UNITED STATES, Appellee, v. Felipe RAMIREZ-FERRER, Defendant-Appellant. UNITED STATES, Appellee, v. Jorge L. SUAREZ-MAYA, Defendant-Appellant. UNITED STATES, Appellee, v. Raul TROCHE-MATOS, Defendant-Appellant.
Nos. 94-1016, 94-1017 and 94-1018
United States Court of Appeals, First Circuit
March 27, 1996
Reargued Sept. 13, 1995
1131
Ramón García-García, Santruce, PR, for appellant Jorge L. Suárez-Maya.
Francisco Serrano-Walker, New York City, for appellant Raúl Troche-Matos.
Kathleen A. Felton, Attorney, Department of Justice, Washington, DC, with whom Guillermo Gil, United States Attorney, Washington, DC, José A. Quiles-Espinosa, Senior Litigation Counsel, Hato Rey, PR, and Epifanio Morales-Cruz, Assistant United States Attorney, Caguas, PR, were on supplemental brief for appellee.
Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, SELYA, CYR, BOUDIN, STAHL and LYNCH, Circuit Judges, En Banc.
TORRUELLA, Chief Judge.
Defendants-appellants (collectively, “defendants“) Felipe Ramírez-Ferrer (“Ramírez-Ferrer“), Jorge L. Suárez-Maya (“Suárez-Maya“) and Raúl Troche-Matos (“Troche-Matos“) appeal to this court their convictions on drug and firearm charges. A panel of this court: 1) affirmed the convictions of all defendants for possession of cocaine with intent to distribute; 2) affirmed the convictions of Suárez-Maya and Ramírez-Ferrer for using a firearm in relation to a drug trafficking offense, but reversed the conviction of Troche-Matos on a similar charge; and 3) reversed the convictions of all defendants for importation of narcotics into the United States. Thereafter, the full court reheard the case en banc. The en banc court now reverses the convictions of all defendants for importation of narcotics into the United States and remands the firearm convictions for further consideration in light of an intervening Supreme Court decision.
I. BACKGROUND
The evidence, taken in the light most favorable to the government, United States v. Abreu, 952 F.2d 1458, 1460 (1st Cir.), cert. denied, 503 U.S. 994, 112 S.Ct. 1695, 118 L.Ed.2d 406 (1992), permitted the jury to find the facts that follow. We emphasize the facts pertinent to the importation charge.
On March 13, 1993, the Police of Puerto Rico (“POPR“) received an anonymous telephone call. The caller informed the POPR that defendant Suárez-Maya and three other individuals had left for Mona Island, Puerto Rico, in a boat belonging to a relation of Suárez-Maya, and that the four men were going to acquire a load of cocaine and ferry it to the main island of Puerto Rico. Mona Island is one of numerous small islands near Puerto Rico‘s main island, and is part of the Municipality of Cabo Rojo, which also includes part of the main island‘s southwest corner.1 Mona Island is physically separated
Prior to 1989, the boundaries of the United States extended three miles offshore. United States v. Williams, 617 F.2d 1063, 1073 n. 6 (5th Cir.1980). In that year, they were extended by Presidential Proclamation with qualifications to 12 miles. Proclamation No. 5928, 54 Fed.Reg. 777 (1989) (citing the 1982 United Nations Convention on the Law of the Sea, to which the U.S. is a signatory, but which the U.S. had not ratified as of February, 1996). Thus, given the 12-mile limit, to travel from Mona Island to the main island of Puerto Rico requires that a vessel cross international waters.
After verifying that the boat in question was indeed away from its mooring, the United States Customs Service (USCS) and POPR flew to Mona Island on a USCS helicopter. The authorities located the subject boat and Suárez-Maya, accompanied by three other men as described. At approximately 12:30 p.m. the next day, the authorities learned that the boat was leaving Mona Island. The boat was interdicted about one mile off the southwest coast of Puerto Rico.
After the boat was seized, it was found to be carrying about 16 kilograms of cocaine. A subsequent inventory search of the boat turned up a firearm. The seized firearm, a loaded revolver, was found covered by a T-shirt, behind a storage compartment near the location where Ramírez-Ferrer had been seated at the time of the interdiction. The search also revealed evidence linking the vessel to a relative of Suárez-Maya.
