985). n6 Nor have we found guidance in the text or legislative history of a predecessor provision, 21

U.S.C. § 955b(d) (repealed 1986). This provision stated without elaboration:

"Vessel subject to the jurisdiction of the United States" includes a vessel without nationality or a vessel assimi- lated to a vessel without nationality, in accordance with paragraph (2) of ar- ticle 6 of the Convention of the High Seas, 1958.

See also S. Rep. No. 855, 96th Cong., 2d Sess.

(1980), reprinted in 1980 U.S.C.C.A.N. 2785; H.R. Rep. No. 323, 96th Cong., 2d Sess. (1980); A Bill to Facilitate Increased Enforcement by the Coast Guard of Laws Relating to the Importation of Controlled Substances: Hearings Before the Subcommittee on Coast Guard and Navigation of the House Committee on Merchant Marine and Fisheries, 96th Cong., 1st Sess (1979); 125 Cong. Rec. 20082.

**14

n7 See also H.R. Rep. No. 323, supra, at 22

("The terms of art used in the proposed 1980 amendment are defined so as to comport with in- ternational law. . . .").

B. Under international law, "ships have the nationality of the State whose flag they are entitled to fly." Convention on the High Seas of 1958, 13 U.S.T. 2312, T.I.A.S. No.

5200, art. 5(l). See also, e.g., Restatement (Third) of the Foreign Relations Law of the United States § 501 ("A ship has the nationality of the state that registered it and authorized it to fly the ship's flag. . . ."). Therefore, a vessel is without nationality if it is not authorized to fly the flag of any state. See H. Meyers, The Nationality of Ships 309

(1967). This situation may arise if no state has ever autho- rized a particular ship to fly its flag, if a state has canceled its authorization, or if the political entity that authorized a ship to fly its flag is not recognized as an international person. See id. at 309-323; 1 L. Oppenheim, International Law § 260 (8th ed. 1955) There may be other situations

in which ships would be **15 regarded as without na- tionality under international law, but we will not attempt to provide a comprehensive catalog here. For present pur- poses, it is enough to note that, under international law, the core of the concept of a vessel that is "without nation- ality" or stateless is that the vessel lacks authorization to fly the flag of any recognized state. Thus, any vessel that falls within this category is "without nationality" under

46 U.S.C. App. § 1903(c)(2), whether or not that vessel also satisfies subsections (A) or (B) of that provision.

These subsections add to the concept of a "stateless" vessel under international law and appear to be designed to make it practicable for Coast Guard ships to ascertain whether a suspicious vessel encountered at sea is state- less. Without subsections (A) and (B), establishing that a vessel is without nationality -- i.e., that no state autho- rizes it to fly its flag -- would present the difficulties often associated with proving a negative.

Subsections (A) and (B) attempt to alleviate these dif- ficulties by placing upon the master or person in charge of the vessel in question the burden of making a claim

**16 of nationality or registry. If the master or person in charge makes a false claim of nationality or registry

(46 U.S.C. App. § 1903(c)(2)(A)), or if, upon request, the master or person in charge, fails to make any claim, the ship is deemed to be stateless. 46 U.S.C. § 1903(c)(2)(B). In summary, then, we interpret 46 U.S.C. App. §

1903(c)(2) to mean that a vessel is "without national- ity" if (a) the vessel is "stateless" under international law, which generally will mean that the vessel is not autho- rized by any state to fly its flag or (b) that the vessel falls within subsections (A) or (B). With this understanding of

46 U.S.C. App. § 1903(c)(2) in mind, we now consider the jury instructions given in this case.

C. The district court properly instructed the jury that the prosecution could establish that the TUTO was a ves- sel "without nationality" by showing that the requirements of 46 U.S.C. App. § 1903(c)(2)(A) or *172 (B) had been met. However, at the urging of the prosecution, the court then added:

**17 You may also consider the total- ity of the evidence in determining whether a vessel is stateless or without nationality. You may consider but you are not limited in con- sidering whether the vessel was flying a flag, whether it had its home port shown on the hull, whether it was or had been validly reg- istered under the law of any nation, whether it displayed a registration number identified with a specific country, whether there was a fake claim of country or registry. You may

42 F.3d 166, *172; 1994 U.S. App. LEXIS 33554, **17;

31 V.I. 317

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consider all of these factors but you are not limited.

