UNITED STATES of America, Plaintiff, v. Francisco ANAYA et al., Defendants.
No. 80-231-CR-EPS
United States District Court, S. D. Florida.
Dec. 19, 1980.
509 F. Supp. 289
* Consolidated with: U.S. v. Peter Winston Phillip, 80-232-CR-EPS; U.S. v. Mario Remis, 80-233-CR-EPS; U.S. v. Jorge Conrado-Perera, 80-235-CR-JWK; U.S. v. Elida Acosta-De Gonzalez, 80-236-CR-EBD; U.S. v. Felipe Garcia, 80-237-CR-JE; U.S. v. Ramon Pinero, 80-238-CR-JE; U.S. v. Victor Hernandez, 80-239-CR-EBD; U.S. v. Adolfo Padron, 80-240-CR-JE; U.S. v. Manuel Virella-Zamora, 80-241-CR-EPS; U.S. v. Alton Peacock, 80-253-CR-CA; U.S. v. Oscar Alberto Miranda-Lorea, 80-254-CR-EBD; U.S. v. Leopold Frade, 80-262-CR-JWK; U.S. v. Anival Jose Fernandez, 80-263-CR-EBD; U.S. v. Angel Nicholas Barberis, 80-266-CR-JE; U.S. v. Moses McIntosh, 80-267-CR-SMA; U.S. v. Jorge Diaz-Sanchez, 80-268-CR-CA; U.S. v. Julio Cesar Martinez, 80-269-CR-EPS; U.S. v. Angel Hurtado, 80-270-CR-EPS; U.S. v. Rolando Balance, 80-272-CR-EPS; U.S. v. Carlos Sainz, 80-294-CR-SMA; U.S. v. Gerardo Cabrera-Gonzalez, 80-315-CR-WMH; U.S. v. Cristobal Socorro-Yerena, 80-324-CR-CA; U.S. v. Raul Eugenio Vera-Garcia, 80-325-CR-WHM; U.S. v. Jorge Luis Machado-Abred, 80-326-CR-EBD; U.S. v. Arturo Gilberto Zaldivar, 80-327-CR-EPS; U.S. v. Pedro Alsaya-Lopez, 80-328-CR-JWK; U.S. v. Reglo Abreu, 80-339-CR-NCR; U.S. v. Ramon Cruz, 80-353-CR-ALH; U.S. v. Ignacio Antonio Zayas-Morales, 80-354-CR-NCR; U.S. v. Jose F. Rodriguez-Guerra, 80-355-CR-EBD; U.S. v. Luis Ramos-Bonet, 80-358-CR-SMA; U.S. v. Alberto Leon, 80-365-CR-NCR; U.S. v. Radames Laso-Gonzales, 80-366-CR-CA; U.S. v. Julian Basto-Rodriguez, 80-367-CR-JCP; U.S. v. Juan B. Bordas, 80-368-CR-WMH; U.S. v. Carlos Moreno-Acosta, 80-369-CR-JE; U.S. v. Nelson Martinez, 80-370-CR-EPS; U.S. v. Rafael Gonzalez, 80-371-CR-EBD; U.S. v. Gabriel Mancrif-Corbina, 80-372-CR-JE; U.S. v. Carlos Cruz De La Lopez, 80-376-CR-EPS; U.S. v. Eduardo Romeu-Vellarde, 80-377-CR-JLK; U.S. v. Orlando Broton, 80-378-CR-SMA; U.S. v. Orlando Alvarez, 80-379-CR-WMH; U.S. v. Austin Garcia, 80-380-CR-JE; U.S. v. Victoriano B. Sanchez, 80-381-CR-JWK; U.S. v. Ramon Garcia-Gonzalez, 80-382-CR-EPS; U.S. v. Pablo Milian-Pena, 80-383-CR-JLK; U.S. v. Adalberto Medero-Arabon, 80-384-CR-SMA; U.S. v. Manuel Garcia-Martinez, 80-388-CR-SMA; U.S. v. Heriberto Canela-Martin, 80-389-CR-JE; U.S. v. Alberto Gonzalez-Lopez, 80-390-CR-JLK; U.S. v. Mario Maximo-Figuerendo, 80-391-CR-SMA; U.S. v. Jose David Cueto-Sanchez, 80-392-CR-EBD; U.S. v. Juan Alberto Jimenez-Alonzo, 80-393-CR-CA; U.S. v. Eutimio Falcon Alvarez, 80-394-CR-EPS; U.S. v. Fernando A. Tapia Perez, 80-395-CR-WMH; U.S. v. Orlando