USCA1 Opinion

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,

is amended as follows:

1996,

On

the

cover

sheet,

government's

Kathleen A. Felton, Attorney,

___________________
Guillermo Gil,
_____________
Senior

counsel

should

Department of Justice,

read:

with whom

United States Attorney, Jos

A. Quiles-Espinosa,
________________________

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

appellant Felipe Ram rez-Ferrer.

of the

Court, for

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

whom Guillermo Gil, United

_____________
Espinosa,
________

of Justice,

with

States Attorney, and Jos A. Quiles________________

Senior Litigation

Counsel, and

were on supplemental brief for appellee.

____________________

March 27, 1996

____________________

OPINION EN BANC
____________________

Epifanio Morales-Cruz
_____________________

-2-

TORRUELLA,

Chief

Judge.

Defendants-appellants

TORRUELLA,

(collectively,

Chief
Judge
______________

"defendants")

Ferrer"), Jorge L.

Felipe

drug and firearm charges.

of all

A panel of this court: 1) affirmed the

for possession

Ram rez-Ferrer for

similar charge;

defendants for

of cocaine

using a

firearm in

and 3)

relation to

now

reversed

the convictions

importation of narcotics into

reverses

the

a drug

the conviction of Troche-Matos

convictions

of

of all

the United States.

Thereafter, the full court reheard the case en banc.

__ ____

court

with

affirmed the convictions of Su rez-Maya

trafficking offense, but reversed

on

Troche-

this court their convictions on

defendants

intent to distribute; 2)

and

("Ram rez-

Su rez-Maya ("Su rez-Maya") and Ra l

Matos ("Troche-Matos") appeal to

convictions

Ram rez-Ferrer

all

The en banc
__ ____

defendants

for

importation of narcotics into the

United States and remands

firearm

consideration in

convictions for

further

the

light of

an

intervening Supreme Court decision.

I.
I.

BACKGROUND
BACKGROUND

The evidence, taken in the

government, United States v.

______________

Cir.), cert. denied, 503

____________

find the facts

the POPR

On March 13,

individuals

that

had left

belonging to a

1458, 1460

jury to

1993, the Police of Puerto

telephone call.

defendant Su rez-Maya

for Mona

relation of

(1st

We emphasize the facts pertinent to

Rico ("POPR") received an anonymous

informed

952 F.2d

U.S. 994 (1992), permitted the

that follow.

the importation charge.

Abreu,
_____

light most favorable to the

Island, Puerto

The

caller

and three

other

Rico, in

a boat

Su rez-Maya, and that

the four

men

-3-

were going to acquire

island of

islands

a load of cocaine and ferry it to the main

Puerto Rico.

near Puerto

Mona

Rico's

Municipality of Cabo Rojo,

island's southwest corner.1

Island is

main island,

one of numerous

and

is part

which also includes part of

small

of

the

the main

Mona Island is physically separated

by about 39 miles of water from the main island of Puerto Rico.

Prior

extended

to 1989,

1073 n.6 (5th

extended by Presidential

the

is a

travel from

v. Williams, 617
________

In that year,

54 Fed. Reg.

Convention on the

signatory,

ratified as of February,

to

States

they were

Proclamation with qualifications to

United Nations

U.S.

the United

United States
_____________

Cir. 1980).

Proclamation No. 5928,

the 1982

which

boundaries of

three miles offshore.

F.2d 1063,

miles.

the

1996).

Mona Island

but

777 (1989) (citing

Law of

the Sea,

which the

Thus, given the

to the main

12

U.S.

to

had not

12-mile limit,

island of

Puerto Rico

requires that a vessel cross international waters.

After verifying

away from its

and

POPR

flew

that the

boat in question

mooring, the United States

to

Mona

Island on

was indeed

Customs Service (USCS)

USCS

helicopter.

The

____________________

The

the

only evidence in the record is

________
______
cocaine

geographically

at

Mona

part

of

includes the Islands of

Island.
the

that defendants picked up

Mona
Puerto

Island

Rico

is

not

Archipelago,

and keys.

Mona Island

Senatorial District of Mayaguez

Rojo

within

which

Puerto Rico, Culebra, Vieques, Desecheo,

Caja de Muertos, Mona and Monito, as well as various other

islets

just

that district.

is also politically

part of the

and of the Municipality of

P.R.

Const.

minor

art. VIII,

Cabo

1, IV.

Thus, in effect, the defendants transported the drugs in question

between

two points

Rico, the equivalent

within the

same municipality

of within two places within

in Massachusetts.

-4-

within Puerto

Suffolk County

authorities located the subject boat and Su rez-Maya, accompanied

by three other men as described.

next

At approximately 12:30 p.m. the

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

about

the boat was seized, it was found to be carrying

16 kilograms of cocaine.

A subsequent inventory search of

the boat turned up a firearm.

The

revolver,

by

compartment

was

found covered

near

the

location

seized

firearm,

T-shirt, behind

where Ram rez-Ferrer

seated at the time of the interdiction.

loaded

storage

had

been

The search also revealed

evidence linking the vessel to a relative of Su rez-Maya.

On March

charging

all

indictment

charged

kilograms

U.S.C.

three

of

31, 1993,

in each

each

cocaine with

three

indicted defendants,

separate

possessing

intent to

counts.

The

approximately

distribute (count

16

1), 21

841(a) (1) (1994); with importing such cocaine into the

carrying a firearm in

(count

of

with

United States (count 2), id.

___

and

a grand jury

3),

indictment

18

relation to a

U.S.C.

corrected the

952(a) (1994); and with possessing

924(c)(1)

drug trafficking crime

(1994).

description of

superseding

the seized

firearm in

count 3.

On

defendants

September

on

each

28, 1993,

count.

On

jury

counts

convicted all

1 and

possession and importation of cocaine, Su rez-Maya

2,

three

relating to

was sentenced

to life imprisonment, Ram rez-Ferrer to a term of 240 months, and

-5-

Troche-Matos to a

term of 120 months.

Maya and Ram rez-Ferrer

The sentences of Su rez-

were enhanced under 21

and 960(b) on account of prior drug crimes.

count,

each appellant was sentenced

of

months to

60

statute.

be served

U.S.C.

On count

841(b)

3, the gun

to a mandatory minimum term

consecutively,

as required

by the

In

a decision released April 27, 1995, a panel of this

court reversed

all

three defendants'

importation

reversed

Troche-Matos'

firearm

conviction,

and

remaining

convictions.

On June

26, 1995, this

convictions,

affirmed

the

court agreed to

rehear the case en banc on the issue of the importation statute's

__ ____

interpretation.

address

again

Su rez-Maya.

Additionally,

the firearms

The

September 13, 1995.

banc
____

court, the

opinion in

en
__

the court

convictions

banc
____

While the

Supreme Court

court

asked the

parties to

of Ram rez-Ferrer

heard

oral

case was pending

on December

and

argument

on

before the

en
__

6, 1995

issued its

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.
II.

THE POSSESSION CHARGE AND THE FIREARM CHARGE

THE POSSESSION CHARGE AND THE FIREARM CHARGE

On

concluded

defendants

the

that

possession charge

the evidence

knowingly possessed

their possession.

Among

was

zipper

and that

count

sufficient to

the drugs

1, the

show

or aided

panel

that the

and abetted

other evidence, the testimony permitted

the jury to conclude that the drugs

broken

under

the

drugs

-6-

were stored in a bag with

were

plainly visible

from

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

statute, defining

Assuming that

presence on

drugs.

each

charged the

"use" in

jury with

the language

accordance with circuit

appellant was

aware

the vessel made it available

of the

of the

precedent.2

revolver,

its

for use to protect the

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"

court and others.

