United States v. James Cabaccang, United States of America v. Richard T. Cabaccang, United States of America v. Roy Toves Cabaccang

еral state court proceedings intervention Younger, appropriate.” (quoting 746)).

U.S. at 91 S.Ct.

B. Attorney fees ground

Fees were awarded

Plaintiff “prevailing party.” was the For

U.S.C. 1988. the reasons however, explained, Plaintiff was not Thus, prevail

entitled to below. the fee

award must be reversed. with in-

REVERSED REMANDED attorney

structions to vacate the award of

fees to and to Plaintiff dismiss the action. America,

UNITED STATES of

Plaintiff-Appellee,

v. CABACCANG,

James Defendant-

Appellant. America,

United States of

Plaintiff-Appellee,

v. Cabaccang,

Richard T. Defendant-

Appellant. America,

Plaintiff-Appellee,

Roy Cabaccang, Toves Defendant-

Appellant. 98-10159, 98-10195,

Nos. 98-10203. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted En

Banc Dec. 2002.

Filed June SCHROEDER, Judge, Chief

Before KOZINSKI, O’SCANNLAIN, KLEINFELD, HAWKINS, GRABER, McKEOWN, FLETCHER, FISHER, W. TALLMAN, Judges. PAEZ and Circuit FISHER; Opinion by Judge by Judge Concurrence Chief SCHROEDER; Judge Dissent KOZINSKI OPINION FISHER, Judge: Circuit James, Roy Richard and Appellants appeal their convictions on Cabaccang charges relating to in- variety of their trafficking drug ring volvement in a large quantities of metham- transported phetamine from California to Guam the early Cabaccangs’ and mid-1990s. The primary appeal contention on is that nonstop flight transport of location one within im- to another does not constitute States Little, Francisco, K. Califor- Rory San of 21 meaning U.S.C. portation within nia, defendants-appellants for Cabac- though traveled even cang. airspace. We Fisher, Honolulu, Hawaii, Elizabeth A. ap- we reverse the agree, and therefore defendant-appellant James Cabac- importation-re- on all pellants’ convictions cang. lated counts. Ross, Honolulu, Hawaii, for Arthur E. Background Factual Procedural T. defendant-appellant Richard Cabac-

cang. 1990s, early Roy Cabaccang In be- out of his gan selling methamphetamine Honolulu, Hawaii, Courageous, Sarah California, Beach, cus- Long house defendant-appellant Roy for the Toves Ca- younger introduced to him his tomers baccang. The Cabac- Richard and James. brothers Felton, Kathleen A. Assistant eventually operation their cangs expanded D.C., Attorney, Washington, for the meth- large-scale shipments to include plaintiff-appellee. for local distribu- amphetamine Guam Guam, transport tion. To fly Roy people various recruited packages Angeles Los Guam methamphetamine Cabaecangs appealed concealed under their their convic- helped court, clothing. tape Richard couriers claiming tions to this that the trans- methamphetamine packages to their port from California to Guam Cabaecangs pack- also sent bodies. The importation merely does not constitute be- ages methamphetamine from California through cause the traveled interna- through to Guam the United mail. States Relying tional en route to Guam.3 Roy’s After associates sold the metham- on our in v. Sugiyama, decisions Guam Guam, phetamine they in sent pro- (9th Cir.1988) curiam), (per 846 F.2d 570 ceeds back to California via courier and Perez, and United v. 776 797 States F.2d Cabaccang wire transfer. Each of the (9th Cir.1985), a three-judge panel af- profits brothers received wire transfers of firmed the convictions in an unpublished from drug sales. disposition, stating clearly that “we have transporting drugs declared that a one long investigation,

After the Cabac- in cangs point in to another were indicted 1997 on numerous charges relating to their involvement over international waters con- methamphetamine ring. jury A con- importation.”4 stitutes United States v. conspiracy 566, victed all three brothers of 568, to Cabaccang, Appx. 16 Fed. 2001 import methamphetamine, (9th Cir.2001) violation of 760553 (“Cabaccang WL 963; §§ 21 I”). 960 and conspir- U.S.C. granted rehearing We en banc acy methamphetamine, to distribute in vio- importation reexamine statute and de- 841(a)(1) 846; §§ lation 21 U.S.C. and termine whether it prohibit does the trans- and conspiracy monetary to launder in- port drugs through international air- struments, of 18 violation U.S.C. space nonstop flight on a one § 1956.1 The district court sentenced all within the United States to another. three brothers to concurrent terms of life prison on at importation least one of the Standard of Review counts and at least one of the non-importa- (with

tion counts concurrent shorter terms interpretation The construction or counts).2 on other question of a statute is a of law that we counts, counsel, Roy 1. Richard and were also convicted of ineffective assistance of erro- importation methamphetamine, Roy jury neous instructions and erroneous denial conducting continuing was convicted of a Roy's suppress motion to evidence. The enterprise, possession criminal of metham- brothers also claimed that their sentences vio- distribute, phetamine attempted with intent to Apprendi lated the rule announced in v. New importation methamphetamine posses- 466, 2348, Jersey, 530 U.S. 120 S.Ct. receipt by sion and of a firearm a convicted (2000), L.Ed.2d drug quantity because felon. charged was not in the indictment or submit- jury. ted to the Roy received concurrent life sentences on drug all of the counts. James received panel rejected Cabaecangs’ 4.The also oth concurrent life sentences on the counts of convictions, challenges er to their conspiracy import see United conspiracy to dis- Cabaccang, Appx. States v. 16 Fed. tribute. Richard received concurrent 568- life (9th Cir.2001), conspiracy sentences on the counts of 2001 WL 760553 and it import, conspiracy to distribute and con- Cabaecangs’ Apprendi-based denied the chal spiracy money. to launder lenges subsequent to their sentences in a disposition. memorandum See United States Cabaecangs 3. The asserted numerous other Cabaccang, Appx. 36 Fed. 2002 WL convictions, grounds for reversal of their in- (9th Cir.2002) ”). ("Cabaccang II evidence, cluding insufficient constructive indictment, multiplicitous amendment of the cangs bring drugs not into the v. Carran did United States customs de novo. review (9th territory of the United States.5 Cir.), za, cert. de — -, nied, 123 S.Ct. U.S. they Cabaccangs argue (2002). L.Ed.2d 458 guilty importation because did not

bring drugs into the United States from “place They outside thereof.” contend Discussion drugs through that the transit of interna- tional en route from one location I. (California) in the to another United States statute interpret “We federal (Guam) support charge is insufficient to ascertaining the intent of govern- under 952.6 The legislative to its will.” Bedroc giving effect airspace that international ment counters States, 1080, 314 F.3d 1083 Ltd. v. United “place itself a outsidе” the United States is (9th Cir.2002) (internal quotation marks meaning within the of the statute. Point- omitted). starting point inqui of this § “import” 951’s definition of as language of the statute itself. ry is the in,” “any bringing government argues Hackett, 989, States United entry that the of contraband into the Unit- 952(a) (9th Cir.2002). states that Section airspace ed from international is all States import into the unlawful[l] shall be That requires. “[i]t that the statute a territory carrying departed of the United States the contraband customs (but irrelevant, govern- domestic location is any place outside thereof within States), or ^[2] import into ment maintains, because § 952(a) uncon- origin a of shipment cerned with the of any place outside the United States from drugs that enters the United States from controlled substance.” thereof, any airspace. added). (emphasis § Section U.S.C. the relevant defini which furnishes ar- problem government’s with the 952, § used in defines