Noriega, 80-396-CR-EPS; U.S. v. Jose Meana-Alzola, 80-397-CR-JLK; U.S. v. Almando Martinez-Roque, 80-398-CR-WMH; U.S. v. Jose Gutierrez-Alvarez, 80-399-CR-SMA; U.S. v. Isiquel Sanchez-Hernandez, 80-401-CR-JE; U.S. v. Gloria Trujillo, 80-402-CR-JWK; U.S. v. Antonio Morgado-Perez, 80-403-CR-CA; U.S. v. Augusto Cuello-Carmona, 80-404-CR-JE; U.S. v. Zoila Alvarez-Murga, 80-405-CR-JWK; U.S. v. Joaquin Olivera-Cala, 80-406-CR-JWK; U.S. v. Raul Toledo, 80-409-CR-EBD; U.S. v. Jamie Lee Spencer, 80-410-CR-NCR; U.S. v. Lorenzo Henriquez-Godinez, 80-411-CR-JLK; U.S. v. Jose Cartaya-Gil, 80-412-CR-EPS; U.S. v. Basilio Barroso-Barcelo, 80-416-CR-WMH; U.S. v. Juan Acosta-Acosta, 80-417-CR-JE; U.S. v. Julio Andersio-Ponce, 80-418-CR-EBD; U.S. v. Enriquez Herrera-Jaro, 80-419-CR-SMA; U.S. v. Orlando M. Artiles-Perez, 80-422-CR-EPS; U.S. v. Raul Trujillo Perez, 80-423-CR-JLK; U.S. v. Victor M. Rodruguez-Leal, 80-424-CR-JWK; U.S. v. Ramon G. Marrero Ruz, 80-425-CR-SMA; U.S. v. Antonio Roman-Rivera, 80-426-CR-JE; U.S. v. Victoriano Roque, 80-427-CR-WMH; U.S. v. David Delgado-Barranco, 80-428-CR-CA; U.S. v. Miguel Diaz-Martinez, 80-429-CR-EBD.
IT IS SO ORDERED.
Before ATKINS, Chief Judge, and EATON, KING, ROETTGER, ARONOVITZ, HOEVELER, GONZALEZ, PAINE, KEHOE, SPELLMAN, DAVIS and HASTINGS, District Judges.
SPELLMAN, District Judge:
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS TO DISMISS
The eighty-four indictments before the Court today are a consequence of the massive “Cuban Refugee Freedom Flotilla”1 which took place in the Spring of 1980 and which resulted in over 125,000 undocumented Cuban nationals being transported from Mariel, Cuba to Key West, Florida. In total, the 84 indictments name 336 defendants, charging each with a substantive violation of
The defendants have moved, under Federal Rule of Criminal Procedure 12(b), to dismiss the indictments. An examination of those motions and the government‘s responses thereto reveals agreement on certain essential factual and legal issues. In addition to the facts alleged in the indictments, the following stipulation has been entered into by all parties:
- Defendants are owners, captains and/or crew members of vessels which departed from Mariel Harbor, Cuba, or were en route to Mariel, Cuba.
- The object of the trip to and/or from Mariel, Cuba, was to bring back Cuban nationals without visas.
- Defendants presented these Cuban nationals to Immigration and Naturalization Service officials at Key West, Florida, so that these Cuban nationals could seek political asylum or some other status which would permit them to come into the United States and remain.