F.2d 22,

25-26

See,
___

theory previously adopted by this

e.g., United States

____ _____________

(1st Cir.),

cert. denied,
____________

v. Wilkinson,
_________

111 S.

Ct. at

926

2813

(1991).

The

whether

panel had

more

difficulty with

plain

Ferrer,

of

a reasonable jury could find that each of the defendants

knew that the gun was present;

in

the question

view.

since

The panel

the revolver

unlike the drugs, the gun was not

upheld

was

the conviction

located

behind a

of Ram rez-

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

____________________

The indictment mistakenly charged the defendants

possess[ed] and carr[ied] the

firearm."

with "having

There is no

claim that

As to Troche-Matos, the court ruled that a

reasonable

the variance was prejudicial error.

-7-

the boat.

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.

somewhat

similar facts

panel of

evidence

insufficient

to

support

924(c)(1).

In that

case, the

1994), arguing

this

court had

convictions

weapon was

that on

found

under

found in

the

section

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

constructively

differing

possessed the weapon.

outcome, Torres-Maldonado
________________

in the room actually or

Id. at 102.
___

Despite its

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

for en
__

been

the evidence is not normally

banc consideration unless

____

used.

Any possible

the decision

their own

tension between the

in Torres-Maldonado stems from

________________

respective

facts.

different facts presented in

compositions of panels

But given

the view that

inevitable

in cases of this

panel opinion and

the

kaleidoscope

drug and gun cases and

kind even within

the varying

evidence are

a single circuit.

harmony among outcomes

-8-

of

banc court was, and

____

differences in weighing

produce perfect

standard has

their appraisals of

in the court, the en

__

remains, of

Nothing will

a mistaken legal

a question

unless the

court

chooses to hear every drug and

that is

neither practical

gun case en banc, a course

__ ____

nor useful.

Therefore,

we conclude

that the full court should not seek to decide en banc whether the
__ ____

evidence

against

sufficient

each appellant

on the gun

charge.

in this

As

case

a result, the

was or

was not

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

the

firearm an

operative factor in

relation to

predicate offense."

Bailey, ___ U.S. at ___, 116 S. Ct. at 505.

______

As

concerned, the

far as

fortress

placed

"use" is

theory, disagreeing

in

the

closet

emboldens or protects

is

with

'used'

its owner."

Supreme Court

the suggestion

because

its

Id., ___ U.S.

___

rejected the

that "a

mere

gun

presence

at ___, 116 S.

Ct. at 508.

Although

the Supreme

Court has rejected

the fortress

theory of "use" under which defendants were convicted,

of

their

firearm

convictions

remains

unresolved.

the issue

Section

924(c)(1) imposes a prison term upon a person who "during and

in

relation to

or

carries
_______

Defendants

any .

. .

firearm."

drug

trafficking crime

18 U.S.C.

were convicted on a

924(c)(1)

gun count that

-9-

. .

. uses

(emphasis added).

went to the jury

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.

by

the term "carry" are

The interpretive problems

apparent, given the

casts over previous circuit precedent.

little

comment

924(c)(1).

on

the

proper

posed

shadow that Bailey

______

Moreover, Bailey contains

______

scope

of

"carry"

in

section

By contrast, the Supreme Court went on to state that

"use" cannot extend to hypothetical situations where the offender

has "hid[den

necessary,"

the firearm]

id.,
___

___

where he

U.S.

description that, in the best

the set of

at

___,

can grab it

116

S.

and use

Ct.

at

it if

508,

light for the government, includes

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

___, 116

"use"

S. Ct. at 507.

should

be

transaction."

Id.,
___

___ U.S. at

As a result, defendants' conviction for

vacated,

and

they

should

face

only

reconsideration of their convictions under the carry prong, since

Bailey
______

has both

limited the word

"use" to

cannot

apply in the instant case and emphasized that "carry" has

meanings not covered by "use."

Id.,
___

at

readings of

508-09 (cautioning against

render the term "carry"

the extent

that it

___ U.S. at ___, 116 S. Ct.

the word

"use" that

superfluous, and remanding two unrelated

defendants' convictions for consideration under the carry prong).

-10-

In

defendants'

consideration

these

light of Bailey, then, we decline to decide en banc

______
__ ____

firearm

convictions,

and

instead

of count 3 under section 924(c)(1).

problems should

be

addressed in

require further

We think that

proceedings before

the

panel rather than the en banc court.

__ ____

-11-

III.
III.

THE IMPORTATION COUNTS

THE IMPORTATION COUNTS

In accord with the panel's

decision, the en banc court

__ ____

has concluded that the importation statute, 21 U.S.C.

not embrace

defendants' conduct in transporting

cocaine from Mona Island, Puerto Rico, to

offshore of the main

fact that

the

accords

with

The

both

approximately one mile

traversed international waters

court concludes

the

wording

of

principles of statutory construction.

pertinent

16 kilograms of

island of Puerto Rico, notwithstanding

the contraband

journey.

952, does

legislative history

that

this

the

statute

the

during

interpretation

and

general

Furthermore, absent either

or precedent,

the en

banc court

__

likewise

potential

concludes

that

the

future application

historical

of the

____

application

statute by

and

the

the government

weigh in favor of this interpretation.

A.
A.

Statutory Language
Statutory Language

The defendants were convicted

for

importing drugs into the

under 21 U.S.C.

United States.

952(a)

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

because they did

States from a

argue

not bring the

"place outside

did not

drugs at

thereof."

violate this

statute

issue into the

United

To

the contrary,

they

that the evidence in the record only establishes that they

brought the drugs

the United

from one location

States

(i.e., Mona
____

within the jurisdiction

Island)

to another

(i.e.,
____

of

the

-12-

waters

other

off Puerto Rico's main

hand,

claims

international waters

that,

island).

because

on their way

the

The

government, on the

drugs

from Mona

passed

Island, the

through

drugs

were

brought

thereof"

into the

(i.e.,
____

government

United

international

argues that

establishes

kind

the

deliberate shipment

regard

to

the

"place"

from

waters).

transparent

"place

outside

Essentially,

quoted language

of

jurisdictional boundaries

any

States

of section

curtain

the

952(a)

around

the

of the

United States,

and proscribes

of drugs

through that

curtain without

from

which

the

shipment

actually

originated.

In Price Waterhouse v.
_________________

the Supreme Court stated:

the doorstep

228 (1989),

"We need not leave our common sense at

when we interpret

government's newly

Hopkins, 490 U.S.

_______

a statute."

minted interpretation

only is contrary to the plain

Id. at
___

of section

241.

The

952(a) not

language of the statute, and flies

in

the face

of

every common

"importation," but also places

and logical

meaning of

the word

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

which a defendant leaves

handed,

territory

domestic

proceeds

to

to

not faced with a factual situation in

United States domestic territory empty-

international

acquire

territory with

contraband

this

waters

there, and

contraband (for

-13-

or

to

then

foreign

returns

example, when

to

vessel

leaves the

obtains

drugs from

waters,

and then

United

States, sails

"mother ship"

returns

to

the

out

to sea

anchored in

United

where

it

international

States).

