Pubdate: Thu, 29 Oct 2015
Source: New York Times (NY)
Copyright: 2015 The New York Times Company
Author: Benjamin Weiser


At sea, what does it mean for a ship to 'fly a flag?' That was a key, 
and somewhat improbable, question in a federal drug smuggling case in 
Manhattan federal court.

Federal prosecutors in Manhattan typically write legal briefs that 
cite the lofty decisions of the United States Supreme Court, 
congressional statutes or articles in law reviews. But in a recent 
case, the government pointed to a more lyrical precedent.

"You're a grand old flag, you're a high-flying flag. And forever in 
peace may you wave," the brief practically sang in a footnote.

The George M. Cohan lyrics were quoted in an unusual court filing 
centered on the dramatic seizure of a drug-laden speedboat, about 300 
nautical miles off the coast near Costa Rica and Nicaragua. The Coast 
Guard boarded the vessel, confiscated the drugs, arrested the three 
men aboard and sank the boat.

The government claimed that the boat was subject to United States 
jurisdiction because it was not "flying its nation's ensign or flag," 
and was therefore stateless under the law.

Thus ensued a seemingly improbable debate: What does it mean to "fly" a flag?

To answer that question, which was finally decided late Wednesday, 
prosecutors and defense lawyers invoked various dictionaries, drew 
comparisons to the nature of a pirate's garb, and unfurled that grand 
old flag from Cohan's patriotic march.

It all began in June, when the Department of Homeland Security, which 
had been investigating a Colombian drug cartel that used panga boats 
called "go-fasts" to ship cocaine around the world, received 
information that the cartel was sending a vessel with a large 
shipment from Colombia toward Costa Rica, the authorities say.

The vessel was spotted on June 19 as it traveled north, according to 
a complaint filed in Federal District Court.

The Coast Guard dispatched a cutter carrying a helicopter and a 
smaller interceptor boat toward the vessel; warning shots were fired, 
but the go-fast did not stop. More shots were fired, disabling the 
engine, the complaint says. The Coast Guard seized cocaine worth 
about $20 million and took the three-man crew into custody. "The 
go-fast was not flying any flag, nor did it have any signs of 
registry painted on the side of the vessel," the complaint says.

The Coast Guard then sank the vessel, having concluded it could have 
been a hazard to navigation, and the men were brought to Manhattan to 
face federal drug-related charges.

The three defendants have been charged with conspiracy and possessing 
cocaine with the intent to distribute aboard a vessel subject to 
United States jurisdiction. Two, Javier Joaquin Alarcon Prado and 
Hector Valencia Bautista, filed affidavits depicting themselves as 
impoverished Ecuadorean fishermen, saying they had had no intention 
of coming to the United States. All three men have pleaded not 
guilty; they could face a life sentence if convicted.

Mr. Prado's lawyers, Julia L. Gatto, a federal public defender, and 
Sarah H. Wolf, contend that a videotape made as the Coast Guard 
boarded the go-fast shows a small Ecuadorean flag - applied as a 
decal or painted - on the side of the hull. The boat was therefore 
not stateless and should not have been stopped, they say.

The prosecutors, Sidhardha Kamaraju and Jason M. Swergold, responded 
that a painted flag is not the same as a flying flag. In support of 
their position, they weighed in with the George M. Cohan lyrics and 
even a helpful guide to flag-flying definitions.

"To move around in the air while being held at one end," they wrote, 
citing Cambridge Dictionaries Online. "To float, wave, or soar in the 
air," they added, drawing from Webster's Ninth New Collegiate Dictionary.

"To 'fly' a flag," they wrote, "invokes images of a flag waving in 
the breeze, on display for all to see, and one need not look any 
further than town squares, schools, government buildings and the 
courthouse to see a flag flying."

But Ms. Gatto and Ms. Wolf countered that the government was relying 
on an "overly literal reading" of the law, and "an outdated, 
cartoonish notion of what it means to 'fly' a flag."

"The argument that a vessel is stateless because it does not have a 
flag flapping in the wind," they said, "is akin to an attorney 
defending against a piracy charge by asserting that her client does 
not have an eye patch and a peg leg."

In a recent oral argument, the judge, Jed S. Rakoff, told the defense 
that he was "skeptical that having a barely visible, tiny little 
decal on the back of a boat constitutes flying the Ecuadorean flag."

Ms. Gatto acknowledged the flag's small size - "It's certainly not 
the largest flag you'll ever see," she said - but she added that the 
boat itself was small and thus should still be considered as having 
been flying its flag.

Would a larger flag, say 2 feet by 2 feet, painted in three places on 
a boat, qualify under the law? the judge asked the government.

No, Mr. Swergold replied. "That's not flying a flag under the statute."

Late Wednesday, Judge Rakoff ruled that the flag displayed on the 
vessel was "not remotely large or prominent enough" to give notice 
that Ecuador's interests might be affected by the boat's 
interdiction. It was not "flying a flag" within the meaning of the 
law, he said.

The defense had also challenged the arrests on grounds that the men's 
alleged acts had insufficient connection with the United States. 
There was no evidence, for example, that their boat was heading for 
this country, the lawyers said.

In response, the United States attorney's office for the Southern 
District of New York argued in a brief that drug trafficking on the 
high seas "is a serious international problem, is universally 
condemned and presents a specific threat to the security and societal 
well-being of the United States."

The office cited one study that said about 95 percent of the cocaine 
entering the United States travels through Central America, where, 
once it arrives, "there is almost no stopping" it before it "lands on 
street corners across America."

Judge Rakoff agreed with the defense that the alleged crimes lacked 
the required connection with the United States, but because the boat 
was stateless under the law, the effect was to leave the charges standing.

The United States attorney's office has a rich history of bringing 
international suspects to New York to face prosecution, particularly 
in terrorism, arms trafficking and drug dealing cases. The office's 
reach is so broad that Preet Bharara, the United States attorney, 
said in a recent talk at New York University School of Law that 
someone once "made the mistake of asking me the question, 'What again 
is your jurisdiction, exactly?' "

"And I said, 'Are you familiar with Earth?' " he deadpanned.
- ---
MAP posted-by: Jay Bergstrom