On March 31, 1993, a grand jury indicted defendants, charging all three in each of three separate counts. The indictment charged each with possessing approximately 16 kilograms of cocaine with intent to distribute (count 1),
On September 28, 1993, a jury convicted all three defendants on each count. On counts 1 and 2, relating to possession and importation of cocaine, Suárez-Maya was sentenced to life imprisonment, Ramírez-Ferrer to a term of 240 months, and Troche-Matos to a term of 120 months. The sentences of Suárez-Maya and Ramírez-Ferrer were enhanced under
In a decision released April 27, 1995, United States v. Ramirez-Ferrer, 1995 WL 237041 (1st Cir.1995), a panel of this court reversed all three defendants’ importation convictions, reversed Troche-Matos’ firearm conviction, and affirmed the remaining convictions. On June 26, 1995, this court agreed to rehear the case en banc on the issue of the importation statute‘s interpretation. Additionally, the court asked the parties to address again the firearms convictions of Ramírez-Ferrer and Suárez-Maya. The en banc court heard oral argument on September 13, 1995. While the case was pending before the en banc court, the Supreme Court on December 6, 1995 issued its opinion in Bailey v. United States, — U.S. —, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), overturning precedent in this and other circuits as to the proper construction of the term “use” in
II. THE POSSESSION CHARGE AND THE FIREARM CHARGE
On the possession charge under count 1, the panel concluded that the evidence was sufficient to show that the defendants knowingly possessed the drugs or aided and abetted their possession. Among other evidence, the testimony permitted the jury to conclude that the drugs were stored in a bag with a broken zipper and that the drugs were plainly visible from 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.
The panel had more difficulty with the question of whether a reasonable jury could find that each of the defendants knew that the gun was present; unlike the drugs, the gun was not in plain view. The panel upheld the conviction of Ramírez-Ferrer, since the revolver was located behind a compartment adjacent to his seat and served an obvious purpose to protect the cocaine. The panel also upheld the conviction of Suárez-Maya, who was the central figure in the drug venture and the captain of the boat. As to Troche-Matos, the court ruled that a reasonable jury could not infer that he knew of the weapon.
In their petitions for rehearing on this issue, Suárez-Maya and Ramírez-Ferrer drew our attention to United States v. Torres-Maldonado, 14 F.3d 95 (1st Cir.1994), arguing that on somewhat similar facts a panel of this court had found the evidence insufficient to support convictions under
Although the en banc court agreed to rehear the case as a whole, sufficiency of the evidence is not normally a question for en banc consideration unless a mistaken legal standard has been used. Any possible tension between the panel opinion and the decision in Torres-Maldonado stems from their appraisals of their own respective facts. But given the kaleidoscope of different facts presented in drug and gun cases and the varying compositions of panels in the court, the en banc court was, and remains, of the view that differences in weighing evidence are inevitable in cases of this kind even within a single circuit. Nothing will produce perfect harmony among outcomes unless the court chooses to hear every drug and gun case en banc, a course that is neither practical nor useful. Therefore, we conclude that the full court should not seek to decide en banc whether the evidence against each appellant in this case was or was not sufficient on the gun charge. As a result, the en banc court declines to review the adequacy of the evidence on either count 1 or count 3.
This does not end the matter. While the en banc opinion was being prepared, the Supreme Court decided Bailey. There, the Supreme Court determined that a conviction for firearm “use” under
Although the Supreme Court has rejected the fortress theory of “use” under which defendants were convicted, the issue of their firearm convictions remains unresolved.
In light of Bailey, then, we decline to decide en banc defendants’ firearm convictions, and instead require further consideration of count 3 under
III. THE IMPORTATION COUNTS
In accord with the panel‘s decision, the en banc court has concluded that the importation statute,
A. Statutory Language
The defendants were convicted under
it shall be unlawful ... to import into the United States from any place outside thereof, any controlled substance.
The defendants contend that they did not violate this statute because they did not bring the drugs at issue into the United States from a “place outside thereof.” To the contrary, they argue that the evidence in the record only establishes that they brought the drugs from one location within the jurisdiction of the United States (i.e., Mona Island) to another (i.e., the waters off Puerto Rico‘s main island). The government, on the other hand, claims that, because the drugs passed through international waters on their way from Mona Island, the drugs were brought into the United States from a “place outside thereof” (i.e., international waters). Essentially, the government argues that the quoted language of section 952(a) establishes a kind of transparent curtain around the jurisdictional boundaries of the United States, and proscribes any deliberate shipment of drugs through that curtain without regard to the “place” from which the shipment actually originated.
In Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989), 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the Supreme Court stated: “We need not leave our common sense at the doorstep when we interpret a statute.” Id. at 241,
We should, first of all, leave no doubt as to what this case is not about. We are not faced with a factual situation in which a defendant leaves United States domestic territory empty-handed, proceeds to international waters or to a foreign territory to acquire contraband there, and then returns to domestic territory with this contraband (for example, when a vessel leaves the United States, sails out to sea where it obtains drugs from a “mother ship” anchored in international waters, and then returns to the United States). In that hypothetical situation, the government might have a somewhat more convincing argument that international waters can be deemed the “place” from which the controlled substance is being imported into the United States.3 While we might imagine strong arguments on both sides, we are presently faced with a much narrower factual situation. We need only decide whether Congress intended to treat in-transit international waters as a “place” for purposes of the importation statute when the government‘s evidence shows that both the origination and the destination of the controlled substance occurred within United States territory.4
“The starting point in statutory interpretation is ‘the language [of the statute] itself.‘” United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986). In its argument, the government overlooks the fact that the text of section 952(a) includes a separate clause not directly at issue in this case. With this separate clause included,
[i]t shall be unlawful [1] to import into the customs territory of the United States from any place outside thereof (but within the United States), or [2] to import into the United States from any place outside thereof, any controlled substance.
The definition of “import” (“any bringing in“) appearing in
In addition to its failure to comport with the normal understanding of the word “place,” the government‘s interpretation of clause 2 cannot be reconciled with any reasonable reading of clause 1. Clauses 1 and 2 were enacted simultaneously in 1970. If the phrase in clause 2—“place outside thereof“—refers to the location of the drugs immediately before they pass through the “transparent curtain” into U.S. territory, it must be given the same connotation in clause 1 absent an indication that Congress intended otherwise. See Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 608-09, 76 L.Ed. 1204 (1932) (noting presumption that a word or phrase used more than once in statute has same meaning); Fortin v. Marshall, 608 F.2d 525, 528 (1st Cir.1979) (same). The government argues that clause 2 is merely the successor to
“A statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void or insignificant.”6 United States v.
First, clause 1 proscribes the importation of illegal drugs into the customs territory of the United States from a place outside the customs territory of the United States, but within the United States. The “customs territory of the United States” is defined as “the States, the District of Columbia, and Puerto Rico.” See Harmonized Tariff Schedule of the United States, n. 2. Thus, clause 1 proscribes importation from any other U.S. territory not within the customs territory (e.g., U.S. Virgin Islands, Guam) into “the States, the District of Columbia, and Puerto Rico.”
That Congress specifically addressed this situation suggests that it believed that the language of clause 2 did not necessarily cover such conduct. The government‘s broad reading of clause 2, however, brings any conduct conceivably addressed under clause 1 within the coverage of clause 2. In other words, any contraband shipped from a place inside the United States (but not within the customs territory—e.g., the U.S. Virgin Islands) would first pass through international waters before it entered into the customs territory of the United States. Thus, the conduct aimed at under clause 1 would be proscribed by the government‘s interpretation of clause 2. Hence, the government‘s reading of clause 2 renders clause 1 completely superfluous.
Second, the government‘s broad reading of clause 2 would make it arguably impossible to prosecute anyone under clause 1. Under the government‘s reading, the phrase “any place outside thereof” essentially means the point at which the drugs were located immediately before passing into the United States (i.e., the international space just outside the jurisdictional limit of the United States). If one applies this reading to the same phrase in clause 1, it is impossible to violate clause 1. In other words, there is no “place” just outside of the jurisdictional limits of the customs territory of the United States, that is also within the United States. Any place that is just outside the customs territory of the United States is international waters. Thus, arguably no individual could ever violate clause 1 because no one could ship from a place within the United States (but outside the customs territory) directly into the customs territory of the United States: the individual would always be directly shipping from international waters. If a prosecutor attempted to charge a defendant under clause 1 for shipping drugs from the U.S. Virgin Islands to Florida (conduct clearly meant to be proscribed by clause 1), the defendant could argue that he or she did not violate the clause because the “place” from which the drugs were imported was not the U.S. Virgin Islands but the international space just outside of Florida. Although the prosecutor could argue that the “place” referred to by the statute included both the international space and the U.S. Virgin Islands, such a reading would be hard to
Third, and perhaps most convincing, a close analysis of clause 1 reveals that Congress contemplated whether or not illegal drugs shipped from one part of the United States through international waters and back into the United States should be prohibited under
Thus, unlike the government‘s reading, the interpretation adopted by the en banc court both accords with the plain language of the statute and gives meaning to section 952 as a whole. However, even if such were not the case, the confusion that is patent even from the government‘s discussion of the statute brings into play the rule of lenity, and requires us to give defendants the benefit of the doubt on this issue. Ratzlaf v. United States, 510 U.S. 135, — , 114 S.Ct. 655, 663, 126 L.Ed.2d 615 (1994); McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931) (Holmes, J.); United States v. Maravilla, 907 F.2d 216, 223 (1st Cir.1990) (Breyer, C.J.).
