United States v. Ramirez-Ferrer

April 12, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1016
UNITED STATES,
Appellee,
v.
FELIPE RAMIREZ-FERRER,
Defendant - Appellant.
No. 94-1017
UNITED STATES,
Appellee,
v.
JORGE L. SUAREZ-MAYA,
Defendant - Appellant.
No. 94-1018
UNITED STATES,
Appellee,
v.
PAUL TROCHE-MATOS,
Defendant - Appellant.
ERRATA SHEET
The en banc opinion of this Court issued on March 27, 1996,
is amended as follows:
On the cover sheet, government's counsel should read:
Kathleen A. Felton, Attorney, Department of Justice, with whom
Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa,
Senior Litigation Counsel, and Epifanio Morales-Cruz, Assistant
United States Attorney, were on supplemental brief for appellee.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1016
UNITED STATES,
Appellee,
v.
FELIPE RAMIREZ-FERRER,
Defendant - Appellant.
No. 94-1017
UNITED STATES,
Appellee,
v.
JORGE L. SUAREZ-MAYA,
Defendant - Appellant.
No. 94-1018
UNITED STATES,
Appellee,
v.
PAUL TROCHE-MATOS,
Defendant - Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. P rez-Gim nez, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
Selya, Cyr, Boudin, Stahl and Lynch,
Circuit Judges.
Roxana Matienzo-Carri n, by Appointment of the Court, for
appellant Felipe Ram rez-Ferrer.
Ram n Garc a-Garc a for appellant Jorge L. Su rez-Maya.
Francisco Serrano-Walker for appellant Ra l Troche-Matos.
Kathleen A. Felton, Attorney, Department of Justice, with
whom Guillermo Gil, United States Attorney, and Jos A. Quiles-
Espinosa, Senior Litigation Counsel, and Epifanio Morales-Cruz
were on supplemental brief for appellee.
March 27, 1996
OPINION EN BANC
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TORRUELLA, Chief Judge. Defendants-appellants
TORRUELLA, Chief Judge
(collectively, "defendants") Felipe Ram rez-Ferrer ("Ram rez-
Ferrer"), Jorge L. Su rez-Maya ("Su rez-Maya") and Ra l Troche-
Matos ("Troche-Matos") appeal to this court their convictions on
drug and firearm charges. A panel of this court: 1) affirmed the
convictions of all defendants for possession of cocaine with
intent to distribute; 2) affirmed the convictions of Su rez-Maya
and Ram rez-Ferrer for using a firearm in relation to a drug
trafficking offense, but reversed the conviction of Troche-Matos
on a similar charge; and 3) reversed the convictions of all
defendants for importation of narcotics into the United States.
Thereafter, the full court reheard the case en banc. The en banc
court now reverses the convictions of all defendants for
importation of narcotics into the United States and remands the
firearm convictions for further consideration in light of an
intervening Supreme Court decision.
I. BACKGROUND
I. BACKGROUND
The evidence, taken in the light most favorable to the
government, United States v. Abreu, 952 F.2d 1458, 1460 (1st
Cir.), cert. denied, 503 U.S. 994 (1992), permitted the jury to
find the facts that follow. We emphasize the facts pertinent to
the importation charge. On March 13, 1993, the Police of Puerto
Rico ("POPR") received an anonymous telephone call. The caller
informed the POPR that defendant Su rez-Maya and three other
individuals had left for Mona Island, Puerto Rico, in a boat
belonging to a relation of Su rez-Maya, and that the four men
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were going to acquire a load of cocaine and ferry it to the main
island of Puerto Rico. Mona Island is one of numerous small
islands near Puerto Rico's main island, and is part of the
Municipality of Cabo Rojo, which also includes part of the main
island's southwest corner.1 Mona Island is physically separated
by about 39 miles of water from the main island of Puerto Rico.
Prior to 1989, the boundaries of the United States
extended three miles offshore. United States v. Williams, 617
F.2d 1063, 1073 n.6 (5th Cir. 1980). In that year, they were
extended by Presidential Proclamation with qualifications to 12
miles. Proclamation No. 5928, 54 Fed. Reg. 777 (1989) (citing
the 1982 United Nations Convention on the Law of the Sea, to
which the U.S. is a signatory, but which the U.S. had not
ratified as of February, 1996). Thus, given the 12-mile limit,
to travel from Mona Island to the main island of Puerto Rico
requires that a vessel cross international waters.
After verifying that the boat in question was indeed
away from its mooring, the United States Customs Service (USCS)
and POPR flew to Mona Island on a USCS helicopter. The
1 The only evidence in the record is that defendants picked up
the cocaine at Mona Island. Mona Island is not just
geographically part of the Puerto Rico Archipelago, which
includes the Islands of Puerto Rico, Culebra, Vieques, Desecheo,
Caja de Muertos, Mona and Monito, as well as various other minor
islets and keys. Mona Island is also politically part of the
Senatorial District of Mayaguez and of the Municipality of Cabo
Rojo within that district. P.R. Const. art. VIII, 1, IV.
Thus, in effect, the defendants transported the drugs in question
between two points within the same municipality within Puerto
Rico, the equivalent of within two places within Suffolk County
in Massachusetts.
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authorities located the subject boat and Su rez-Maya, accompanied
by three other men as described. At approximately 12:30 p.m. the
next day, the authorities learned that the boat was leaving Mona
Island. The boat was interdicted about one mile off the
southwest coast of Puerto Rico.
After the boat was seized, it was found to be carrying
about 16 kilograms of cocaine. A subsequent inventory search of
the boat turned up a firearm. The seized firearm, a loaded
revolver, was found covered by a T-shirt, behind a storage
compartment near the location where Ram rez-Ferrer had been
seated at the time of the interdiction. The search also revealed
evidence linking the vessel to a relative of Su rez-Maya.
On March 31, 1993, a grand jury indicted defendants,
charging all three in each of three separate counts. The
indictment charged each with possessing approximately 16
kilograms of cocaine with intent to distribute (count 1), 21
U.S.C. 841(a) (1) (1994); with importing such cocaine into the
United States (count 2), id. 952(a) (1994); and with possessing
and carrying a firearm in relation to a drug trafficking crime
(count 3), 18 U.S.C. 924(c)(1) (1994). A superseding
indictment corrected the description of the seized firearm in
count 3.
On September 28, 1993, a jury convicted all three
defendants on each count. On counts 1 and 2, relating to
possession and importation of cocaine, Su rez-Maya was sentenced
to life imprisonment, Ram rez-Ferrer to a term of 240 months, and
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Troche-Matos to a term of 120 months. The sentences of Su rez-
Maya and Ram rez-Ferrer were enhanced under 21 U.S.C. 841(b)
and 960(b) on account of prior drug crimes. On count 3, the gun
count, each appellant was sentenced to a mandatory minimum term
of 60 months to be served consecutively, as required by the
statute.
In a decision released April 27, 1995, a panel of this
court reversed all three defendants' importation convictions,
reversed Troche-Matos' firearm conviction, and affirmed the
remaining convictions. On June 26, 1995, this court agreed to
rehear the case en banc on the issue of the importation statute's
interpretation. Additionally, the court asked the parties to
address again the firearms convictions of Ram rez-Ferrer and
Su rez-Maya. The en banc court heard oral argument on
September 13, 1995. While the case was pending before the en
banc court, the Supreme Court on December 6, 1995 issued its
opinion in Bailey v. United States, U.S. , 116 S. Ct. 501
(1995), overturning precedent in this and other circuits as to
the proper construction of the term "use" in section 924(c)(1).
II. THE POSSESSION CHARGE AND THE FIREARM CHARGE
II. THE POSSESSION CHARGE AND THE FIREARM CHARGE
On the possession charge under count 1, the panel
concluded that the evidence was sufficient to show that the
defendants knowingly possessed the drugs or aided and abetted
their possession. Among other evidence, the testimony permitted
the jury to conclude that the drugs were stored in a bag with a
broken zipper and that the drugs were plainly visible from
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outside the bag, easily seen by anyone on the 20-foot boat. The
en banc court did not request further argument on this issue.