App. C-381A.

The apparent purpose of this instruction was to ex- plain to the jury how a vessel might qualify as one "with- out nationality" even if it did not fall within 46 U.S.C. App. § 1903(c)(2)(A) or (B). As we have attempted to show, a vessel can so qualify if it is stateless under inter- national law. The instruction given by the district court, however, did not correspond with the meaning of a state- less vessel under international law. Instead it implied-- incorrectly -- that the jury could find that the TUTO was stateless based on an unstructured weighing of the total- ity of the evidence, including the factors that **18 the court specifically mentioned. n8 We are not aware of any support for such a rule in either international law or the law of this country.

n8 This implication appears to be precisely what the government intended. See, e.g., A-142A

(Gov't. district court brief arguing that the deter- mination of statelessness "must be based on the totality of the circumstances"); Gov't's Requested Jury Instruction No. 4. And the district court agreed with the government's position. See C-176A to C-

183A; C-236A to-C237A.

In its brief on appeal, n9 its district court briefs, n10 and its jury instruction requests, n11 the government re- lied on a list of court of appeals decisions as authority for the proposition that a "totality of the evidence" test was proper. n12 We have studied these cases, and we do not believe that they support the government's position. While it is certainly true that most of these decisions, in considering whether a particular vessel had been shown to be stateless, rely on one or more of the factors enu- merated **19 in the jury instruction at issue, none of the decisions employs a test resembling that advocated by the government and accepted by the district court. Instead, most of these decisions rely on one or more of the enu- merated factors in determining whether the requirements of 46 U.S.C. App. § 1903(c)(2)(A) or (B) (or a related statutory provision) had been met. While we will not dis- cuss all of the cases cited by the government, we will discuss one representative case to illustrate the error in the government's reading of these precedents.

n9 See Gov't Br. at 12-13.

n10 See, e.g., A-142A; Gov't's Response to

Defendant Pineda's Motion to Suppress at 5-6. n11 See Gov't's Requested Jury Instruction No

n12 The government relied on the following cases: United States v. Cuevas-Esquivel, 905 F.2d

510, 513 (1st Cir.) (vessel stateless because master or person in charge, on request, did not make claim of nationality or registry that satisfied 46 U.S.C. App. § 1903(c)(2)); cert. denied, 498 U.S. 969

(1987); United States v. Fuentes, 877 F.2d 895,

898 (11th Cir. 1989); United States v. Victoria, 876

F.2d 1009 (1st Cir. 1989) (vessel stateless under

46 U.S.C. App. § 1903(c)(2)(B) because it failed on request to make a claim of nationality or reg- istry); United States v. Ayarza-Garcia, 819 F.2d

1043 (11th Cir. 1987) (ship assimilated to one with- out nationality because conflicting claims of na- tionality made), cert. denied, 484 U.S. 969 (1987); United States v. Gonzalez, 810 F.2d 1538, 1541-

42 (11th Cir. 1987) (vessel stateless, apparently be- cause it sailed under authority of two nations and made false claim of nationality); United States v. Matute, 767 F.2d 1511, 1512-13 (11th Cir. 1985)

(ship assimilated to one without nationality because sailing under hybrid Colombian/Venezuelan flag); United States v. Marquez, 759 F.2d 864, 867 (11th Cir. 1985) (vessel stateless on ground not registered anywhere); United States v. Martinez, 700 F.2d

1358, 1367 (11th Cir. 1983) (ship assimilated to one without nationality because conflicting claims of nationality made); United States v. Marino-Garcia,

679 F.2d 1373, 1378 n.3 (11th Cir. 1982) (vessel stateless based on false assertion of nationality and conflicting indicia of nationality), cert. denied, 459

U.S. 1114 (1983).