B. Congressional Intent
On the specific point at issue, there is no legislative history. Nonetheless, the dissent claims that Congress did not “care one whit whether the drugs were brought from international waters [or international airspace9] or from a foreign land, so long as they crossed the U.S. boundary.” See dissent at 1147. But Congress might well be concerned whether the drugs were being brought from one place within the United States to another. The obvious fact that Congress may be generally presumed to oppose the drug trade neither renders the language in question ambiguous nor justifies its strained interpretation. Congress can be similarly presumed to oppose murder, arson and robbery, but we do not rely on such facts as justifying
C. The “Precedents”
As discussed, the interpretation urged by the government leads to unreasonable results. Turning to precedent, we see that the case law does not support the outcome proposed by the government. The government views precedent as carrying special weight in formulating its interpretation of
The language cited from United States v. Peabody, 626 F.2d 1300, 1301 (5th Cir.1980) (“Had the cargo of contraband originated in Texas, that would not alter the fact that it was meant to reenter the United States from international waters. That is enough.“), which is both the seminal authority for the cases that follow and the anchor upon which the government relies for its interpretation of
In United States v. Phillips, 664 F.2d 971, 1033 (5th Cir.1981) (holding that the importation “element may be established by evidence that a boat from which marihuana was unloaded went outside United States territorial waters or met with any other vessels that had—for example, a “mother ship“), the facts involved contraband brought directly from Colombia through motherships off Florida. Id. at 987. As in Peabody, the present issue was not decided and the quoted language is again dicta. In United States v. Lueck, 678 F.2d 895, 904-05 (11th Cir.1982), the Eleventh Circuit, relying on the specific language quoted from Peabody, rejected the contention that proof of importing controlled substances from a specific point on foreign soil is required as an element of
In United States v. Doyal, 437 F.2d 271 (5th Cir.1971) (involving the predecessor statute to
Reliance on the language used by our Circuit in United States v. Nueva, 979 F.2d 880, 884 (1st Cir.1992), is equally unhelpful in the present situation. In Nueva, law enforce-
We thus come to United States v. Pérez, 776 F.2d 797 (9th Cir.1985). This is the only case which factually approximates the present one.10 There, an illegal load of marihuana was transported by boat from the Mariana Islands (a United States Trust Territory in the Pacific), through international waters to Guam, another U.S. domestic area. The court squarely holds that the transit through international waters is sufficient to sustain an importation charge under
Thus, the “precedent” cited amounts to bald assertions without analysis.
D. Historical Application of the Statute
Actions speak louder than words. In this case this old adage is not simply poetic expression, for the interpretation of
It is difficult to accept that Congress intended the government‘s reading of
We have a similar situation with waterborne traffic. There are literally thousands of vessels of all sizes and with all kinds of purposes that daily pass through international waters as they move between domestic areas which, without picking up contraband in international waters or visiting foreign jurisdictions, would be subject to this expanded interpretation of
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. Ramsey, 431 U.S. 606, 616-19, 97 S.Ct. 1972, 1978-80, 52 L.Ed.2d 617 (1976) (holding that government‘s right to search all persons and their belongings who cross its borders is plenary and is “reasonable” per se within the Fourth Amendment); Carroll v. United States, 267 U.S. 132, 153-54, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925) (stating that border searches require no probable cause); see also United States v. Montoya de Hernández, 473 U.S. 531, 537-38, 105 S.Ct. 3304, 3308-09, 87 L.Ed.2d 381 (1986) (“Routine searches of persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant ...“).13 Clearly, the implications of the government‘s proposed interpretation go far beyond the mere crossing of a stretch of water between two points in the same municipality in Puerto Rico. Cf. Torres v. Puerto Rico, 442 U.S. 465, 474, 99 S.Ct. 2425, 2431, 61 L.Ed.2d 1 (1978) (concluding no international
Furthermore, the undeniable fact is that section 952(a) has not been used at all in the fashion now promoted by the prosecution. On this point, there should be no need to engage in speculation regarding whether or not there are other uncited or unreported prosecutions demonstrative of the government‘s view of
Considering the possibility that the government may not have prosecuted “small quantities” of drugs transported over international space from a prior United States connection as importation under
Nor is the possibility of such forbearance by the government from prosecuting such cases in the future very reassuring. Cf. Donovan v. United States, — U.S. —, 114 S.Ct. 873, 127 L.Ed.2d 70 (1994) (in light of Ratzlaf v. United States, vacating and remanding First Circuit case that tried to uphold the prosecution of defendant pursuant to the money laundering statute even though defendant‘s structuring was merely an attempt to hide money from his wife in a divorce proceeding), vacating United States v. Aversa, 984 F.2d 493 (1st Cir.1993).
