Prerequisite, Not Precondition: The Fifth Circuit Clarifies MDLEA “Jurisdiction” and Plea Validity in United States v. Franco Posligua

Prerequisite, Not Precondition: The Fifth Circuit Clarifies MDLEA “Jurisdiction” and Plea Validity in United States v. Franco Posligua

Introduction

This commentary examines the Fifth Circuit’s unpublished, per curiam decision in United States v. Christian Leonardo Franco Posligua (No. 22-40393, Mar. 27, 2025), affirming a conviction under the Maritime Drug Law Enforcement Act (MDLEA). The opinion addresses two central issues:

  • Whether the district court had subject matter jurisdiction over an MDLEA prosecution when the district court did not expressly determine MDLEA “jurisdiction” before accepting the defendant’s guilty plea; and
  • Whether the defendant’s guilty plea was knowing and voluntary under Federal Rule of Criminal Procedure 11.

On the first issue, the court reaffirmed—in line with Fifth Circuit precedent—that MDLEA “jurisdiction” (i.e., whether the vessel is “subject to the jurisdiction of the United States”) operates as a subject matter jurisdiction prerequisite in this circuit. Importantly, the panel clarified that the statute’s “preliminary question” requirement does not impose a formal, timing-based precondition to a court’s judicial power; thus, the failure to expressly decide MDLEA jurisdiction before a plea does not render the proceedings void where the statelessness of the vessel is established by the record. On the second issue, applying plain-error review, the court held the plea was knowing and voluntary and that the record provided an adequate factual basis.

Summary of the Opinion

The Fifth Circuit affirmed the conviction. It first held that the district court had subject matter jurisdiction because the vessel was “without nationality” under 46 U.S.C. § 70502(d)(1)(C): the person in charge (Posligua) asserted Colombian nationality for the vessel, but Colombia neither affirmatively nor unequivocally confirmed that nationality, and the vessel lacked indicia or documentation of nationality.

Second, the court clarified that while § 70504(a) requires a judge (not a jury) to resolve MDLEA “jurisdictional issues” as “preliminary questions of law,” a district court’s failure to make that determination before accepting a guilty plea does not eliminate the court’s judicial power or void its actions ab initio. Any such procedural lapse is harmless if the MDLEA jurisdictional facts actually exist, as they did here.

Finally, the court rejected Posligua’s Rule 11 challenges. Because MDLEA jurisdiction is not an element of the offense (§ 70504(a)), the colloquy did not have to ensure he understood statelessness as an element. The magistrate judge reviewed the elements, obtained affirmations that he understood them, and confirmed the factual basis. Under plain-error review, there was no reversible error, and no showing that any alleged error affected his substantial rights or the fairness, integrity, or public reputation of the proceedings.

Key Holdings

  • In the Fifth Circuit, whether a vessel is “subject to the jurisdiction of the United States” under the MDLEA remains a subject matter jurisdiction question, controlled by United States v. Bustos-Useche.
  • Section 70504(a)’s “preliminary question” language assigns the issue to the judge and removes it from the jury, but does not create a formal timing precondition to the court’s power; failure to decide it pre-plea is not jurisdictional in the void/ab initio sense and can be harmless.
  • The vessel here was “without nationality” under § 70502(d)(1)(C): a claim of Colombian nationality by the person in charge combined with Colombia’s inability to confirm sufficed.
  • “Nationality” and “registry” are treated interchangeably throughout § 70502, and other circuits have done the same; even if distinct, § 70502(d)’s use of “includes” indicates a non-exhaustive definition of “vessel without nationality.”
  • A Rule 11 colloquy need only ensure the defendant understands the elements; because MDLEA “jurisdiction” is not an element, the plea was valid. No plain error occurred, and no prejudice was shown.

