United States v. Mulero-Joubert ( 2002 )

United States Court of Appeals
For the First Circuit
Nos. 01-1869, 01-1870, 01-1871
01-1872, 01-1881, 01-1882
01-1883, 01-1884
UNITED STATES,
Appellee,
v.
RAÚL MULERO-JOUBERT, IVÁN SOBRADO-SIERRA, CARLOS R. AGUIRRE-FLORES,
ANGEL CARMONA-TAPIA, JOSÉ MOLINA-ENCARNACIÓN, JUAN SANTOS-CENTENO,
CARLOS SANTIAGO-RIVERA, AND ANGEL LUIS CLASS-ALVARADO,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Julie Ann Soderlund, with whom Guillermo Ramos-Luiña and Enrique
Colon Santana, were on brief, for appellants.
Michael Hughes, Special Assistant United States Attorney, with
whom Stella J. Song, Special Assistant United States Attorney, Jorge E.
Vega-Pacheco, Assistant United States Attorney, and Guillermo Gil,
United States Attorney, were on brief, for appellee.
May 8, 2002
STAHL, Senior Circuit Judge. Defendants-appellants challenge
the district court's finding of guilt against them in one-count
informations for trespassing on a military installation in violation of
18 U.S.C. § 1382. We reverse their convictions because the government
did not prove an essential element of its case.
I. BACKGROUND
Appellants were arrested by Navy officials on April 27, 2001,
on Cayo Yayí, also known as Fisherman's Island, a small island about 75
feet off the shore of the live impact area1 of the Camp García Naval
Installation, which is located on the island of Vieques, Puerto Rico.
On April 30, 2001, the government filed a one-count information against
each of the appellants, charging them with entering, "knowingly and
unlawfully," upon Camp García, "for any purpose prohibited by law or
lawful regulation, that is, 32 C.F.R. Section 770.35 through 770.40,2
without first having obtained permission from the Commanding Officer as
required by the aforesaid regulations," in violation of 18 U.S.C. §
1The live impact area is a part of Camp García that receives
bombs and ordnance in the course of military target practice.
2
Sections 770.35 through 770.40 of Title 32 of the Code of
Federal Regulations set up entry restrictions and entry
procedures for enumerated naval installations and properties in
Puerto Rico, including Camp García.
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1382. Section 1382 reads in relevant part as follows: "Whoever, within
the jurisdiction of the United States, goes upon any military, naval,
or Coast Guard reservation, post, fort, arsenal, yard, station, or
installation, for any purpose prohibited by law or lawful regulation .
. . [s]hall be fined under this title or imprisoned not more than six
months, or both." 18 U.S.C. § 1382.
A bench trial was held on June 5, 2001. During the trial
testimony -- and at oral argument before us -- the government conceded
that Fisherman's Island was not United States property, despite its
proximity to Camp García. At trial, however, the government introduced
as evidence maps reflecting a "danger zone," established by 33 C.F.R.
§ 334.1470, which included the island within its boundaries. A danger
zone is "[a] defined water area . . . used for target practice,
bombing, rocket firing or other especially hazardous operations,
normally for the armed forces," and "may be closed to the public on a
full-time or intermittent basis, as stated in the regulations." Id. §
334.2(a). The regulation creating the danger zone that includes
Fisherman's Island specifies that "[i]t will be open to navigation at
all times except when firing is being conducted." Id. §
334.1470(b)(1).
The government also introduced evidence that, on the day of
the arrests, Fisherman's Island was in a temporary "security zone,"
established by 66 F.R. 22,121 (published May 3, 2001), effective from
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3 p.m., April 26, 2001 until 11:59 p.m., April 30, 2001. "A security
zone is an area of land, water, or land and water which is so
designated by the Captain of the Port or District Commander for such
time as necessary to prevent damage or injury to any vessel or
waterfront facility, to safeguard ports, harbors, territories, or
waters of the United States or to secure the observance of the rights
and obligations of the United States." 33 C.F.R. § 165.30(a). The
regulations provide that "[n]o person or vessel may enter or remain in
a security zone without permission of the Captain of the Port." Id. §
165.33(a). At trial appellants noted that 66 F.R. 22,121, although
dated April 26, 2001, a day before their arrests, was published on May
3, 2001.