tions for the terms § gument despite is that 951’s broad defi- broadly “any bringing in or “import” as in,” importation “any bringing as nition any into area introduction of such article 952(a) specifies that section itself (whether in or intro bringing or not such place outside” bringing any be “from added.) importation within duction constitutes (Emphasis the United States. tariff laws of the Unit meaning an element of requirement This was not States).” 951(a)(1). 952(a)’s statute, § is the predecessor ed Id. U.S.C. 174, provided penalties at issue criminal second clause of which “fraudulently knowingly import[ing] here, for or undisputed it is that the Cabac- as 27, Guam, (Dec. 1988) (ex- brought drugs Fed.Reg. 777 Cabaccangs into 5. The territory part tending which is not of the customs sea of the United States the territorial Tariff the United States. See Harmonized the baselines of the to 12 nautical miles from (“HTSUS”), Schedule of United States, defining the territorial sea United (defining General Note 19 U.S.C. a "maritime zone of the United States as States as the customs of the United extending beyond territory and the land inter- "the the District of Columbia and United States over which nal waters of the Rico”), http://dataw- available at Puerto sovereignty juris- States exercises eb.usitc.gov/SCRIPTS/ tarifl/toc.html. diction, sovereignty jurisdiction that ex- sea, territorial tend to the over the currently 6. The of the United States (emphasis its bed and subsoil.” well as to airspace overlying the waters includes that added)). 12 nautical miles of the land borders within No. the United States. See Proclamation omitted). bringing] any drug Turning or narcotic into the marks and citation any territory under its “place,” acknowledge United States the word that it jurisdiction, contrary to control or law.” which, many meanings, can have some of added.)7 In (Emphasis Congress isolation, might when viewed seem to inserting § 174 with replaced apply airspace. to international The criti- phrase any place “from outside thereof’ however, cal question, is what the term “into the after words United States” reasonably can be understood to encom- If, explanation.8 govern- without as the used, isolation, pass as it is not in but urges, Congress ment was concerned phrase any place “from [the outside drugs, with the destination of the it would States],” larger context original have been sufficient retain the §of which is concerned with the im- statute, simply language portation into the United States. prohibiting import “into the ordinary term, In the sense of the United States” without reference to the airspace, do not come from international phrase origin. The addition although certainly can move outside the place United States” “from Unlike, space. example, foreign government’s undercuts contention unquestionably nation —which is “place origin intended the of a outside” the United States —international drug shipment finding to be irrelevant to a airspace point origin is neither a of a nor 952(a). § importation of under See Web- drug shipment; destination of a it is mere Dictionary ster’s Third New International ly something through (1981) which aircraft (defining 913 “from” as “used as a pass way must on its from one location to starting point: function word to indicate a (1) another. do not passengers We treat place as a or where an actual who through ... travel international physical beginning movement has its on a ...”); Heritage Dictionary nonstop flight The American between two U.S. locations (3rd ed.1996) English Language (i.e., the 729 having crossed our borders as hav of (defining “from” as to indicate a “[u]sed entered place the United States from a specified a place starting point: or time as thereof), thereby subject outside ”). walked home from the station ... immigration inspections or border flight searches —as would be if the then, question, The is whether originated had in a foreign country. that pass through international on Cf. Garcia, United States v. 672 F.2d a nonstop flight en route from one U.S. (11th Cir.1982) (doubting 1357-58 va the another, location to without touching down lidity of a airplane border search of an water, on either land or “from” traveled international airspace en “place outside” the United States for the route 952(a). points origin between known of § purposes Congress of When has States, definitions, destination within the United not be provided special we must justification cause “there is no more construe words in a statute “according to searching ordinary, passengers their the aircraft or contemporary, common who Hackett, meaning[s].” make such flights 311 F.3d at 992 than there would be for (alteration (internal in original) quotation searching flights those whose domestic do origins importation Section 174 traced its to 35 Stat. "any tion to the of narcotic (1909), (1922). drag.” § prohibited importation 21 U.S.C. which the opium of United States. into the The statute legislative history 8. The why is silent as to prohibi- was amended in 1922 to extend the change. made this every interpret provision effort not to take them over the ocean happen provisions a manner that renders other of Moreover, were to ask way”). inconsistent, meaningless the same statute facts of case with the this anyone familiar superfluous.” Boise Corp. Cascade Cabaccangs brought place from what EPA, (9th Cir.1991). Guam, surely would drugs into the answer interpretation the government’s Under of air “international be “California”—not statute, however, any pro- conduct v. Ramirez- space.” See United States first scribed clause also (1st Cir.1996) Ferrer, 1131, 1137 have been covered statute’s (en banc) reasoning (using the same second clause broader when was “place,” as it is concluding that the term 1970, rendering enacted in the first clause in-tran §in does not include used superfluous. of the statute waters). sit 952(a) prohibits first clause rejects analysis The dissent “into cus- statutory language, plain meaning of the territory toms United States from in transit all arguing that an item is from (but any place outside thereof within the en places through passes which States).” 952(a). U.S.C. point to its destina- starting route from its customs of the United States that, recognize like the word tion. We District consists “the of Co- can differ- “place,” the word “from” lumbia Puerto Rico.” See HTSUS meanings, depending on context ent Note 2. At the time of en- General 952’s however, clear, inquiry. think it is We actment, sea when territorial has brought who defendant three States extended miles lands in the Unit- non-stop on a coast,10 all of the U.S. terri- out reasonably most said to ed States can be outside the tories were customs terri- the of the brought have from Islands, tory, e.g., Virgin the U.S. Guam flight’s airspace not departure the —and Samoa, contiguous not and American were the through plane which the traveled on territory. It therefore with customs way.9 bring impossible would have been we conclude that a common- Although territory from noncustoms into reading plain language of sense passing the customs without here, (or application statute forecloses its airspace wa- ters).11 reading that our persuaded government’s reading also Under the statute, however, structure. entry consistent the statute’s of of whole, interpret statutes a into from inter- “[W]e must as the United States making already giving airspace to each word and national been effect traveling to a posits persоn ed States adhered territo- "[a] [until ‍‌​​‌​​​‌​​​‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌​‌​‌‌​​​‌​‌​‌​‌​​​​‍1988] 9. The dissent has ”). from A to Place B to Place C arrives at Place rial sea 3 nautical miles.... (Italics added.) C both A and B." reading We a to be find such strained notes, entirely is not 11.As dissent this implausible nonstop flight. in the context of today: given the 12-mile limit of case current case, example, flights at issue in this sea, possible it is to travel from territorial A") ("Place Angeles undeniably flew from Los (noncustoms territory) St. Puerto Thomas ("Place C"), to Guam but not “to” interna- leaving Rico United States without B,” ("Place dissent). per tional waters, Culebra, tiny island of Puer- as (but Rico not the main island Puerto Argentine Republic See Hess Amerada Rico) is 24 miles St. Thomas. within Corp., Shipping 488 U.S. 441 n. (1989) ("The Unit- S.Ct. 102 L.Ed.2d 818 by the second clause of the has instructed that in the prohibited absence of Therefore, any importation pro statement, statute. clear we should not assume that first clause also would have scribed Congress intended to include the waters clause, by the second proscribed been beyond defining the territorial sea when superfluous. the first clause rendering Argentine Repub- the United States. See cannot conclude that intend We lic, In 488 U.S. at 109 S.Ct. 683. opening ed the clause of the statute to Argentine Republic, respondents ar- independent force. Am. have no See gued that Foreign Sovereign under the Vantage Cos. v. Table Mountain Ranche Immunities Act—which defined the “Unit- (9th Cir.2002) ria, waters, “territory ed all States” as (“It principle of stat is well-established insular, subject jur- continental and to the utory legislative enact construction isdiction of the United States” —the term to render ments should be construed subject jurisdiction “waters ... (inter surplusage.” their provisions mere seas, high the United States” included omitted)). quotation nal marks admiralty jurisdiction which are within the In attempt interpretation to save its (citing of the United States.13 Id. superfluousness at the 1603(c)). The Supreme U.S.C. Court re- enactment, the dissent time the statute’s jected attempt to broaden the stat- Congress did not argues that intend the ute’s definition of the United hold- three-mile limit of the territorial sea to be ing that boundary. According the relevant to the 1603(c) the term “waters” in cannot dissent, Congress defined the when “Unit- reasonably be read to cover all waters purposes ed for the of 952 “all States” over which the United States courts waters, insular, places continental or jurisdiction. might exercise When it de- subject jurisdiction to the of the United so, Congress sires to do knows how to States,” 802(28), incorpo- see U.S.C. place high jurisdic- seas within the 951(b), §by rated it could have meant tional apply reach of a statute. thusWe subject jurisdiction “waters ... “[t]he canon of construction which teach- to refer to the limited States” es that legislation Congress, unless jurisdiction 12-mile customs interdiction contrary appears, ap- intent is meant to 1581(a)- 1401(j), §§ codified at 19 U.S.C. ply only jurisdic- within the territorial (b), rather than the three-mile limit of tion of the United States.” plenary jurisdiction sovereign within the territorial sea.12 added) (footnote omitted) (emphasis Id. Filardo, (quoting Foley v. Bros. 336 U.S. however, enough, Congress

