United States v. Rosero

Opinions of the United

1994 Decisions States Court of Appeals

for the Third Circuit

11-29-1994

United States v. Rosero

Precedential or Non-Precedential:

Docket 93-7600

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

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

____________

UNITED STATES OF AMERICA

v.

MARCO ANTONIO COPETE ROSERO,

Appellant in No. 93-7600

(D.C. Crim. No. 93-00068-2)

____________

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

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

____________

UNITED STATES OF AMERICA

v.

JORGE ANTONIO TOVAR,

Appellant in No. 93-7602

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

____________

UNITED STATES OF AMERICA

v.

GABRIEL DE JESUS PINEDA,

a/k/a Richardo Corrales Ramirez,

Appellant in No. 93-7603

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

____________

UNITED STATES OF AMERICA

v.

SIMON DE JESUS MOUSSA-AVILA,

Appellant in No. 93-7604

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

____________________

ON APPEAL FROM THE DISTRICT COURT

OF THE VIRGIN ISLANDS

____________________

Argued: April 22, 1994

Before: STAPLETON, ALITO, and WEIS, Circuit Judges

(Opinion Filed: November 29, 1994)

____________________

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 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

____________________

OPINION OF THE COURT

____________________

ALITO, Circuit Judge:

These are appeals by five defendants who were convicted

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 meaning of this statutory element,

we reverse the defendants' convictions and remand for a new

trial.

I.

At approximately 12:30 a.m. on the morning of December

27, 1992, radar on the United States Coast Guard Cutter GALLATIN

detected a vessel a short distance south of Saba Island, which is

part of 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 vessel. 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 pursued 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 respond 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 using the GALLATIN's whistle.

During the chase, persons on board the fishing boat were seen

throwing something overboard.

When the fishing boat eventually 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

nations, 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 TUTO crew members

the nationality of their ship, and they answered, again in

unison, 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 government,

"after being advised of a claim of Colombian registry for M/V

TOTU (sic)," had stated that they could not confirm that 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 defendants moved

for dismissal of the indictment on the ground that the TUTO was

not stateless. 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 opportunity 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.1 The court rejected the defendants'

argument that the indictment should be dismissed because the TUTO

was not stateless. The court stated that "the Prosecution had

presented sufficient evidence 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.

II.

A. The chief question presented in these appeals

concerns 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,

1

. 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 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 members 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."

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)2 as including "a vessel without

2

. 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 consented or

waived objection to the enforcement of United

States law by the United States;

(D) a vessel located within the customs

waters of the United States; and

(E) a vessel located in the territorial

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 means, and may be proved by

certification 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:

nationality,"3 and the latter term is defined in 46 U.S.C. App. §

1903(c)(2) as follows:

For purposes of this section, a "vessel

without nationality" includes

(A) a vessel aboard which the master or

person in charge makes a claim of registry,

which claim is denied by the flag nation

whose registry is claimed; and

(..continued)

A ship which sails under the flags of

two or more States, using them according to

convenience, may not claim any of the

nationalities in question with respect to any

other State, and may be assimilated to a ship

without nationality.

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).

3

. The First, Fifth, and Eleventh Circuits have held that, when

the facts bearing on whether a vessel is "without nationality"

are in dispute, this question 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 decision in United States v. Wright-Barker, 784 F.2d 161, 170

(3rd Cir. 1986), does not compel a contrary 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).

"`[Q]uestions 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. 507, 511 (1925).

(B) any vessel aboard which the master

or person in charge fails, upon request of an

officer of the United States empowered to

enforce 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 nationality or registry" as

follows:

For purposes of this section, a claim of

nationality or registry only includes

(A) possession on board the vessel and

production of documents evidencing the

vessel's nationality in accordance with

article 5 of the 1958 Convention on the High

Seas;4

(B) flying its flag nation's ensign or

flag; or

(C) a verbal claim of nationality or

registry by the master or person in charge of

the vessel.

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

4

. 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 territory,

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 between the State and the ship;

in particular, the State must effectively

exercise its jurisdiction and control in

administrative, 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).

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 nationality."

Instead, this provision states that this term "includes" vessels

that fall within the categories set out in subsections (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 "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 subsections (A) and (B), but other vessels as well.

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

1903 nor its legislative history5 makes clear precisely which

5

. 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).

other vessels Congress had in mind when it employed the term

"vessel without nationality."6 This concept, however, has a

reasonably well developed meaning under international law.

"Where Congress uses terms that have accumulated settled meaning

under either equity or the common law, a court must infer, unless

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 (1981). See also Community of

Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989). This

same principle logically applies when Congress uses a term that

has acquired a settled meaning under customary international 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

6

. 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 assimilated to a

vessel without nationality, in accordance

with paragraph (2) of article 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.

nationality or stateless under international law.7 We therefore

turn to the meaning of a vessel that is "without nationality" or

stateless under international law.