On the firearm charge, the story is more complicated.
Section 924(c)(1) is directed against anyone who "uses or carries
a firearm during and in relation to a drug trafficking crime" and
the district court charged the jury with the language of the
statute, defining "use" in accordance with circuit precedent.2
Assuming that each appellant was aware of the revolver, its
presence on the vessel made it available for use to protect the
drugs. The panel ruled that, assuming knowledge of the firearm,
its proximity and potential for use permitted the jury to convict
under the so-called "fortress" theory previously adopted by this
court and others. See, e.g., United States v. Wilkinson, 926
F.2d 22, 25-26 (1st Cir.), cert. denied, 111 S. Ct. at 2813
(1991).
The panel had more difficulty with the question of
whether a reasonable jury could find that each of the defendants
knew that the gun was present; unlike the drugs, the gun was not
in plain view. The panel upheld the conviction of Ram rez-
Ferrer, since the revolver was located behind a compartment
adjacent to his seat and served an obvious purpose to protect the
cocaine. The panel also upheld the conviction of Su rez-Maya,
who was the central figure in the drug venture and the captain of
2 The indictment mistakenly charged the defendants with "having
possess[ed] and carr[ied] the firearm." There is no claim that
the variance was prejudicial error.
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the boat. As to Troche-Matos, the court ruled that a reasonable
jury could not infer that he knew of the weapon.
In their petitions for rehearing on this issue, Su rez-
Maya and Ram rez-Ferrer drew our attention to United States v.
Torres-Maldonado, 14 F.3d 95 (1st Cir. 1994), arguing that on
somewhat similar facts a panel of this court had found the
evidence insufficient to support convictions under section
924(c)(1). In that case, the weapon was found in a zippered
opaque tote bag on a sofa in a room in which drugs and money were
also found, and the court concluded the evidence was not adequate
to establish that two of the individuals in the room actually or
constructively possessed the weapon. Id. at 102. Despite its
differing outcome, Torres-Maldonado does not conflict with the
original Ram rez-Ferrer panel on the proper legal standards to be
applied.
Although the en banc court agreed to rehear the case as
a whole, sufficiency of the evidence is not normally a question
for en banc consideration unless a mistaken legal standard has
been used. Any possible tension between the panel opinion and
the decision in Torres-Maldonado stems from their appraisals of
their own respective facts. But given the kaleidoscope of
different facts presented in drug and gun cases and the varying
compositions of panels in the court, the en banc court was, and
remains, of the view that differences in weighing evidence are
inevitable in cases of this kind even within a single circuit.
Nothing will produce perfect harmony among outcomes unless the
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court chooses to hear every drug and gun case en banc, a course
that is neither practical nor useful. Therefore, we conclude
that the full court should not seek to decide en banc whether the
evidence against each appellant in this case was or was not
sufficient on the gun charge. As a result, the en banc court
declines to review the adequacy of the evidence on either count 1
or count 3.
This does not end the matter. While the en banc
opinion was being prepared, the Supreme Court decided Bailey.
There, the Supreme Court determined that a conviction for firearm
"use" under section 924(c)(1) required "evidence sufficient to
show an active employment of the firearm by the defendant, a use
that makes the firearm an operative factor in relation to the
predicate offense." Bailey, U.S. at , 116 S. Ct. at 505.
As far as "use" is concerned, the Supreme Court rejected the
fortress theory, disagreeing with the suggestion that "a gun
placed in the closet is 'used' because its mere presence
emboldens or protects its owner." Id., U.S. at , 116 S.
Ct. at 508.
Although the Supreme Court has rejected the fortress
theory of "use" under which defendants were convicted, the issue
of their firearm convictions remains unresolved. Section
924(c)(1) imposes a prison term upon a person who "during and in
relation to any . . . drug trafficking crime . . . uses or
carries a firearm." 18 U.S.C. 924(c)(1) (emphasis added).
Defendants were convicted on a gun count that went to the jury
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with instructions that permitted the jury to convict if it found
that defendants either used or carried the weapon found under the
T-shirt behind Ram rez-Ferrer. The interpretive problems posed
by the term "carry" are apparent, given the shadow that Bailey
casts over previous circuit precedent. Moreover, Bailey contains
little comment on the proper scope of "carry" in section
924(c)(1). By contrast, the Supreme Court went on to state that
"use" cannot extend to hypothetical situations where the offender
has "hid[den the firearm] where he can grab it and use it if
necessary," id., U.S. at , 116 S. Ct. at 508, a
description that, in the best light for the government, includes
the set of facts before this en banc panel. However, the Court
went on to state that the carry prong could cover situations that
the use prong could not, noting that a firearm can be carried
without being used, "e.g., when an offender keeps a gun hidden in
his clothing throughout a drug transaction." Id., U.S. at
, 116 S. Ct. at 507. As a result, defendants' conviction for
"use" should be vacated, and they should face only
reconsideration of their convictions under the carry prong, since
Bailey has both limited the word "use" to the extent that it
cannot apply in the instant case and emphasized that "carry" has
meanings not covered by "use." Id., U.S. at , 116 S. Ct.
at 508-09 (cautioning against readings of the word "use" that
render the term "carry" superfluous, and remanding two unrelated
defendants' convictions for consideration under the carry prong).
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In light of Bailey, then, we decline to decide en banc
defendants' firearm convictions, and instead require further
consideration of count 3 under section 924(c)(1). We think that
these problems should be addressed in proceedings before the
panel rather than the en banc court.
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III. THE IMPORTATION COUNTS
III. THE IMPORTATION COUNTS
In accord with the panel's decision, the en banc court
has concluded that the importation statute, 21 U.S.C. 952, does
not embrace defendants' conduct in transporting 16 kilograms of
cocaine from Mona Island, Puerto Rico, to approximately one mile
offshore of the main island of Puerto Rico, notwithstanding the
fact that the contraband traversed international waters during
the journey. The court concludes that this interpretation
accords with both the wording of the statute and general
principles of statutory construction. Furthermore, absent either
pertinent legislative history or precedent, the en banc court
likewise concludes that the historical application and the
potential future application of the statute by the government
weigh in favor of this interpretation.
A. Statutory Language
A. Statutory Language
The defendants were convicted under 21 U.S.C. 952(a)
for importing drugs into the United States. In relevant part,
952(a) provides that
it shall be unlawful . . . to import into
the United States from any place outside
thereof, any controlled substance.
The defendants contend that they did not violate this statute
because they did not bring the drugs at issue into the United
States from a "place outside thereof." To the contrary, they
argue that the evidence in the record only establishes that they
brought the drugs from one location within the jurisdiction of
the United States (i.e., Mona Island) to another (i.e., the
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waters off Puerto Rico's main island). The government, on the
other hand, claims that, because the drugs passed through
international waters on their way from Mona Island, the drugs
were brought into the United States from a "place outside
thereof" (i.e., international waters). Essentially, the
government argues that the quoted language of section 952(a)
establishes a kind of transparent curtain around the
jurisdictional boundaries of the United States, and proscribes
any deliberate shipment of drugs through that curtain without
regard to the "place" from which the shipment actually
originated.
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),
the Supreme Court stated: "We need not leave our common sense at
the doorstep when we interpret a statute." Id. at 241. The
government's newly minted interpretation of section 952(a) not
only is contrary to the plain language of the statute, and flies
in the face of every common and logical meaning of the word
"importation," but also places at risk of prosecution thousands,
perhaps hundreds of thousands, of persons who up to now have not
been prosecuted under this novel construction of section 952(a).