It is not that 281, 285, (1949)). 575, 69 S.Ct. 93 L.Ed. 680 “reasonably could have believed” that Because there was no of congres- evidence 952 12 invoked this mile limited interdic- sional intent to include the jurisdiction, high tion seas with- rather than the three-mile States, in sovereign jurisdiction. the definition of the Our role is to de- United intent, Congress’ termine actual not its Court held that the incident at issue did possible intent, Supreme States, and the Court not occur within the United be- jurisdiction high 12. This limited customs is also 13. seas are those waters that are "contiguous sea, referred to as the zone.” See seaward of the territorial in- Rubies, 397, United States v. 612 F.2d 403 n. 2 Rubies, contiguous clude the zone. 612 F.2d (9th Cir.1979); see also Convention on the at 403 n. 2. Zone, Contiguous Territorial Sea and the art. 24, (1964). 15 U.S.T. 1606

629 must, limit to Congress “outside the 3 mile as we attribute to it occurred cause waters of redundancy. in effect for the territorial intent to create such a then 441, Id. at 109 S.Ct. the United States.” Moreover, if accept even we were to 683. Congress dissent’s contention that intend in congressional intent to Evidence of limit, to the 12 ed invoke mile and thus jurisdiction of the corporate the limited 1970, possible that it would have been in zone, plenary rather than the contiguous (and today, it is to violate 1 clause sea, sovereign jurisdiction of the territorial 2) by transporting drugs clause from St. The dissent similarly lacking here. Rico, Thomas to Puerto we still would be nothing statutory language in the points pressed hard a plausible legislative find history of 952 to indi legislative or the purpose govern for clause Under the to include the cate that intended interpretation ment’s of the second clause in of the contiguous zone its definition only conduct that clause 1 Instead, it relies on the United States. prohibit prohibit that would not be of three circuits that have as decisions 2, ed clause even under the broader incorporated the 12 mile sumed that limit, drug mile is the from the trade contiguous limit of the zone. See United Virgin Islands to Puerto Rico. This lone (1st Nueva, 979 F.2d States v. contiguity between the customs Cir.1992); Goggin, v. United States territory territory and the noncustoms ex (11th Cir.1988); only by tiny ists virtue of the location of (11th Lueck, v. 678 F.2d States that islands are so obscure even the Seni, Cir.1982); United States very Appeals First Circuit —the Court of (4th Cir.1981). But none of these jurisdiction that has over Puerto Rico—is interpre addressed whether that decisions seemingly unaware of them. Ra See Congress’ construed intent properly tation mirez-Ferrer, (stating 82 F.3d at 1138 from the to invoke a definition different ‘place’ just “there is no outside three-mile territorial limit effect when jurisdictional limits of the customs territo was enacted. In the absence of statute ry of the United that is also within Congress actually in some indication just Any place the United States. that is contiguous zone tended include ... outside the customs is inter definition of the within its waters”). too, apparently, national So follow purposes the Su thought has not government, which Ar preme interpretive mandate in Court’s Thomas aberration invoke Culebra St. gentine Republic and conclude instead of the stat support of its construction operative boundary Congress intended That the has not ute. still of the United States to be the three-mile managed appreciate geo the relevant limit that defined the U.S. territorial sea graphic nuances serves to underscore 1970, until it was extended 1988. Under improbability Congress that was aware limit, impossible this it would have been to them, them, of let alone motivated territory from the noncustoms of travel have the dissent would us believe. territory the United States to the customs recognizing the unlikelihood of Perhaps passing through without international air 952(a) scenario, an the dissent offers alter- § 1 of thus would space. Clause for of if, explanation native the inclusion superfluous govern have been as the contends, Congress 1: was that ment 2 clause aware prohibited clause territory of the customs transport drugs through international boundaries decline, territory might change flight. on a domestic We the noncustoms time, it fair to that generic suppose Congress it “drafted a statute er is [if] over so contingencies.” that cover future possibility considered the unnamed however, speculate, to unwilling areWe say meant to no to it.” Barnhart v. Pea- statutory provi- included a Congress that Co., 149, -, body Coal 537 U.S. inoperative nearly so at sion that was (2003). 748, 760, 154 L.Ed.2d 653 S.Ct. just in case the time of its enactment Congress single only That chose to out day one be a need for it.14 might there transport drugs from the noncustoms recognize Congress may that Although we territory territory to the customs rather future, eye towards the legislate with transport than the between the two territo- in- unsupported make the we hesitate to strong Congress ries is indication Congress intended clause to ference 952(a) “impor- did not intend to address little, any, application if current “outbound”) (i.e., in opposite tation” enactment, only specu- the time of its justified direction. in infer- We thus as would be the application, lative future ring that “items not mentioned were еx- 952(a) pro- if second clause of case choice, cluded deliberate not inadver- transport drugs hibited the domestic Barnhart, tence.” 537 U.S. 123 S.Ct. Instead, through airspace. international at 760. likely we consider it far more that Con- suggest It is no answer to that Congress gress elected to use the first clause of unnecessary considered it to address the specifically target to the trans- drug territory trade from the to customs port drugs from the noncustoms terri- territory (e.g., the noncustoms California tory territory precisely into the customs Guam) to because it intended 2 to clause transport that such because it believed through concept cover such conduct proscribed by the statute’s second was not “coming airspace. from” international Un- clause. theory, again der once clause would Indeed, spe- use of the more Congress’ be redundant because clause 2 would have cific, language presents limited of clause 1 very sufficed to reach the conduct clause 1 yet government’s another hurdle for the carefully was drafted to If it proscribe. 952(a): interpretation prohib- clause necessary drug shipment for a to travel transport its through international airspace get territory noncustoms to the customs terri- a customs to a noncustoms terri- tory drug does not address trade —it tory, necessary then it is also for that the reverse direction. Thus 1970 when shipment to travel Congress crafted made delib- direction, go the reverse erate choice not make first clause apply trips. clause would to both More- reciprocal-banning importation of over, indulge even if we the dissent’s as- from, example, Guam to Califor- sumption legislating was (That nia but not from California to Guam. drug shipments cover between St. Thomas one-way ban remains true whether Rico, miles.) any interpretation and Puerto under territorial limit is three or Un- transport of the statute the interpretive expressio der the maxim of alterius, punishа- Puerto Rico to Thomas unius est exclusio we “read the St. importation. enumeration of one case to exclude anoth- ble as This reinforces our course, date, yet catalogues bringing up 14. Of such a need has not materi- us there Despite post changes only contiguity alized. in the still one remains of be- territory composition of our and noncustoms tween the customs and the noncus- territory: the limits of our territorial sea that the dissent toms Puerto Rico and St. Thomas. 952(a). § drafting structuring that in For example, conclusion dozens of com- (to 952(a), Congress extending flights say was not its mercial nothing of noncom- concept importation of into the United flights) daily mercial travel up and down drug shipments from customs States to the California coast between San Francis- to noncustoms territories. territories Angeles, co and Los and between Los Angeles Diego. config- San Given the Finally, reject government’s in coastline, any uration of the one of these 952(a) terpretation of because it would flights may through travel international sweep within the ambit of the statute a coast, airspace off the perhaps entering range wide of conduct that cannot reason reentering United States sev- ably as importation. be characterized eral nothing times. Yet on the face of possible, interpret Whenever “we statutes suggests even in- absurd An preclude so as results.” transport tended the of drugs on one of (9th Ashcroft, v. dreiu flights these minute intrastate to consti- (en Cir.2001) banc) (citing United States tute importation meaning within the Wilson, 329, 334, S.Ct. U.S. statute.15 (1992)). gov 117 L.Ed.2d 593 Under the 952(a), §of reading

