Jaime Salvador FLORES-ARELLANO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 92-70129.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 16, 1993. Decided Sept. 15, 1993.
5 F.3d 360
Compton at the trial denied wanting to fly to Cuba with thirteen million dollars and asserted that he believed no one would take him seriously. He now argues that he made no effort other than the note to seize control of the aircraft. He did not lift a finger in menace; but he did lift his hand to deliver the note. As with bank robbery where one can be convicted of attempt for handing a teller a note, see United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir.), cert. denied, 464 U.S. 963, 104 S.Ct. 399, 78 L.Ed.2d 341 (1983), here, too, delivery of the note was more than sufficient to attempt aircraft piracy. General or wrongful intent was established. See United States v. Castaneda-Reyes, 703 F.2d 522, 525 (11th Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 174, 78 L.Ed.2d 157 (1983). An ordinary, reasonable crew person would have been put in fear by the note‘s threatening contents. United States v. Tabacca, 924 F.2d 906, 911 (9th Cir.1991). The use of a threat to seize the aircraft was sufficient to constitute the attempt. See United States v. Figueroa, 666 F.2d 1375, 1378 (11th Cir.1982). That the crew “did not overtly challenge his hegemony” did not lessen Compton‘s control and his attempt at control. United States v. Mena, 933 F.2d 19, 24 (1st Cir.1991). In response to his action the plane‘s normal flight path was disrupted — evidence in a comparable case of actual air piracy. Id. The government‘s case of attempted aircraft piracy was amply proved.
Amendment of the indictment. The indictment charged Compton only with interference with the duties of a flight crew member, but the prosecution presented evidence that Compton not only interfered with the duties of the flight crew but also with those of the flight attendant. Compton contends that presentation of evidence that he interfered with the flight attendant‘s duties constituted constructive amendment of the indictment and thus is per se prejudicial. Although the statute differentiates between interference with flight crew and flight attendants, Compton‘s argument that this was constructive amendment is without merit. Compton used the flight attendant as an intermediary to communicate his threat to the Captain, necessarily interfering with the flight attendant‘s duties. It is difficult to imagine how the prosecution could have explained the events of the flight without bringing in evidence showing that Compton interfered with the flight attendant‘s duties in addition to those of the flight crew.
The judgment on multiple offenses. On the facts of the case, Compton could not have committed attempted aircraft piracy without interfering by threat with the performance of the pilot‘s duty. The latter, lesser offense was necessarily committed in completing the first, greater offense. The government concedes the point and notes that the procedure to be followed was established in United States v. Palafox, 764 F.2d 558, 564 (9th Cir.1985) (en banc). Consequently, the district court‘s entry of judgment and sentence as to Count 2 must be VACATED and STAYED. The stay will become final at the expiration of Compton‘s completion of his sentence on Count 1, which is here AFFIRMED.
Sonia Saldivar (law student intern argued) and Lillia S. Velasquez, San Diego, CA, for petitioner.
David M. McConnell and Karen Fletcher Torstenson, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent.
REINHARDT, Circuit Judge:
Jaime Salvador Flores-Arellano challenges the finding that he is deportable on the basis of a misdemeanor state conviction of being under the influence of amphetamine/methamphetamine. Because we conclude that
I
Flores, now 29 years old, entered the United States as a permanent resident on April 16, 1990. Although this is the official date of his legal immigrant entry to the United States, Flores lived in this country for many years prior to 1990. All of Flores’ parents and siblings are legal permanent residents, and he has two United States citizen children.
On August 13, 1990, Flores pleaded guilty in San Diego Municipal Court to using and being under the influence of amphetamine and methamphetamine on January 8, 1989,1 in violation of
II
Any alien who at any time after entry has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance ... other than a single offense involving possession for one‘s own use of 30 grams or less of marijuana, is deportable.
The plain language of
Flores relies on cases from the federal courts and the BIA interpreting a prior version of the statute as not reaching under-the-influence convictions. See Varga v. Rosenberg, 237 F.Supp. 282 (S.D.Cal.1964), cited with approval in Matter of Sum, 13 I & N.Dec. 569, 570 (B.I.A.1970). The previous version interpreted by these cases limited deportability to aliens convicted of trafficking or possession offenses.4 In the Anti-Drug Abuse Act of 1986, Congress substituted the broader language now in the statute. See
Looking to the structure of the statute, Flores argues that the inclusion of “drug abusers” as an independent deportable class under
Finally, Flores contends that the legislature‘s specified exclusion of single offenses involving possession of a personal-use quantity of marijuana and its omission of a similar
While the argument has some superficial appeal, there is a much more logical interpretation of
III
Because we conclude that INA
DENIED.
