Lead Opinion
Oрinion by Judge FISHER; Concurrence by Chief Judge SCHROEDER; Dissent by Judge KOZINSKI
OPINION
Appellants James, Richard and Roy Cabaccang appeal their convictions on a variety of charges relating to their involvement in a drug trafficking ring that transported large quantities of methamphetamine from California to Guam in the early and mid-1990s. The Cabaccangs’ primary contention on appeal is that the transport of drugs on a nonstop flight from one location within the United States to another does not constitute importation within the meaning of 21 U.S.C. § 952(a), even though the flight traveled through international airspace. We agree, and therefore we reverse the appellants’ convictions on all importation-related counts.
Factual and Procedural Background
In the early 1990s, Roy Cabaccang began selling methamphetamine out of his house in Long Beach, California, to customers introduced to him by his younger brothers Richard and James. The Cabac-cangs eventually expanded their operation to include large-scale shipments of methamphetamine to Guam for local distribution. To transport the drugs to Guam, Roy recruited various people to fly from Los Angeles to Guam with packages of
After a long investigation, the Cabac-cangs were indicted in 1997 on numerous charges relating to their involvement in the methamphetamine ring. A jury convicted all three brothers of conspiracy to import methamphetamine, in violation of 21 U.S.C. §§ 952(a), 960 and 963; conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956.
The Cabaecangs appealed their convictions to this court, claiming that the transport of drugs from California to Guam does not constitute importation merely because the drugs traveled through international airspace en route to Guam.
Standard of Review
The construction or interpretation of a statute is a question of law that we
Discussion
I.
“We interpret a federal statute by ascertaining the intent of Congress and by giving effect to its legislative will.” Bedroc Ltd. v. United States,
The Cabaccangs argue that they are not guilty of importation because they did not bring drugs into the United States from a “place outside thereof.” They contend that the transit of drugs through international airspace en route from one location in the United States (California) to another (Guam) is insufficient to support a charge of importation under § 952.
The problem with the government’s argument is that despite § 951’s broad definition of importation as “any bringing in,” section 952(a) itself specifies that the bringing in be “from any place outside” the United States. (Emphasis added.) This requirement was not an element of § 952(a)’s predecessor statute, 21 U.S.C. § 174, which provided criminal penalties for “fraudulently or knowingly import[ing]
The question, then, is whether drugs that pass through international airspace on a nonstop flight en route from one U.S. location to another, without touching down on either land or water, are “from” a “place outside” the United States for the purposes of § 952(a). When Congress has not provided special definitions, we must construe words in a statute “according to their ordinary, contemporary, common meaning[s].” Hackett,
In the ordinary sense of the term, drugs do not come from international airspace, although they certainly can move through that space. Unlike, for example, a foreign nation — which is unquestionably a “place outside” the United States — international airspace is neither a point of origin nor a destination of a drug shipment; it is merely something through which an aircraft must pass on its way from one location to another. We do not treat passengers who travel through international airspace on a nonstop flight between two U.S. locations as having crossed our borders (i.e., as having entered the United States from a place outside thereof), and thereby subject to immigration inspections or border searches — as they would be if the flight had originated in a foreign country. Cf. United States v. Garcia,
The dissent rejects this analysis of the plain meaning of the statutory language, arguing that an item in transit is from all of the places through which it passes en route from its starting point to its destination. We recognize that, like the word “place,” the word “from” can have different meanings, depending on the context of the inquiry. We think it is clear, however, that a defendant who has brought drugs on a non-stop flight that lands in the United States can most reasonably be said to have brought drugs from the point of the flight’s departure — and not the airspace through which the plane traveled on the way.
Although we conclude that a commonsense reading of the plain language of the statute forecloses its application here, we are also persuaded that our reading is consistent with the statute’s structure. “[W]e must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” Boise Cascade Corp. v. EPA,
The first clause of § 952(a) prohibits the importation of drugs “into the customs territory of the United States from any place outside thereof (but within the United States).” 21 U.S.C. § 952(a). The customs territory of the United States consists of “the States, the District of Columbia and Puerto Rico.” See HTSUS at General Note 2. At the time of § 952’s enactment, when the territorial sea of the United States extended only three miles out from the coast,
In an attempt to save its interpretation of § 952(a) from superfluousness at the time of the statute’s enactment, the dissent argues that Congress did not intend the three-mile limit of the territorial sea to be the relevant boundary. According to the dissent, when Congress defined the “United States” for the purposes of § 952 as “all places and waters, continental or insular, subject to the jurisdiction of the United States,” see 21 U.S.C. § 802(28), incorporated by § 951(b), it could have meant “waters ... subject to the jurisdiction of the United States” to refer to the limited 12-mile customs interdiction jurisdiction codified at 19 U.S.C. §§ 1401(j), 1581(a)-(b), rather than the three-mile limit of plenary sovereign jurisdiction within the territorial sea.