Analysis

Precedents Cited and Their Influence

  • United States v. Bustos-Useche, 273 F.3d 622 (5th Cir. 2001). This is the lodestar in the Fifth Circuit: it treats MDLEA “vessel subject to the jurisdiction of the United States” as a subject matter jurisdiction prerequisite. The Posligua panel adhered to Bustos-Useche under the Fifth Circuit’s rule of orderliness, declining to revisit the issue absent en banc or Supreme Court intervention or statutory change.
  • United States v. Prado, 933 F.3d 121 (2d Cir. 2019). The Second Circuit views the phrase as delineating the statute’s prescriptive reach rather than limiting court jurisdiction and has vacated pleas where the record lacked references to statelessness. The Posligua panel distinguishes Fifth Circuit law by emphasizing that MDLEA “jurisdiction” is not an element, so the plea colloquy need not cover it as such. The panel also uses Prado’s legislative history point to clarify that Congress’ 1996 amendment (now § 70504(a)) was to assign the question to the judge, not the jury.
  • United States v. Dávila-Reyes (First Circuit panel, 23 F.4th 153 (2022), and en banc, 84 F.4th 400 (2023), cert. denied, 144 S. Ct. 2634 (2024)). The First Circuit (en banc) concluded the phrase does not limit subject matter jurisdiction. Chief Judge Howard’s panel concurrence spotlighted the textual difference between “nationality” and “registry.” The Posligua panel acknowledges the distinction but notes that § 70502 uses the terms interchangeably, other circuits treat them that way, and, in any event, § 70502(d)’s use of “includes” suggests non-exhaustiveness.
  • United States v. Nunez, 1 F.4th 976 (11th Cir. 2021). The Eleventh Circuit also treats MDLEA “jurisdiction” as a subject matter question and recognizes § 70502(d)(1)’s non-exhaustiveness. Nunez supports both the statutory interpretation and the conclusion that delayed jurisdictional rulings can be harmless where the underlying facts are clear.
  • United States v. Miranda, 780 F.3d 1185 (D.C. Cir. 2015) and United States v. De La Garza, 516 F.3d 1266 (11th Cir. 2008): These decisions align with the Fifth Circuit’s subject matter framing, underscoring the inter-circuit divide with the First and Second Circuits.
  • Article III and 18 U.S.C. § 3231. Bustos-Useche noted that federal criminal cases rest on § 3231 and Article III. The Posligua panel acknowledges arguments that § 3231 speaks to court power independent of MDLEA’s jurisdictional clause but ultimately follows Bustos-Useche, treating MDLEA jurisdiction as part of the subject matter inquiry in this circuit.
  • Rule 11 authorities: United States v. Vonn, United States v. Reyna, United States v. Reyes, United States v. Jones, United States v. Marek, and plain-error cases (Puckett, Dominguez Benitez, Trejo, Hope, Rivera). These cases frame the burden on a defendant to show clear error and prejudice in plea colloquies and the requirement that the record demonstrate understanding of the elements and a factual basis.

Legal Reasoning

1) MDLEA “Jurisdiction” as Subject Matter Jurisdiction in the Fifth Circuit

The panel reaffirms Bustos-Useche’s core holding: in the Fifth Circuit, the MDLEA’s “vessel subject to the jurisdiction of the United States” language functions as a limitation on the court’s subject matter jurisdiction, not merely a merits or prescriptive-reach issue. The court acknowledges contrary authority from the First and Second Circuits but is bound by the rule of orderliness to adhere to circuit precedent.

2) “Preliminary Question” Means Judicial Allocation, Not a Timing-Based Power Switch

The textual command in § 70504(a) that MDLEA jurisdictional issues are “preliminary questions of law to be determined solely by the trial judge” was added in 1996 to remove these issues from the jury, not to create a ritualistic timing condition to the court’s power. The panel carefully distinguishes between:

  • the substantive prerequisite that the vessel actually be “subject to the jurisdiction of the United States” (which must be true for the court to proceed), and
  • a procedural expectation that the district court should ordinarily make that determination before trial or plea to promote efficiency.

The latter is not a “power-conferring” moment; failure to comply does not void subsequent actions where the jurisdictional facts exist. Thus, any omission was, at most, harmless.

3) Statelessness Proven Under § 70502(d)(1)(C)

On the record, the person in charge (Posligua) made a claim of Colombian nationality; Colombia could neither confirm nor deny; the vessel had no indicia or documentation. This satisfies the statutory route to statelessness in § 70502(d)(1)(C) when read in light of the MDLEA’s treatment of “nationality” and “registry” throughout § 70502 and consistent with other circuits’ practice. The panel also notes, without deciding, that § 70502(d) is non-exhaustive (“includes”), reinforcing that the statute captures analogous stateless situations even if particular phrasing (“nationality” vs. “registry”) is debated.

4) Knowing and Voluntary Plea Under Rule 11

The court applies plain-error review. The magistrate judge explained the elements, and the defendant affirmed understanding and admitted to each. Because “jurisdiction of the United States with respect to a vessel” is not an element (§ 70504(a)), Rule 11(b)(1)(G) did not require a detailed colloquy about statelessness. The judge also confirmed a factual basis under Rule 11(b)(3). The defendant’s prior MDLEA conviction made it even more likely that he understood the nature of the charge. On prejudice, the court found no reasonable probability that he would have rejected the plea in light of the strong evidentiary record. The fourth prong—effect on fairness, integrity, or public reputation—was not substantiated.