We should, first of all, leave no doubt as to what this
case is not about. We are not faced with a factual situation in
which a defendant leaves United States domestic territory empty-
handed, proceeds to international waters or to a foreign
territory to acquire contraband there, and then returns to
domestic territory with this contraband (for example, when a
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vessel leaves the United States, sails out to sea where it
obtains drugs from a "mother ship" anchored in international
waters, and then returns to the United States). In that
hypothetical situation, the government might have a somewhat more
convincing argument that international waters can be deemed the
"place" from which the controlled substance is being imported
into the United States.3 While we might imagine strong
arguments on both sides, we are presently faced with a much
narrower factual situation. We need only decide whether Congress
intended to treat in-transit international waters as a "place"
for purposes of the importation statute when the government's
evidence shows that both the origination and the destination of
thecontrolled substance occurred within United States territory.4
3 We agree with the dissent that both the day hiker who strays
into Canadian territory and then crosses back into the U.S., and
the tourist returning from British territory, see dissent at 44,
would violate section 952 if they carry contraband drugs, because
they obviously would be entering U.S. territory from a "place
outside thereof."
4 The government treats defendants' trip across the
international waters between Mona Island and Puerto Rico's main
island as being the same as if defendants had carried drugs from
Mona Island into another sovereign nation and then back into
Puerto Rico. Doubtless the latter would constitute an
importation. International waters, however, are not anything
like a sovereign nation. Waters twelve miles beyond Mona Island
and the main island of Puerto Rico are "international" in the
sense that the vessels of other nations have a right of free
navigation through them. See 54 Fed. Reg. 777 (1988)
(Proclamation 5928, entitled "Territorial Sea of the United
States of America") (citing the 1982 United Nations Convention on
the Law of the Sea (to which the U.S. is a signatory, but which
the U.S. had not ratified as of January 1996)). For 200 miles,
however, they are subject to exclusive United States fishing and
mineral rights. See 1982 United Nations Convention on the Law of
the Sea, Articles 5, 57, 76(1); Burke, The New International Law
of Fisheries 1 (1994) (describing this regime as customary
-14-
"The starting point in statutory interpretation is 'the
language [of the statute] itself.'" United States v. James, 478
U.S. 597, 604 (1986). In its argument, the government overlooks
the fact that the text of section 952(a) includes a separate
clause not directly at issue in this case. With this separate
clause included, section 952(a), entitled "importation of
controlled substances," provides
[i]t shall be unlawful [1] to import into
the customs territory of the United
States from any place outside thereof
(but within the United States), or [2] to
import into the United States from any
place outside thereof, any controlled
substance.
21 U.S.C. 952(a). The court concludes that, given a proper
interpretation of 21 U.S.C. 952(a), transport from one part of
the United States to another does not rise to the level of
importation simply by involving travel through international
waters.
The definition of "import" ("any bringing in")
appearing in section 951 does not implicate the origin of a
shipment of drugs. Thus, the government argues that the statute
international law). See also 43 U.S.C. 1332 (Congressional
declaration of policy regarding the outer Continental Shelf).
After a United States vessel has gone beyond the twelve-mile-
limit into "international" waters, it is not expected to clear
United States customs when it reenters United States territory,
as would be required had the vessel entered a foreign country
during the voyage. Coastal and fishing vessels and private
yachts commonly navigate interchangeably in international and
domestic waters when making local trips, paying little attention
to where the one ends and the other begins, and with no thought
that they are making some kind of reentry into the United States
upon their return to domestic waters.
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does not require any inquiry into the origin of a shipment of
drugs; by the government's reading, any shipment into the United
States that must pass into international waters or airspace would
be punishable under clause 2 of section 952(a). However, section
952(a) itself requires that the importation into the United
States be "from any place outside thereof" (emphasis added). It
is the word "place" in section 952(a), when read together with
"from . . . outside," that needs to be considered in the present
circumstances, not just the word "import." The government's
interpretation rests on the assumption that Congress intended to
focus only on a result (i.e., each introduction of the drugs into
the United States), irrespective of whether its place of origin
was another part of the United States. But if this were the
case, Congress would not have proscribed importation "from any
place outside thereof," but merely importation "into the United
States," omitting any mention of a place of origin. Furthermore,
we should also consider the following test of the "plain meaning"
of the word "place" in section 952(a). Anyone aware of the facts
in the record of this case, if asked, "From what 'place' was the
illegal substance brought?" would answer "From Mona Island," not
as is argued, "From international waters."
In addition to its failure to comport with the normal
understanding of the word "place," the government's
interpretation of clause 2 cannot be reconciled with any
reasonable reading of clause 1. Clauses 1 and 2 were enacted
simultaneously in 1970. If the phrase in clause 2 -- "place
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outside thereof" refers to the location of the drugs immediately
before they pass through the "transparent curtain" into U.S.
territory, it must be given the same connotation in clause 1
absent an indication that Congress intended otherwise. See
Atlantic Cleaners v. United States, 286 U.S. 427, 433 (1932)
(noting presumption that a word or phrase used more than once in
statute has same meaning); Fortin v. Marshall, 608 F.2d 525, 528
(1st Cir. 1979) (same). The government argues that clause 2 is
merely the successor to 21 U.S.C. 174 (enacted in 1909 and
repealed in 1970), whereas clause 1 introduces a new concept
added to the statute in 1970 out of "an abundance of caution"
lest some unidentified types of transportation from U.S.
territories into U.S. customs territory might prove
nonprosecutable. Although the government states that clause 2
is the direct successor to repealed 21 U.S.C. 174, it points to
no pre-1970 case law that would corroborate the thesis that 174
(which imposed penalties against anyone who "fraudulently or
knowingly imports or brings any narcotic drug into the United
States or any territory under its control or jurisdiction") had
ever been construed so narrowly as to foreclose prosecution of
importation from a U.S. territory not part of the U.S. customs
territory (e.g., the United States Virgin Islands, Guam) to part
of the U.S. which is part of the U.S. customs territory (i.e.,
Puerto Rico, the 50 states, and the District of Columbia). We
must bear in mind the principle that Courts must presume that
Congress knows of prior judicial or executive branch
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interpretations of a statute when it reenacts or amends a
statute. See Lorillard v. Pons, 434 U.S. 575, 580 (1978); Sierra
Club v. Secretary of the Army, 820 F.2d 513, 522 (1st Cir. 1987).
If we presume per Lorillard that Congress knew that pre-1970
decisional law portended no risk of less-than-intended
enforcement, we cannot accept the government's thesis that clause
1 was passed out of an "abundance of caution."5
"A statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause, sentence, or word shall
be superfluous, void or insignificant."6 United States v.
Campos-Serrano, 404 U.S. 293, 301 n.14 (1971); see United States
5 Moreover, even if we did accept it, we think this thesis
actually cuts against the government's reading of the statute.
In other words, if Congress had doubts that the existing statute
did not proscribe shipment of drugs from a non-customs territory
into customs territory, it must have had, a fortiori, even
greater uncertainty that the statute proscribed shipments from
customs territory to customs territory (the conduct at issue in
this case). But it is clear, that by enacting clause 1, Congress
did not proscribe such activity.
6 Although we are charged by our dissenting colleagues with the
commission of major mayhem to the canons of statutory
construction, this claim may very well be a case of whose ox is
gored. See Karl N. Llewellyn, Remarks on the Theory of Appellate
Decision and the Rules or Canons About How Statutes Are to Be
Construed, 3 Vand. L. Rev. 395 (1950). It is interesting to
note, that by suggesting that the cocaine in question did not
originate in Mona Island, see dissent at 35, the dissent itself
violates a fundamental rule of appellate review, one which is
anchored in elementary principles of due process, to the effect
that appellate courts are not to go outside the record. In this
case, the suggestion that "Mona Island is a transshipment point"
is not only not part of the record but is in fact immaterial to
the charge. Puerto Rico or Florida or California are
transshipment points of imported drugs to other internal areas of
the United States. Yet such internal transshipment of contraband
that may have originated outside the United States does not
itself constitute a violation of 21 U.S.C. 952, which only
covers importation from a "place outside thereof."