It is not enough, however, that Congress “reasonably could have believed” that § 952 invoked this 12 mile limited interdiction jurisdiction, rather than the three-mile sovereign jurisdiction. Our role is to determine Congress’ actual intent, not its possible intent, and the Supreme Court has instructed that in the absence of a clear statement, we should not assume that Congress intended to include the waters beyond the territorial sea when defining the United States. See Argentine Republic,
the term “waters” in § 1603(c) cannot reasonably be read to cover all waters over which the United States courts might exercise jurisdiction. When it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute. We thus apply “[t]he canon of construction which teaches that legislation of Congress, unless contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”
Id. (emphasis added) (footnote omitted) (quoting Foley Bros. v. Filardo,
Evidence of congressional intent to incorporate the limited jurisdiction of the contiguous zone, rather than the plenary sovereign jurisdiction of the territorial sea, is similarly lacking here. The dissent points to nothing in the statutory language or the legislative history of § 952 to indicate that Cоngress intended to include the contiguous zone in its definition of the United States. Instead, it relies on the decisions of three circuits that have assumed that § 952 incorporated the 12 mile limit of the contiguous zone. See United States v. Nueva,
Moreover, even if we were to accept the dissent’s contention that Congress intended to invoke the 12 mile limit, and thus that it would have been possible in 1970, as it is today, to violate clause 1 (and not clause 2) by transporting drugs from St. Thomas to Puerto Rico, we still would be hard pressed to find a plausible legislative purpose for clause 1. Under the government’s interpretation of the second clause of § 952(a), the only conduct that clause 1 would prohibit that would not be prohibited by clause 2, even under the broader 12 mile limit, is the drug trade from the Virgin Islands to Puerto Rico. This lone point of contiguity between the customs territory and the noncustoms territory exists only by virtue of the location of tiny islands that are so obscure that even the First Circuit — the very Court of Appeals that has jurisdiction over Puerto Rico — is seemingly unaware of them. See Ramirez-Ferrer,
Perhaps recognizing the unlikelihood of this scenario, the dissent offers an alternative explanation for the inclusion of clause 1: Congress was aware that the boundaries of the customs territory and the noncustoms territory might change
Indeed, Congress’ use of the more specific, limited language of clause 1 presents yet another hurdle for the government’s interpretation of § 952(a): clause 1 prohibits only the transport of drugs from the noncustoms territory to the customs territory — it does not address the drug trade in the reverse direction. Thus in 1970 when Congress crafted § 952(a), it made a deliberate choice not to make the first clause reciprocal-banning the importation of drugs from, for example, Guam to California but not from California to Guam. (That one-way ban remains true whether the territorial limit is three or 12 miles.) Under the interpretive maxim of expressio unius est exclusio alterius, we “read the enumeration of one case to exclude another [if] it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it.” Barnhart v. Peabody Coal Co.,
It is no answer to suggest that Congress considered it unnecessary to address the drug trade from the customs territory to the noncustoms territory (e.g., California to Guam) because it intended clause 2 to cover such conduct through the concept of “coming from” international airspace. Under that theory, once again clause 1 would be redundant because clause 2 would have sufficed to reach the very conduct clause 1 was carefully drafted to proscribe. If it is necessary for a drug shipment to travel through international airspace to get from a customs territory to a noncustoms territory, then it is also necessary for that shipment to travel through international airspace to go in the reverse direction, and clause 2 would apply to both trips. Moreover, even if we indulge the dissent’s assumption that Congress was legislating to cover drug shipments between St. Thomas and Puerto Rico, under any interpretation of the statute the transport of drugs from Puerto Rico to St. Thomas is not punishable as importation. This reinforces our
Finally, we reject the government’s interpretation of § 952(a) because it would sweep within the ambit of the statute a wide range of conduct that cannot reasonably be characterized as importation. Whenever possible, “we interpret statutes so as to preclude absurd results.” Andreiu v. Ashcroft,
Here in the Ninth Circuit we may encounter even more absurd results under the government’s interpretation of § 952(a). For example, dozens of commercial flights (to say nothing of noncommercial flights) travel daily up and down the California coast between San Francisco and Los Angeles, and between Los Angeles and San Diego. Given the configuration of the coastline, any one of these flights may trаvel through international airspace off the coast, perhaps entering and reentering United States airspace several times. Yet nothing on the face of § 952(a) even suggests that Congress intended the transport of drugs on one of these 45 minute intrastate flights to constitute importation within the meaning of the statute.
Moreover, we are unable to conceive of an articulable legislative purpose for punishing the transport of drugs on a domestic flight that passes through international airspace more-severely than the identical conduct on a flight that travels entirely within United States airspace. Consider the following example: Under the government’s interpretation of § 952(a), a passenger who carries a bag of marijuana on a flight from Portland to Anchorage has committed the crime of importation, while a drug-carrying traveler who departs from the same terminal at the Portland airport is guilty only of mere possession (or perhaps possession with intent to distribute) if his flight lands in Phoenix rather than Anchorage. But what, exactly, is the additional evil committed by the Alaska-bound traveler? The government does not tell us, and we cannot imagine, why Congress would have wanted to penalize the first traveler more heavily.
II.
We find support for our interpretation of § 952(a) in the First Circuit’s decision in Ramirez-Ferrer, the only Court of Appeals opinion to analyze the statute’s text and history with respect to the question at issue here. United States v. Ramirez-Ferrer,
Looking first to the statutory text, the First Circuit reached the same conclusions as we do regarding the plain meaning of the phrase “from any place [outside the United States],” including the redundancy between the two clauses that would result from the government’s construction of the statute. Id. at 1137-38.
Finally, the First Circuit considered the future implications of the government’s interpretation of the statute. The court reasoned, for example,.that under the government’s reading of the statute, a sailboat tacking up the coast would commit a separate act of importation every time it entered international waters and then reentered domestic territory. Id. at 1142. The court further observed that under a logical extension of the government’s reading of the importation statute, the act of leaving domestic territory and entering international waters would have to be considered an illegal exportation under § 952(a)’s companion statute, 21 U.S.C. § 953(a), “even though there was no intention or act of visiting a foreign territory or off-loading the exported contraband onto a vessel in international waters.” Id. Finding these scenarios unreasonable, the First Circuit emphatically rejected the government’s effort to transform the domestic
In an effort to discredit the Ramirez opinion, the government treats it as an outlier that conflicts with the great weight of authority on the reaсh of § 952(a). As the First Circuit recognized, however, the cases on which the government now relies are inapposite, as they do not directly address the factual scenario presented here: a case where the government’s own evidence shows that the drugs at issue were transported from one point within the United States to another. Nor do these decisions carefully analyze the language of § 952 or the implications of their broad reading of the statute.
The government directs our attention to United States v. Peabody,
The government also cites United States v. Phillips,
The Eleventh Circuit cases cited by the government are similarly inapt. In United States v. Lueck,
In fact, the only cases to adopt the government’s proposed interpretation of § 952(a) under factual circumstances similar to those presented here are our decisions in Perez,
In Perez, the defendant was convicted under § 952(a) of importing drugs on a boat that sailed from Rota, an island in the Commonwealth of the Northern Mariana Islands (a United States territory), to Guam. We affirmed the convictions, holding that all that the government must show for a finding of importation under § 952(a) is that the drugs entered the United States from international waters or airspace. Perez,
Sugiyama likewise adds nothing to our understanding of the scope of § 952(a), as it relied solely on Perez in affirming the conviction of a defendant under § 952(a) for importing drugs on a flight from the island of Palau (which at the time was part of the United States Trust Territory of the Pacific Islands) to Guam. Sugiyama,
III.