**20

The first factor listed in the jury instruction at issue was "whether the vessel was flying a flag." In its appellate brief, the government defends this portion of the instruc- tion by citing, among other cases, United *173 States v. Fuentes, 877 F.2d 895, 900 (11th Cir.), cert. denied,

493 U.S. 943 (1989). There, the court held that a ship was without nationality under 46 U.S.C. App. § 1903(c)(2)(B) because the master or person in charge failed, upon re- quest, to make a claim of nationality or registry within the meaning of 46 U.S.C. App. § 1903(c)(3). Under this latter provision, one means of making a claim of nationality or registry is by "flying the flag nation's ensign or flag" (46

U.S.C. App. § 1903(c)(3)(B)), and it was in this context that the Fuentes court relied on the fact that the ship in that case flew no flag. See Fuentes, 877 F.2d at 900. Thus, Fuentes does not stand for the proposition that a ship may be found to be stateless based on an unstructured weigh- ing of **21 the totality of the evidence. And the same

42 F.3d 166, *173; 1994 U.S. App. LEXIS 33554, **21;

31 V.I. 317

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is true of the other cases on which the government relies. D. While we are convinced that the jury instruction discussed above was incorrect, it is a closer question whether the defendants preserved valid objections to it. Rule 30 of the Federal Rules of Criminal Procedure states that "no party may assign as error any portion of a jury

charge . . .

unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection." Here, there is no question that the defendants objected, but we must also consider the adequacy of their explanations of the grounds for their objections. In this regard, we have explained:

The specificity requirement of Rule 30 im- poses a strict standard on defense counsel, but it is not a mere formalism. United States v. Castro, 776 F.2d 1118, 1128-29 (3d Cir.

1985), cert. denied, 475 U.S. 1029, 106 S. Ct. 1233, 89 L. Ed. 2d 342 (1986). Without a clearly articulated objection, a trial judge is not apprised sufficiently of **22 the con- tested issue and the need to cure a potential error to avoid a new trial. Id. at 1129 (citing United States v. Graham, 758 F.2d 879, 883

(3d Cir.), cert. denied, 474 U.S. 901, 106 S. Ct. 226, 88 L. Ed. 2d 226 (1985)).

Government of Virgin Islands v. Knight, 989 F.2d 619,

631 (3d Cir.), cert. denied, 126 L. Ed. 2d 457, 114 S. Ct.

556 (1993).

Whether the defendants complied with Rule 30 in this case is not entirely free from doubt. Just as the govern- ment's interpretation of the term "vessel without nation- ality" was incorrect, the clearest alternative interpretation advanced by the defendants was also erroneous. Under this interpretation, which was embodied in the instruc- tions requested by one of the defendants, a vessel could be found to be "without nationality" only if the require- ments of 46 U.S.C. App. § 1903(c)(2)(A) or (B) were met. n13 As we have explained, however, this interpre- tation is plainly inconsistent with the statutory language.

**23 Moreover, it is not clear that any of the defense attorneys ever provided the district court with a complete and correct interpretation of the term "vessel without na- tionality."

n13 See Defendant Tovar's Proposed Jury

Instruction No. 1.

Nevertheless, defense counsel, in objecting to the court's charge, did provide a clear and accurate expla- nation as to why that charge was not supported by the authorities upon which the government relied. To take one example, counsel for defendant Tovar stated that he had read the cases cited by the government and had found that the factors enumerated in the court's charge had been

"mentioned" in those cases merely as "ancillary facts" and not as "the reason for the determination " or the "decid- ing factor." C-180A. See also, e.g., C-234A to C-236A. Other defense attorneys made similar arguments (see id. at C-179A), and it appears that defense counsel were generally deemed by the district court as having joined in each other's arguments. We also note that the govern- ment **24 has not argued on appeal that we should review the portion of the instruction at issue under a plain error standard. n14 For these reasons, we hold that the defendants preserved valid objections to the erroneous portion of the instructions. That error was not harmless since it concerned the meaning of one of the elements of the offense and, as discussed below (see page 21, infra),

*174 the evidence relating to this element was close. The defendants' convictions must therefore be reversed.

n14 See Gov't Br. at 3, 26-27.

