As a result, Rosero did not address whether (as Matos-Luchi reasoned) a vessel is "without nationality" because, insofar as a sustainable claim of nationality cannot be made, the vessel is not authorized to fly the flag of the nation to which it is claimed to belong. The other precedent that the defendants point to is one of our own: United States v. Potes, 880 F.2d 1475 (1st Cir. 1989). But we do not agree with the defendants that Potes holds that, contrary to Matos-Luchi's dicta, a bare claim of nationality in and of itself suffices to demonstrate that a vessel is not a vessel "without nationality" under § 70502(c)(1)(A), even absent the application of a provision like § 70502(d)(1)(C).

The question is, therefore, appropriate for the jury. United States v. Potes, 880 F.2d 1475, 1478 n. 1 (1st Cir. 1989). Provided the jury has applied the correct legal standard, this court will not overturn its determination unless, given the evidence taken in the light most favorable to the government, reasonable jurors could not have reached that conclusion.

The statute requires only one of the three alternative methods of claiming nationality. See United States v. Potes, 880 F.2d 1475, 1479 (1st Cir. 1989). In analyzing these claims of nationality, we first note that the Carpe Diem was flying a British Virgin Islands' flag.

And finally, according to First Circuit law, the Coast Guard may stop vessels on the high seas if it has a reasonable suspicion that the ship is subject to the jurisdiction or to the operation of the law of the United States, i.e., is a stateless vessel. United States v. Potes, 880 F.2d 1475, 1478 (1st Cir. 1989). In this case, we found that the suspicion that the vessel was stateless was reasonable given that the Marilyn E answered no attempted radio contact, had no home port designation, and flew no flag.

Petitioner challenges the district court ruling that petitioner, though indicted under superseded section 955a(a), was nevertheless lawfully convicted under successor section 1903(a) as he was aboard a vessel "subject to the jurisdiction of the United States" since Honduras consented to SEE WONDERER's boarding. Petitioner invites particular attention to the very similar circumstances presented in United States v. Doe, 878 F.2d 1546, and United States v. Potes, 880 F.2d 1475 (1st Cir. 1989), where the defendants, like petitioner, were charged under superseded section 955a(a) rather than successor section 1903(a). Doe and Potes rejected contentions that flag nation consent was sufficient to sustain convictions under indictments alleging violations of superseded section 955a(a).

In its ruling dismissing Singleton's section 2255 motion, see Singleton v. United States, 789 F. Supp. 492, 495 (D.P.R. 1992), the district court recognized the fair import of the challenged instruction to be that the jurisdictional element of the crime charged had been established to the satisfaction of the court. See United States v. Potes, 880 F.2d 1475, 1478 n. 1 (1st Cir. 1989) ("Because this jurisdictional requirement was an element of the offense, and because it depended upon factual as well as legal determinations, it was for the jury to decide whether it had been satisfied."). The district court ruled, nonetheless, that any error was harmless.

They argue that when someone on board the PECHE responded "PECHE, PECHE, Barranquilla," he was in fact making a verbal claim of nationality for purposes of the statute, and, as such, it was necessary for the Coast Guard to verify with the government of Colombia whether PECHE was duly registered in Colombia. See United States v. Potes, 880 F.2d 1475 (1st Cir. 1989). They argue that their later refusal to provide information about the vessel's nationality to the boarding party does not vitiate the first nationality claim.

See United States v. Williams, 617 F.2d 1063, 1082 (5th Cir. 1980) (en banc); Proposed Interdiction of Haitian Flag Vessels, 5 Op. O.L.C. 242, 243 n. 4 (1981) ("Ships flying no flag may also be stopped to determine if they are stateless."). But the question of whether there are reasonable grounds for detaining and searching a vessel is "separate" from the question of whether the vessel is truly stateless and, as such, falls within the ambit of the MDLEA. United States v. Potes, 880 F.2d 1475, 1478 (1st Cir. 1989). On the facts of this case, I do not believe the government satisfied its burden of proving the latter.

There is general agreement that the jurisdiction requirement found in section 1903(a) is an element of the crime charged and therefore must be decided by the jury. See Singleton v. United States, 26 F.3d 233, 236 (1st Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 517, 130 L.Ed.2d 423 (1994); United States v. Martinez-Hidalgo, 993 F.2d 1052, 1057 (3d Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 699, 126 L.Ed.2d 666 (1994); United States v. Garate-Vergara, 942 F.2d 1543, 1554-55 (11th Cir. 1991), amended, 991 F.2d 662, cert. denied, 502 U.S. 1110, 112 S.Ct. 1212, 117 L.Ed.2d 451 (1992); United States v. Maynard, 888 F.2d 918, 926 n. 4 (1st Cir. 1989); United States v. Potes, 880 F.2d 1475, 1478 n. 1 (1st Cir. 1989). We have noted in dictum that an element of the offense is that the vessel must be "subject to the jurisdiction of the United States."

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, 108 S.Ct. 465, 98 L.Ed.2d 404 (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.