ernment’s broad Moreover, we are unable to conceive of transport flight on a legislative purpose pun- articulable city punishable U.S. to another would be ishing transport of drugs on a domestic importation long flight passed as so as the flight passes through international airspace, no matter airspace more-severely than the identical A briefly. quick glance map how at a a flight еntirely conduct on travels num large the United States reveals the airspace. within United States Consider implicated by ber of routes that would be following example: govern- Under reading of the statute. In addition to interpretation ment’s a passen- example flights the obvious between the ger bag marijuana who carries a on a Hawaii, contiguous states Alaska flight Anchorage from Portland to has planes routinely fly through international importation, committed the crime of while when travel from Miami to drug-carrying departs who traveler Baltimore, Tampa to Houston and New airport the same terminal at the Portland Detroit, only York to to list a few exam (or guilty only possession per- of mere ples. The transport drugs on these distribute) haps possession with intent to if indisputably flights domestic cari be his lands Phoenix rather than characterized as domestic conduct—for what, Anchorage. exactly, But is the addi- steep penalties already which rather tional evil committed the Alaska-bound importation. than available—rather government traveler? The not tell does us, may imagine, Here the Ninth Circuit we en- and we cannot why Congress counter even more under penalize absurd results would have wanted to the first government’s interpretation heavily.16 inability traveler more Our refrained, notes, recognize, 15. That the has so far 16. We as the dissent aware, charging transport as we are hypothetical both of our travelers have en- flights on one of these gaged in conduct that is "otherwise inno- not analysis. does affect our Unlike the dis- may "incredibly cent” and that well be stu- sent, unwilling rely prosecutorial we are However, pid.” neither of these observations indisputably discretion for assurance that do- question is relevant of whether charged conduct mestic will not be under 952(a). conduct violated § 952. differentiating government’s be- from the construction of the for identify purpose of domestic trans- these two cases statute. Id. at 1137-38.18 The court аlso tween 952(a) § conclude that was port leads us to application was influenced the historical to draw such distinctions. 952(a) not intended statute, § noting of the had not Indeed, exception of the specific the with all in manner been used at the advocated by the first clause of proscribed conduct at government. Id. 1143. statute, not intended to reach it was interpreted court inaction as a “tacit this at all. conduct domestic recognition that such acts domestic [of reasonably transport be cannot] II. 952(a).” ‘importation’ considered within interpretation for our support findWe at 1141. Id. 952(a) in the First Circuit’s decision Finally, the First Circuit considered Ramirez-Ferrer, Ap- Court government’s in- implications future analyze the statute’s text peals opinion to terpretation of the statute. The court rea- respect question at history soned, govern- example,.that for under the States Ramirez- issue here. United statute, (1st Cir.1996) reading ment’s of the a sailboat Ferrer, (en banc). tacking sepa- commit a up the coast would in Ramirez- The defendants importation every rate act of time it en- importation un- Ferrer were convicted cocaine from tered international and then reen- transporting der waters Island, Rico to the main is- territory. Mona Puerto tered domestic Id. at 1142. In a decision whose land of Puerto Rico.17 The court further observed that under a reasoning to our own is similar logical government’s extension read- case, the convic- the First Circuit reversed statute, of the the act of tions, “transport from one holding territory entering in- leaving domestic to another does part of the United States ternational con- waters would have to be importation simply rise to the level illegal exportation sidered an under by involving through international travel 952(a)’s statute, companion 21 U.S.C. waters.” Id. 1136. though “even there was no inten- visiting foreign territory tion or act of text, statutory Looking first to the off-loading exported contraband onto a First reached the same conclusions Circuit vessel in international waters.” Id. Find- plain meaning regarding as we do unreasonable, ing these scenarios the First phrase any place “from [outside States],” emphatically rejected govern- Circuit including redundancy the two clauses that would result ment’s effort to transform the domestic between States).” jurisdictional Island is located 39 miles off the of the United Id. Mona limit of Puerto Rico. coast of the main island See at 1138. The court reasoned that such a id. at 1132-33. reading impossible would make the statute 'place' just violate no because "there is out- rejected government’s 18. The court also jurisdictional side of the limits of the customs reading because it concluded that it would territory of the United that is also impossible to violate. The make clause Any place within the United States. that is explained govern- First Circuit that under the just outside the customs ... is inter- statute, reading phrase 'any "the ment’s earlier, national waters.” Id. As we noted essentially place outside thereof means the apparently unaware of the First Circuit was drugs were at which the located imme- Culebra, proximity of Puerto Rico to the U.S. diately passing into the United before Virgin Islands. (i.e., space just the international outside the transport drugs importation of into under United on way their into the coun- 952(a).19 § Id. at 1143. try, simply stated that “[h]ad their cargo in, of originated contraband say, In an effort to discredit the Ramirez Texas, that would not alter the fact that it opinion, government treats it as an was meant to re-enter the United States great weight outlier conflicts with the from international waters. That 952(a). § authority on the reach of As enough.”20 Id. In stark contrast to this however, recognized, the First Circuit case, however, there was no evidence government on which cases now relies the boat on which Peabody defendants inapposite, directly do not ad- were arrested was heading into the United the factual presеnted dress scenario here: another domestic location. government’s a case where the own evi- The court’s hypotheti- statement about the dence shows that the at issue were origin cal cargo is therefore dictum transported from one within the Moreover, at best. the court did not even United States another. Nor do these 952(a), § cite analyze let alone it. As the carefully analyze language decisions remarked, aptly First Circuit “Peabody § implications 952 or the of their broad progeny and its flimsy constitute prece- reading of the statute. dent upon hang which to hat.” one’s Ra- our directs attention to mirez-Ferrer, 82 at 1140. Peabody, United States v. 626 F.2d (5th Cir.1980), in which the Fifth The government also cites United States (5th importation Circuit affirmed the v. Phillips, convic- 664 F.2d Cir. 1981), tions of defendants who were apprehended which the Fifth Circuit held that with narcotics 35 miles off the of proof importation place coast from a outside Florida. With no reference to the lan- may United States be established evidence, guage rejected the court including circumstantial “evi defendants’ claim of insufficient evidence marijuana dence that a boat from which import. of intent to court noted that was unloaded went outside United States the defendants were arrested outside the territorial or waters met with other government's interpreta- The error in the Even the dissent in conceded Ramirez-Ferrer 952(a) apparent tion of is even more in this carrying that "[i]t is far from clear whether case, transport which deals with the domestic nonstop aboard scheduled airline drugs through rather flight points between two U.S. could ever be Contrary than international waters. treated as under the [statute’s assertion, dissent's the distinction between air clause; certainly second] a defendant would transport hardly and water arbi- argue practical purposes, drugs that for all trary. possible ship pick up It is for a flight country.” such are never outside the foreign pаssengers cargo passing while J., (Boudin, dissenting). 82 F.3d at 1146 waters, through international whereas the nonstop flight same cannot be said of a be- Cadena, 20. But United States v. cf. tween two domestic locations. When a non- (5th Cir.1978) ("Because importa destination, stop domestic lands its necessarily originates tion in an act in a for any drugs know for certain that on board eign country, apparent it is plane departed were there when the ap intended that 21 U.S.C. 952 and acquired foreign could not have been from a ply persons who commit acts or series of Garcia, aircraft. (noting 672 F.2d at 1358 Cf. that at acts least commenced outside the terri that, ships unlike that travel in international States.”), waters, torial limits of the United overruled "planes pass through internation- grounds by on other United States v. Michele present any possibility al do not na-Orovio, (5th Cir.1983). foreign 719 F.2d 738 presented by contacts other than that stopping foreign country”). their actual in a simi a ‘mother under factual circumstances example, that had—for vessel ” here are our deci Peabody, presented how- lar to those the case ship.’ As was Perez, drugs Sugi that the in 776 F.2d at ever, no evidence sions there was in the United States. at As an en originated yama, in 846 F.2d banc question that drugs involved Phillips by panel of The facts court we are not bound these into the United States brought were factual ‍‌​​‌​​​‌​​​‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌​‌​‌‌​​​‌​‌​‌​‌​​​​‍Upon analysis, given the opinions. motherships off the coast here, Colombia from longer circumstances we no consider Phillips therefore Id. at 987. of Florida. correctly the stat them to have construed for the conten- provide support does not ute. 952(a) the domestic prohibits §