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v. Holmquist, 36 F.3d 154, 160 (1st Cir. 1994) (same). The key
to the "whole act" approach is that all provisions and other
features of the enactment must be given force, and provisions
must be interpreted so as not to derogate from the force of other
provisions and features of the whole statute. See generally
Norman J. Singer, Sutherland Statutory Construction 47.02, at
120 (5th ed. 1992). A close analysis of section 952(a) reveals
that the government's broad interpretation of clause 2 would both
render clause 1 superfluous and make it technically impossible to
violate. Furthermore, the analysis makes it clear that Congress
considered the conduct at issue in this case and rejected
proscribing it under the statute.
First, clause 1 proscribes the importation of illegal
drugs into the customs territory of the United States from a
place outside the customs territory of the United States, but
within the United States. The "customs territory of the United
States" is defined as "the States, the District of Columbia, and
Puerto Rico." See Harmonized Tariff Schedule of the United
States, n.2. Thus, clause 1 proscribes importation from any
other U.S. territory not within the customs territory (e.g., U.S.
Virgin Islands, Guam) into "the States, the District of Columbia,
and Puerto Rico."
That Congress specifically addressed this situation
suggests that it believed that the language of clause 2 did not
necessarily cover such conduct. The government's broad reading
of clause 2, however, brings any conduct conceivably addressed
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under clause 1 within the coverage of clause 2. In other words,
any contraband shipped from a place inside the United States (but
not within the customs territory -- e.g., the U.S. Virgin
Islands) would first pass through international waters before it
entered into the customs territory of the United States. Thus,
the conduct aimed at under clause 1 would be proscribed by the
government's interpretation of clause 2. Hence, the government's
reading of clause 2 renders clause 1 completely superfluous.
Second, the government's broad reading of clause 2
would make it arguably impossible to prosecute anyone under
clause 1. Under the government's reading, the phrase "any place
outside thereof" essentially means the point at which the drugs
were located immediately before passing into the United States
(i.e., the international space just outside the jurisdictional
limit of the United States). If one applies this reading to the
same phrase in clause 1, it is impossible to violate clause 1.
In other words, there is no "place" just outside of the
jurisdictional limits of the customs territory of the United
States, that is also within the United States. Any place that is
just outside the customs territory of the United States is
international waters. Thus, arguably no individual could ever
violate clause 1 because no one could ship from a place within
the United States (but outside the customs territory) directly
into the customs territory of the United States: the individual
would always be directly shipping from international waters. If
a prosecutor attempted to charge a defendant under clause 1 for
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shipping drugs from the U.S. Virgin Islands to Florida (conduct
clearly meant to be proscribed by clause 1), the defendant could
argue that he or she did not violate the clause because the
"place" from which the drugs were imported was not the U.S.
Virgin Islands but the international space just outside of
Florida. Although the prosecutor could argue that the "place"
referred to by the statute included both the international space
and the U.S. Virgin Islands, such a reading would be hard to
square with the gloss the government puts on the phrase under
clause 2.7
Third, and perhaps most convincing, a close analysis of
clause 1 reveals that Congress contemplated whether or not
illegal drugs shipped from one part of the United States through
international waters and back into the United States should be
prohibited under 21 U.S.C. 952. Specifically, clause 1 evinces
Congress' intent to proscribe such conduct in the certain
instances in which drugs are imported into the customs territory
7 One could quibble here because national territorial waters
extend farther than state territorial waters off any one state's
coast. Thus, it is possible to argue that an individual could
violate clause 1 by importing from the national waters (arguably,
outside the customs territory, but inside the United States) into
the state waters. However, the point fails to undercut our
analysis in any significant way. In other words, even if
"states" in the definition of customs territory extends only to
the state jurisdictional waters (a point which we do not
necessarily concede), it seems unlikely that in enacting clause
1, Congress was aiming only at drugs shipped from one state out
into national waters and back into that or another state (as
everything else that would violate clause 1 would fall within the
government's broad interpretation of clause 2). Moreover, such a
reading would be inconsistent with the general usage of the term
"customs territory" in the Harmonized Tariff Schedule.
-21-
of the United States from a point in the United States but
outside the customs territory. Clearly, Congress could have gone
further and proscribed any shipment of drugs originating inside
the United States that passed through international waters and
entered back into the United States, but it did not. By
explicitly limiting the statute to the conduct proscribed by
clause 1, it is fair to infer that Congress did not intend to
proscribe the additional conduct at issue in this case. The
reason for this is clear. In enacting 952, Congress was
attacking classic cases of importation, meaning international
importation, not domestic transportation, of drugs.8
Thus, unlike the government's reading, the
interpretation adopted by the en banc court both accords with the
plain language of the statute and gives meaning to section 952 as
a whole act. However, even if such were not the case, the
confusion that is patent even from the government's discussion of
the statute brings into play the rule of lenity, and requires us
to give defendants the benefit of the doubt on this issue.
Ratzlaf v. United States, 114 S. Ct. 655, 663 (1994); McBoyle v.
United States, 283 U.S. 25, 27 (1931) (Holmes, J.); United States
v. Maravilla, 907 F.2d 216, 223 (1st Cir. 1990) (Breyer, C.J.).
B. Congressional Intent
B. Congressional Intent
8 Cf. Llewellyn, 3 Vand. L. Rev. at 401 (concluding that courts
should adopt statutory interpretations that accord with "[t]he
good sense of the situation" and that represent "a simple
construction of the available language to achieve that sense, by
a tenable means, out of the statutory language" (emphasis in
original)).
-22-
On the specific point at issue, there is no legislative
history. Nonetheless, the dissent claims that Congress did not
"care one whit whether the drugs were brought from international
waters [or international airspace9] or from a foreign land, so
long as they crossed the U.S. boundary." See dissent at 43. But
Congress might well be concerned whether the drugs were being
brought from one place within the United States to another. The
obvious fact that Congress may be generally presumed to oppose
the drug trade neither renders the language in question ambiguous
nor justifies its strained interpretation. Congress can be
similarly presumed to oppose murder, arson and robbery, but we do
not rely on such facts as justifying strained readings of
statutes in those areas. We can find no legitimate reason to
follow a different course here.
C. The "Precedents"
C. The "Precedents"
As discussed, the interpretation urged by the
government leads to unreasonable results. Turning to precedent,
9 We agree with the dissent's concessions to the effect that
"[i]t is far from clear whether a scheduled non-stop airline
flight between two U.S. points could ever be treated as
importation under the main clause [of section 952]," and that "a
defendant would certainly argue that for all practical purposes,
drugs on such a flight are never outside the country." See
dissent at 39. This contention purportedly refutes our
superfluousness argument, yet leaves unexplained the
disappearance of the "transparent curtain" which Congress
envisioned "around the boundaries of the United States," the
penetration of which, bearing drugs, "is the crime [of
importation]." We fail to see how a principled distinction can
be made between such an incursion into international airspace,
and the present case involving travel between "two U.S. points."
The dissent's "yes if by water, no if by air" formula for
installing its transparent curtain appears to respond to no
statutory purpose identified by the dissent.
-23-
we see that the case law does not support the outcome proposed by
the government. The government views precedent as carrying
special weight in formulating its interpretation of 952(a).
This is obviously a principle which we generally agree with, as
far as it goes. However, the "precedent" on which the government
relies, with one exception, is inapposite.
The language cited from United States v. Peabody, 626
F.2d 1300, 1301 (5th Cir. 1980) ("Had the cargo of contraband
originated in Texas, that would not alter the fact that it was
meant to reenter the United States from international waters.
That is enough."), which is both the seminal authority for the
cases that follow and the anchor upon which the government relies
for its interpretation of 952(a), is particularly flawed.