Our analysis leaves little doubt that the second clause of § 952(a) does not proscribe the transport of drugs on a nonstop flight from one domestic location to another, but to the extent that any doubt remains, the scope of the statute is sufficiently ambiguous to invoke the rule of lenity. “In these circumstances- — -where text, structure, and history fail to establish that the Government’s position is unambiguously correct — we ... resolve the ambiguity in [the defendantj’s favor.” United States v. Granderson,
IV.
We are not persuaded by warnings of the government and the dissent that our decision today will cripple the government’s efforts — any more than did the First Circuit’s 1996 decision in Ramirez-Ferrer — to fight the ongoing war on drugs. Our holding addresses those cases in which the undisputed evidence .shows that the nonstop flight on which the defendant transported drugs departed and landed in the United States. Our interpretation of § 952(a) thus does not preclude the government from proving importation when a drug-laden plane of unknown origin is discovered in international air-space before it has crossed into U.S. territory. In such a situation, the government has found the plane outside the United States and therefore has circumstantial evidence that the aircraft originated from a place outside the United States. We need not decide today whether such evidence alone would be sufficient to support a conviction under § 952,
Our holding also leaves undisturbed our well-settled case law establishing that importation occurs when a person reenters the United States from a foreign country carrying drugs that were in her possession when she left the United States. See, e.g., United States v. Friedman,
Moreover, we are not leaving the government without recourse to punish the Cabaccangs and others whо bring drugs from one United States location to another through international airspace. As the dissent itself acknowledges, “[p]os-session of illegal narcotics is already a serious offense,” and any conduct that would have been chargeable as importation under the government’s reading of § 952(a) may be charged under 21 U.S.C. § 841 as possession with intent to distribute.
In sum, our analysis of the statutory text and structure leads us to conclude that the second clause of 21 U.S.C. § 952(a) does not proscribe — and was not intended to proscribe — the transport of drugs on a nonstop flight between two locations within the United States. A de-
V.
The effect of our decision on Roy Ca-baccang’s conviction for conducting a continuing criminal enterprise (Count I) is not so clear. Count I incorporated the importation charges as predicate offenses, and the jury was instructed that to convict on that count it had to find that “the Defendant committed any one or more of the following federаl narcotics trafficking offenses: conspiracy to distribute methamphetamine; conspiracy to distribute methamphetamine; or, conspiracy to import methamphetamine; or, importation of methamphetamine; or, possession of methamphetamine with intent to distribute; or, attempted importation of methamphetamine.” The jury was also instructed that it must find that the offenses were part of a series of three or more offenses committed by the defendant, and that the defendant committed the offenses together with five or more persons. Finally, the jury was instructed that all members of the jury must unanimously agree on which three narcotics offenses the defendant committed and on which five or more persons committed the offenses together with the defendant. The jury’s guilty verdict on Count I did not specify which narcotics offenses formed the basis of the jury’s finding.
It is not for us to determine whether the jury relied on the importation offenses in reaching a verdict on Count I or whether, if the jury did so rely, there was sufficient additional evidence of a continuing criminal enterprise to support the conviction. These questions are more appropriately considered by the district court. We therefore remand Count I to the district court for a determination of whether Roy’s conviction on that count can stand in light of our holding.
Conclusion
Because the transport of drugs on a nonstop flight from California to Guam does not constitute importation within the meaning of 21 U.S.C. § 952(a), we reverse all three defendants’ convictions for conspiracy to import methamphetamine (Count III), Richard and Roy’s convictions for importation of methamphetamine (Count V) and Roy’s convictions for attempted importation of methamphetamine (Counts IX, X and XI). We remand to the district court for a determination of whether Roy’s conviction for a continuing criminal enterprise (Count I) can stand in light of our reversal on the importation counts. As tо the Cabaceangs’ challenges to their convictions and sentences on the counts that are not importation-related, we adopt the panel decisions as our own and therefore affirm the judgment of the district court as to those counts.
AFFIRMED in part, REVERSED in part, REMANDED in part.
Notes
. Richard and Roy were also convicted of importation of methamphetamine, and Roy was convicted of conducting a continuing criminal enterprise, possession of methamphetamine with intent to distribute, attempted importation of methamphetamine and possession and receipt of a firearm by a convicted felon.
. Roy received concurrent life sentences on all of the drug counts. James received concurrent life sentences on the counts of conspiracy to import and conspiracy to distribute. Richard received concurrent life sentences on the counts of conspiracy to import, conspiracy to distribute and conspiracy to launder money.
. The Cabaecangs asserted numerous other grounds for reversal of their convictions, including insufficient evidence, constructive amendment of the indictment, multiplicitous counts, ineffective assistance of counsel, erroneous jury instructions and erroneous denial of Roy's motion to suppress evidence. The brothers also claimed that their sentences violated the rule announced in Apprendi v. New Jersey,
.The panel also rejected the Cabaecangs’ other challenges to their convictions, see United States v. Cabaccang,
. The Cabaccangs brought drugs into Guam, which is not part of the customs territory of the United States. See Harmonized Tariff Schedule of the United States (“HTSUS”), General Note 2, 19 U.S.C. § 1202 (defining the customs territory of the United States as "the States, the District of Columbia and Puerto Rico”), available at http://dataw-eb.usitc.gov/SCRIPTS/ tarifl/toc.html.
. The аirspace of the United States currently includes that airspace overlying the waters within 12 nautical miles of the land borders of the United States. See Proclamation No. 5928, 54 Fed.Reg. 777 (Dec. 27, 1988) (extending the territorial sea of the United States to 12 nautical miles from the baselines of the United States, and defining the territorial sea of the United States as a "maritime zone extending beyond the land territory and internal waters of the United States over which the United States exercises sovereignty and jurisdiction, a sovereignty and jurisdiction that extend to the airspace over the territorial sea, as well as to its bed and subsoil.” (emphasis added)).