Al-though prosecutors should perhaps not be faulted for seeking to expand the limits of the law, courts cannot allow themselves to be caught up in this euphoria. Rather, they are duty bound to contain the government within established limits. The government‘s actions in not prosecuting such cases up to now are powerful evidence that Congress did not intend the interpretation now promoted by the government. Such lengthy non-action should not be glibly overlooked.
The government also claims that the interpretation set forth here would inordinately burden prosecutors by adding to their burden the obligation of identifying and proving the point of origin of drugs in smuggling operations. However, when a drug-laden ship coming from an unknown point of origin is shown to have traversed international waters and brought drugs into the United States, a jury could presume, without more, that importation from a place outside the United States has occurred—although the precise place from which the drugs emanated is not established. Cf. Turner v. United States, 396 U.S. 398, 416, 90 S.Ct. 642, 652, 24 L.Ed.2d 610 (1970) (approving statutory permissive inference that a person in possession of heroin is in knowing possession of an imported narcotic because of the “high probability” that the heroin originated in a foreign country); see also Ulster County Court v. Allen, 442 U.S. 140, 156-57, 99 S.Ct. 2213, 2224-26, 60 L.Ed.2d 777 (1979); Leary v. United States, 395 U.S. 6, 46-47, 89 S.Ct. 1532, 1553-54, 23 L.Ed.2d 57 (1969). In other words, the government can make out a prima facie case of importation, within the meaning of
CONCLUSION
We affirm defendants’ convictions on the possession counts. We also remand the issues surrounding the firearms convictions to the original panel for further proceedings in light of this opinion.
This en banc decision determines, as a matter of statutory interpretation, that the importation statute does not apply to the shipment in this case from one part of the United States and its customs territory (Mona Island, Puerto Rico) to another (the main island of Puerto Rico). We thus reverse the importation convictions of all three defendants.
Accordingly, the judgment of the district court is affirmed in part, remanded in part, and reversed in part.
CYR, Circuit Judge, concurring.
I agree that the importation convictions must be vacated, as ably explained in Section III.A of Chief Judge Torruella‘s opinion for the en banc court. I write separately because I believe that neither the majority opinion nor the dissent succeeds in demonstrating that the opposing result is absurd. Whichever result Congress clearly chose to require could not have been rejected by the courts as absurd. Moreover, in my view the interpretation given
BOUDIN, Circuit Judge, with whom SELYA and LYNCH, Circuit Judges, join, dissenting.
Dr. Johnson once remarked that a man may have a reason why 2 plus 2 equals 5 but it will still equal but 4. The majority has an endless supply of reasons why the statute
The evidence showed that the defendants collected 16 kilograms of cocaine hidden on Mona Island, an island under the jurisdiction of Puerto Rico but physically separated from mainland Puerto Rico by about 39 miles of water. Assuming a 12-mile limit for U.S. territorial waters, at least 15 miles of international waters separate Mona Island from mainland Puerto Rico. Any ship traveling between Mona Island and mainland Puerto Rico is unquestionably outside the United States for a good portion of the trip.
In this case, the origin of the cocaine is unknown; but the ship‘s captain reported that it was part of a larger cache hidden on Mona Island. In all likelihood, Mona Island is a transshipment point. Being subject to less surveillance than mainland Puerto Rico, drugs can be brought to Mona Island in bulk from foreign origins and then smuggled in smaller quantities to the Puerto Rico mainland and then to the continental United States. In all events, the defendants were arrested after their small boat crossed from international waters into U.S. waters surrounding Puerto Rico.