- The Cuban nationals were issued I-94‘s pursuant to
8 U.S.C. § 1182(d)(5) , granting them parole status.
The government and the defense have agreed that, in view of the stipulation, the Court may constitutionally rule on the motions to dismiss without invading the province of the ultimate finder of fact. The Court looked askance upon the motions when they were received. A reading of United States v. Mann, 517 F.2d 259 (5th Cir. 1975) informed the Court of what it could not do. However, United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 74 (1969), United States v. Korn, 557 F.2d 1089 (5th Cir. 1977) and United States v. Jones, 542 F.2d 661 (6th Cir. 1976) convinced the Court that the contentions of the government and the defense had merit; because of the stipulation, the motions present a defense capable of determination, and trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.
As the Court emphasized at the November 13, 1980 hearing on the motions, it has considered the stipulation specifically and solely for the purpose of these motions to dismiss. The stipulation is enforceable for that purpose and only that purpose and shall not be binding for any other reason including, but not limited to, trial of the general issue. Thus, the defendants have not waived their right to trial by jury on any issue of fact in these cases.
Given the admitted facts, the parties further agree that one legal issue underlies all the motions to dismiss, that is, whether,
I. EN BANC JURISDICTION
Pursuant to
The commonality of the facts and the legal issue set forth above was the primary impetus for our decision to treat en banc the pending motions to dismiss. We note further, that several salutary policies are served by doing so. First, en banc consideration and disposition will establish uniformity of treatment for similarly situated defendants. Where, as here, criminal sanctions are involved, the significance of uniformity, from both an individual and societal point of view, cannot be understated. Moreover, implicit in our desire for uniformity is our disinclination to depart from the doctrine of intra-court comity. That well-recognized doctrine, see, e. g., Buna v. Pacific Far East Line, Inc., 441 F.Supp. 1360, 1365 (N.D.Calif.1977); Equal Employment Opportunity Commission v. Union Oil Co. of Calif., 369 F.Supp. 579, 584 (N.D.Ala.1974); White v. Baltic Conveyor Co., 209 F.Supp. 716, 722 (D.N.J.1962); E. W. Bliss Co. v. Cold Metal Process Co., 174 F.Supp. 99, 121 (N.D.Calif.1956), establishes a general rule that, absent unusual or exceptional circumstances, judges of coordinate jurisdiction within a jurisdiction should follow brethren judges’ rulings.
Second, from a pragmatic, but nonetheless judicious point of view, treatment en banc, rather than in an individual, piecemeal fashion will avoid or at least limit unnecessary duplication of effort thereby conserving scarce judicial, governmental and private resources.
Here, the Court is convinced that the interests of society and the defendants in an orderly, expeditious and fair disposition of the charges are best served by an en banc proceeding. The Court is not unmindful that countervailing considerations may exist, but neither the government nor the defendants have identified or raised, and the Court is unable to discern, any compelling considerations weighing against en banc disposition. The mere possible existence of such considerations is not, without more, sufficient to undercut our conclusion that en banc treatment of the motions to dismiss is warranted.
With respect to our authority to sit en banc, we conclude that Congress, in enacting
II. STATUTORY INTERPRETATION
The Defendants are charged under
As the Fifth Circuit stated in United States v. Washington, 471 F.2d 402, 404 (5th Cir. 1973):
We begin by recognizing that section 1324, like all penal statutes should be strictly construed. We also note ... that the general purpose of this section of the Immigration and Nationality Act of 1952 was to prevent aliens from entering or remaining in the United States illegally. (Emphasis added).
Thus, in United States v. Bunker, 532 F.2d 1262, 1265 (9th Cir. 1976), the Court stated: “We agree that an illegal entry has been at the core of essentially all prosecutions under this section [1324(a)(1)].” The Court so held even though it extended the application of 1324(a)(1) from “the usual sort” of alien smuggling where surreptitious entry occurs to “more subtle kinds of smuggling” such as the use of fraudulent documentation to vitiate the border inspection procedure. Id. at 1266.