Impact

Although unpublished, the decision carries several practical and doctrinal implications within the Fifth Circuit:

  • Clarification on timing: District courts should, and typically will, decide MDLEA jurisdiction early, but a failure to do so before a plea is not fatal. This clarification reduces the risk that defendants can later invalidate pleas merely on timing grounds when statelessness is otherwise clear on the record.
  • Reaffirmation of Bustos-Useche: The subject matter framing of MDLEA “jurisdiction” remains entrenched in the Fifth Circuit, notwithstanding the First and Second Circuits’ contrary prescriptive-reach approach. The inter-circuit split persists, which may continue to invite en banc or Supreme Court attention in a future case.
  • Nationality versus registry: Litigants should anticipate that the Fifth Circuit will treat “nationality” and “registry” as interchangeable in § 70502 for purposes of determining statelessness, aligning with several other circuits. Defense efforts to exploit a strict distinction will likely fail in this forum, though may be preserved for potential higher review.
  • Plea practice under MDLEA: Because MDLEA “jurisdiction” is not an element, Rule 11 colloquies need not treat statelessness as an element the defendant must understand and admit. Prosecutors and courts should still ensure the record clearly supports statelessness to withstand appellate scrutiny and to avoid the need for limited remands.
  • Limited remand mechanics: The opinion underscores that a limited remand to confirm MDLEA jurisdiction does not create a separately appealable final judgment; the original panel retains jurisdiction over the appeal. This promotes appellate efficiency and discourages piecemeal appeals.

Complex Concepts Simplified

  • Subject matter jurisdiction vs. prescriptive reach: Subject matter jurisdiction concerns a court’s power to hear a case; prescriptive reach concerns whether Congress has made conduct criminal (and to what extent, e.g., extraterritorially). The Fifth Circuit treats MDLEA “vessel subject to the jurisdiction of the United States” as going to the court’s power, not merely to the scope of the statute. Some other circuits disagree.
  • “Preliminary questions of law” under § 70504(a): This phrase assigns the MDLEA jurisdiction issues to the judge, not the jury. It does not require the judge to utter magic words at a specific moment to turn on judicial power. The key is that the vessel is, in fact, within the statute’s jurisdictional reach.
  • “Vessel without nationality” (§ 70502(d)): One way to be “stateless” is when the person in charge claims a particular flag, but that nation does not “affirmatively and unequivocally” confirm it. “Unable to confirm or deny” is not an affirmative confirmation, so the vessel counts as stateless.
  • “Includes” is non-exhaustive: The statute’s use of “includes” to define “vessel without nationality” signals example-based coverage, not an exclusive list. This allows courts to recognize statelessness in closely analogous scenarios.
  • Rule 11 elements vs. non-elements: A defendant must understand the elements of the offense. MDLEA “jurisdiction” is expressly not an element; therefore, a Rule 11 colloquy need not secure admissions about statelessness as though it were an element.
  • Plain error: On appeal, a defendant who did not object below must show a clear, obvious error that affected his substantial rights and seriously affects the proceedings’ fairness. This is a demanding standard, rarely met absent concrete prejudice.

Practice Pointers

  • For prosecutors: Move early for a judicial determination of MDLEA jurisdiction, and assemble a record documenting (a) who was in charge, (b) any claim of nationality/registry, (c) the absence of indicia or papers, and (d) the flag state’s response (or non-response). Even though Posligua treats a missed early ruling as potentially harmless, proactive practice avoids delay and litigation risk.
  • For defense counsel: In the Fifth Circuit, a purely procedural timing objection to the absence of a pre-plea jurisdiction ruling is unlikely to succeed without disputing the underlying statelessness facts. Preserve any “nationality vs. registry” arguments for potential en banc or Supreme Court review, but expect the Fifth Circuit to deem them interchangeable under § 70502.
  • For district judges: Best practice remains to make the § 70504(a) determination on a sufficient record before trial or plea. If circumstances require a later determination, ensure the record clearly supports statelessness to minimize appellate remands.

Conclusion

United States v. Franco Posligua reinforces the Fifth Circuit’s distinctive approach to MDLEA “jurisdiction” while providing an important clarification: although the statute assigns MDLEA jurisdiction to the judge as a preliminary question, a district court’s failure to decide it before a guilty plea does not extinguish judicial power or render the proceedings void where the jurisdictional predicate is satisfied. The opinion also underscores that “jurisdiction” is not an element under the MDLEA, thereby shaping Rule 11 practice in this circuit. On the facts, the vessel was stateless under § 70502(d)(1)(C), and the plea was valid under plain-error review.

Doctrinally, the decision consolidates the Fifth Circuit’s stance in the ongoing inter-circuit dialogue over MDLEA’s jurisdictional architecture, preserves the Bustos-Useche framework via the rule of orderliness, and signals to practitioners that the critical inquiry remains the actual statelessness of the vessel—not the timing of the court’s determination. In that sense, the case offers both a procedural guardrail and a pragmatic roadmap for MDLEA prosecutions in the Fifth Circuit.

Case Details

Year: 2025
Court: Court of Appeals for the Fifth Circuit

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