REINHARDT, Circuit Judge, specially concurring:
Even as combatting crime has become a major federal legislative initiative of yet another presidential administration, we have become increasingly aware of the unintended casualties of our decade-long “War on Drugs.” Of late, several members of the
ordinarily reticent judiciary have spoken out about some of these previously-hidden costs: the loss of sentencing discretion and lengthy incarceration of first-time offenders, for example. Judges have also noted that major drug offenders can and do obtain more lenient treatment than fringe participants because only the major players can turn in their subordinates and thus provide the substantial governmental assistance that is a prerequisite to sentencing below the statutory minimum. The far less culpable bit players ordinarily have no knowledge of who their ringleaders are. In the catalog of draconian acts perpetrated in furtherance of federal efforts to eliminate illicit drug trafficking, deporting lawful resident aliens solely because of a single conviction of drug use must certainly rank high. Deportation is a drastic action indeed when applied to people here lawfully, with long-term residency and extensive family ties in this country, often to parents or children. Nonetheless, the legislature‘s words compel the result we reach in our opinion. I write this special concurrence only to emphasize two points.
The first is that this is one of those rare occasions when our statutory interpretation rests almost entirely upon the legal fiction that Congress’ language embodies its intent. See Connecticut Nat‘l Bank v. Germain, — U.S. —, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (plain language rule, like all canons of construction, is a presumptive rule of thumb for use in determining statutory meaning). Under the established approach to statutory interpretation, we rely on plain language in the first instance, but always look to legislative history in order to determine whether there is a clear indication of contrary intent. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12, 107 S.Ct. 1207, 1213 n. 12, 94 L.Ed.2d 434 (1987). In the usual case, of course, the history provides further support for the plain-language inter-
Neither party has identified anything in the legislative history that demonstrates that any legislator, much less a majority of them, thought about whether a lawful resident alien convicted of use or being under the influence should be deportable as one convicted of violating “any law ... relating to a controlled substance.” The previous version of the statute had been consistently interpreted not to reach “use” convictions, and there is no indication, aside from its text, that the 1986 amendment was designed to overturn this longstanding interpretive precedent. Indeed, the INS agrees that the preeminent concerns in amending the section were apparently to simplify the statute and to broaden it to reach unspecified “designer drugs,” but not to expand the provision to reach under-the-influence convictions. Thus, just as it lacks the clarity necessary to enforce the petitioner‘s argued departure from the ordinary meaning of the plain language, the legislative history offers no support for the government‘s position.
Ordinarily, where the legislative history fails to further support the plain-language interpretation of a statute, that interpretation is at least more consistent than the alternative with the apparent purpose of the legislation. Here, I am unsure that deporting lawfully resident aliens convicted of a single use of a controlled substance is consonant with the purpose of the deportation provision — whether that purpose be to discourage drug trafficking or to punish serious law violators. If the provision‘s purpose is to deter drug trafficking, deporting a few occasional users seems unlikely to so impact the demand for illicit drugs as to discourage traffickers. If the purpose is to punish serious lawbreakers, deporting one-time convicted drug users is at best a most dubious way of going about it.
That raises my second point — that the result dictated by the legislature‘s plain language is draconian. Federal efforts to decrease demand for illicit drugs have generally been non-punitive, in part out of recognition of the addictive nature of most controlled substances. Ordinarily, we look to treat drug users rather than to punish them. Although many states, such as California, continue to address drug use through the criminal justice system, the federal government generally has not chosen that approach. Leaving aside, however, the habitual drug user or drug addict, deportation for a single under-the-influence conviction is obviously an egregious form of federal punishment for what is normally no more than a misdemeanor offense. In my view, such punishment is self-evidently harsh and excessive, if not vindictive. We are concerned here with lawful resident aliens, many of whom have been in the United States for a number of years and have close family ties to this country.1 Some of these family ties, including those of parent and child, may be severed irrevocably simply because a person unwisely took drugs on one or even several occasions. I find this punitive approach to illicit drug use, visited upon lawful resident aliens, to be most unsettling and ungenerous. It is hardly consistent with the vision that we Americans have of our nation‘s policies.
Nonetheless, under the rules of statutory interpretation, in order to disregard the plain meaning of the statute, I would be required to conclude that the result is absurd. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). In a time when we continue to escalate the ever more sweeping “War on Drugs” and when anti-immigration sentiments are dramatically on the rise, it would, unfortunately,
Notes
... any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana, or any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marihuana, any salt derivative or preparation of opium or coca leaves or isonipecaine or any addiction-forming or addiction-sustaining opiate.