. Section 174 traced its origins to 35 Stat. 614 (1909), which prohibited the importation of opium into the United States. The statute was amended in 1922 to extend the prohibition to the importation of "any narcotic drag.” 21 U.S.C. § 174 (1922).
. The legislative history is silent as to why Congress made this change.
. The dissent posits that "[a] person traveling from Place A to Place B to Place C arrives at C both from A and from B." (Italics added.) We find such a reading to be strained and implausible in the context of a nonstop flight. The flights at issue in this case, for example, undeniably flew from Los Angeles ("Place A") to Guam ("Place C"), but not “to” international airspace ("Place B,” per the dissent).
. See Argentine Republic v. Amerada Hess Shipping Corp.,
.As the dissent notes, this is not entirely the case today: given the current 12-mile limit of the territorial sea, it is possible to travel from St. Thomas (noncustoms territory) to Puerto Rico without leaving United States airspace or waters, as the tiny island of Culebra, Puer-to Rico (but not the main island of Puerto Rico) is within 24 miles of St. Thomas.
. This limited customs jurisdiction is also referred to as the "contiguous zone.” See United States v. Rubies,
. The high seas are those waters that are seaward of the territorial sea, and they include the contiguous zone. Rubies,
. Of course, such a need has not yet materialized. Despite the post 1970 changes in the composition of our noncustoms territory and the limits of our territorial sea that the dissent catalogues in bringing us up to date, there still remains only one point of contiguity between the customs territory and the noncus-toms territory: Puerto Rico and St. Thomas.
. That the government has refrained, so far as we are aware, from charging the transport of drugs on one of these flights as importation does not affect our analysis. Unlike the dissent, we are unwilling to rely on prosecutorial discretion for assurance that indisputably domestic conduct will not be charged under § 952.
. We recognize, as the dissent notes, that both of our hypothetical travelers have engaged in conduct that is not "otherwise innocent” and that may well be "incredibly stupid.” However, neither of these observations is relevant to the question of whether the conduct violated § 952(a).
. Mona Island is located 39 miles off the coast of the main island of Puerto Rico. See id. at 1132-33.
. The court also rejected the government’s reading because it concluded that it would make clause 1 impossible to violate. The First Circuit explained that under the government’s reading of the statute, "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).” Id. at 1138. The court reasoned that such a reading would make the statute impossible to violate because "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 ... is international waters.” Id. As we noted earlier, the First Circuit apparently was unaware of the proximity of Culebra, Puerto Rico to the U.S. Virgin Islands.
. The error in the government's interpretation of § 952(a) is even more apparent in this case, which deals with the domestic transport of drugs through international airspace rather than international waters. Contrary to the dissent's assertion, the distinction between air and watеr transport of drugs is hardly arbitrary. It is possible for a ship to pick up foreign passengers or cargo while passing through international waters, whereas the same cannot be said of a nonstop flight between two domestic locations. When a nonstop domestic flight lands at its destination, we know for certain that any drugs on board were there when the plane departed and could not have been acquired from a foreign aircraft. Cf. Garcia,
. But cf. United States v. Cadena,
. Because we confine our holding to the transport of drugs on an aircraft that travels nonstop through international airspace en route between two United States locations, we express no opinion on the continuing vitality of Perez with respect to the maritime transport of drugs in international waters. That is an issue for another day.
. The dissent contends that the rule of lenity is inapplicable here because the Cabaccangs were on notice from our decisions in Perez and Sugiyama that their conduct was unlawful. However, the purpose of the rule of lenity is not merely to ensure that defendants have notice of the criminality of their actions. The rule is also founded on the principle that "because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.” Bass,
.Our decision therefore is not inconsistent with the result — if not the reasoning' — reached by the Fifth Circuit in Peabody and Phillips. In those cases, there was no evidence of domestic origin to contradict the government’s circumstantial evidence that the vessels found entering the United States from international airspace or waters departed from a place outside the United States. See supra Part II. Nor is our decision at odds with the outcome in Goggin,
. Where the facts do not support a finding of intent to distribute, such as where the drug quantity at issue is too small, the government may charge the conduct as simple possession under 21 U.S.C. § 844.
. See 21 U.S.C. § 960 (listing the penalties for violations of § 952(a)).
Concurrence Opinion
concurring:
I agree with the result. All three defendants were convicted under 21 U.S.C. § 952(a), importation of controlled substances. The crime was transрorting illicit drugs from California to Guam. This was transportation from the continental United States to a territory of the United States that has its own customs authority.
The language of the statute provides:
It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance ... or any narcotic drug....
21 U.S.C. § 952(a).
The first clause states that it is illegal to take drugs from non-customs territory of the United States to customs territory of the United States. The defendants did not do this.
The second clause bars the taking of drugs from foreign territory into the United States. The defendants did not do this either. Therefore, the statute was not violated.
The concerns reflected in both the dissent and the majority opinion about crossing international waters are not relevant to the interpretation of the plain language of the statute as I read it. Nevertheless, I do concur wholeheartedly in the result reached by the majority.
Dissenting Opinion
with whom O’SCANNLAIN, GRABER, McKEOWN and TALLMAN, Circuit Judges, join, dissenting:
Our job as judges is to apply laws adopted by the political branches of government. As the Supreme Court has told us time and time again, see, e.g., HUD v. Rucker,
And rewrite the statute is precisely what the majority does.
The Text
1. Section. 952(a) states:
It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance ....
21 U.S.C. § 952(a). And section 951(a)(1) adds:
The term “import” means, with respect to any article, any bringing in or introduction of such article into any area (whether or not such bringing in or introduction constitutes an importationwithin the meaning of the tariff laws of the United States).
