In United States v. Obando, et al., No. 17-11202 (June 1, 2018) (William Pryor, Jill Pryor, Black), the Court affirmed the defendants' Title 46 convictions.
On appeal, the main issue was whether a flag painted on the side of a vessel was "flying" for purposes of making a claim of nationality under the MDLEA. The Court concluded that it was not. It relied on the "ordinary meaning" of the term "fly," and found that this meaning made sense in the maritime context, citing maritime treatises and protocols. The Court also found that other flag-related statutes supported that "flying" was a particular method of displaying a flag, and the MDLEA used that word instead of "displaying." The Court rejected the defendants' reliance on: a Coast Guard form; idioms; statements from its earlier opinions; a district court decision supporting their functionalist interpretation; the argument that a textual approach would lead to absurd results; international law; and the rule of lenity.
The Court also rejected the defendants' alternative jurisdictional arguments. First, it rejected the argument that a crew member made a verbal claim of registry, as that argument was contrary to a factual stipulation that no such claim was made. Second, it rejected their argument that, by contacting Ecuador, the government was estopped from asserting the absence of any claim of registry. Third, it rejected their argument that the coast guard acted in bad faith by knowingly contacting the wrong country.
Judge Black concurred in full, but noted that there was an additional ground for affirmance: there was no claim of nationality attributable to the vessel's master. So even if the painted flag could otherwise support a claim of registry, it was insufficient without some claim by the master; the vessel could not speak for itself.