The Bunker Court also noted the nexus between
These cases are supported by the decisions in United States v. Washington, supra, [fraudulent entry by aliens as basis for
In McFarland, the Court held that the original and nearly identical version of
An alien may get into the United States in either of two ways: He may come up to the established point of inspection and submit himself for examination, and for admission or rejection, or he may endeavor to avoid this examination and come into or land in the United States surreptitiously. The statute has its full normal field of application, if it is restricted to entry at other than the inspection points, to that ‘landing’ or ‘bringing’ which escapes inspection. One who merely crosses the international line on a boat, and then crosses the dock to the immigration office for examination, has not come into the United States. (Emphasis added). Id. at 806.
Subsequent cases criticize the specific holding of McFarland as overly restrictive, and conclude that the immigration statute also applies to schemes to effect fraudulent entry of aliens. The facts of McFarland show that the defendant admitted he brought his son, an alien, to United States Immigration officials, that he gave his son false entry documents, and that he instructed his son on what to say if he was questioned by the officials. The Court found these facts insufficient to support a conviction because the defendant had merely brought his son to the border and did not attempt to bring his son across the border without first passing through the immigration process.
The cases which criticize McFarland recognize that the purpose of the statute is to prevent fraudulent as well as surreptitious avoidance of the immigration process. The courts agree, however, that the statute does not prohibit the mere bringing of aliens to the country‘s border. Thus, in United States v. Washington, supra, where the defendant provided false identification papers and instructed the aliens on what to say when questioned by the immigration officers, the Court upheld the conviction. While Washington criticized McFarland as overly restrictive, the Court also recognized that
In oral argument, the government suggested that the violation of
Despite its concession that the aliens did not enter or land in the country, the government insists that the aliens were “brought into” the United States by these defendants, contending that the term “brings into the United States” does not connote an actual or contemplated entry of aliens. The memoranda of the government rely primarily on Middleton v. United States, 32 F.2d 239 (5th Cir. 1929) as authority for its position that entry is not required for a violation. The government quotes Middleton for the following statement:
The words ‘bring into’ are not synonymous with, but are more comprehensive than, the words ‘land in‘, and were intended by the statute to punish violations of the immigration laws in cases where an actual landing or placing of aliens on shore could not be shown. Id. at 240.
The government‘s reading of Middleton is, however, selective. In discussing Middleton, the government ignores the fact that the aliens in that case actually landed in Key West, apparently free from official restraint. Thus, there was an entry in Middleton. Although fire on defendant Middleton‘s boat thwarted his attempt to land aliens north of Key West, “Middleton swam toward Key West for assistance [and] both he and the aliens were taken on board a passing boat and carried into Key West.” Id. at 239.
The government also fails to discuss the obviously surreptitious actions of defendant Middleton in bringing aliens into this country and Middleton‘s admission of his intent to violate the statute. Middleton did not “deny the testimony of the aliens that the common purpose was to come into the United States at or near Key West in violation of the statute.” Id. at 240. The sole ground for appeal in Middleton was the defendant‘s view that since he had not personally effected the last stage of the surreptitious landing of the aliens in the United States because his boat had caught fire, his conduct fell short of the statutory prohibition. Unsurprisingly, the court disposed of this meritless contention in a one-page opinion.
If nothing else, Middleton is another in an unbroken line of cases enforcing
III. LEGISLATIVE HISTORY AND CONGRESSIONAL INTENT
Apart from the cases, the government seeks support from the “plain meaning rule” in advocating its interpretation of
In these five crucial sections of the penalty provisions, the concept of “entry” and “bringing into” is clearly distinguished from the term “bringing to” a port of entry where immigration officers are prepared to process claims for entry.
Congress defined “entry” as “... any coming of an alien into the United States....”