tion that Perez, In the defendant was convicted through international drugs transport of 952(a) § on a importing under of airspace. Rota, in that an island the boat sailed cases cited the The Eleventh Circuit of the Northern Mariana Commonwealth similarly inapt. In United government (a territory), Islands United States (11th Lueck, 895, 904-05 678 F.2d States v. convictiоns, affirmed the hold- Guam. We on dictum Cir.1982), court relied the the government that all that the must “[a]ny point Peabody holding in that finding under show for of airspace limit of twelve mile outside[the] 952(a) § entered the is that place ‘a outside the constitutes waters United States from international waters im- purposes proving for United States’ Perez, (citing at airspace. 776 F.2d 952(a).... The fact of under portation 895). Lueck, reaching In boundary of the United States crossing the conclusion, opinion analyze did not im- suffices to establish with contraband interpre- implications statute or the its reiterat- portation.” The Eleventh Circuit Instead, holding its on tation. rested Goggin, States v. ed this Lueck, Peabody the dicta in which (11th Cir.1988), holding that 853 F.2d 843 statutory themselves failed to address the may prove that a defen- “[t]he Id. language. into the United imported dant cocaine Sugiyama nothing likewise adds to our any place ‘from outside thereof understanding scope brought defendant co- showing that solely affirming on Perez it relied country from international caine into the 952(a) conviction of a defendant under in excess of twelve airspace waters or from importing drugs flight on a from the outward from the geographical miles (which part of Palau at the time was island Lueck, (citing coastline.” Id. Territory Trust of the United States 905). Goggin, In Lueck and F.2d at both Islands) Sugiyama, Pacific to Guam. however, suggested the evidence Sugiyama F.2d at 572. Neither nor Perez originated in the flights question had today spoke to the concerns we confront in the United States. Bahamas —not regarding plain meaning of the statuto- Lueck, 896-97; Goggin, F.2d at statutory or the ry language, structure transport F.2d at 844. The domestic 952(a) implications finding of a not demonstrated ei- narcotics was reaches domestic conduct. To the extent ther case. Sugiyama and Perez address the drugs through international fact, adopt transport In cases to nonstop flight, domestic government’s proposed interpretation of statute, are overruled.21 about thе reach of the it is evident government’s position is far from III. unambiguously correct. Accordingly, we analysis Our leaves little doubt that transport hold that the the second clause of does not nonstop on a proscribe transport of drugs on a non from one United States location to another flight from stop one domestic location to does not constitute importation within the another, but to the extent that doubt 952(a).22 meaning §of remains, scope of the statute is suffi ciently ambiguous to invoke the rule of IV. lenity. “In these circumstances-—-where We are not persuaded by warnings text, structure, history fail to establish government and the dissent that our position that the Government’s is unam today decision cripple govern- will ... biguously correct —we resolve the am ment’s any more than did the efforts — defendantj’s in biguity [the favor.” United First Circuit’s 1996 decision Ramirez- Granderson, 39, 54, 511 U.S. fight Ferrer —to ongoing war on drugs. 1259, 127 (1994) S.Ct. L.Ed.2d 611 (empha holding Our addresses those cases added). sis See also United States v. undisputed which the evidence .shows that