In

that

hypothetical situation, the government might have a somewhat more

convincing argument

that international waters can

"place"

the controlled

into

the

arguments

from which

United

on

States.3

both sides,

narrower factual situation.

While

we are

substance is

we

might

presently

be deemed the

being imported

imagine

strong

faced with

a much

We need only decide whether Congress

intended to

for

treat in-transit
__________

purposes of

evidence

international waters as

the importation

statute when

shows that both the origination

a "place"

the government's

and the destination of

thecontrolled substance occurred within United States territory.4

____________________

We agree with the

into

dissent that both the day hiker

who strays

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."

The

government

international waters

treats

between Mona Island and

island as being the same as

Mona Island
Puerto

into another

Rico.

importation.
like

Doubtless

the

latter

International waters,

and the main

island of

sense that the

across

the

Puerto Rico's main

and

then back

would

however, are

into

constitute

an

not anything

Waters twelve miles beyond Mona Island

Puerto Rico are

vessels of

through

trip

if defendants had carried drugs from

sovereign nation

a sovereign nation.

navigation

defendants'

them.

other nations
See

54

"international" in
have a
Fed.

Reg.

right of
777

the

free

(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

the U.S. had not ratified

as of January 1996)).

however, they are subject to exclusive

mineral rights.
the

a signatory, but which

For

200 miles,

United States fishing and

See 1982 United Nations Convention on the Law of

___

Sea, Articles 5, 57, 76(1); Burke, The New International Law

_________________________

of Fisheries
_____________

(1994)

(describing this

regime

as

customary

-14-

"The starting point in statutory interpretation is 'the

language

U.S.

the

[of the statute] itself.'"

597, 604 (1986).

fact that

clause not

clause

In its argument, the government overlooks

the text

of section

directly at issue in

included,

United States v. James, 478

_____________
_____

section

952(a) includes

this case.

952(a),

With

entitled

a separate

this separate

"importation

of

controlled substances," provides

[i]t shall be unlawful [1] to import into

the

customs

States

from

territory
any

of

the

United

place outside

thereof

(but within the United States), or [2] to

import
place

into the
outside

United States
thereof,

any

from any
controlled

substance.

21

U.S.C.

952(a).

interpretation

the United

The court

of 21 U.S.C.

States

to another

concludes

that, given

a proper

952(a), transport from one part of

does

not rise

to the

level

of

importation

simply

by

involving travel

through

international

waters.

The

definition

in

section 951

appearing

shipment

of drugs.

of

"import"

does not

("any

implicate

bringing

in")

the origin

of a

Thus, the government argues that the statute

____________________

international law).
declaration of
After a

policy

United States

limit into

during

regarding the
vessel has

required had

yachts commonly

domestic waters when making

that

(Congressional

outer Continental

Shelf).

twelve-mile-

is not expected

to clear

United States territory,

the vessel entered

Coastal and

navigate

1332

gone beyond the

customs when it reenters

the voyage.

to where the

43 U.S.C.

"international" waters, it

United States
as would be

See also
________

fishing

interchangeably in

a foreign

country

vessels and

private

international

and

local trips, paying little attention

one ends and the other begins,

and with no thought

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

drugs; by the government's reading,

origin of a

shipment of

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

into the

States

be "from any place outside thereof" (emphasis added).

___ _____

is

requires that

the word "place" in

the

importation

section 952(a), when

United

It

read together with

"from .

. . outside," that needs to be considered in the present

circumstances,

not just

the

interpretation rests on the

word "import."

The

government's

assumption that Congress intended to

focus only on a result (i.e., each introduction of the drugs into

______ ____
____________

the

United States), irrespective of whether

was

another part

case, Congress

place outside

of the United

would not

States.

its place of origin

But if

this were the

have proscribed importation

thereof," but merely importation

"from any
____

"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

illegal substance brought?" would

'place' was the

_____

answer "From Mona Island," not

as is argued, "From international waters."

In

addition to its failure

understanding

interpretation

reasonable

of

of

the

clause

word

reading of clause

simultaneously

in 1970.

If

to comport with the normal

"place,"

cannot

1.

be

Clauses

the phrase in

-16-

the

government's

reconciled

1 and

with

any

2 were enacted

clause 2

-- "place

outside thereof" refers to the location of the drugs

before

they pass

through

the "transparent

territory,

it must

absent

indication that

an

Atlantic Cleaners
_________________

be given

v.

the same

curtain" into

connotation in

intended

otherwise.

United States,
_____________

286 U.S.

427, 433

(same).

the successor

repealed in

added to the

lest

See
___

(1932)

than once in

has same meaning); Fortin v. Marshall, 608 F.2d 525, 528

______
________

(1st Cir. 1979)

merely

U.S.

clause 1

Congress

(noting presumption that a word or phrase used more

statute

immediately

some

The government argues that

to 21 U.S.C.

1970), whereas

clause

statute in 1970

unidentified

out of

types

of

174

clause 2 is

(enacted in

1 introduces

1909 and

a new

"an abundance of

transportation

concept

caution"

from

U.S.

territories

into

U.S.

nonprosecutable.

customs

territory

might

prove

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

(which

imposed

penalties against

knowingly imports

or brings

anyone

any narcotic

States or

any territory under its control

ever been

construed so narrowly

importation

from a U.S. territory

territory (e.g., the

____

of the U.S. which

Puerto Rico, the 50

must bear in

who

174

"fraudulently or

drug into

the United

or jurisdiction") had

as to foreclose

not part of

prosecution of

the U.S. customs

United States Virgin Islands, Guam) to part

is part of

the U.S. customs territory

states, and the District

mind the

principle that Courts

(i.e.,
____

of Columbia).

must presume

We

that

Congress

knows

of

prior

judicial

or

executive

branch

-17-

interpretations

statute.

of

statute

when

it

reenacts

or

amends a

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

decisional

law

per Lorillard
_________

portended

that Congress

no

risk

of

knew

that pre-1970

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

be

superfluous,

void

or

insignificant."6

Campos-Serrano, 404 U.S. 293, 301

______________

word shall

United States
______________

v.

n.14 (1971); see United States

___ _____________

____________________

Moreover,

actually cuts
In

even if

we did

against the

accept it,

we think

government's reading of

this thesis

the statute.

other words, if Congress had doubts that the existing statute

did not proscribe shipment of drugs from

a non-customs territory

into

had, a fortiori,
___________

customs territory,

greater uncertainty
customs territory to
this case).

it

that the

must

have

statute proscribed

even

shipments from

customs territory (the conduct

at issue in

But it is clear, that by enacting clause 1, Congress

did not proscribe such activity.

Although we are charged by our dissenting colleagues with

the

commission

of

major

mayhem

to

construction, this claim may very

gored.

the

canons

of

statutory

well be a case of whose

ox is

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.

note, that by

L. Rev. 395

suggesting that

originate in Mona Island,

violates a
anchored

(1950).

It is

the cocaine in

in elementary principles of

go outside the record.

Rico

or

is

In this

a transshipment point"

of the record but is in

Puerto

one which

due process, to the effect

case, the suggestion that "Mona Island is

charge.

not

dissent itself

of appellate review,

that appellate courts are not to

the

question did

see dissent at 35, the

___

fundamental rule

is not only not part

interesting to

Florida

fact immaterial to
or

California

are

transshipment points of imported drugs to other internal areas of

________
the United States.
that
itself

may have

Yet such internal transshipment of contraband

________

originated

constitute a

outside the

violation of

United

21 U.S.C.

States does
952,

covers importation from a "place outside thereof."