The Court concludes, therefore, that
It is the view of the Court that the dissenting opinion completely overlooks the distinction inherent in the Immigration Act between conduct considered criminal and conduct which is penalized merely by the imposition of civil sanctions. As Judge Eaton demonstrates in his concurring opinion,
That distinction is a reasonable one in light of the problems immigration policy is designed to solve and in accordance with the history of immigration to this country. In enacting the Immigration Act, Congress intended to encourage aliens to enter this country in an orderly fashion, within the guidelines of immigration procedures, so as to facilitate efficient administration of the admission process. Civil fines are useful and appropriate where an undocumented alien is brought to immigration authorities at a port of entry. Such fines can be used to defray the cost of processing applicants for entry, especially where exclusion or relocation is eventually ordered. Criminal penalties might have too restrictive an effect on travel to the United States and could suppress beneficial immigration efforts.
It is especially noteworthy that Congress did not make it illegal for an unauthorized alien to present himself to immigration officials for admission at a border checkpoint. Cf.
IV. PROSECUTORIAL DISCRETION AND POLICY OF THE EXECUTIVE BRANCH
The government‘s theory is such that even a person in Canada who presents a Canadian seeking entry into the United States at the border checkpoint at Niagara Falls, or a person in Mexico who presents a Mexican at a Texas border checkpoint, would be in violation of this felony statute and it would only be a matter of prosecutorial discretion as to whether or not charges would be brought. The Court finds no basis for this contention, especially where no entry is effected by the alien.
The notion of broad prosecutorial discretion has achieved wide acceptance; however, it is not the usual course of Congressional action to give prosecutors such absolute and unbridled power over the application of a felony statute. The exercise of discretion by the prosecutor, much like the power of the President, by proclamation, to turn on and off the flow of refugees must comport with Congressional intent as expressed in the statute. Otherwise, the Executive Branch would be able to indirectly place the statute in and out of effect. The Executive Branch admittedly has considerable discretionary authority over whether to admit aliens into this country and, when said discretion is effectively exercised, there is no need for additional criminal sanctions to deter applications for entry into the United States.
If it was the intention of the Executive Branch to stop the flow of refugees into this country, it had the civil, administrative tools to do so. See Ahrens v. Rojas, 292 F.2d 406 (5th Cir. 1961). All that was necessary was to reject applicants for asylum and to follow through on that decision. Thus, this Court concludes that Congress intended that our shores would be protect-
V. PAROLEES
The defendants assert that parole status is equivalent to a lawful entitlement to enter or reside in the United States, thus obviating their criminal liability under the concluding language of
In Leng May Ma v. Barber, 357 U.S. 185, 190, 78 S.Ct. 1072, 1075, 2 L.Ed.2d 1246 (1958), the Supreme Court explained:
The parole of aliens seeking admission is simply a device through which needless confinement is avoided while administrative proceedings are conducted.
Parole status having been achieved, the alien could still face ultimate rejection; final determination of admissibility being a condition subsequent to the granting of parole. Cf. United States v. Kavazanjian, supra, at 736. Thus, it is the Court‘s determination that parole status does not confer a lawful entitlement to enter or reside in the United States, and that the government‘s conferring of parole status is irrelevant to the issue of the defendants’ guilt or innocence as to the alleged violation of
VI. CONCLUSION
Where, as the stipulation evidences in these cases, the defendants’ actions were not such as to avoid orderly administrative processing and ultimate determination of the aliens’ right to enter this country, there has been no violation of the statute. It must not be forgotten that immigration officials were prepared to and did process all of the aliens involved in these cases. If, once before immigration officials the aliens had been refused permission to enter, the defendants would have been forced to turn around and take the aliens elsewhere. If they had ignored that refusal and brought the aliens into the country in disregard of that lawful order, at that point their actions would have constituted the type of surreptitious entry the statute was designed to prosecute.
Although statutory interpretation is sometimes a difficult and inexact task, here it was neither;
ORDERED AND ADJUDGED that the defendants’ motions to dismiss the indictments lodged against them be and the same are hereby GRANTED, and the Clerk of this Court is hereby directed to dismiss said indictments.
ATKINS, Chief Judge, and JAMES LAWRENCE KING, HOEVELER, GONZALEZ, PAINE, EDWARD B. DAVIS and HASTINGS, District Judges, concur.
