Case of the Day: United States v. Alarcon

USS Constitution with battle ensign
This is how we do it in Boston. Credit: US Navy.

The case of the day is United States v. Alarcon (S.D.N.Y. 2015). The US Coast Guard intercepted a small boat on the high seas approximately 280 miles from the coast of Ecuador. It found 600 kg of cocaine on board and charged the three Ecuadoran men on the boat, Javier Joaquin Alarcon Prado, Luis Armando Valencia Bautista, and Hector Valencia Bautista, with drug offenses under the Maritime Drug Law Enforcement Act. The defendants moved to dismiss the indictment.

USS Lassen with flag
How To Fly a Flag. Credit: US Navy

There were a bunch of issues in the case, some of them interesting. I am going to focus on just one: was the ship a “vessel without nationality,” as required for the MDLEA to apply? Under the statute, one of the key requirements is that there must be a claim of registry or nationality. One way to claim nationality is by “flying its nation’s ensign or flag.” The ship was not actually flying a flag, but there was a small image or decal of the Ecuadoran flag on the side of the boat’s hull. Is that enough?

No, said the judge. Flying a flag, he held, requires at least “a display sufficiently prominent as to put a United States official on notice of another country’s interests.” The small Ecuadoran flag on the side of the boat didn’t meet the standard.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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