-18-

not

which only

v.

Holmquist, 36 F.3d 154, 160 (1st

_________

to

the "whole

features of

act" approach

is that

the enactment must

Cir. 1994) (same).

all provisions

be given

force, and

The key

and other

provisions

must be interpreted so as not to derogate from the force of other

provisions and

Norman J.

features

of the

whole statute.

See generally
______________

Singer, Sutherland Statutory Construction

_________________________________

120 (5th ed. 1992).

A close analysis of section

47.02, at

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

considered

the

conduct

at

issue in

this

case

Congress

and

rejected

proscribing it under the statute.

First, clause 1

drugs

into the

place

outside the

proscribes the importation

customs territory

customs territory

within the United States.

States"

Puerto

of the

of illegal

United States

of the United

The "customs territory of

from a

States, but

the United

is defined as "the States, the District of Columbia, and

Rico."

States, n.2.

See
___

Thus,

Harmonized Tariff

clause

Schedule

1 proscribes

of the

United

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

suggests

Congress

addressed this

that it believed that the language

necessarily cover

of clause

specifically

such conduct.

2, however,

The

situation

of clause 2 did not

government's broad reading

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

Islands) would first pass

entered into the customs

the conduct

--

e.g.,
____

the U.S.

Virgin

through international waters before it

territory of the United States.

aimed at under

clause 1 would be

government's interpretation of clause 2.

Thus,

proscribed by the

Hence, the government's

reading of clause 2 renders clause 1 completely superfluous.

Second,

would

make

clause

1.

outside

the government's

it arguably

impossible

broad

to

reading

prosecute anyone

(i.e., the
____

under

Under the government's reading, the phrase "any place

thereof" essentially means the point

were located

of clause

immediately before

international space

at which the drugs

passing into the

just outside the

United States

jurisdictional

limit of the United States).

same phrase

In

other

If one applies this reading to the

in clause 1, it

words,

jurisdictional

there

is impossible to violate

is

limits of

no

the

"place"

just

just

outside

the customs

international waters.

violate clause 1

the United

into

territory

Thus,

of

the United

would always be directly shipping from

United

is

could ever

within

territory) directly

the individual

international waters.

charge a defendant under clause

-20-

the

States

ship from a place

outside the customs

of

Any place that is

the customs territory of the United States:

a prosecutor attempted to

of the

arguably no individual

because no one could

States (but

outside

customs territory

States, that is also within the United States.

clause 1.

If

1 for

shipping drugs

clearly

he

"place"

from

Virgin

Islands

or she

did not

which the

but

the

violate the

drugs were

imported

international space

Although the prosecutor

the U.S. Virgin

clause because

was not

just

could argue that

referred to by the statute included

and

to Florida (conduct

meant to be proscribed by clause 1), the defendant could

argue that

Florida.

from the U.S. Virgin Islands

Islands, such a

the

the U.S.

outside

of

the "place"

both the international space

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

illegal

reveals

that

Congress contemplated

whether

or

not

drugs shipped from one part of the United States through

international

waters and back

prohibited under 21 U.S.C.

to

into the United

952.

proscribe

States should be

Specifically, clause 1 evinces

Congress'

intent

such

conduct

in

the

certain

instances

in which drugs are imported into the customs territory

____________________

One

could quibble here

extend farther
coast.

Thus,

because national

territorial waters

than state territorial waters off any one state's

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

"states" in the
the

state

significant way.

jurisdictional

waters

(a

national waters

point

it seems unlikely that

Congress was aiming only at drugs

into

other

definition of customs territory

necessarily concede),
1,

In

and back

words, even

if

extends only to

which

we

do

not

in enacting clause

shipped from one state out

into that

or another

state (as

everything else that would violate clause 1 would fall within the
government's broad interpretation of clause 2).
reading

Moreover, such a

would be inconsistent with the general usage of the term

"customs territory" in the Harmonized Tariff Schedule.

-21-

of the

United

States from

point in

the

United States

but

outside the customs territory.

further and

proscribed any shipment of

the United

entered

States that

back

explicitly

reason

into the

limiting the

clause 1, it

proscribe

is fair to

the additional

for this

attacking

Clearly, Congress could have gone

classic

is

drugs originating inside

passed through international

United

States,

statute

but

to the

it

clear.

cases of

In

issue in

enacting

importation,

did not.

conduct proscribed

infer that Congress

conduct at

waters and

By

by

did not intend

to

this case.

The

952,

Congress

was

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

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,

to

give defendants

the

benefit of

Ratzlaf v. United States, 114 S.

_______
_____________

the

and requires us

doubt on

this

issue.

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.
B.

Congressional Intent
Congressional Intent

____________________

Cf. Llewellyn, 3 Vand.

___

should adopt
good

sense

L. Rev. at 401 (concluding that courts

statutory interpretations
of

the

situation"

that accord with

and that

represent

"a

construction of the available language to achieve that

a
_

tenable means,
_____________

out of
___ __

the
___

statutory language"
_________ ________

"[t]he

simple
______

sense, by
__

(emphasis in

original)).

-22-

On the specific point at issue, there is no legislative

history.

Nonetheless,

the dissent claims that

"care one whit whether the drugs were brought

waters [or international

airspace9] or from

long as they crossed the U.S. boundary."

Congress did not

from international

a foreign land,

See dissent at 43.

___

so

But

Congress

might well

brought from

obvious

be concerned

whether the drugs

were being

one place within the United States to another.

______ ___ ______ ______

fact that Congress

may be generally

The

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

statutes in those

facts

areas.

as

justifying

We can find

strained readings

of

no legitimate reason

to

follow a different course here.

C.
C.

As

discussed,

The "Precedents"
The "Precedents"

the

government leads to unreasonable

interpretation

results.

urged

by

the

Turning to precedent,

____________________

We

agree with

the dissent's concessions

to the effect

that

"[i]t is
flight

far from
between

importation

clear
two

whether a

U.S.

points

dissent

such a
at

flight are

39.

superfluousness
disappearance
envisioned
penetration

This

the

We fail

yet

bearing

dissent's
its

"yes if

the

leaves

boundaries

which,

between such

installing

be

treated

country."

purportedly

"transparent

"around the
of

never outside

of the
drugs,

which

as

"is

the

by

water, no

transparent curtain

our

the

crime

the

[of

distinction can

international airspace,

between "two U.S. points."

if

by

appears

statutory purpose identified by the dissent.

-23-

See
___

Congress

United States,"

to see how a principled

an incursion into

refutes

unexplained

curtain"

and the present case involving travel

The

ever

that for all practical purposes,

contention

argument,
of

importation]."
be made

could

airline

under the main clause [of section 952]," and that "a

defendant would certainly argue

drugs on

scheduled non-stop

air" formula
to

respond to

for

no

we see that the case law does not support the outcome proposed by

the

government.

special

weight

The

in formulating

This is obviously a

far as it goes.

government

views

precedent as

its interpretation

carrying

of

952(a).

principle which we generally agree

with, as

However, the "precedent" on which the government

relies, with one exception, is inapposite.