EATON, District Judge, specially concurring:
I agree with the majority of the members of the panel that the criminal indictments lodged against these defendants should be
The majority construes the “brings into” language of
I focus not upon the fate of the transported alien, but upon the state of mind of the individual defendant. Clearly, guilty knowledge and criminal intent are essential elements of the crime proscribed by
The defendants did indeed bring undocumented aliens into the United States. The crime would have been complete had an undocumented alien been brought into the U. S. by a defendant possessed of the requisite criminal intent.
To define the requisite criminal intent, one must ascertain Congress’ basic aim and purpose in passing
In 1917, Congress pursued violators inland when it amended the statute to proscribe harboring and concealing illegal entrants. Sec. 8, Act of Feb. 5, 1917, 39 Stat. 880; see S.Rep. No. 352, 64th Cong., 1st Sess. (1916). Then, in 1952, Congress prohibited the knowing transportation of aliens who are in the United States in violation of law.
Therefore, to successfully prosecute under
Ordinarily, criminal intent is an open evidentiary question which may not be determined in a Rule 12(b) proceeding. Here it is not. The parties’ stipulation establishes defendants’ intent so as to close the matter.
The parties have stipulated that:
Defendants presented [the imported] Cuban nationals to Immigration and Naturalization Service officials at Key West, Florida, so that these Cuban nationals could seek political asylum or some other status which would permit them to come into the United States and remain.
The stipulated fact that Cuban nationals were presented to INS officials would not, without more, eliminate the possibility that defendants intended to smuggle the aliens, for one may intend to smuggle an alien into the United States even though the smuggling scheme includes the initial presentation of that alien to immigration officials.4 But the parties have stipulated more than the fact that defendants presented Cuban nationals to INS officials; they have stipulated that defendants presented the aliens “so that these Cuban nationals could seek political asylum or some other status which would permit them to come into the United States and remain.”
From the parties’ memoranda and from the government‘s oral argument on the motions, I am satisfied that the above stipulation was meant to make clear not only that the defendants acted as stipulated, but that they specifically intended so to act, without guilty knowledge, without design to accomplish the surreptitious or fraudulent introduction of undocumented aliens into this country. The parties’ stipulation thus
Trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense that the defendants did not intend to smuggle undocumented aliens into the United States. There is one straightforward issue of law to be decided here, and it is this:
Does a person violate
The answer, in my judgment, is no. If these defendants violated some provision of the United States immigration laws, it was not the criminal anti-smuggling statute under which they were charged.
Accordingly, the motions to dismiss must be granted.
ARONOVITZ and KEHOE, District Judges, specially concurring:
We concur with Part I of the majority‘s opinion regarding our authority to treat en banc the pending motions to dismiss. We also agree with the result reached by the Court but solely for the reasons expressed in Judge Eaton‘s concurring opinion.
ROETTGER, District Judge, dissenting:
Defendants, the boat owners and crew members involved in the Mariel, Cuba, to Key West, Florida, “Freedom Flotilla,” are charged with a violation of
In a case involving deportation under another section of the act, United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir. 1972) the court quoted approvingly:
In construing statutes, words are to be given their natural, plain, ordinary and commonly understood meaning unless it is clear that some other meaning was intended (cite omitted); and where Congress has carefully employed a term in one place and excluded it in another it should not be implied where excluded. City of Burbank v. General Electric Co., 329 F.2d 825 (9th Cir. 1964). 472 F.2d at 722.
If “brings into or lands” is construed in the normal sense of the words, defendants can be charged with a crime for their responsibility in creating the physical presence of the aliens in the United States.
However, if “brings into or lands” necessarily involves an “entry“, a series of further questions must be met: did the aliens imported by defendants “enter” the United States or does their status as parolees under
The issues are interconnected but the case law is inconclusive. Most of the cases cited, both by the Government and by the defendants, involve clandestine or fraudulent arrivals; others construe
Given the limited nature of a ruling on a pre-trial motion to dismiss, the finer points of the entry-parole relationship need never
STATUTORY LANGUAGE
The framers of the Immigration Act did not find it necessary to define either “brings in” or “lands.” However, “entry” is defined, in
The judicial gloss on “entry” is considerable.