21 U.S.C. § 951(a)(1).
It’s difficult to imagine what more Congress could have said to keep us from going astray. Congress did not merely use the term “import” and leave it to the courts to flesh out its meaning. Rather, it went to the trouble of defining the term as “any bringing in or introduction of such article into any area.” Id. It even explicitly foreclosed the notion that tariff-law definitions of “import” are germane. Id. Thus, the majority’s observation that “[w]e do not treat passengers who travel through international airspace on a nonstop flight between two U.S. locations as ... subject to immigration inspections or border searches,” Maj. op. at 626, is utterly irrelevant. Nor does it matter that ships only going out to international waters do not clear customs on their return. See United States v. Ramirez-Ferrer,
The Cabaccangs conspired to bring a large quantity of drugs into Guam, a U.S. island surrounded by roñes of ocean. It is impossible to get there without first passing through international waters or airspace. Defendants’ criminal scheme thus fits perfectly within the statutory definition: Their co-conspirators brought drugs into the United States (Guam) from “any place outside thereof’ (international airspace surrounding Guam).
The majority does not seriously dispute that international airspace is a “place” in normal English usage. Maj. op. at 626. A “place,” after all, is only a “region; locality; [or] spot” —a “location,” “position” or “site.” Webster’s New International Dictionary of the English Language 1449, 1877, 1925, 2350 (William Allan Neilson et al. eds., 2d ed.1939). None of these definitions has anything to do with whether the “place” is occupied by air or terra firma, within a country’s borders or over the high seas.
What the majority is really arguing is that international air-space, although a place, is not the place drugs come from when they cross back into the United States — even if the so-called “international” airspace is above another sovereign nation like Canada, Maj. op. at 631. The majority claims “it is clear ... that a defendant who has brought drugs on a non-stop flight that lands in the United States can most reasonably be said to have brought drugs from the point of the flight’s departure — and not the airspace through which the plane traveled on the way.” Maj. op. at 627. It thus reads “from” in section 952(a) to mean only “originally from.” But nothing in the statute compels or even suggests that limitation.
“From” can imply origin, but it can also mean simply “forth out of,” “away out of contact with or proximity to,” or merely “out of.” Webster’s, supra, at 1012. One need look no further than Ramirez-Ferrer to find the word so used. See
The majority would ask a hypothetical bystander “from what place the Cabac-cangs brought drugs into Guam.” Maj. op. at 627. That’s a trick question because it assumes the point in contention, namely, that there’s a single, unique place the drugs came from. The point of departure may be the place that first pops to mind,
The majority’s claim that the plain language of the statute supports its interpretation is plainly wrong. Maj. op. at 627. A statute does not have a plain meaning just because one cherry-picked dictionary definition happens to support it. That eight other decisions — apparently every one to have addressed the issue save Ramirez-Ferrer — have reached the contrary result undercuts the claim that the statute plainly means what the majority says. See United States v. Nueva,
If the majority had picked a definition of “from” and stuck with it, I would still disagree, but our disagreement would at least be about what the word actually means. The majority does nothing of the sort. Instead, it crafts a rule that applies only to “the transport of drugs on an aircraft that travels nonstop through’international airspace en route between two United States locations.” Maj. op. at 635 n. 21. It thus “leaves undisturbed our well-settled case law establishing that importation occurs when a person reenters the United States from a foreign country carrying drugs that were in her possession when she left the United States.” Id. at 636 (citing United States v. Friedman,
[T]he distinction between air and water transport of drugs is hardly arbitrary. It is possible for a ship to pick up foreign passengers or cargo while passing through international waters, whereas the same cannot be said of a nonstop flight between two domestic locations.
Maj. op. at 633 n. 19. That’s a pretty good policy distinction (and one we would undoubtedly uphold as rational had Congress enacted it), but it has absolutely nothing to do with the meaning of the word “from,” which is the fulcrum of the majority’s analysis. After today’s decision, a ship that transports a cargo of drugs from Los An-geles to Guam will be deemed to have imported them into Guam, even if it goes there without stopping or picking up anyone or anything along the way. And, a passenger carrying drugs on a nonstop bus trip from Buffalo to Detroit through Canada will be deemed to have imported the drugs, even though a helpful bystander asked where the drugs came from would say “Buffalo, of course.” Why does the boat enter the United States from international waters and the bus enter the United States from Canada, but a plane on a nonstop flight that passes through international airspace or over a foreign country enter the United States only from the place it took off? “From” may have many definitions, but none is supple enough to change meanings depending on the mode of transportation employed.
The' majority’s insuperable problem is that the distinction it draws finds no anchor in the words of the statute it purports to interpret. The statute says nothing about planes, boats, trains or automobiles; it only says “from,” an entirely neutral term. To reach the result consistent with the majority’s policy preferences, the statute cannot be “interpreted” in any meaningful sense of the term; it must be rewritten. This is not a case where we must deform the English language to save the statute from unconstitutionality. See, e.g., United States v. X-Citement Video, Inc.,
2. The majority tries hard to defend its reading on statutory history grounds. It notes that Congress added the words “from any place outside thereof’ when it amended the statute in 1970, Maj. op. at 625-26, and reads this new “any place” phrase as a limitation on the statute’s scope. Why else, wonders the majority,
If the answer to the majority’s ingenuous question is not immediately apparent, perhaps the following analogy will help. The Bald and Golden Eagle Protection Act makes it illegal, among other things, to “import, at any time or in any manner, any bald eagle.” 16 U.S.C. § 668(a). The majority’s analysis of this statute might go something like this: “Hmmm. Congress couldn’t have intended to ban all importation of bald eagles, because then the phrase ‘at any time or in any manner’ would be superfluous — Congress could simply have made it illegal to ‘import any bald eagle.’ It must have added ‘at any time or in any manner’ to narrow the sweep of the statute to importation at times and in manners, and exclude importation at non-times or in non-manners.” Absurd as it sounds, this is the majority’s logic.
The obvious reason Congress included the words “any place” was to negate the very inference the majority draws — that the statute reaches only importation from some places: foreign countries, foreign countries plus hovering drug boats, or foreign countries plus some other limited set of places. “Any place” is like “any time” or “any manner” — a catchall Congress adds when it wants to emphasize that the statute applies to absolutely everything within a particular genus. See Rucker,
The words are particularly apt here because Congress had good cause to worry that judges might read implicit limitations into the statute. Even when context does not require it, courts have “not unnaturally fallen into the habit of referring to imports as things brought into this country from a foreign country.” Hooven & Allison Co. v. Evatt,
The common ordinary meaning of the word “import” is to bring in. Imported merchandise is merchandise that has been brought within the limits of a port of entry from a foreign country with intention to unlade, and the word “importation” as used in tariff statutes, unless otherwise limited, means merchandise to which that condition or status has attached.