At the close of the prosecution's case, appellants raised a
motion for judgment of acquittal under Rule 29 of the Federal Rules of
Criminal Procedure, stating that the government had failed to present
evidence of certain necessary elements of the offense as charged in the
informations filed against them. Appellants argued in particular that
the informations charged them with violation of 18 U.S.C. § 1382, for
entering Camp García without authorization, but that the evidence
presented only proved that they were on Fisherman's Island, not Camp
García, at the time of their arrests. The court denied the Rule 29
motion and, after the defense rested without presenting any evidence,
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proceeded to find the appellants guilty of trespass in violation of 18
U.S.C. § 1382. Thereafter, timely appeals were filed.
Before us, appellants essentially raise three arguments. The
first is that Fisherman's Island was not part of a danger zone and/or
security zone that was duly activated and in effect on April 27, 2001
and that the government therefore did not prove that it exerted control
over Fisherman's Island sufficient to convict appellants of entering a
naval installation, as section 1382 requires. Second, appellants argue
that they did not have notice of the offense charged and therefore
similarly could not be convicted under section 1382. Their third
argument posits that, to the extent that the government has not been
able to show that the United States exerted control over Fisherman's
Island, the district court erred in denying appellants' Rule 29 motion,
where the prosecution failed to prove any of the elements of the
offense charged in the informations.
"We review the district court's construction of a federal
statute de novo." United States v. Maxwell, 254 F.3d 21, 24 (1st Cir.
2001). On the record before us, we find that the government failed to
prove that appellants had actual or constructive notice that
Fisherman's Island was closed to public use on April 27, 2001, and that
the district court therefore erred in holding that their presence
violated section 1382. We accordingly reverse. Because we find that
lack of notice in this case is sufficient to reverse appellants'
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convictions, we reach the other issues raised by appellants only to the
extent they are necessary to set the groundwork for our holding on
notice.
II. ANALYSIS
A conviction under 18 U.S.C. § 1382 "requires only that the
government demonstrate either a possessory interest in, or occupation
or control of, the area reserved by the military," and not actual
government ownership of the area in question. United States v.
Ventura-Meléndez, 275 F.3d 9, 17 (1st Cir. 2001).
It is now well-established under our case law that the
existence of a duly promulgated danger zone, encompassing the area in
question, is sufficient to show occupation and control of the area by
the government. See United States v. Ayala Ayala, Nos. 01-2148, 01-
2150, 01-2151, 01-2152, 2002 WL 723876, at *3-4 (1st Cir. Apr. 29,
2002); United States v. Zenón-Rodríguez, Nos. 02-1207, 02-1208, 2002 WL
729216, at *2-3 (1st Cir. Apr. 29, 2002); Ventura-Meléndez, 275 F.3d at
17. It is uncontested here that Fisherman's Island was included in the
danger zone defined in 33 C.F.R. § 334.1470, and we therefore find
that, on April 27, 2001, appellants "within the jurisdiction of the
United States, [went] upon [a] . . . naval . . . installation," within
the meaning of 18 U.S.C. § 1382.
The government further argues that 33 F.R. 22,121, the
previously mentioned regulation establishing a temporary security zone
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that incorporated Fisherman's Island and was in effect from 3 p.m.,
April 26, 2001 until 11:59 p.m., April 30, 2001, provided an additional
and independent ground for finding that the government exerted control
over the island during the dates in question. See United States v.