Although the cryptic statement in Peabody fits the government's
glove, a reading of that case clearly demonstrates that the
proposition for which it stands is total dicta, and is not based
on even a superficial analysis of the issues raised in the
present appeal. Indeed that opinion does not even cite 952(a),
although it may perhaps be surmised that such is the statute at
issue. Nevertheless, nothing in the factual background of that
case supports the proposition relied upon by the government.
Without question the contraband in Peabody was not coming from
another domestic area in the United States, Texas or otherwise,
and thus the court's hyperbole was pure dicta. Peabody and its
progeny constitute flimsy precedent upon which to hang one's hat.
-24-
In United States v. Phillips, 667 F.2d 971, 1033 (5th
Cir. 1981) (holding that the importation "element may be
established by evidence that a boat from which marihuana was
unloaded went outside United States territorial waters or met
with any other vessels that had -- for example, a "mother ship"),
the facts involved contraband brought directly from Colombia
through motherships off Florida. Id. at 987. As in Peabody, the
present issue was not decided and the quoted language is again
dicta. In United States v. Lueck, 678 F.2d 895, 904-05 (11th
Cir. 1982), the Eleventh Circuit, relying on the specific
language quoted from Peabody, rejected the contention that proof
of importing controlled substances from a specific point on
foreign soil is required as an element of 952(a). Id. at 905.
However, Lueck's holding must be read and understood in light of
the fact that the airplane in question had been spotted first
flying over the Bahamas. The record evidence in Lueck supported
the finding of importation upon the airplane's entry into
domestic airspace. Id. at 897. In stark contrast to Lueck, we
do not have here any evidence supporting such a finding, rather,
all we have is evidence that the illegal substance was brought
from a place within the United States. United States v. Goggin,
853 F.2d 843, 845 (11th Cir. 1988), another case from the
Eleventh Circuit, which relies on Lueck, also concerns a flight
from the Bahamas, id. at 844, 847, and is therefore different
from the present appeal.
-25-
In United States v. Doyal, 437 F.2d 271 (5th Cir. 1971)
(involving the predecessor statute to 952), the defendant
contended that although he was caught entering the U.S. from
Mexico with illegal drugs, he had in fact acquired the drugs in
the U.S., taken them into Mexico, and brought them back;
therefore, argued the defendant, he was not guilty of
importation. Id. at 274-75. Although the drugs in question had
originated in the United States, the fact is that they were
brought into Mexico, and it was from there that they entered the
domestic territory of the United States. Id. at 272. Such an
entry from a foreign country (i.e., a "place outside" the United
States) is not what we have before us. United States v.
Friedman, 501 F.2d 1352 (9th Cir. 1974), also cited by the
government, involved another entry from a place outside the
United States -- Mexico as in Doyal.
Reliance on the language used by our Circuit in United
States v. Nueva, 979 F.2d 880, 884 (1st Cir. 1992), is equally
unhelpful in the present situation. In Nueva, law enforcement
authorities spotted a suspect aircraft traveling from South
America to Puerto Rico; the authorities tracked the plane to a
point above the ocean off the coast of Puerto Rico, where it
dropped bales of illegal drugs at a rendezvous point for a boat.
Id. at 881-83. Picking up contraband by going into international
waters, id., stands on the same footing as going into a foreign
country to do so (i.e., Friedman, Doyal, Goggin, Lueck, Phillips,
Peabody). We do not question that such a place from which the
-26-
defendant gains possession of the contraband, is "outside [the
United States]," and thus, that the entry from such a place, into
the United States, meets that element of the importation charge
in 952(a).
We thus come to United States v. P rez, 776 F.2d 797
(9th Cir. 1985). This is the only case which factually
approximates the present one.10 There, an illegal load of
marihuana was transported by boat from the Mariana Islands (a
United States Trust Territory in the Pacific), through
international waters to Guam, another U.S. domestic area. The
court squarely holds that the transit through international
waters is sufficient to sustain an importation charge under
952(a). It would perhaps have been helpful for present
purposes, had the deciding court discussed the issue with some
original analysis or some enlightening reasoning in support of
its ephemeral conclusion, but such was not to be. The court
merely "rounded up the usual suspects," by citing its Friedman
case (importation from Mexico), and Peabody and its progeny
(Lueck and Phillips), as being "instructive," id. at 801, without
providing much more to support the resolution of an issue which
it had admittedly "never [before] addressed." Id.11
10 A difference is that in the present case the two places are
within the same jurisdiction, in fact the same municipality. See
footnote 1.
11 This is despite precedent such as United States v. Carri n,
457 F.2d 200 (9th Cir. 1972), in which the Ninth Circuit ruled
that evidence that an aircraft landed in Los Angeles with 404
pounds of marihuana, that it had used enough fuel and had enough
time to go to Mexico, that the marihuana was in boxes marked in
-27-
Thus, the "precedent" cited amounts to bald assertions
without analysis.
D. Historical Application of the Statute
D. Historical Application of the Statute
Actions speak louder than words. In this case this old
adage is not simply poetic expression, for the interpretation of
21 U.S.C. 952(a) promoted by the government is most certainly
at odds with the government's past enforcement practices under
this statute throughout its long life.
It is difficult to accept that Congress intended the
government's reading of 952(a), considering that this reading
of the statute has somehow lain lifeless for 25 years until given
breath in this case by the prosecution. The government would
have us believe that throughout the life of this statute, which
has been on the books in practically the same form since 1970, in
every direct flight, commercial or private, between, say, the
Mainland and Puerto Rico, or the Mainland and Hawaii or Alaska,
or vice versa, or even between Miami and New York, or Nantucket,
Massachusetts and Boston, etc., all of whom at some point (or, in
fact, throughout most of their passage) fly within international
airspace before returning to domestic territory, the occupants
have always been subject to being charged under this hitherto
overlooked definition of "importation." The government's novelty
seems all the more striking in this Circuit, where
notwithstanding the hundreds (perhaps thousands) of such daily
Spanish, and that one of the passengers had a map of Mexico, as
well as a match box from a Mexico motel, was not sufficient to
establish that the marihuana had been imported from Mexico!
-28-
flights, the government has somehow throughout these many years
never pressed such a theory of importation. Is this attributable
to prosecutorial benevolence or incompetence? Certainly not.
What we have is the tacit recognition that such acts could not
reasonably be considered "importation" within 952(a).
"Whatever other statutes defendants may have violated, they did
not violate this one." Maravilla, 907 F.2d at 223 (Breyer, C.J.)
(holding that custom agents who murdered a Dominican citizen who
was temporarily in the United States did not violate civil rights
statute because the victim was not an "inhabitant").
We have a similar situation with water-borne traffic.
There are literally thousands of vessels of all sizes and with
all kinds of purposes that daily pass through international
waters as they move between domestic areas which, without picking
up contraband in international waters or visiting foreign
jurisdictions, would be subject to this expanded interpretation
of 952(a). Not only is there the obvious marine traffic
between the Mainland and its outlying domestic areas (Hawaii,
Alaska, Puerto Rico, U.S. Virgin Islands, etc.), and the
considerable coastwise traffic in the Atlantic, Pacific, Gulf and
Great Lakes waters which as a matter of course continuously exits
and reenters international waters. There are also hundreds of
thousands of commercial fishermen, as well as those who fish for
sport, who on a daily basis leave domestic waters, enter
international waters, and return to domestic waters, again
without acquiring contraband in international waters or entering
-29-
foreign jurisdictions, who would be subject to the contested
interpretation of 952(a). However, contrary to the
government's assertions at oral argument, it does not stop here.
For example, a passenger on a commercial whale-watching vessel
who left Provincetown, Massachusetts, went thirteen miles
offshore into international waters to watch these behemoths, and
then reentered domestic waters would be subject to a charge of
importation if he or she had drugs when he or she originally left
Provincetown. A maritime worker traveling to and from an oil rig
on international waters in the Gulf of Mexico off Louisiana, or
on George's Bank off New England, would be equally exposed. A
sailboat tacking up the coast would engage in an act of
"importation" every time it reentered domestic territory, if it
had contraband aboard when it tacked out of domestic territory.