The defendants were convicted of various offenses including violation of
The panel majority‘s decision conflicted with a host of decisions in the Fifth, Ninth and Eleventh Circuits. Not surprisingly, the full court voted to rehear the case en banc. What is surprising is that, by a 4-to-3 vote, the en banc court has now concluded that
1. “The starting point in statutory interpretation is ‘the language [of the statute] itself.‘” United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120-21, 92 L.Ed.2d 483 (1986).
In this case, the defendants brought prohibited drugs from international waters between Mona Island and mainland Puerto Rico to within a mile or so of the mainland coastline, a point that is unquestionably within the United States. The drugs were, therefore, brought or introduced “into the United States” from “any place outside thereof,” namely, international waters—unless “any place” has to be a land area or unless “import” has a specialized meaning excluding drugs first acquired within the United States.
The phrase “any place outside thereof” assuredly includes international waters. See, United States v. Goggin, 853 F.2d 843, 845 (11th Cir.1988). If drugs were manufactured on a ship at sea or found floating on a raft, and were then brought into shore by motorboat, that would be an importation from a place outside the United States. The juxtaposition of “places” and “waters” in
The majority does not deny that international waters may be a “place” under the statute: it assumes that drugs acquired from a mother ship at sea might be imported under the statute; but it says that in this case defendants first acquired the drugs
As for the term “import,” absent a statutory definition the common connotation of foreign-country origin might prevail. But courts are bound, Colautti v. Franklin, 439 U.S. 379, 392 n. 10, 99 S.Ct. 675, 684 n. 10, 58 L.Ed.2d 596 (1979), by Congress’ special definition of “import,” incorporated into
In a further language argument, the majority suggests that its reading of
The origin and purpose of the customs territory clause are remarkably obscure (it appeared only in certain House bills and was nowhere explained). But it is fair to think that smuggling from some U.S. possessions to the states had become a problem and Congress therefore included language that would unquestionably cover such shipments. At the time Congress had no knowledge of precisely how the main clause would be read, and it certainly had no interest in narrowing the scope of the main clause by implication.
In any event, the customs clause is neither superfluous nor without substantial independent application. It is far from clear whether carrying drugs aboard a scheduled non-stop airline flight between two U.S. points could ever be treated as importation under the main clause; a defendant would certainly argue that for all practical purposes, drugs on such a flight are never outside the country. Yet such a flight from a U.S. possession to U.S. customs territory, say from Guam to Los Angeles or from the U.S. Virgin Islands to San Juan, could readily be prosecuted under the customs territory clause. That geographic content to the customs clause eliminates the majority‘s superfluousness argument.
It is not the government‘s position, but that of the majority, that ruptures the superfluousness canon. Under the special definition of import in
2. The precedents from other circuits, reflecting a previously uniform application of the statute, all treat the introduction of drugs from international waters or international airspace as a violation of the import statute.15 This has been the consistent position of the Fifth Circuit, the Ninth Circuit and the Eleventh Circuit, the three circuits whose area of jurisdiction includes the entire Pacific and Gulf coasts of the United States. Until this case, no circuit has taken the contrary view.
For example, in affirming a conviction based on a shipment intercepted in Florida waters, the Fifth Circuit in Peabody stated:
Had their cargo or contraband originated in, say, Texas, that would not alter the fact that it was meant to reenter the United States from international waters. That is enough.
626 F.2d at 1301. In Goggin, the Eleventh Circuit said that it was importation to bring cocaine “into the country from international waters or from airspace in excess of twelve geographical miles outward from the coast.” Goggin, 853 F.2d at 845. The Ninth Circuit in Pérez likewise deemed “transit through international waters” a basis for importation. 776 F.2d at 800-01.
Moreover, as the quote from Peabody shows, the circuits treat the U.S. origin of the drugs as no defense if the drugs are removed from the United States and then reintroduced. Similarly, in United States v. Doyal, 437 F.2d 271, 275 (5th Cir.1971), involving a predecessor to section 952, the court flatly rejected the defense that the re-imported drugs had originated in the United States, saying: “[e]ach time the drug was imported into the United States a violation would occur.” See also Friedman, 501 F.2d at 1354.