While earlier statutes did not define entry, “... the courts attempted to achieve a reasonable construction of those words consistent with the sense of the situation.” United States v. Vasilatos, 209 F.2d 195, 197 (3rd Cir. 1954). In that case, “arrival at a port” and subsequent detention pending formal action on a request for admission was distinguished from an “entry” which was considered not accomplished. 209 F.2d at 197. Entry has been defined in Vasilatos and in more recent cases as a physical presence in the United States coupled with “freedom from official restraint“, 209 F.2d at 197, United States v. Oscar, 496 F.2d 492, 493 (9th Cir. 1974), United States v. Kavazanjian, 623 F.2d 730, 736 (1st Cir. 1980).2
Thus, parole is not considered entry. Defendants rely on United States v. Kavazanjian, involving a conviction under the “entry” section,
In dictum the Kavazanjian court commented on the relationship, if any, between “brings into” and “entry.” However, the comment was so ambiguous as to allow opposite constructions either as equating “entry” with “bringing into” or as distinguishing the two. The Kavazanjian court quoted the wording of
As is evident from the language and is underscored by the fact that the first paragraph of § 1324(a) punishes anyone who “brings into or lands in the United States” an illegal alien, id. § 1324(a)(1), an actual or contemplated “entry” is a prerequisite to any conviction under § 1324(a)(4). (footnote omitted). 623 F.2d at 736.
In stark contrast to those who equate “bringing into” with “entry,” Mr. Justice Holmes long ago offered a simpler definition: “‘Bringing to the United States,’ taken literally and nicely, means ... transporting with intent to leave in the United States and for the sake of transport ... the later words ‘to land’ mean to go ashore.” Taylor v. United States, 207 U.S. 120, 125-126, 28 S.Ct. 53, 54, 52 L.Ed. 130 (1907).
None of the other cases give any better definition of “bringing” than the one given by Mr. Justice Holmes. The case law informs as to specific acts that constitute “bringing” or “entering,” but the link between the two seen by the court en banc is simply not to be found in either the statute or the reported decisions.
In fact, it appears from a 1929 Fifth Circuit case that “bringing into” is to be construed broadly, not in the narrow, technical way suggested by the court. In Middleton v. United States, 32 F.2d 239 (5th Cir. 1929), the conviction of a man apparently attempting to land illegal aliens surreptitiously was affirmed, under a precursor statute with pertinent wording identical to that of
The Middleton case is not the only expression of the Fifth Circuit‘s fairly broad reading of a “bring into” and “land” statute. See Bland v. United States, 299 F.2d 105 (5th Cir. 1962) and Sotorios Targakis v. United States, 12 F.2d 498 (5th Cir. 1926).
Although both Bland and Sotorios Targakis were cases involving smuggling, the Fifth Circuit‘s pronouncements would seem to indicate that the key to the statute is not the “not lawfully entitled to enter or reside” clause, but the “brings into or lands” wording.
It seems clear that the Fifth Circuit reads liberally the plain language of both
The Fifth Circuit had occasion to consider the amount of action needed to “bring” an alien “into” the United States in United States v. Washington, cert. den. 412 U.S. 930, a case brought under
Thus, while the case law relates specific, distinguishable situations in which there is or is not a “bringing into” or an “entry,” the ultimate question of whether “bringing into” necessarily entails an “entry” on the part of one brought in comes down to basic principles. If “bringing into” meant “entering,” (a)(4) would be somewhat of a redundancy.
In the instant cases “bringing into or landing” has a plain, commonly-understood meaning—so much so that Congress saw no need to define the phrase in the definitions section of the statute,
The fact that Congress in the 1952 Code revisions used “brings to” in
The en banc court of this District, convened simply to decide pre-trial motions to dismiss, need not concern itself with either Congress’ intent in passing
SPELLMAN
UNITED STATES DISTRICT JUDGE