The height of absurdity,12 however, is that according to the
government's interpretation as expressed at oral argument, the
act of leaving domestic territory would in turn also be
considered an illegal exportation subject to charge under
952(a)'s companion provision, 953(a), even though there was
no intention or act of visiting a foreign territory or off-
loading the exported contraband onto a vessel in international
waters. Thus, under this scenario, a sailboat tacking twenty
times up the East Coast of the United States from Miami to New
York, which had aboard illegal substances acquired in Miami,
12 See In re Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 643
(1978) (holding that an absurd result militates against a
proposed statutory interpretation).
-30-
would be subject to being charged with twenty violations of
exportation under 953(a), and twenty violations of importation
under 952(a), one for each time it tacked out to and from
international waters.
As if the above scenarios were not ludicrous enough, at
oral argument, the government also informed us that in the above
situations, since international borders were crossed, border
crossing rules are applicable, with all of the consequent
diminished Fourth Amendment implications such circumstances bring
into play. See United States v. Ram rez, 431 U.S. 606, 616-19
(1976) (holding that government's right to search all persons and
their belongings who cross its borders is plenary and is
"reasonable" per se within the Fourth Amendment); Carroll v.
United States, 267 U.S. 132, 153-54 (1925) (stating that border
searches require no probable cause); see also United States v.
Montoya de Hern ndez, 473 U.S. 531, 537-38 (1986) ("Routine
searches of persons and effects of entrants are not subject to
any requirement of reasonable suspicion, probable cause, or
warrant . . .").13 Clearly, the implications of the
government's proposed interpretation go far beyond the mere
crossing of a stretch of water between two points in the same
municipality in Puerto Rico. Cf. Torres v. Puerto Rico, 442 U.S.
465, 474 (1978) (concluding no international border exists
13 Indeed, the Fourth Amendment issues here may be more
troubling than in the land border cases, given the relative lack
of notice upon entering the United States by water versus by
land, since land borders are often marked.
-31-
between Puerto Rico and continental United States). A passenger
and his or her belongings on a Boston to Nantucket flight, which
is partially over international waters and airspace, can be
subjected hereafter to a border search upon arrival in Nantucket,
as well as to another such intrusion upon returning to Boston.
In light of these possibilities and in light of the fact that
drug possession statutes already exist to address domestic
conduct,14 we cannot accept the government's reading of
952(a). By its interpretation of 952(a), the government has
chosen to ignore a basic rule of statutory interpretation, one
firmly imbedded in the jurisprudence of this Circuit:
"[U]nreasonableness of the result produced by one among
alternative possible interpretations of a statute is [a valid]
reason for rejecting that interpretation in favor of another
which would produce a reasonable result." United States v.
Bayko, 774 F.2d 516, 522 (1st Cir. 1985) (quoting Sutherland,
Statutory Construction, 45.12 (4th Ed. 1984)).
Furthermore, the undeniable fact is that section 952(a)
has not been used at all in the fashion now promoted by the
prosecution. On this point, there should be no need to engage in
14 These real possibilities are not merely lurking Fourth
Amendment problems to be resolved in future cases. Although
obviously they are not at issue in this case, particularly in
view of the Government's assertions at oral argument, they fall
within the realm of consequences that will follow from the
government's proposed interpretation of section 952(a), and are
valid factors to be considered in determining whether Congress in
enacting that statute intended the result espoused by the
government. Needless to say, the mere possibility is extremely
worrisome as nothing of this sort has ever occurred in the
Nation's history.
-32-
speculation regarding whether or not there are other uncited or
unreported prosecutions demonstrative of the government's view of
952(a). At oral argument, the government was specifically
asked to produce evidence of such a prosecution. Nevertheless,
the government has failed to cite even one case in this circuit,
at any level, reported or otherwise, in which a defendant was
even charged, much less convicted, in the manner now claimed, nor
has our own search revealed the existence of such a case.
Considering the possibility that the government may not
have prosecuted "small quantities" of drugs transported over
international space from a prior United States connection as
importation under 952(a), but that similarly transported large
amounts have been considered violations of that provision, we
conducted our own search of reported cases. The inquiry revealed
that such a distinction simply does not exist. See, e.g., United
States v. Marcel, 1995 WL 732747, *1 (2d Cir. 1995) (discussing
convictions of two co-conspirators who participated in the
transportation of 48 kilograms of cocaine from Puerto Rico to New
York, but who apparently faced no charge or conviction for
importation); United States v. P rez, 1994 WL 702058, *1-2
(discussing suppression motion of two co-conspirators arrested
with approximately 30 kilograms of cocaine shortly after arriving
at John F. Kennedy International Airport aboard a flight from San
Juan; the two defendants faced a two-count indictment that did
not include an importation charge). This court can take judicial
notice of the substantial traffic in narcotics between Puerto
-33-
Rico and the mainland United States involving large amounts of
contraband. See P rez, at *4 (describing San Juan, Puerto Rico
as "a location known to [Organized Crime and Drug Enforcement
Task Force] agents to be an active departure point for narcotics
smuggling activities into New York"). Yet, we are unaware of any
case in which the government has in fact charged that
transporting the contraband from Puerto Rico to the mainland (or
vice versa) constituted an importation violation under 952(a).
Nor is the possibility of such forbearance by the
government from prosecuting such cases in the future very
reassuring. Cf. Donovan v. United States, 114 S. Ct. 873 (1994)
(in light of Ratzlaf v. United States, 114 S. Ct. 655 (1994),
vacating and remanding First Circuit case that tried to uphold
the prosecution of defendant pursuant to the money laundering
statute even though defendant's structuring was merely an attempt
to hide money from his wife in a divorce proceeding), vacating
United States v. Aversa, 984 F.2d 493 (1st Cir. 1993). Although
prosecutors should perhaps not be faulted for seeking to expand
the limits of the law, courts cannot allow themselves to be
caught up in this euphoria. Rather, they are duty bound to
contain the government within established limits. The
government's actions in not prosecuting such cases up to now are
powerful evidence that Congress did not intend the interpretation
now promoted by the government. Such lengthy non-action should
not be glibly overlooked.
-34-
The government also claims that the interpretation set
forth here would inordinately burden prosecutors by adding to
their burden the obligation of identifying and proving the point
of origin of drugs in smuggling operations. However, when a
drug-laden ship coming from an unknown point of origin is shown
to have traversed international waters and brought drugs into the
United States, a jury could presume, without more, that
importation from a place outside the United States has occurred -
- although the precise place from which the drugs emanated is not
established. Cf. Turner v. United States, 396 U.S. 398, 416
(1970) (approving statutory permissive inference that a person in
possession of heroin is in knowing possession of an imported
narcotic because of the "high probability" that the heroin
originated in a foreign country); see also Ulster County Court v.
Allen, 442 U.S. 140, 156-57 (1979); Leary v. United States, 395
U.S. 6, 46-47 (1969). In other words, the government can make
out a prima facie case of importation, within the meaning of 21
U.S.C. 952(a), merely by showing that a ship carrying drugs
from parts unknown has cruised international waters before
entering the United States. Similar inferences would apply to
the case of drugs off-loaded into this country from a mother ship
located within international waters. We therefore hold only that
a defendant can defeat an importation charge by demonstrating
affirmatively by competent evidence that the drugs came into the
United States directly from another place that is also within the
United States. That is the case before us. The charge in the
-35-
present case, and the undisputed evidence presented by the
government is that the drugs were picked up in Mona Island (i.e.,
domestic U.S. territory) and brought to another place within U.S.
domestic territory. The government never made out a prima facie
case that the drugs came from a place outside the United States,
as the statutory language requires.
CONCLUSION
CONCLUSION
We affirm defendants' convictions on the possession
counts. We also remand the issues surrounding the firearms
convictions to the original panel for further proceedings in
light of this opinion.
