US v. Ramirez-Ferrer
Case Date: 03/27/1996
Court: United States Court of Appeals
Docket No: 94-1016
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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 ____________________ -2- 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 -3- 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. -4- 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 -5- 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 -6- 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. -7- 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 -8- 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 -9- 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). -10- 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. __ ____ -11- 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 ____ ____ -12- 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 -13- 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. -15- 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 -16- 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 -17- 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." -18- 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 -19- 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 -20- 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). |