United States v. Estate of Boshell,
3. The majority also purports to rely on statutory structure.' Maj. op. at 627-28. It borrows its argument from Ramirez-Ferrer,
The government’s broad reading of clause 2 ... 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.... Hence, the government’s reading of clause 2 renders clause 1 completely superfluous.
Id. at 1138. As the majority admits, Maj. op. at 627 n. 11, this theory is based on a geographical premise that’s demonstrably false. The U.S. Virgin Islands — the very noncustoms territory Ramirez-Ferrer singled out as an example — in fact is contiguous with the customs territory, namely, Puerto Rico. See Nat’l Oceanic & Atmospheric Admin., Chart # 25650: Virgin Passage and Sonda de Vieques (33d ed. Mar.9, 2002), attached as an appendix.
In an effort to salvage something from Ramirez-Ferrer’s glorious wreckage, the majority offers up two anemic theories. It first argues that, even though Ramirez-Ferrer’s premise is wrong today, it was correct in 1970 when Congress passed section 952(a) because the United States then claimed a territorial sea of only three miles rather than twelve. Maj. op. at 628-629. The territorial sea, however, is only the boundary fоr general-purpose jurisdiction. Congress long ago established a special, twelve-mile boundary specifically for interdiction. See Act of Aug. 5, 1935, ch. 438, §§ 201, 203, 49 Stat. 517, 521-22 (codified in relevant part at 19 U.S.C. §§ 1401(j), 1581(a)-(b)) (granting customs and Coast Guard officers jurisdiction to board vessels within U.S.- customs waters, defined to extend four leagues, i.e. twelve miles, from shore); see also Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, art. 24, 516 U.N.T.S. 206, 220; 4 Whiteman Digest § 20, at 489 (Dep’t of State 1965).
Section 952(a) does not refer to territorial waters, but to the “United States,” 21 U.S.C. § 952(a), defined as “all places and waters, continental or insular, subject to the jurisdiction of the United States.” Id. § 802(28); incorporated by id. § 951(b). Four cases have considered whether this definition invoked the federal twelve-mile interdiction jurisdiction rather than the narrower three-mile one and concluded that it did: “[T]he twelve-mile contiguous zone over which the United States exercises customs authority ... is included in the meaning of ‘the United States’ in 21 U.S..C. § 952(a).” Goggin,
This mountain of consistent authority is no impediment for the majority: It’s two-for-one day at Circuit Split Emporium, as we boldly go where no other circuit has gone before in holding that section 952(a) does not apply to the contiguous zone. This holding will have tremendous practical significance given the President’s recent extension of the contiguous zone from twelve to twenty-four miles. See Procla
The only authority the majority offers is Argentine Republic v. Amerada Hess Shipping Corp.,
The majority has no good excuse for putting us at odds with every other circuit to have considered this issue. We should not break ranks on an issue that’s at best debatable solely to save an otherwise hopeless textual argument. Were it necessary to reach the issue, I would hold that Congress invoked the twelve-mile interdiction boundary rather than the three-mile plenary one when it enacted section 952(a). At the very least, Congress reasonably could have believed that courts would interpret the statute that way — as in fact they have — and that’s enough to render the first clause nonsuperfluous.
The majority’s second effort to glue Ramirez-Ferrees pieces back together consists of the theory that, even if Puerto Rico and the Virgin Islands were contiguous, Congress didn’t know or didn’t care. Maj.
That Congress went to the trouble of including the somewhat convoluted phrase “into the customs territory of the United States from any place outside thereof (but within the United States)” shows it was focused on a very specific problem. There aren’t many noncustoms territories to begin with; almost all the significant ones (Guam, the Marianas and Samoa) are way out in the Pacific, about 3000 miles from the nearest customs border. After that, we get into some pretty obscure places. See, e.g., Farrell v. United States,
Without the first clause of section 952(a), it would be impossible to prosecute as importation drug shipments from St. Thomas to Puerto Rico. Because the two territories are contiguous, any boat or plane carrying drugs across the Virgin Passage would not be “importing] into the United States from any place outside thereof.” This is not some well-kept secret; it is obvious from even the most cursory glance at a nautical chart. Coast Guard and customs officers use those charts daily, and if there’s a hole in the customs net where drugs slip through, they have every incentive to bring that fact to Congress’s attention. The statute’s first clause is absolutely necessary to render this traffic illegal.
The first clause is thus not “superfluous, void, or insignificant,” and that is all the canon against surplusage requires. Duncan v. Walker,
The Virgin Islands-Puerto Rico border kicks the props out from under the majority’s argument that we must ignore the literal terms of the statute in order to avoid redundancy. But no contemporary example is necessary to justify reading the law as written. Congress defined two classes of conduct it meant to prohibit. Whether those classes diverge or overlap depends on geography and politics, which are hardly set in stone. For example,
In any case, the customs and noncus-toms territories are contiguous, as they were in 1970 when Congress enacted the statute. This inescapable geographical fact undercuts not only the majority’s only plausible argument, but also Ramirez-Ferrer’s value as precedent. That case wasted nearly two pages on this issue, all based on the figment that the customs and noncustoms territories are never contiguous. It was decided by the thinnest of margins (4-3), and the outcome no doubt would have flipped had the First Circuit been aware of the truth.
The Precedents
The effort to reconcile today’s decision with cases in the Fifth and Eleventh Circuits does not bear serious scrutiny; the majority would do better to acknowledge the conflict. It claims that those cases “do not directly address the factual scenario presented here,” Maj. op. at 633, because our plane concededly took off from California, while in Peabody and Phillips, there was “no evidence” that the drugs had originated in the United States, id. at 633-34, and in Lueck. and Goggin, the evidence “suggested that the flights in question had originated in the Bahamas,” id. at 634. Yes, but so what?