Allen, 924 F.2d 29, 31 (2d Cir. 1991) (holding that the designation of
a security zone is sufficient evidence that the Navy "occupied and
controlled" the waters in question). In making this argument, the
government concedes that 33 F.R. 22,121 was published on May 3, 2001,
after the date on which appellants allegedly trespassed on Fisherman's
Island, but contends that the regulation was nevertheless duly
promulgated because it was exempt
from notice and comment rulemaking and advance publication, see 5
U.S.C. § 553, under the military and/or good cause exceptions of 5
U.S.C. § 553 (a)(1), (b)(B) and (d)(3).3 Without resolving the question
3Section 553 reads in relevant part as follows:
(a) This section applies, according to the provisions
thereof, except to the extent that there is involved
--
(1)a military or foreign affairs function of
the United States
. . . .
(b) General notice of proposed rule making shall be
published in the Federal Register . . .
Except when notice or hearing is required by statute,
this subsection does not apply --
. . .
(B) when the agency for good cause finds . .
. that notice and public procedure thereon
are impracticable, unnecessary, or contrary
to the public interest.
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of whether the security zone in this case was properly promulgated --
or the question of whether it was sufficient here to prove occupation
and control by the Navy of Fisherman's Island -- we assume, arguendo,
that the security zone provided an additional way in which appellants
"within the jurisdiction of the United States, [went] upon [a] . . .
naval . . . installation," on April 27, 2001, within the meaning of 18
U.S.C. § 1382. We move on to the question of notice.4
(c) After notice required by this section, the agency
shall give interested persons an opportunity to
participate in the rule making through submission of
written data, views, or arguments with or without
opportunity for oral presentation. . . .
(d) The required publication or service of a
substantive rule shall be made not less than 30 days
before its effective date, except --
. . .
(3) as otherwise provided by the agency for
good cause found and published with the
rule.
. . .
4The government has additionally argued that Fisherman's
Island was closed to the public continuously, regardless of
whether there was live firing or a temporary security zone. At
trial, three Navy personnel testified variously that the Navy
regularly patrolled and observed Fisherman's Island, that all
the offshore islands in close proximity to Camp García were
considered under the control of the U.S. Navy, and that the only
authorized access to Fisherman's Island was through Camp García.
(Appellants have argued in response that Fisherman's Island was
used by the public for fishing and recreation, although we do
not see evidence of this use in the record.) We find that,
regardless of what the Navy's usual practice as to patrolling
Fisherman's Island or authorizing entry to the island may be,
the government cannot claim that the island was closed to the
public continuously, when it was undeniably within a danger zone
that is "open to navigation at all times except when firing is being
conducted." 33 C.F.R. § 334.1470 (discussed further in section A ,
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A. Constructive Notice
In order to establish a violation of section 1382, we must
also find that appellants entered the naval installation "for any
purpose prohibited by law or lawful regulation." 18 U.S.C. § 1382.
"The requisite prohibited 'purpose' under section 1382 can consist of
unauthorized entry itself. . . . On the other hand, when a section
1382 prosecution proceeds on the basis that the defendant has entered
a restricted military reservation 'for the purpose of' unauthorized
entry, we think it must be shown that the defendant had knowledge or
notice that such entry was, in fact, prohibited." United States v.
Parrilla Bonilla, 648 F.2d 1373, 1377 (1st Cir. 1981).
In this case, the regulation establishing the danger zone
states that the zone "will be open to navigation at all times except
when firing is being conducted." 33 C.F.R. § 334.1470. As we held in
Ayala Ayala -- which dealt with the same danger zone regulation we
analyze here -- "[t]o prove a violation of § 1382, then, the government
was required to demonstrate that notice was given that the danger zone
was closed to the public at the time of the arrests." Ayala Ayala, 2002
WL 723876, at *4.
Alternatively, assuming again arguendo that the security zone
was duly promulgated and sufficient to establish control and
occupation, the government needed to establish that appellants had
infra).
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notice that a security zone was in effect on April 27, 2001, in order
for us to conclude that appellants were on Fisherman's Island "for the
purpose of unauthorized entry" in violation of section 1382.