Bass, 336, 347, 404 U.S. 92 S.Ct. the nonstop flight on which the defendant (1971) (“[W]hen L.Ed.2d 488 choice has to transported drugs departed and landed in made readings be between two of what the United States. interpretation Our crime, conduct Congress has made a it is 952(a) § thus preclude does not gov- appropriate, before we choose the harsher proving ernment from importation when a alternative, require that Congress drug-laden plane of origin unknown is dis- spoken should have in language that covered international definite.”) (internal air-space before it clear and quotation territory. has crossed into In omitted); Materne, U.S. such a marks People v. (9th situation, Cir.1995) (“[T]he government has found the rule of plane lenity outside the applies where a criminal United States and there- statute is vague enough to deem fore has circumstantial both the defen evidence that the government’s originated dant’s and the aircraft interpreta place outside the reasonablе.”). tions of it as In light of the United States. need today We not decide statutory language and structure and the whether such evidence alone would be suf- disagreement among the circuit courts ficient to support conviction under holding 21. Because we confine our criminality have notice of the of their actions. transport on an aircraft that travels principle The rule is also founded that nonstop through en penal "because of the seriousness of criminal locations, route between two United States ties, punishment usually and because criminal express opinion continuing no vitality on the represents the moral condemnation of the respect to the maritime trans- Perez community, legislatures and not courts should port in international waters. That is Bass, activity.” define criminal 404 U.S. at day. an issue for another 92 S.Ct. 515. If there is doubt about prohibit whether intended 952 to 22. The lenity dissent contends that the rule of Cabaccangs the conduct in which the en inapplicable Cabaccangs here because the gaged, interpreta then "we must choose the were on notice from our decisions in Perez impose penalties likely tion least Sugiyama unintend that their conduct was unlaw- However, by Congress.” purpose ful. ed United States v. the rule of Arzate- Nunez, lenity merely (9th 1994). is not to ensure that defendants 18 F.3d Cir. because the here does not dis- another through international airspace. pute the defendants’ contention that the As the acknowledges, dissent itself “[p]os- departed flights question from the Unit- illegal session of already narcotics is ed States.23 offense,” serious and any conduct chargeable have been importa- holding Our also leaves undis tion government’s under the reading of turbed our well-settled case law establish may charged be under U.S.C. person occurs when a possession 841 as with intent to distrib- reenters the States from a foreign ute.24 Section 841 steep carries mandato- country carrying drugs that were in her ry penalties minimum closely track possession she when left 952(a).25 those available for violations of See, e.g., States. United States v. Fried Indeed, very case amply demonstrates man, (9th Cir.1974) 1352, 1353-54 that our decision will deplete gov- (affirming the conviction of a defendant ernment’s antidrug arsenal: Notwith- who reentered the United States from standing our reversal of their importation- carrying drugs Mexico were with him convictions, related each of Cabaccang States). when he left the United A defen brothers will still serve a life sentence for dant who Diego drives San to Mexico his methamphetamine involvement package with a of cocaine in her trunk and ring. Today’s nothing decision does more Diego to in possession returns San still of prevent government than from charg- package has committed an act of im importation as only conduct that can portation, though drugs even them be characterized originated country, selves in this as the domestic transport because drugs. of brought defendant thereafter them back into the United States from Mexico— sum, In analysis our statutory “place from a outside thereof’ within the text and structure leads us to conclude 952(a). § meaning commonsense the second clause of 21 U.S.C. Moreover, 952(a) we are not leaving proscribe does not was not —and government without recourse to punish proscribe intended to transport of —the the Cabaccangs and others who bring drugs on a nonstop flight between two drugs from one United States location to locations within the United A States. de- holding 23.Our decision therefore is not inconsistent is limited to cases in which the evi- reasoning' with the result—if not the beyond dispute dence shows that the —reached Peabody Phillips. the Fifth Circuit in question transported were nonstop flight on a cases, In those there was no evidence of do- locations, between two domestic it does not origin government’s mestic to contradict the conflict with applying § the cases circumstantial еvidence that the vessels found transport into the United States entering the United States from international from an mothership offshore or from an air- departed place or waters from a out- craft or vessel first discovered outside the supra side the United States. See Part II. Nor United States. is our decision at odds with the outcome in Goggin, jury 853 F.2d at in which the 24. Where support finding the facts do not rejected the testimony defendant's that his distribute, intent to drug such as where the flight departed from Atlanta in favor of the small, quantity at issue is too government's evidence that the took off may charge simple possession the conduct as Bahamas, Lueck, from the or with that in under 21 U.S.C. 844. origin which the evidence of domestic was the defendant's uncorroborated testimo- ny (listing penalties that he had taken off See 21 U.S.C. from the Florida Lueck, Keys. 952(a)). 678 F.2d at 897. Because our violations of for contrary support would contravene nal enterprise cisión the conviction. meaning pro- statute and plain questions These are more appropriately results. absurd and unreasonable duce considered district court. We Accordingly, we reverse the defendants’ remand I therefore Count to the district conspiracy import for meth- convictions Roy’s court for a determination of whether importation methamphet- amphetamine, light conviction on that count can stand in attempted importation of meth- amine holding. of our amphetamine. Conclusion V. transport on a Because Roy effect of our Ca- decision on nonstop flight California to Guam conducting conviction a con-