This en banc decision determines, as a matter of
statutory interpretation, that the importation statute does not
apply to the shipment in this case from one part of the United
States and its customs territory (Mona Island, Puerto Rico) to
another (the main island of Puerto Rico). We thus reverse the
importation convictions of all three defendants.
Accordingly, the judgment of the district court is
affirmed in part, remanded in part, and reversed in part.
-36-
CYR, Circuit Judge (concurring). I agree that the
CYR, Circuit Judge (concurring).
importation convictions must be vacated, as ably explained in
Section III.A of Chief Judge Torruella's opinion for the en banc
court. I write separately because I believe that neither the
majority opinion nor the dissent succeeds in demonstrating that
the opposing result is absurd. Whichever result Congress clearly
chose to require could not have been rejected by the courts as
absurd. Moreover, in my view the interpretation given section
952 by the en banc court reflects greater allegiance to the
ordinary meaning of the statutory language Congress did use.
"Dissenting" follows
-37-
BOUDIN, Circuit Judge, with whom SELYA and LYNCH,
BOUDIN, Circuit Judge, with whom SELYA and LYNCH,
Circuit Judges, join, dissenting. Dr. Johnson once remarked that
Circuit Judges, join, dissenting
a man may have a reason why 2 plus 2 equals 5 but it will still
equal but 4. The majority has an endless supply of reasons why
the statute does not mean what it says. But the majority's
opinion defies the plain language of the statute; it contradicts
uniform rulings in three other circuits; and it undermines the
purpose and administration of the drug laws. In the majority's
effort, scarcely a major canon of construction escapes damage.
The evidence showed that the defendants collected 16
kilograms of cocaine hidden on Mona Island, an island under the
jurisdiction of Puerto Rico but physically separated from
mainland Puerto Rico by about 39 miles of water. Assuming a 12-
mile limit for U.S. territorial waters, at least 15 miles of
international waters separate Mona Island from mainland Puerto
Rico. Any ship traveling between Mona Island and mainland Puerto
Rico is unquestionably outside the United States for a good
portion of the trip.
In this case, the origin of the cocaine is unknown; but
the ship's captain reported that it was part of a larger cache
hidden on Mona Island. In all likelihood, Mona Island is a
transhipment point. Being subject to less surveillance than
mainland Puerto Rico, drugs can be brought to Mona Island in bulk
from foreign origins and then smuggled in smaller quantities to
the Puerto Rico mainland and then to the continental United
States. In all events, the defendants were arrested after their
-38-
small boat crossed from international waters into U.S. waters
surrounding Puerto Rico.
The defendants were convicted of various offenses
including violation of 21 U.S.C. 952(a) which prohibits the
importation of specified drugs into the United States. Neither
at trial nor on appeal did the defendants argue that their
conduct fell outside section 952; but at oral argument, the
parties were directed by the original panel to brief the
statutory issue. Subsequently, the panel by a 2-to-1 vote held
that section 952 did not reach the defendants' conduct.
The panel majority's decision conflicted with a host of
decisions in the Fifth, Ninth and Eleventh Circuits. Not
surprisingly, the full court voted to rehear the case en banc.
What is surprising is that, by a 4-to-3 vote, the en banc court
has now concluded that section 952 does not apply to the
defendants' conduct in bringing 16 kilograms of cocaine from
international waters to mainland Puerto Rico. This result is
wrong, and it does not take a treatise to show why.
1. "The starting point in statutory interpretation is
'the language [of the statute] itself.'" United States v. James,
478 U.S. 597, 604 (1986). Section 952(a) says that it is
unlawful "to import [specified drugs] into the United States from
any place outside thereof . . . ." "Import" is given a special
definition for the illegal drugs subchapter: it is defined to
mean "any bringing in or introduction of such article into any
area . . . ." 21 U.S.C. 951(b). The prohibited area--the
-39-
United States--is defined to mean "all places and waters,
continental or insular, subject to the jurisdiction of the United
States." 21 U.S.C. 802(28).
In this case, the defendants brought prohibited drugs
from international waters between Mona Island and mainland Puerto
Rico to within a mile or so of the mainland coastline, a point
that is unquestionably within the United States. The drugs were,
therefore, brought or introduced "into the United States" from
"any place outside thereof," namely, international waters--unless
"any place" has to be a land area or unless "import" has a
specialized meaning excluding drugs first acquired within the
United States.
The phrase "any place outside thereof" assuredly
includes international waters. See, United States v. Goggin, 853
F.2d 843, 845 (11th Cir. 1988). If drugs were manufactured on a
ship at sea or found floating on a raft, and were then brought
into shore by motorboat, that would be an importation from a
place outside the United States. The juxtaposition of "places"
and "waters" in section 802(28) was almost surely a precautionary
redundancy. Adding "waters" to "places" avoids the chance that
anyone might mistakenly read "places" to mean only dry land.
The majority does not deny that international waters
may be a "place" under the statute: it assumes that drugs
acquired from a mother ship at sea might be imported under the
statute; but it says that in this case defendants first acquired
the drugs within the United States, i.e., on Mona Island. But
-40-
the statute says nothing about where the defendants first
acquired their drugs. Indeed, drugs "acquired" by a defendant in
the United States but carried abroad can later be illegally re-
imported. E.g., United States v. Friedman, 501 F.2d 1352, 1353-
54 (9th Cir.), cert. denied, 419 U.S. 1054 (1974) (transit
through Mexico).
As for the term "import," absent a statutory definition
the common connotation of foreign-country origin might prevail.
But courts are bound, Coluatti v. Franklin, 439 U.S. 379, 392
n.10 (1979), by Congress' special definition of "import,"
incorporated into section 952 by section 951(b), defining
"import" in relation to destination, not origin. E.g., United
States v. Peabody, 626 F.2d 1300, 1301 (5th Cir. 1980). This
definition applies "whether or not such a bringing in or
introduction constitutes an importation within the meaning of the
tariff laws of the United States." 21 U.S.C. 951(a)(1).
In a further language argument, the majority suggests
that its reading of section 952 is supported by a comparison of
subsection (a)'s two clauses. The main clause, barring imports
"into the United States," is the core provision whose substance
can be traced back to 1909. The other clause--added in a 1970
recodification of drug laws--covers imports into U.S. customs
territory (the states, the District of Columbia and Puerto Rico)
from any U.S. possession. The majority contends that, on the
government's reading of the main clause, the customs territory
clause is superfluous and has no independent effect.
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The origin and purpose of the customs territory clause
are remarkably obscure (it appeared only in certain House bills
and was nowhere explained). But it is fair to think that
smuggling from some U.S. possessions to the states had become a
problem and Congress therefore included language that would
unquestionably cover such shipments. At the time Congress had no
knowledge of precisely how the main clause would be read, and it
certainly had no interest in narrowing the scope of the main
clause by implication.
In any event, the customs clause is neither superfluous
nor without substantial independent application. It is far from
clear whether carrying drugs aboard a scheduled non-stop airline
flight between two U.S. points could ever be treated as
importation under the main clause; a defendant would certainly
argue that for all practical purposes, drugs on such a flight are
never outside the country. Yet such a flight from a U.S.
possession to U.S. customs territory, say from Guam to Los
Angeles or from the U.S. Virgin Islands to San Juan, could
readily be prosecuted under the customs territory clause. That
geographic content to the customs clause eliminates the
majority's superfluousness argument.
It is not the government's position, but that of the
majority, that ruptures the superfluousness canon. Under the
special definition of import in section 951(b), Congress
envisaged a kind of transparent curtain around the boundaries of
the United States, and bringing drugs through that curtain is the
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crime. The majority has effectively repealed and rendered
meaningless Congress' specialized definition, replacing it with a
vernacular definition of import that requires no statutory
definition at all.