“[F]rom any place outside thereof’ is an element of a criminal offense; the government bears the burden of proof. Absence of evidence favoring the government is legally equivalent to irrefutable evidence favoring the defendant — either way, the defendant goes free. Thus, for example, it does not matter that there was no evidence in Peabody the drugs had come from the United States, because there was also no
Lueck and Goggin fall to the same axe. The majority asserts that evidence “suggested” the planes in those cases had departed from the Bahamas, but it misreads the opinions. The only pertinent reference in either is that the planes were first detected on radar flying near the Bahamas. Goggin, 853 F.2d at 844; Lueck,
The even bigger problem with the majority’s Sisyphean attempt to avoid a second circuit split is that, even if the cases were reconcilable on their facts, the legal rules they articulate would still be incompatible with the majority’s. Lueck and Goggin both hold that “ ‘[t]he fact of crossing the boundary of the United States with contraband suffices to establish importation.’ ” Goggin,
Struggle as it may, the majority cannot escape the hard reality that its interpretation of section 952(a) conflicts with that of the Fifth and Eleventh Circuits. It also conflicts with that of the Fourth, see Seni,,
The Consequences
1. No one can doubt the devastating impact our holding will have on drug interdiction. Until today, the government could support an importation charge merely by tracking a plane on radar as it entered U.S. airspace. Now it must prove the trip originated abroad. Every smuggler flying a single engine prop has a ready-to-serve defense: He took off from a U.S. airfield, strayed into international airspace and was just coming back in when he got caught. The government surely cannot track the movement of every aircraft everywhere on the globe, so it must now prove foreign origin by circumstantial evidence. In some cases it may not be able to do so, and in many others it will have to divert prosecutorial resources that could be put to better use. See Ramirez-Ferrer,
The majority claims that its holding only “addresses those cases in which the undisputed evidence shows that the nonstop flight ... departed and landed in the United States.” Maj. op. at 685 (emphasis added); see also id. at 636 n. 23. But there are no undisputed facts in criminal cases (unless the defendant finds some advantage in stipulating what he knows the government can prove anyway). “[F]rom any place outside thereof’ is an element of the offense, so the government has a constitutional duty to prove it to a jury beyond a reasonable doubt. See In re Winship,
Of course, entry from international airspace is circumstantial evidence of foreign origin. Maj. op. at 635. But it’s circumstantial evidence the same way a defendant’s presencе at the murder scene is circumstantial evidence he’s the killer. It’s some evidence, but hardly sufficient. To convict a defendant, the government ‘must produce evidence excluding every possible innocent explanation for his con
Striving once again to duck the logical consequences of its ruling, the majority stays mum as to whether entry alone would support a finding of foreign origin. See id. at 635-36. It’s obvious it would not. See United States v. Carrion,
By rejecting both our own circuit’s settled precedent and the overwhelming weight of authority elsewhere, the majority frustrates the government’s vital interest in consistent and uniform interpretation of the drug laws. It’s certainly our prerogative as an en banc court to overrule circuit law. See Jeffries v. Wood,
Our holding also results in standards that vary from circuit to circuit. The government already faces this prospect from Ramirez-Ferrer, but we greatly exacerbate the problem. Our enormous circuit covers not only the entire west coast of the United States, but also Hawaii, Alaska, Guam and the Marianas. If Ramirez-Ferrer threw a wrench into the government’s interdiction machine, we throw in the toolbox.
2. Now for the other side of the scale— the majority’s conceit that it achieves greater fairness and consistency with its tortured interpretation. The majority laments that “a passenger who carries a bag of marijuana on a flight from Portland to Anchorage has committed the crime of importation, while a drug-carrying traveler who departs from the same terminal at the Portland airport is guilty only of mere possession ... if his flight lands in Phoenix rather than Anchorage.” Maj. op. at 631. We are not dealing here with a statute that criminalizes otherwise innocent conduct; the difference in treatment is at best a sentencing disparity. Possession of illegal narcotics is already a serious of
Any doubt that the majority misplaces its sympathy is erased by its reliance on— of all things — the rule of lenity. Maj. op. at 635. Of course, people should not be thrown in jail if they did not have fair warning that their conduct was illegal. See United States v. Nguyen,
Finally, by exempting only nonstop travel through international airspace, the majority resolves one inequity only to create several others. For example, the drug-packing college kid who flies from Portland to Juneau through international airspace now gets off easier than the one who takes a nonstop ferry through international waters. And the Cessna weaving in and out of international airspace on its way from Los Angeles to San Francisco is better off than the sailboat tacking in and out of U.S. waters. Cf. Ramirez-Ferrer,
And that’s just the start. The hemp-toting freshman who flies home directly from Seattle to Fairbanks is now treated more favorably than the one whose plane touches down briefly in Vancouver, even if the latter had the drugs in his suitcase, which was checked through to his destination. Surely there is no equitable difference between the two, yet under the majority’s rationale, the latter is worse off than commercial drug dealers like the Ca-baccangs. The wayward hiker who strays briefly into Canadian territory (perhaps overcome by one too many handfuls of special “trail mix”) is a smuggler, cf. id. at 1136 n. 3, while the drug courier whose Cessna veers into international airspace to avoid a storm is not. None of these newly created distinctions is any more equitable than the one the majority purports to eliminate.
Even hard-core judicial policy-seekers should cringe at today’s decision. For all their manhandling of statutory text and precedent, my colleagues only manage to replace one arbitrary distinction with many others.
3. This abortive attempt to redraft the statute teaches several lessons, the most important of which is that arbitrarily disparate treatment of closely situated individuals is all but inevitable. It may well be that there is no “articulable legislative purpose for punishing the transport of drugs on a domestic flight that passes through international airspace more severely than the identical conduct on a flight that travels entirely within United States airspace.” Maj. op. at 631. But there is certainly an articulable purpose
The majority’s interpretive method is to ask whether a defendant poses a greater menace than some hypothetical person not covered by the statute and, if not, to conclude that the defendant must be exemрt as well. There are obvious reasons we don’t interpret statutes this way. Judges often disagree about what Congress’s purposes are and how particular conduct implicates them. Two defendants may seem similarly situated to one judge but night and day to another. Once we discard the statute’s text as the acid test of its coverage, we lose it as a justification for our authority. If the college student who flies to Anchorage gets a few more years than the one who flies to Phoenix and wants to know why, we can point to the text and say, “Because you entered the United States ‘from a place outside thereof,’ and Congress made that a more serious crime.” But if the one who drives home gets a few more years than the one who flies, what can the majority possibly say to convince him he is not a victim of judicial caprice? That “from” means one thing for planes and something else for cars?