B. Under international law, "[s]hips 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 authorized 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 regarded as

without nationality under international law, but we will not

attempt to provide a comprehensive catalog here. For present

purposes, it is enough to note that, under international law, the

core of the concept of a vessel that is "without nationality" or

stateless is that the vessel lacks authorization to fly the flag

of any recognized state. Thus, any vessel that falls within this

7

. 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 international law. . . .").

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 stateless. Without

subsections (A) and (B), establishing that a vessel is without

nationality -- i.e., that no state authorizes it to fly its flag

-- would present the difficulties often associated with proving a

negative.

Subsections (A) and (B) attempt to alleviate these

difficulties by placing upon the master or person in charge of

the vessel in question the burden of making a claim 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 nationality" if (a)

the vessel is "stateless" under international law, which

generally will mean that the vessel is not authorized 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 vessel

"without nationality" by showing that the requirements of 46

U.S.C. App. § 1903(c)(2)(A) or (B) had been met. However, at the

urging of the prosecution, the court then added:

You may also consider the totality of

the evidence in determining whether a vessel

is stateless or without nationality. You may

consider but you are not limited in

considering whether the vessel was flying a

flag, whether it had its home port shown on

the hull, whether it was or had been validly

registered 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 consider all of these

factors but you are not limited.

App. C-381A.

The apparent purpose of this instruction was to explain

to the jury how a vessel might qualify as one "without

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 international law. The

instruction given by the district court, however, did not

correspond with the meaning of a stateless 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 totality of the evidence, including

the factors that the court specifically mentioned.8 We are not

8

. This implication appears to be precisely what the government

intended. See, e.g., A-142A (Gov't. district court brief arguing

that the determination of statelessness "must be based on the

aware of any support for such a rule in either international law

or the law of this country.

In its brief on appeal,9 its district court briefs,10

and its jury instruction requests,11 the government relied on a

list of court of appeals decisions as authority for the

proposition that a "totality of the evidence" test was proper.12

(..continued)

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.

9

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

10

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

Motion to Suppress at 5-6.

11

. See Gov't's Requested Jury Instruction No 4.

12

. 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 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 registry); United States v.

Ayarza-Garcia, 819 F.2d 1043 (11th Cir. 1987) (ship assimilated

to one without nationality because conflicting claims of

nationality made), cert. denied, 484 U.S. 969 (1987); United

States v. Gonzalez, 810 F.2d 1538, 1541-42 (11th Cir. 1987)

(vessel stateless, apparently because 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).

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 enumerated 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 enumerated 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 discuss 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.

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

instruction by citing, among other cases, United 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 request, 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

weighing of the totality of the evidence. And the same 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 "[n]o 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]

imposes 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 the

contested 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, 114 S. Ct. 556 (1993).

Whether the defendants complied with Rule 30 in this

case is not entirely free from doubt. Just as the government's

interpretation of the term "vessel without nationality" was

incorrect, the clearest alternative interpretation advanced by

the defendants was also erroneous. Under this interpretation,

which was embodied in the instructions requested by one of the

defendants, a vessel could be found to be "without nationality"

only if the requirements of 46 U.S.C. App. § 1903(c)(2)(A) or (B)

were met.13 As we have explained, however, this interpretation

is plainly inconsistent with the statutory language. 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 nationality."

Nevertheless, defense counsel, in objecting to the

court's charge, did provide a clear and accurate explanation 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 "deciding 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

13

. See Defendant Tovar's Proposed Jury Instruction No. 1.

arguments. We also note that the government has not argued on

appeal that we should review the portion of the instruction at

issue under a plain error standard.14 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), the evidence

relating to this element was close. The defendants' convictions

must therefore be reversed.

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 establish 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

prosecution can establish that a vessel is stateless by showing

that the master 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

14

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

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,15 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).

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.16

15

. 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 nationality or registry is made without

providing either the name or registration number of the vessel --

for instance, by making an oral claim of nationality without

providing any further information (see 46 U.S.C. App. §

1903(c)(3)(C)) or by simply flying 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

markings in order to carry out that procedure. Otherwise, the

apparent purposes of subsections (A) and (B) would be undermined.

16

. The defendants also argue that they are entitled to

dismissal of the indictment because the term "vessel" in 46

U.S.C. App. § 1903(c)(2) is unconstitutionally vague, but we see

no merit in this argument.

III.

For the reasons explained above, the judgments entered

by the district court are reversed, and this case is remanded for

a new trial or other proceedings consistent with this opinion.

(..continued)

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"

between the offense with which they were charged and the United

States is foreclosed by our decision in United States v.

Martinez-Hidalgo, 943 F.2d 1052, 1056 (3d Cir. 1993), which we do

not believe is materially distinguishable. The defendants'

argument 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 country is inconsistent with 46 U.S.C. App. § 1903(b), which

provides that "[a] failure to comply with international 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 constitute

a defense to any proceeding under this chapter." 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 evidence, 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, 114 S.

Ct. 1239, 1290 (1994); United States v. DeLazo, 497 F.2d 1168,

1171 n.5 (3d Cir. 1974).