The language

F.2d 1300, 1301

(5th Cir.

originated in Texas,

meant

That

to reenter

cited from United States

_____________

1980) ("Had the

that would not

the United

is enough."), which is

v. Peabody, 626
_______

cargo of

contraband

alter the fact that

States from

it was

international waters.

both the seminal

authority for the

cases that follow and the anchor upon which the government relies

for its

interpretation

Although the

glove,

of

952(a),

a reading

even a

particularly

cryptic statement in Peabody

_______

of

that case

superficial

analysis of

demonstrates that

the

issues raised

Indeed that opinion does not even cite

although it may

perhaps be surmised that such is

case

Nevertheless,

supports the

Without question the

nothing in the factual

proposition

and

relied upon

contraband in Peabody
_______

another domestic area in the

the

total dicta, and is not based

present appeal.

issue.

flawed.

fits the government's

clearly

proposition for which it stands is

on

is

the

952(a),

the statute at

background of that

by the

government.

was not coming

United States, Texas or

thus the court's hyperbole was pure

in

dicta.

from

otherwise,

Peabody and its

_______

progeny constitute flimsy precedent upon which to hang one's hat.

-24-

In United States v. Phillips, 667 F.2d

______________
________

Cir.

1981)

established

unloaded

(holding

that

by evidence

went outside

that

the

importation

a boat

United States

971, 1033 (5th

"element

from which

may

be

marihuana was

territorial waters

or met

with any other vessels that had -- for example, a "mother ship"),

the

facts

involved contraband

brought

through motherships off Florida.

present

dicta.

Cir.

issue was not decided

In

United States v.
_____________

1982),

the

Eleventh

of

importing

As in Peabody, the
_______

and the quoted

language is again

Lueck, 678 F.2d

_____

relying

on

the

(11th

specific

controlled substances

from

specific point

952(a).

on

Id. at 905.
___

Lueck's holding must be read and understood in light of

_____

the fact that

flying

895, 904-05

rejected the contention that proof

foreign soil is required as an element of

However,

Colombia

Id. at 987.
___

Circuit,

language quoted from Peabody,

_______

directly from

the airplane

over the Bahamas.

in question had

been spotted

first

The record evidence in Lueck supported

______
_____

the

finding

of

importation

domestic airspace.

do

all

Id. at 897.
___

the

airplane's

In stark

entry

into

contrast to Lueck, we
_____

not have here any evidence supporting such a finding, rather,

we have is evidence

from a place
_____

853

upon

F.2d

that the illegal

within the United States.

843,

845 (11th

Cir.

1988),

Eleventh Circuit, which relies on

from the Bahamas,

id. at
___

-25-

United States v. Goggin,

_____________
______

another

case from

Lueck, also concerns a

_____

844, 847, and

from the present appeal.

substance was brought

is therefore

the

flight

different

In United States v. Doyal, 437 F.2d 271 (5th Cir. 1971)

_____________
_____

(involving

contended

the

predecessor

that although

he

Mexico with illegal drugs,

the

U.S.,

therefore,

taken

argued

importation.

originated

them

statute to

was caught

the United

Mexico,

defendant,

Id. at 274-75.
___

in

the

defendant

entering the

U.S. from

he had in fact acquired

into

the

952),

and

he

the drugs in

brought

was

not

them

back;

guilty

of

Although the drugs in question had

States, the

fact

is that

they were

brought into Mexico, and it was from there that they

______ _____________________

domestic territory

entry

of the United States.

entered the

Id. at 272.
___

Such an

from a foreign country (i.e., a "place outside" the United

_______________ ____
_____

States)

is

Friedman,
________

not what

501 F.2d

government,

we

have

1352

involved

before

(9th Cir.

another entry

us.

United States
______________

1974),

from

also cited

v.

by

the

place outside
_____

the

United States -- Mexico as in Doyal.

_____

Reliance on the language used by

States v.
______

Nueva, 979 F.2d

_____

unhelpful in

authorities

880, 884 (1st Cir.

the present situation.

spotted

our Circuit in United

______

suspect

In Nueva,
_____

aircraft

1992), is equally

law enforcement

traveling

from South

America

point

to Puerto Rico; the

above the

ocean off

authorities tracked the

the coast

dropped bales of illegal drugs at a

Id. at 881-83.
___

waters,

of Puerto Rico,

plane to a

where it

rendezvous point for a boat.

Picking up contraband by going into international

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

_____

-26-

from which the

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

in

952(a).

We

(9th

Cir.

thus come to United States v. P rez,

______________
_____

1985).

approximates

the

marihuana was

United

States

This

present

squarely

is

Trust

holds

the

one.10

transported by

international waters to

court

of the importation charge

only

case

There,

boat from the

Territory

in

the

Guam, another U.S.

that

the

an

776 F.2d 797

which

factually

illegal load

of

Mariana Islands

(a

Pacific),

through

domestic area.

transit through

The

international

waters

is

sufficient to

952(a).

purposes,

It would

its ephemeral

case

perhaps

had the deciding

original analysis

merely

sustain

or some

(importation

have

importation charge

been

helpful

court discussed the

such was

not to

usual suspects," by

from Mexico),

and

for

under

present

issue with some

enlightening reasoning in

conclusion, but

"rounded up the

an

support of

be.

The court

citing its Friedman

________

Peabody
_______

and its

progeny

(Lueck and Phillips), as being "instructive," id. at 801, without

_____
________
___

providing much more to

support the resolution of an

it had admittedly "never [before] addressed."

issue which

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
457

This

is despite precedent such as United States v. Carri n,

______________
_______

F.2d 200 (9th

that evidence that

pounds
time

Cir. 1972), in which

an aircraft

the Ninth Circuit ruled

landed in Los

Angeles with

404

of marihuana, that it had used enough fuel and had enough

to go to Mexico, that the

marihuana was in boxes marked in

-27-

Thus, the "precedent" cited

without analysis.

amounts to bald assertions

D.
D.

Historical Application of the Statute

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.

at odds

952(a) promoted

with the

by the government is most

government's past enforcement

certainly

practices under

this statute throughout its long life.

It is

difficult to

government's reading

of

accept that Congress

952(a), considering

intended the

that this reading

of the statute has somehow lain lifeless for 25 years until given

breath in this

case by

have us believe that

the prosecution.

The government

throughout the life of this

would

statute, which

has been on the books in practically the same form since 1970, in

every

direct flight,

commercial or

Mainland and Puerto Rico,

private, between,

or the Mainland and Hawaii

say, the

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

airspace

their passage) fly within international

before returning

have always

to domestic territory,

been subject to

being charged

overlooked definition of "importation."

seems

all

the

more

striking

notwithstanding the hundreds

in

the occupants

under this

hitherto

The government's novelty

this

Circuit,

(perhaps thousands)

of such

where

daily
_____

____________________

Spanish, and that

well as

one of the passengers had a

a match box from

a Mexico motel, was

map of Mexico, as

not sufficient to
___

establish that the marihuana had been imported from Mexico!

-28-

flights, the

government has somehow throughout

never pressed such a theory of importation.

to

What

prosecutorial

benevolence or

we have is the

reasonably

be

"Whatever other

(holding

"importation"

statutes defendants may have

not violate this one."

Is this attributable

incompetence?

tacit recognition that

considered

these many years

Certainly not.

such acts could not

within

952(a).

violated, they did

Maravilla, 907 F.2d at 223 (Breyer, C.J.)

_________

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

There

all

have a similar

situation with water-borne traffic.

are literally thousands of

kinds

of purposes

that

vessels of all

daily

sizes and with

pass through

international

waters as they move between domestic areas which, without picking

up

contraband

in

international

jurisdictions, would

of

952(a).