baccang’s for does not importation constitute within the I) (Count criminal is not enterprise tinuing meaning of U.S.C. we reverse incorporated impor- Count I so clear. all three defendants’ con- convictions for offenses, charges predicate tation spiracy import methamphetamine jury was instructed that to convict (Count III), Roy’s Richard and convictions it had to find that “the Defen- count methamphetamine committed one or more of the dant (Count V) Roy’s at- convictions for following trafficking federal narcotics of- tempted importation methamphetamine conspiracy to metham- fenses: distribute (Counts XI). IX, X and We remand to the conspiracy meth- phetamine; to distribute for a district court determination of wheth- or, import amphetamine; conspiracy Roy’s er conviction for a crimi- continuing or, methamphetamine; importation (Count I) enterprise light nal can in stand or, methamphetamine; possession on importation of our reversal the counts. methamphetamine with intent distrib- Cabaceangs’ challenges As to the to their or, ute; attempted importation metham- and sentences on convictions the counts phetamine.” jury The was instructed also importation-related, adopt that are not it must find that the offenses were panel the decisions as our own there- part of series of three or more offenses judgment affirm the fore of the district defendant, by committed counts. court as to those together defendant committed the offenses Finally, five or in persons. part, with more in AFFIRMED REVERSED jury instructed that of part, part. was all members in REMANDED jury unanimously must on which agree narcotics defendant three offenses the SCHROEDER, Judge, Chief per- committed on which five or more concurring: committed the with together sons offenses agree I the result. All with three defen- jury’s verdict guilty defendant. dants were convicted under 21 U.S.C. I did not specify on Count which narcotics importation of sub- controlled jury’s offenses formed the basis of crime illicit transporting stances. The was finding. drugs from California to Guam. This was not for us to is determine whether the transportation the continental United jury in relied offenses territory States to a of the United States reaching whether, a verdict on Count I or authority. own customs has its if jury rely, did so sufficient there was continuing crimi- language provides: additional evidence of a the stаtute the statute firmly believe we could rewrite import into the unlawful It shall be it better. States to make United customs (but with- outside thereof any place precisely what And rewrite the statute States), import into or to in the United no conceiva- majority does.1 There is any place out- the United States simple of its words interpretation ble thereof, any controlled substance side are yield result where could one drug.... ... or narcotic States air and brought into the United 952(a). 21 U.S.C. in brought are a different one where illegal Instead, states that The first clause has taken by sea. territory of “except take from non-customs the words pencil blue and inserted territory of to customs brought on a non- when the did not The defendants flight originating States. stop exception, do this. If this is a sensible it’s States.” and no adopted, not one has taking of clause bars the The second the word “from” can massaging amount of territory into the foreign Unit- drugs from finely yield specific possibly such did not do this The defendants ed States. majority’s statutory re- result. The tuned Therefore, not vio- the statute was either. in conflict other puts visionism us lated. immensely complicate law circuits and will the dis- reflected both The concerns protect enforcement efforts to our borders majority opinion about cross- sent and the illegal drugs. It is the scourge from the not relevant to waters are triumph judicial will over innocent plain language interpretation way fight back. words that have no Nevertheless, I I it. the statute as read wholeheartedly the result do concur The Text majority. reached 1. Section. states: KOZINSKI, whom Judge, with Circuit import into the It shall be unlawful GRABER, O’SCANNLAIN, McKEOWN territory of the States customs United TALLMAN, join, Judges, Circuit (but with- any place from outside thereof dissenting: States), import in the or to into United apply to job judges is laws Our any place States from out- United gov- adopted by political branches thereof, any controlled side sub- Supreme Court has told ernment. As .... stance see, e.g., v. again, time and time HUD us 951(a)(1) 952(а). 21 And U.S.C. section Rucker, 125, 130-31, 122 535 U.S. S.Ct. adds: (2002); 1230, 152 L.Ed.2d 258 United means, respect Buyers’ “import” The term with Coop., v. Cannabis States Oakland article, 490-93, 1711, any bringing in or intro- 483, any S.Ct. U.S. (2001), any into area statutory duction of such article L.Ed.2d 722 where the (whether bringing in or in- or not such speaks text is clear and to the issue before it, importation constitutes an us, faithfully even if we troduction we must enforce represents Judge opinion throughout der’s concurrence and therefore Fisher’s 1. I refer to Although only binding of the court under "majority.” four other rationale as the 193, Marks v. United 430 U.S. judges join, opinion resolves the case on his (1977). Judge Schroe- S.Ct. 51 L.Ed.2d 260 grounds than Chief narrower “site.” meaning the tariff laws Webster’s New within International Dic- States). tionary English Language (William 1877, 1925, 2350 Allan Neilson et 951(a)(1). 21 U.S.C. ed.1939). eds., al. 2d None of defini- these imagine It’s difficult to what more Con- anything tions has to do whether the us gress keep could have said from “place” occupied firma, air is or terra astray. Congress merely did going not country’s within high a borders or over the “import” use the and leave term seas. Rather, it meaning. courts to flesh out its defining went the term as to the trouble is really arguing What is “any bringing in or introduction such air-space, international although a explicit- Id. It article into area.” even place, not place drugs is come ly that tariff-law foreclosed the notion defi- when they cross back into the United germane. “import” nitions of Id. if the States —even so-called “internation- Thus, majority’s “[w]e observation that al” is airspace sovereign above another passengers do treat travel who Canada, Maj. op. nation like at 631. The through international a non- on majority claims “it clear is ... that a stop flight between two U.S. locations as brought defendant who has on a subject ... to immigration inspections or non-stop lands in the United searches,” Maj. op. border utter- reasonably States can most be said ly irrelevant. Nor does it matter brought drugs ships only going out international wa- flight’s departure not the —and clear on return. ters do not customs their plane which the traveled Ramirez-Ferrer, See States way.” Maj. op. at thus reads (1st Cir.1996) (en 1136 n. 4 “from” in section to mean banc). Congress specifically rejected tra- from.” “originally nothing But in the stat- ditional notions of as bench- ute or compels suggests even that limita- only pertinent question mark. The tion. brought drugs

whether defendants into the origin, “From” can imply can but it also any place outside of,” mean simply “away “forth out out of thereof. to,” proximity merely contact with or or Cabaccangs conspired bring Webster’s, supra, “out of.” at 1012. One Guam, large quantity drugs into U.S. need look no further than Ramirez-Ferrer island roñes of surrounded ocean. It is to find the word so See 82 F.3d at used. impossible to get pass- there without first (discussing the sailboat that “tack[s] through international waters air- (em- out to waters” from space. Defendants’ criminal scheme thus added)). phasis airstrip a The where de- perfectly statutory fits within the defini- place fendant takes off is one he comes tion: co-conspirators brought drugs Their from, certainly only If I but one. (Guam) into the “any United States from ship antique rug an Balti- Persian from (international place air- outside thereof’ Angeles, more to Los it comes from Balti- Guam). space surrounding more, Indianapolis, but also from Amarillo majority

The seriously dispute many places along way; does not other California, airspace in when it it so “place” international is a enters from does And, course, English usage. Maj. op. normal 626. A Nevada it at or Arizona. all, “place,” only “region; originally after is a locali- from the East. A comes Middle “location,” ty; spot” “position” person traveling —a from Place A to Place B [or] 640 (9th 570, Sugiyama, A Guam 846 F.2d 572 at C both v. Place C arrives from Cir.1988) curiam); v. originally (per from A States B. He comes United