2. The precedents from other circuits, reflecting a
previously uniform application of the statute, all treat the
introduction of drugs from international waters or international
airspace as a violation of the import statute.15 This has been
the consistent position of the Fifth Circuit, the Ninth Circuit
and the Eleventh Circuit, the three circuits whose area of
jurisdiction includes the entire Pacific and Gulf coasts of the
United States. Until this case, no circuit has taken the
contrary view.
For example, in affirming a conviction based on a
shipment intercepted in Florida waters, the Fifth Circuit in
Peabody stated:
Had their cargo or contraband originated in,
say, Texas, that would not alter the fact
that it was meant to reenter the United
States from international waters. That is
enough.
626 F.2d at 1301. In Goggin, the Eleventh Circuit said that it
was importation to bring cocaine "into the country from
international waters or from airspace in excess of twelve
15 See United States v. Peabody, 626 F.2d 1300 (5th Cir. 1980);
United States v. Phillips, 664 F.2d 971, 1033 (5th Cir. 1981),
cert. denied, 457 U.S. 1136 (1982); United States v. P rez, 776
F.2d 797 (9th Cir. 1985); People of Territory of Guam v.
Sugiyama, 846 F.2d 570, 572 (9th Cir. 1988), cert. denied, 490
U.S. 1010 (1989); United States v. Lueck, 678 F.2d 895 (11th Cir.
1982); United States v. Goggin, 853 F.2d 843 (11th Cir. 1988).
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geographical miles outward from the coast." Goggin, 843 F.2d at
845. The Ninth Circuit in P rez likewise deemed "transit through
international waters" a basis for importation. 776 F.2d at 800-
01.
Moreover, as the quote from Peabody shows, the circuits
treat the U.S. origin of the drugs as no defense if the drugs are
removed from the United States and then reintroduced. Similarly,
in United States v. Doyal, 437 F.2d 271, 275, (5th Cir. 1971),
involving a predecessor to section 952, the court flatly rejected
the defense that the re-imported drugs had originated in the
United States, saying: "[e]ach time the drug was imported into
the United States a violation would occur." See also Friedman,
501 F.2d at 1354.
Cases like Peabody and Doyal also underline a major
fallacy in the majority's opinion, namely, the majority's
assumption that a drug shipment can only come from one "place."
It is evident that the defendants in this case possessed the
drugs both on Mona Island and, thereafter, in international
waters. But it was from international waters that the defendants
finally "[brought] in or introduc[ed] . . . such articles into"
the United States, 21 U.S.C. 951(b); and reimportation is not a
defense to drug smuggling.
The present decision actually contradicts precedent in
a fourth circuit as well: In United States v. Nueva, 979 F.2d
880 (1st Cir. 1992), cert. denied, 113 S. Ct. 1615 (1993), the
defendants, located in a boat in international waters, retrieved
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packages of cocaine dropped from a plane. This circuit in Nueva,
quoting Goggin, ruled that "importation" into the United States
under section 952 "requires proof that the 'defendant [conspired
to bring] cocaine into the country from international waters or
airspace in excess of twelve geographical miles outward from the
coastline.'" Id. at 884.
The majority's answer to all of these cases is that the
decisions of other circuits are ill-reasoned, or that their plain
language--adverse to the dissent--was unnecessary, or both. But
none of the many different judges who participated in these
decisions apparently thought the statute should be read as the
majority reads it. As of today, a major criminal statute means
one thing in the 15 states of the Fifth, Ninth and Eleventh
Circuits; and it means something eccentrically different in four
Northeastern states and Puerto Rico.
This parade of appellate cases from other circuits is
surely only a sample of similar prosecutions and convictions;
there must certainly be others where, as here, the defendants
were convicted for importing drugs from international waters and
then did not choose to dispute the import charge on appeal. By
themselves, the authorities from three circuits refute the
majority's claim that the government's reading of the statute is
newly minted or at odds with enforcement practices. The only
novelty in this case is the majority's decision.
3. A final test of statutory meaning is the underlying
purpose of the statute. Borella v. Borden Co., 145 F.2d 63, 64
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(2d Cir. 1944) (L. Hand), aff'd, 325 U.S. 679 (1945). Congress'
interest in protecting U.S. borders echoes through the history of
the statute. In proposing the legislation, the President's
special message said that the import provisions were intended "to
intercept [drugs] at their point of illegal entry into the United
States," and there are numerous references--by the President,
from law enforcement witnesses, and by legislators--to guarding
the nation's "borders" against drugs.16
The legislators had no reason to care one whit whether
the drugs were brought from international waters or from a
foreign land, so long as they crossed the U.S. boundary. Indeed,
Congress' indifference to origins is reflected three times over:
in its expressed purpose to protect our "borders," in the
expansive phrase "from any place outside thereof," and in a
companion statute making it unlawful for anyone to possess
prohibited drugs on board a vessel "arriving" in the United
States unless manifested as cargo or official supplies. 21
U.S.C. 955.
It was irrelevant to Congress' purpose whether the
drugs were originally produced within the United States, as might
matter under a tariff statute designed to protect U.S. markets
16 1969 Public Papers of the Presidents of the United States 513
(Presidential message); Hearings on Legislation to Regulate
Controlled Dangerous Substances and Amend Narcotics and Drug Laws
Before the House Ways and Means Committee, 91st Cong., 2d Sess.
205 (1970) (statement of the Director of the Bureau of Narcotics
and Dangerous Drugs); id. at 322 (statement of Representative
Pepper).
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from foreign competition and to favor local producers. In
enacting section 952, Congress was using the border crossing as a
convenient jurisdictional hook on which to catch traffickers.
See Peabody, 626 F.2d at 1301. Thus, the statute is violated
where drugs are produced within the United States, carried to a
foreign country and then reintroduced into this country. Accord
Friedman, 501 F.2d at 1353-54; cf. Hearings, supra, at 205
(reintroduction of drugs after export).
In smuggling operations a boat arriving from
international waters, or a small plane from international
airspace, often comes from an unknown point of origin. If one
added to the government's burden of proof the obligation to show
the point of origin, time would be spent by courts and parties on
an issue wholly irrelevant to Congress' concern to exclude drugs.
In many cases, the government would win; in some it might lose.
Such proof serves no purpose except to waste time, squander law
enforcement and judicial resources, and cause occasional erratic
acquittals of drug importers.
To suggest that Congress could not have intended the
statute to apply, the majority summons up visions of federal
agents arresting day sailors or airline passengers transiting
from one U.S. point to another with a few joints of marijuana on
board. But such dubious results are not avoided by distorting
the statute: a day hiker with a few joints who strayed over the
border to Canada and then back again or a tourist with a few
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joints returning from London by plane would be importing by any
definition.
More to the point, there is no record of prosecutorial
abuse of section 952. Indeed, the majority twists this fact into
a claim that the government's interpretation must therefore be a
radical change in position, but the majority has confused two
different points. The government has not abused the statute by
applying it to trivial amounts for personal use; but it has
applied it to major drug shipments arriving from international
waters or international air space. As the precedents show, it
has been upheld in every reported case.
The courts are capable of warding off unjust results,
if and when they arise. E.g., United States v. Aversa, 984 F.2d
493 (1st Cir. 1993), vacated, 114 S. Ct. 873 (1994). But such
surgery is properly done with a scalpel rather than an axe, and
there is no cause for any surgery here. In this case, the
defendants were not day sailors or tourists; they were importing
16 kilograms of cocaine into Puerto Rico after a substantial trip
through international waters. They fall squarely within the
purpose, as well as the plain language, of section 952. The rule
of lenity has nothing to do with such a case.
To conclude: The majority opinion is not short of
"reasons" for its result; after many pages of argument, one
emerges half-dazed from the labyrinth of explanations. But
nothing the majority says can overcome a single phrase in the
statute--section 951(b)'s definition of "import" as "any bringing
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in or introduction" of drugs into the United States. That is
what the defendants did in this case, and that is why their
convictions under section 952 should be affirmed.
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