Not

between

the Mainland

Alaska,

Puerto

waters

be subject to this

only is

Rico,

there

and its

U.S.

or

visiting

expanded interpretation

the obvious

outlying domestic

Virgin

foreign

Islands,

marine

traffic

areas (Hawaii,

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

sport,

of commercial fishermen, as well as those who fish for

who

international

on

daily
_____

waters,

and

basis

leave

return

to

domestic

waters,

enter

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

government's assertions at oral argument, it does not

For example,

who

left

a passenger

Provincetown,

the

stop here.

on a commercial

whale-watching vessel

Massachusetts,

went

offshore into international waters

then

to

thirteen

miles

to watch these behemoths, and

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

on George's Bank

sailboat

the Gulf of Mexico off

off New England, would

tacking

"importation" every

up

the

coast

be equally exposed.

engage

time it reentered domestic

had contraband aboard when it

The height

would

of absurdity,12

Louisiana, or

in

that

act

of

territory, if it

tacked out of domestic

however, is

an

territory.

according to

the

government's interpretation

as expressed

act

territory

of

leaving
_______

considered

an

domestic

illegal

952(a)'s companion

no

intention

loading the

or act

exportation
___________

provision,

waters.

Thus, under

times up

the East Coast of

York,

which had

in

subject

to

argument, the

turn

also

charge

under

or off-

in international

a sailboat tacking

the United States from

illegal substances

be

though there was

foreign territory

onto a vessel

this scenario,

aboard

would

953(a), even

of visiting

exported contraband

at oral

twenty

Miami to New

acquired in

Miami,

____________________

12

See In re Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 643
___ ______________________________________

(1978)

(holding

that

an

absurd

proposed statutory interpretation).

-30-

result

militates

against

would

be

subject to

exportation under

under

952(a),

being

charged with

953(a), and

one

for each

twenty

violations of

twenty violations of importation

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

"reasonable"

who

per se
___ __

cross

within

United States, 267 U.S. 132,

_____________

searches require

any

the Fourth

of

warrant . . .").13

government's proposed

is

plenary

and

is

Amendment); Carroll
_______

v.

153-54 (1925) (stating that

U.S.

of persons and effects

requirement

borders

no probable cause);

Montoya de Hern ndez, 473

______________________

searches

its

reasonable

Clearly,

see also United States v.

________ ______________

531,

537-38 (1986)

of entrants are

suspicion,

the

interpretation

border

not subject to

probable cause,

implications

go

far

("Routine

beyond

or

of

the

the

mere

crossing of

a stretch

of water between

municipality in Puerto Rico.

465,

474

(1978)

(concluding

two points in

the same

Cf. Torres v. Puerto Rico, 442 U.S.

___ ______
___________

no

international

border

exists

____________________

13

Indeed,

troubling
of

the

Fourth

Amendment

issues

here

may

be

more

than in the land border cases, given the relative lack

notice upon

entering the

United States

land, since land borders are often marked.

-31-

by water

versus by

between Puerto Rico and continental United States).

and his or her

is

partially

passenger

belongings on a Boston to Nantucket flight, which

over international

waters

and

airspace, can

be

subjected hereafter to a border search upon arrival in Nantucket,

as

well as to another

In light

drug

of these possibilities

possession

conduct,14

952(a).

we

statutes

cannot

accept

a basic rule

imbedded

"[U]nreasonableness

in

the

of

the

returning to Boston.

and in light

already

By its interpretation

chosen to ignore

firmly

such intrusion upon

exist

to

of the

fact that

address

domestic
________

the

government's

reading

of

952(a), the government has

of statutory interpretation,

jurisprudence

result

of

produced

this

by

of

one

Circuit:

one

among

alternative possible

reason

which

interpretations of

for rejecting

would produce

Bayko, 774 F.2d

_____

that

a statute is

interpretation in

reasonable result."

516, 522

(1st Cir.

Statutory Construction,
______________________

[a valid]

favor of

another

United States
_____________

1985) (quoting

v.

Sutherland,

45.12 (4th Ed. 1984)).

Furthermore, the undeniable fact is that section 952(a)

has

not been

prosecution.

used at all in
____________

the fashion

now promoted

by the

On this point, there should be no need to engage in

____________________

14

These real

Amendment

possibilities

problems to

obviously they are

are

be resolved

not at

not

merely lurking

in future

issue in this

cases.

Fourth

Although

case, particularly

view of the Government's assertions

at oral argument, they

within

that

the realm

of

consequences

government's proposed interpretation

will follow

in

fall

from

the

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.
worrisome

Needless to say, the

as nothing

of

mere possibility is extremely

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).

asked

At

oral

argument, the

to produce evidence of

government was

such a prosecution.

the government has failed to cite

specifically

Nevertheless,

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

international

"small quantities"

space from

of

drugs

prior United

transported over

States connection

importation under

952(a), but that similarly transported

amounts

considered violations

have been

conducted our own search of reported cases.

of that

as

large

provision, we

The inquiry revealed

that such a distinction simply does not exist.

See, e.g., United

___ ____ ______

States v. Marcel, 1995

______
______

1995) (discussing

convictions

of

two

WL 732747, *1 (2d Cir.

co-conspirators

who

participated

in

the

transportation of 48 kilograms of cocaine from Puerto Rico to New

__ _________

York,

but who

importation);

(discussing

apparently

faced

United States
______________

suppression motion

no

v.

charge or

P rez, 1994
_____

of two

WL

conviction

for

702058,

*1-2

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

in narcotics

of the

substantial traffic

-33-

between Puerto

Rico and the

mainland United States

contraband.

as "a

Task

See P rez,
___ _____

involving large amounts

at *4 (describing San Juan,

location known to

[Organized Crime

Puerto Rico

and Drug

Enforcement

Force] agents to be an active departure point for narcotics

smuggling activities into New York").

case

of

in

which

the

government

Yet, we are unaware of any

has

in

fact

transporting the contraband from Puerto Rico

charged

to the mainland (or

vice versa) constituted an importation violation under

Nor

government

is

from

the possibility

prosecuting

such

of

such

cases

that

952(a).

forbearance by

in

the

future

the

very

reassuring.

(in

Cf. Donovan v. United States,

___ _______
_____________

light of Ratzlaf
_______

v. United States,
_____________

vacating and remanding

the

prosecution of

114 S. Ct.

First Circuit case

defendant pursuant

114 S. Ct. 873 (1994)

655 (1994),

that tried to

to the

uphold

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.

_____________
______

prosecutors should perhaps

the

limits

caught up

contain

of the

in this

the

government's

not be faulted for

law, courts

euphoria.

government

cannot

Rather,

within

1993).

Although

seeking to expand

allow themselves

they are

established

to be

duty bound

limits.

to

The

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

forth

here would

inordinately burden

that the interpretation set

prosecutors by

adding to

their burden the obligation of identifying and proving

of

origin of

drugs in

smuggling operations.

drug-laden ship coming from

the point

However,

an unknown point of origin

when a

is shown

to have traversed international waters and brought drugs into the

United

States,

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

narcotic

of heroin

because

of

is

the

in knowing

possession of

"high probability"

that

an imported

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,

out

46-47 (1969).

In

other words, the government

a prima facie case of

U.S.C.

from

952(a),

parts

entering the

importation, within the meaning of 21

merely by

unknown

has

can make

showing that a

cruised

United States.

ship carrying

international

waters

Similar inferences would

drugs

before

apply to

the case of drugs off-loaded into this country from a mother ship

located within international waters.

defendant can

affirmatively by

defeat an

We therefore hold only that

importation charge

by demonstrating

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

____

-35-

before us.