Our political system has mechanisms to deal with harsh applications of unambiguous statutes. The most obvious is prose-cutorial discretion. Despite its sympathy for the plight of tourists caught with personal stashes on flights from Los Angeles to San Francisco, the majority can’t point to a single instance where the government has prosecuted such an offense as importation. Nor can it identify a case where the government has applied the importation laws to any of its other extreme hypotheti-cals. (Ours, obviously, is not such a case— the Cabaccangs masterminded a massive drug distribution network.) Ramirez-Ferrer relied on the absence of such prosecutions as a justification for its artificially narrow interpretation. See 82 F.3d at 1141^12. But to me, this history shows the effectiveness of prosecutorial discretion as a mechanism for avoiding the inequities the majority fears. If prosecutors start charging such offenses as importation, public outcry may prompt Congress to rewrite the statute. But statutory amendment, like prosecutorial discretion, is a function reserved to another branch.
Seemingly arbitrary distinctions are an inevitable consequence of the rule of law. The costs of governing prospectively by the written word, however, are more bearable than those of a judiciary of retrospective equity-brokers. In its quest for the holy grail of fairness in the drug laws, the majority cuts a swath of destruction through statutory text and precedent, and makes the government’s already hard job of policing our borders much more difficult. Because I view our role as the more limited one of applying statutes as written and leaving questions of fairness to the political — and politically accountable—
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. I refer to Judge Fisher’s opinion throughout as the "majority.” Although only four other judges join, his opinion resolves the case on narrower grounds than Chief Judge Schroeder’s concurrence and therefore represents the binding rationale of the court under Marks v. United States,
. Though this depends on context. A discriminating buyer who wants to know where the drugs are from might well expect to hear where the weed was grown; an air traffic controller who wants to know whence the plane with the drugs is approaching would no doubt expect coordinates in international airspace.
. The majority purports to "express no opinion ... with respect to the maritime transport of drugs in international waters. That is an issue for another day.” Id. at 635 n. 21. But it cannot so easily escape the consequences of its ruling. Because the majority overrules Perez and Sugiyama only "[t]o the extent that [they] address the transport of drugs through international airspace on a nonstop domestic flight,” id. at 634, those decisions remain binding circuit law in all other respects. Maritime transport is an "issue for another
. Congress took similar precautions by defining “import'' broadly in section 951(a). That
. St. Thomas and Puerto Rico Island themselves are separated by more than twenty-four miles, but the strait between them is littered with smaller islands, notably the Puerto Rican island of Culebra. And "[ejvery island, even those too small for effective occupation, has a territorial sea.” 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 2-10, at 29 (2d ed.1994). As the attached nautical chart shows, the distance from the easternmost point of Puerto Rico (Isla Culebrita, off the east coast of Culebra) to the westernmost point of the Virgin Islands (Sail Rock, south-southwest of Savana Island, in turn west of St. Thomas) is a mere seven miles — nowhere close to twenty-four. All points between Puerto Rico’s main island and St. Thomas are well within twelve miles of some smaller island, so the two are contiguous.
. Nueva involved conduct occurring after the 1988 proclamation that extended the territorial sea to twelve miles. But the proclamation itself was non-self-executing, see Proclamation No. 5928, Territorial Sea of the United States of America, 54 Fed.Reg. 777, 777 (Dec. 27, 1988) (“Nothing in this Proclamation ... extends or otherwise alters existing Federal or State law or any jurisdiction, rights, legal interests, or obligations derived therefrom .... ”), and the new boundary was not incorporated into domestic criminal law until 1996, see Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 901(a), 110 Stat. 1214, 1317. It is highly debatable whether the government could have prosecuted based on the proclamation alone. Nueva thus understandably relied on pre-1988 decisions interpreting “United States’’ to include the contiguous zone rather than the 1988 proclamation. See
. The majority misses the boat when it claims that "[i]t is not enough ... that Congress 'reasonably could have believed’ that § 952 invoked this 12 mile limited interdiction jurisdiction.” Maj. op. at 628. It’s true that when we're interpreting a statute, ‘‘[o]ur role is to determine Congress’ actual intent, not its possible intent.” Id. In this case, however, the three-mile/twelve-mile issue is not the question of statutory interpretation presented. We're conducting a surplusage analysis, and a provision can be nonsurplus even if it responds only to the possibility that another provision might be interpreted a particular way. See Chevron U.S.A. Inc. v. Echazabal,
. The majority thinks the principle of expres-sio unius is “yet another hurdle” to my interpretation. Maj. op. at 630-31. By banning importation from noncustoms territory to customs territory, Congress implied that shipments from customs territory to noncustoms territory would not be covered. I couldn’t agree more. That's why someone who takes drugs from Puerto Rico to St. Thomas doesn't violate section 952(a). (How this "reinforces” the majority's conclusion, Maj. op. at 630, is a mystery.) Someone who takes drugs from California to Guam, on the other hand, does violate section 952(a) — not because he goes from customs territory to noncustoms territory (which we all agree is OK), but because he goes from international airspace to noncustoms territory. The majority doesn't think that counts, but that's precisely the question — whether bringing drugs from international airspace into noncustoms territory is importation. The majority’s expressio unius argument is totally circular. -At best, it's the exact same “hurdle” as its surplusage theory, just repackaged into a different argument.
. This conclusion is not “dictum at best.” Maj. op. at 633. Peabody held that the origin of the drugs — whether Texas or anywhere else — was irrelevant. The court never determined where the drugs originated, so its disposition was necessarily based on its determination that the possible domestic origin of the drugs was irrelevant.
. Congress could, of course, make domestic origin an affirmative defense. See Patterson v. Netv York,
. Ramirez-Ferrer committed an equally egregious error when it said that a jury could presume foreign origin from the mere arrival of a drug-laden ship.