E. The defendants contend, however, that we must go further and order the entry of judgments of acquittal because the government's evidence was insufficient to es- tablish that the TUTO was stateless. We hold, however, that prosecution's evidence was sufficient to create a jury question under either 46 U.S.C. App. § 1903(c)(2)(A) or

(B).

As previously noted, under subsection (A), the pros- ecution can establish that a vessel is stateless by show- ing that the master **25 or person in charge made a claim of nationality or registry that was denied by the flag nation whose registry was claimed. Here, the crew of the boat that we have been referring to as the TUTO told the GALLATIN boarding party that their vessel was Colombian, and that vessel bore the name TUTO and a registration number. The Colombian government could not confirm that the TUTO was registered under the laws of Colombia. Based on these facts, a rational jury could conclude (a) that one or more of the crew members were

"in charge" of the boat and (b) that their oral statement, coupled with the markings on their boat, constituted a claim that the boat was registered in Colombia under the name and number that it bore, n15 and that the Colombian government denied that claim. While a rational jury could interpret this evidence differently, we believe that the proof was sufficient to satisfy subsection (A).

42 F.3d 166, *174; 1994 U.S. App. LEXIS 33554, **25;

31 V.I. 317

Page 8

n15 The markings on a vessel cannot constitute a claim of nationality or registry. See 46 U.S.C. App. § 1903(c)(3). However, when a claim of na- tionality or registry is made without providing ei- ther the name or registration number of the vessel-- for instance, by making an oral claim of national- ity without providing any further information (see

46 U.S.C. App. § 1903(c)(3)(C) or by simply fly- ing a flag (see 46 U.S.C. App. § 1903(c)(3)(B)) -- it stands to reason that the United States officials who wish to verify the claim may rely on the ship's mark- ings in order to carry out that procedure. Otherwise, the apparent purposes of subsections (A) and (B) would be undermined.

**26

Similarly, we hold that the evidence was sufficient to satisfy subsection (B). Under this provision, as noted, if the master or person in charge fails, upon request, to make any claim of nationality or registry, the vessel may be regarded as stateless. By clear implication, we believe, this provision applies when the master of a ship flees and leaves no one in charge, and in this case, a rational jury could certainly find that that is exactly what occurred. Accordingly, we hold that the evidence was sufficient to prove that the TUTO was stateless, and the defendants are not entitled to judgments of acquittal. n16

n16 The defendants also argue that they are en- titled to dismissal of the indictment because the term "vessel" in 46 U.S.C. App. § 1903(c)(2) is un- constitutionally vague, but we see no merit in this argument.

In addition, the defendants maintain that the district court committed trial errors besides the one discussed in the text of this opinion, but we reject

these arguments. The defendants' contention that the prosecution was required to prove a "nexus" be- tween the offense with which they were charged and the United States is foreclosed by our decision in United States v. Martinez-Hidalgo, 993 F.2d 1052,

1056 (3d Cir. 1993), which we do not believe is materially distinguishable. The defendants' argu- ment that the Coast Guard was obligated to obtain the consent of the government of the Netherlands Antilles before stopping, boarding, or seizing the TUTO within the territorial waters of that coun- try is inconsistent with 46 U.S.C. App. § 1903(b), which provides that " a failure to comply with in- ternational law in the enforcement of this chapter may be invoked solely by a foreign nation, and a failure to comply with international law shall not divest a court of jurisdiction or otherwise consti- tute a defense to any proceeding under this chap- ter." See also S. Rep. No. 530, 99th Cong., 2d Sess.11 (1986), reprinted in 1986 U.S.C.C.A.N.

5986, 6001. We do not agree with the defendants that the district court abused its discretion under Fed. R. Evid. 403 in refusing to exclude certain ev- idence, and we find no error in the district court's use of the term "unhesitatingly" in its instruction on reasonable doubt. See Victor v. Nebraska, 127 L. Ed. 2d 583, 114 S. Ct. 1239, 1290 (1994); United States v. De Lazo, 497 F.2d 1168, 1171 n.5 (3d Cir.

1974).

**27 III.

For the reasons explained above, the judgments en- tered by the district court are reversed, and this case is remanded for a new trial or other proceedings consistent with this opinion.

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