The

charge in the
______

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

counts.

We

convictions

defendants'

convictions on

also

remand the

issues

to the

original

panel for

the

possession

surrounding the

firearms

further proceedings

in

light of this opinion.

This

en
__

banc
____

decision

determines, as

matter

statutory interpretation, that

the importation statute

apply to

case from one part

the shipment in this

States and

its customs territory

another (the

does not

of the United

(Mona Island, Puerto

main island of Puerto

Rico).

of

We thus

Rico) to

reverse the

importation convictions of all three defendants.

Accordingly, the

judgment

of the

district

court

affirmed in part, remanded in part, and reversed in part.

________________________________________________________

is

-36-

CYR,
CYR,

importation

Section

court.

Circuit Judge
Circuit Judge
_____________

(concurring).
(concurring).

convictions must

be vacated,

write separately

as ably

because I believe

nor the dissent succeeds

the opposing result is absurd.

chose to

require could not have

absurd.

Moreover, in

by

agree that

the

explained in

III.A of Chief Judge Torruella's opinion for the en banc

__ ____

majority opinion

952

the en
__

the

in demonstrating that

Whichever result Congress clearly

been rejected by

my view the

banc court
____

that neither

reflects

the courts as

interpretation given section

greater allegiance

to the

ordinary meaning of the statutory language Congress did use.

"Dissenting" follows

-37-

BOUDIN,
BOUDIN,

Circuit Judge,
Circuit Judge,
______________

Circuit Judges, join, dissenting.

Circuit Judges, join, dissenting
______________

a man may

equal

the

with whom
with whom

The majority has

statute does

not mean

and
and

LYNCH,
LYNCH,

Dr. Johnson once remarked that

have a reason why 2 plus 2

but 4.

SELYA
SELYA

equals 5 but it will still

an endless supply of reasons why

what it

says.

But the

majority's

opinion defies

the plain language of the statute; it contradicts

uniform rulings in

three other circuits;

purpose and administration of

and it undermines

the drug laws.

In

the

the majority's

effort, scarcely a major canon of construction escapes damage.

The evidence showed

kilograms of cocaine hidden

jurisdiction

of

Puerto

that the

defendants collected

on Mona Island, an island

Rico

but

physically

mile

limit for

U.S. territorial

international waters

Rico.

Rico is

waters, at

separate Mona

under the

separated

mainland Puerto Rico by about 39 miles of water.

from

Assuming a 12-

least 15

Island from

16

miles of

mainland Puerto

Any ship traveling between Mona Island and mainland Puerto

unquestionably

outside the

United

States for

good

portion of the trip.

In this case, the origin of the cocaine is unknown; but

the ship's captain

hidden on

reported that it

Mona Island.

transhipment

point.

In

Being

was part of a

all likelihood,

subject to

Mona

larger cache

Island is

less surveillance

than

mainland Puerto Rico, drugs can be brought to Mona Island in bulk

from foreign origins and

the

Puerto

States.

Rico mainland

then smuggled in smaller quantities

and

then to

the

to

continental United

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

including violation

were

of 21

convicted

U.S.C.

trial nor

on

appeal did

fell

outside section

parties

were

directed

statutory issue.

by

defendants argue

952;

the

Subsequently,

offenses

the United States.

the

conduct

various

952(a) which prohibits

importation of specified drugs into

at

of

but at

original

oral

panel

the

Neither

that

their

argument, the

to

the panel by a 2-to-1

brief

the

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

What is surprising is that,

has

now concluded

defendants'

that

conduct in

international waters

to rehear the

case en banc.

by a 4-to-3 vote, the en

section

952

does

not

bringing

16 kilograms

to mainland

Puerto Rico.

banc court

apply

to

of cocaine

This result

the

from

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.'"

478

U.S.

597, 604

(1986).

United States v. James,

_____________
_____

Section 952(a)

says

that it

is

unlawful "to import [specified drugs] into the United States from

any place outside thereof . .

definition

mean

. ."

for the illegal drugs

"any bringing in or

"Import" is given a

subchapter:

introduction of such

it

special
_______

is defined to

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.

In

802(28).

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.

therefore, brought

or introduced

The drugs were,

"into the United

States" from

"any place outside thereof," namely, international waters--unless

"any place"

has to

specialized meaning

be

a land

excluding

area or

unless

drugs first

"import" has

acquired within

the

United States.

The

phrase

"any

place

includes international waters.

into

sea or found floating

shore by

assuredly

If drugs were manufactured on a

on a raft, and

motorboat, that

place outside the

thereof"

See, United States v. Goggin, 853

___ _____________
______

F.2d 843, 845 (11th Cir. 1988).

ship at

outside

United States.

would be

The

were then brought

an importation

from a

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

may be

"place" under

acquired from a mother

statute;

the

does not

the

deny that

statute:

ship at sea might

international waters

it

assumes that

be imported under

drugs

the

but it says that in this case defendants first acquired

drugs within the United

States, i.e., on
____

-40-

Mona Island.

But

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

imported.

54

(9th

illegally re-

E.g., United States v. Friedman, 501 F.2d 1352, 1353____ _____________

________

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

But courts are

n.10

(1979),

incorporated

bound, Coluatti
________

by

Congress'

into

section

v. Franklin, 439
________

special
_______

952

by

definition

section

might prevail.

U.S. 379,

of

951(b),

392

"import,"

defining

"import" in

relation to destination,

States v. Peabody,
______
_______

definition

626 F.2d

applies

not origin.

1300, 1301 (5th

"whether

or

not

such

E.g., United
____ ______

Cir. 1980).

bringing

This

in

or

introduction constitutes an importation within the meaning of the

tariff laws of the United States."

In a further

21 U.S.C.

language argument, the majority

that its reading of section

952 is supported by a

subsection (a)'s

two clauses.

"into the United

States," is the core

can be

traced back to 1909.

recodification

of drug

The main

comparison of

provision whose substance

The other clause--added

laws--covers imports

possession.

suggests

clause, barring imports

territory (the states, the District of Columbia

from any U.S.

951(a)(1).

into U.S.

in a 1970

customs

and Puerto Rico)

The majority contends

that, on

the

government's reading

of the

main clause, the

customs territory

clause is superfluous and has no independent effect.

-41-

The origin and purpose

are remarkably obscure

and was

nowhere

(it appeared only in

explained).

smuggling from some U.S.

of the customs territory clause

But

it

certain House bills

is fair

to

think

possessions to the states had

that

become a

problem

and

Congress

therefore

included

unquestionably cover such shipments.

knowledge of

certainly

language

that would

At the time Congress had no

precisely how the main clause would be read, and it

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.

clear whether carrying drugs

flight

between

two

importation under

U.S.

the main

It is far from

aboard a scheduled non-stop airline

points

could

ever

clause; a defendant

be

treated

as

would certainly

argue that for all practical purposes, drugs on such a flight are

never

outside the

possession

to

country.

Yet such

U.S. customs

territory,

say

flight

from

from a

U.S.

Guam to

Los

Angeles

or from

readily be

geographic

the

U.S. Virgin

Islands

to San

Juan,

could

clause.

That

clause

eliminates

the

the government's position,

but that of

the

prosecuted under the customs territory

content

to

the

customs

majority's superfluousness argument.

It is not

majority,

special

that ruptures

definition

of

the superfluousness

canon.