The government here has not met the burden of showing that
the defendants had actual or constructive notice that entry was
prohibited, notice that could have been provided by prior notice of the
live firing or of the designation of the security zone. In Ayala
Ayala, the record contained references to a "fishermen's notice,"
warning of upcoming military exercises within the danger zone and
distributed around Vieques a week in advance, and to radio broadcasts
over marine band radio alerting to the establishment of a temporary
security zone (and thus also to firing within the danger zone). Ayala
Ayala, 2002 WL 723876, at *5. In contrast, we find nothing in the
record of the case before us that establishes notice that live firing
would be conducted in the danger zone on April 27, 2001.5 See also
Zenón-Rodríguez, 2002 WL 729216, at *4 (pointing to the existence of a
routine weekly fishermen's notice, in evidence, as proof of
constructive notice). The government responds by contending that
5We are aware that the date in question in Ayala Ayala,
April 28, 2001, is only one day after the day on which
appellants in this case allegedly trespassed on Fisherman's
Island. Although we thus acknowledge that the fishermen's
notice and radio broadcasts discussed in Ayala Ayala more than
likely cover the date on which appellants were arrested, this
does not change the fact that the government, on the record in
this case, failed to show that appellants had notice that their
entry upon Fisherman's Island was prohibited.
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33 F.R. 22,121, which established the temporary security zone, was
sufficient to establish constructive notice, both as to live firing in
the danger zone and as to the designation of the temporary security
zone. The government's position is flawed. Even assuming again, as we
have supra, that the regulation was legally promulgated, we cannot find
that it provided notice as to the fact that Fisherman's Island was
closed to the public on April 27. The regulation itself, published
only on May 3, could have alerted the appellants neither to the fact
that the danger zone was closed due to live firing on April 27 nor to
the fact that a temporary security zone was in effect on April 27.
Even if advance publication was not required to legally designate the
security zone, we cannot accept that a post-dated regulation can
provide constructive notice of its existence, particularly when other
options for providing notice exist. See e.g., Ayala Ayala, 2002 WL
723876, at *5 (discussing radio broadcasts over marine band radio
announcing the designation of a security zone). The government has the
burden here of showing that, at the time of their entry on to
Fisherman's Island, appellants understood or should have understood
that their presence on Fisherman's Island was prohibited. It defies
common sense to say that the government can prove such notice by
pointing to a regulation published after the fact.6
6
In so holding, we are fully aware of our precedent stating
that "section 1382's knowledge or notice requirement may be
satisfied by the publication of a regulation specifically
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B. Actual Notice
Having failed to establish constructive notice, in a last-
ditch effort, the government asks us to find that certain behavior and
language by the appellants at the time of their arrest proves that they
had actual knowledge that Fisherman's Island was closed to the public
on April 27. In particular, the government points to the fact that the
appellants chanted "Vieques, si, marina, no"7 when they were picked up
by Navy personnel. Whatever appellants' words may convey as to their
purpose for being on Fisherman's Island, we cannot take their chant as
proving that appellants had notice or knowledge that the island was
closed to the public on April 27, 2001.
We hence hold that the government has not met its burden of
showing, on the record in this case, that appellants had actual or
constructive notice that their presence on Fisherman's Island was
prohibited by law on the date of their arrests.
forbidding unauthorized entry." Maxwell, 254 F.3d at 25(internal quotations omitted). In Maxwell, the regulations
found to provide notice, 32 C.F.R. §§ 770.35-770.40, were duly
promulgated, published, and in effect indefinitely at the time
of the trespass. Maxwell thus did not anticipate the due
process questions that arise if a post-dated rule establishing
a temporary restriction on entry is held forth as providing
notice of the prohibited act.
7This is translated as "Vieques, yes, Navy, no."
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III. CONCLUSION
For the foregoing reasons, the district court erred in
convicting appellants under 18 U.S.C. § 1382.
Reversed.
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