Cases like Peabody and Doyal also underline a major fallacy in the majority‘s opinion, namely, the majority‘s assumption that a drug shipment can only come from one “place.” It is evident that the defendants in this case possessed the drugs both on Mona Island and, thereafter, in international waters. But it was from international waters that the defendants finally “[brought] in or introduc[ed] ... such articles into” the United States,
The present decision actually contradicts precedent in a fourth circuit as well: In United States v. Nueva, 979 F.2d 880 (1st Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1615, 123 L.Ed.2d 175 (1993), the defendants, located in a boat in international waters, retrieved packages of cocaine dropped
The majority‘s answer to all of these cases is that the decisions of other circuits are ill-reasoned, or that their plain language—adverse to the dissent—was unnecessary, or both. But none of the many different judges who participated in these decisions apparently thought the statute should be read as the majority reads it. As of today, a major criminal statute means one thing in the 15 states of the Fifth, Ninth and Eleventh Circuits; and it means something eccentrically different in four Northeastern states and Puerto Rico.
This parade of appellate cases from other circuits is surely only a sample of similar prosecutions and convictions; there must certainly be others where, as here, the defendants were convicted for importing drugs from international waters and then did not choose to dispute the import charge on appeal. By themselves, the authorities from three circuits refute the majority‘s claim that the government‘s reading of the statute is newly minted or at odds with enforcement practices. The only novelty in this case is the majority‘s decision.
3. A final test of statutory meaning is the underlying purpose of the statute. Borella v. Borden Co., 145 F.2d 63, 64 (2d Cir.1944) (L. Hand), aff‘d, 325 U.S. 679 (1945). Congress’ interest in protecting U.S. borders echoes through the history of the statute. In proposing the legislation, the President‘s special message said that the import provisions were intended “to intercept [drugs] at their point of illegal entry into the United States,” and there are numerous references—by the President, from law enforcement witnesses, and by legislators—to guarding the nation‘s “borders” against drugs.16
The legislators had no reason to care one whit whether the drugs were brought from international waters or from a foreign land, so long as they crossed the U.S. boundary. Indeed, Congress’ indifference to origins is reflected three times over: in its expressed purpose to protect our “borders,” in the expansive phrase “from any place outside thereof,” and in a companion statute making it unlawful for anyone to possess prohibited drugs on board a vessel “arriving” in the United States unless manifested as cargo or official supplies.
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 from foreign competition and to favor local producers. In enacting section 952, Congress was using the border crossing as a convenient jurisdictional hook on which to catch traffickers. See Peabody, 626 F.2d at 1301. Thus, the statute is violated where drugs are produced within the United States, carried to a foreign country and then reintroduced into this country. Accord Friedman, 501 F.2d at 1353-54; cf. Hearings, supra, at 205 (reintroduction of drugs after export).
In smuggling operations a boat arriving from international waters, or a small plane from international airspace, often comes from an unknown point of origin. If one added to the government‘s burden of proof the obligation to show the point of origin, time would be spent by courts and parties on an issue wholly irrelevant to Congress’ concern to exclude drugs. In many cases, the government would win; in some it might lose. Such proof serves no purpose except to waste time, squander law enforcement and judicial resources, and cause occasional erratic acquittals of drug importers.
To suggest that Congress could not have intended the statute to apply, the majority summons up visions of federal agents arresting day sailors or airline passengers transiting from one U.S. point to another with a few joints of marijuana on board. But such dubious results are not avoided by distorting the
More to the point, there is no record of prosecutorial abuse of section 952. Indeed, the majority twists this fact into a claim that the government‘s interpretation must therefore be a radical change in position, but the majority has confused two different points. The government has not abused the statute by applying it to trivial amounts for personal use; but it has applied it to major drug shipments arriving from international waters or international air space. As the precedents show, it has been upheld in every reported case.
The courts are capable of warding off unjust results, if and when they arise. E.g., United States v. Aversa, 984 F.2d 493 (1st Cir.1993), vacated, U.S. —, 114 S.Ct. 873, 127 L.Ed.2d 70 (1994). But such surgery is properly done with a scalpel rather than an axe, and there is no cause for any surgery here. In this case, the defendants were not day sailors or tourists; they were importing 16 kilograms of cocaine into Puerto Rico after a substantial trip through international waters. They fall squarely within the purpose, as well as the plain language, of section 952. The rule of lenity has nothing to do with such a case.
To conclude: The majority opinion is not short of “reasons” for its result; after many pages of argument, one emerges half-dazed from the labyrinth of explanations. But nothing the majority says can overcome a single phrase in the statute—