Under the

import

951(b),

Congress

in

section

envisaged a kind of transparent curtain

around the boundaries of

the United States, and bringing drugs through that curtain is the

-42-

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.

previously

The precedents

uniform application

introduction of

airspace as a

of

the statute,

reflecting a

all treat
___

the

drugs from international waters or international

violation of the import statute.15

the consistent position

and

from other circuits,

the Eleventh

of the Fifth Circuit,

Circuit,

jurisdiction includes the

the

three

This has been

the Ninth Circuit

circuits whose

entire Pacific and Gulf

area

of

coasts of the

United

States.

Until this

case,

no
__

circuit

has taken

the

contrary view.

For

shipment

example,

in affirming

intercepted in

Florida

conviction

waters, the

based on

Fifth Circuit

in

Peabody stated:
_______

Had their cargo or contraband

say,

Texas, that

that

it

States

was

would not

meant

to

originated in,
alter

the fact

reenter the

United

waters.

That is

from international

enough.

626 F.2d at 1301.

was

importation

international

In Goggin, the Eleventh Circuit said

______

to

waters

bring

or

cocaine

from

"into

airspace

in

the

that it

country

excess

of

from

twelve

____________________

15

See United States v. Peabody, 626 F.2d 1300

(5th Cir. 1980);

___ _____________

_______

United States v. Phillips, 664

______________
________
cert. denied, 457 U.S.
____________
F.2d

797 (9th

Sugiyama,
________

Cir.

F.2d 971, 1033

(5th Cir. 1981),

1136 (1982); United States v.

_____________
1985);

846 F.2d 570, 572

P rez, 776
_____

People of Territory of Guam

_______________________________
(9th Cir. 1988),

v.

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).
_____________
______

-43-

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.

in United States v. Doyal, 437

______________
_____

F.2d 271, 275, (5th

Similarly,

Cir. 1971),

involving a predecessor to section 952, the court flatly rejected

the defense

that the

re-imported

United States, saying:

the United States a

drugs had

originated in

"[e]ach time the drug was

violation would occur."

the

imported into

See also Friedman,

_________ ________

501 F.2d at 1354.

Cases

like Peabody

and Doyal

also underline

a major

_______

fallacy

in

the

majority's

assumption that a drug

It

is evident

drugs

both
____

waters.

opinion,

namely,

the

shipment can only come from

that the

on Mona

_____

defendants in

Island

and,

majority's

one "place."

this case

possessed the

thereafter, in

international

But it was from international waters that the defendants

finally "[brought] in or

introduc[ed] . . . such

the United States, 21 U.S.C.

articles into"

951(b); and reimportation is not a

defense to drug smuggling.

The present decision actually contradicts

a fourth

880

circuit as well:

(1st Cir. 1992),

In United States v.
_____________

cert. denied, 113 S.

____________

defendants, located in a

precedent in

Nueva, 979 F.2d

_____

Ct. 1615 (1993), the

boat in international waters, retrieved

-44-

packages of cocaine dropped from a plane.

quoting Goggin,
______

This circuit in Nueva,

____
_____

ruled that "importation" into

the United States

under section 952 "requires

proof that the 'defendant [conspired

to

country from international waters or

bring] cocaine into the

airspace in excess of twelve geographical miles

coastline.'"

Id. at 884.

outward from the

___

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

none

of

the many

different

decisions apparently

majority reads it.

one

thing in

unnecessary, or both.

judges who

thought the statute

As of today, a

the 15

states of

Circuits; and it means

participated

should be read

But

in these

as the

major criminal statute means

the Fifth,

Ninth

and Eleventh

something eccentrically different in four

Northeastern states and Puerto Rico.

This parade

surely

only a

there must

of appellate cases from

sample of

certainly be

other circuits is

similar prosecutions

others where,

were convicted for importing

as here,

and convictions;

the defendants

drugs from international waters and

then did not choose to

themselves,

the

authorities

majority's claim that

newly minted or

dispute the import charge on appeal.

from

three

circuits

refute

By

the

the government's reading of the statute is

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

_______
__________

-45-

63, 64

(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

from law enforcement witnesses,

references--by the

President,

and by legislators--to

guarding

the nation's "borders" against drugs.16

The legislators had no reason

the

drugs were

brought

from

to care one whit whether

international

waters or

foreign land, so long as they crossed the U.S. boundary.

Congress' indifference to origins

from

Indeed,

is reflected three times over:

in

its

expressed purpose

expansive phrase

"from

to

any place

companion

statute

making

it

prohibited

drugs

on board

States unless

U.S.C.

manifested

protect

our

outside

unlawful for

"borders,"

thereof," and

anyone

vessel "arriving"

as cargo

or

in

to

in

the

in

possess

the United

official supplies.

21

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).

-46-

from

foreign competition

and

to

favor

local producers.

In

enacting section 952, Congress was using the border crossing as a

convenient

See Peabody,

jurisdictional

626 F.2d at

hook on

1301.

which to

Thus,

catch traffickers.

the statute is

violated

___ _______

where drugs are produced

foreign country

Friedman,
________

501

within the United States, carried

and then reintroduced into this country.

F.2d

at 1353-54;

cf.
___

Hearings,
________

to a

Accord
______

supra, at
_____

205

(reintroduction of drugs after export).

In

international

smuggling

waters,

airspace, often comes

added

operations

or

small

boat

plane

from an unknown point

arriving

from

from

international

of origin.

If

one

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

Such proof serves no

government would win; in some

purpose except to waste time,

it might lose.

squander law

enforcement and judicial resources, and

cause occasional erratic

acquittals of drug importers.

To suggest

statute

agents

to apply,

that Congress

the majority

arresting day

could not have

summons up

sailors or

airline

visions of

But such dubious

the statute: a

border

results are not

day hiker with a few joints

to Canada

and then back

again or

-47-

federal

passengers transiting

from one U.S. point to another with a few joints

board.

intended the

of marijuana on

avoided by distorting

who strayed over the

a tourist

with a few

joints returning from London

by plane would be importing

by any

definition.

More to the point, there is no record

abuse of section 952.

of prosecutorial

Indeed, the majority twists this fact into

a claim that the government's interpretation must

radical

change in

different points.

applying

it

applied it

waters

position, but

The

the majority has

government has not abused the

to trivial

to major

therefore be a

amounts for

personal

drug shipments arriving

or international air space.

As the

confused two

statute by

use; but

it has

from international

precedents show, it

has been upheld in every reported case.

The courts

are capable of warding

if and when they arise.

493 (1st

there

E.g., United States v.

____ _____________

Cir. 1993), vacated, 114

_______

surgery is properly done

is no

defendants

off unjust results,

Aversa, 984 F.2d

______

S. Ct. 873 (1994).

with a scalpel rather than

cause for any

surgery here.

But such

an axe, and

In this
____

case, the

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

purpose, as well as the plain language, of section 952.

the

The rule

of lenity has nothing to do with such a case.

To

"reasons" for

conclude:

its

The majority

result; after

many

opinion is

pages of

not

short of

argument,

one

emerges

half-dazed

nothing the majority

from the

says can

labyrinth

of

explanations.

overcome a single

phrase in

But

the

statute--section 951(b)'s definition of "import" as "any bringing

-48-

in

what

or introduction" of

the defendants

drugs into the

did in

this case,

United States.

and that

convictions under section 952 should be affirmed.

is

That is

why their

-49-