from (9th Perez, 797, Cir.1985); B immediately; place B is both the F.2d 801 from 776 Lueck, 895, on the from way v. 905 through passes which he United 678 F.2d States (11th C, Cir.1982); he immedi- Phillips, A which arrives v. United States (5th 1981), 971, ately at C. Cir. B 664 F.2d 1033 Unit by rule on superseded grounds other hypothetical ask a majority The would Huntress, stated States v. 956 in United place the Cabac- bystander “from what (5th 1309, Cir.1992); F.2d 1316 Maj. op. into Guam.” brought drugs cangs (4th Seni, States 286 v. F.2d it question That’s trick because at 627. a Cir.1981); Peabody, United States v. contention, point namely, assumes (5th Cir.1980). 1300, 1301 F.2d place unique single, there’s a drugs point departure came from. The If majority picked had a definition mind,2 pops first may place be the it, I still “from” and stuck with would of immedi- but that doesn’t mean disagree, disagreement at but our entry into States is not also ate actually least be about what the word came from. The correct place drugs a majority means. nothing does not, place “From what did question Instead, applies it crafts a sort. rule that come?,” “Did drugs drugs but these these only transport drugs to “the enter United States from nonstop through’inter- aircraft that travels any bystander would airspace?” And two national en route between question the affir- readily ‍‌​​‌​​​‌​​​‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌​‌​‌‌​​​‌​‌​‌​‌​​​​‍answer that Maj. op. locations.” at 635 mative. n. 21. thus “leaves undisturbed our that im- majority’s plain establishing claim that lan well-settled case law supports interpre portation person its occurs when reenters guage of the statute Maj. op. country plainly wrong. foreign at 627. United States tation plain meaning drugs possession that were in carrying A statute does not have her at just cherry-picked dictionary when left the United Id. because one she States.” Friedman, support That (citing definition it. United States v. happens (9th Cir.1974)). And, every F.2d eight apparently other 1353-54 decisions— Sugiyama the issue Ra one to have addressed save because it overrules Perez and contrary [they] reached the the extent that address mirez-Ferrer —have “[t]o internation- transport result the claim the statute undercuts nonstop flight,” al plainly majority says. means on a domestic what Nueva, prior at leaves id. it also intact our See United States (1st Cir.1992); transpor- law to all Gog respect United States v. maritime (11th Cir.1988); tation.3 gin, 853 Though is an depends on context. A discrim- in international waters. That buyer inating wants to know who where the day.” issue n. 21. But fоr another Id. expect might well to hear easily escape consequences cannot so grown; an where the weed was air traffic ruling. its Because the overrules wants to know whence the controller who Sugiyama only extent that "[t]o and Perez drugs approaching plane with the is would no [they] transport through drugs address the expect in air- doubt coordinates international nonstop on domestic a space. flight,” id. at those decisions remain respects. binding circuit law all other "express majority purports opin-

3. The no transport transport is an for another respect ion ... with to the maritime Maritime "issue majority fully persuaded by Canada, States plane So the isn’t but a on a from argument “orig- that “from” means its own nonstop passes through interna- 952(a). were, If it it inally from” section tional airspace or over a foreign country (because have to overrule Friedman enter only the United States from drugs person a who takes from the United place it took off? may many “From” have coming origi- to Mexico and back is States definitions, supple but none enough is States) as nally from the United well as change meanings depending on mode (because Sugiyama of Perez a the rest and transportation employed. taking person a boat majority’s The' insuperable problem is through international waters that the coming distinction it draws no an- originally back is also from the finds States). Rather, “from” now chor in the words of the statute it purports “originally applied from” means when to to interpret. says nothing statute plain but “from” planes, ordinary old boats, automobiles; about planes, trains or everything else. told: We’re “from,” it says entirely neutral term. To reach the result consistent with distinction between air and water [T]he the majority’s policy preferences, the stat-

transport hardly arbitrary. is ute “interpreted” cannot mean- any be ship up It for a to pick for- possible term; ingful sense it re- must be eign passengers cargo passing or while written. This is not a case where we must waters, through international whereas English deform language a nonstop the same cannot be said of save the See, flight between two domestic locations. e.g., unconstitutionality. statute from Video, Inc., States X-Citement Maj. good at 633 n. op. pretty 19. That’s a 64, 78, U.S. S.Ct. 130 L.Ed.2d (and policy one would un- distinction (1994). Rather, majority simply doubtedly rational uphold Congress as had rewrites the statute it it because likes bet- it), absolutely nothing enacted but it has ter this That way. is a function entrusted “from,” do meaning the word Congress Constitution to majority’s which fulcrum anal- President, branches of whose ysis. decision, today’s ship After a job it make quintessentially po- is to such transports cargo Los An- it, litical By usurping my choices. unelect- geles to Guam be will deemed ed Guam, colleagues powers have assumed incon- them if imported goes into even judicial there our stopping picking up any- without sistent with role. And, anything along way. one or majority hard to tries defend its

passenger carrying drugs nonstop on a bus reading statutory history grounds. trip from Buffalo to Detroit Cana- notes that added the words da will be deemed to have imported the “from place outside thereof’ when it drugs, though helpful bystander even 1970, Maj. op. amended the statute in asked where the came from would 625-26, “any place” and reads this new “Buffalo, say Why of course.” does the phrase as a limitation on the boat statute’s enter the United States interna- else, tional waters and bus scope. Why majority, enter the United wonders day” only panels sense that the en banc court of our court remain bound someday aspect could decide to overrule that cases to the extent the has conscious- well; Sugiyama judges ly district decided to overrule them. Perez 642 operative added it!” ever have these “We mean The words have Congress

would they negate words? effect because the inference says— less it the statute means than majority’s ingenu- If the answer judges willing an are аll to inference too immediately apparent, not question ous is draw, majority well as the demonstrates. following analogy help. will perhaps the Act Eagle Bald Golden Protection The here be- particularly apt The words to illegal, among things, other makes worry Congress good cause had cause to manner, any any or in “import, any at time limitations might implicit that judges read 668(a). ma- eagle.” 16 U.S.C. bald into does the statute. Even when context might go jority’s analysis of this statute it, unnaturally courts have “not require something Congress like this: “Hmmm. imports fallen into the habit of to referring all importa- intended to ban couldn’t have things brought country into this then the eagles, tion of bald because country.” & Co. foreign Hooven Allison any ‘at time or in manner’ phrase any Evatt, 652, 669, 870, 65 v. 324 U.S. 89 S.Ct. be could superfluous Congress — (1945) added), (emphasis 1252 over- L.Ed. ‘import any illegal made it simply have other v. grounds ruled on Limbach any added ‘at eagle.’ bald It must have Co., 353, 466 104 Hooven & Allison U.S. time or in manner’ narrow see, 1837, (1984); e.g., S.Ct. 80 356 L.Ed.2d sweep importation statute to at States, 6, 46, Leary v. 395 89 U.S. manners, impor- and in and exclude times (1969) (assuming 23 57 S.Ct. L.Ed.2d or in tation non-times non-manners.” equivalent foreign origin). is sounds, majority’s as it this is the Absurd cases, long example, There is a line of logic. adopting following formulation: reason Congress The obvious included ordinary common meaning negate “any place” the words was to “import” bring Imported word is to in. very draws—that inference merchandise is merchandise that has only importation reaches statute countries, brought places: foreign foreign port been within the of a some limits boats, hovering drug for- plus countries or entry foreign country eign plus countries some other limited set unlade, “im- intention the word “any places. “Any place” is like time” statutes, portation” as in tariff un- used “any manner” —a catchall Congress limited, less otherwise merchan- means to emphasize adds when it wants that the to which that condition or status dise absolutely everything statute applies attached. has Rucker, genus. See particular within Boshell, v. 14 Ct. United States Estate of (“ 131, 122 536 U.S. at S.Ct. 1230 ‘[T]he (1922) added), (emphasis Cust. 275 “any” expansive meaning, word has in, quoted e.g., v. Estate Prichard Unit- is, indiscriminately of “one or some what States, 85, 87, ed 43 1956 WL C.C.P.A. ’” (quoting kind.” v. ever United States (1956); 8334 Sherwin-Williams Co. Gonzales, 1, 5, 117 1032,137 520 U.S. S.Ct. States, (1950); 38 C.C.P.A. (1997))). nothing L.Ed.2d There is Son, Inc., v. John Carr United States V. & superfluous such phrases, about and the (Cust.Ct.1967); F.Supp. Cam- have a simple: judges reason We habit States, era Co. Specialty v. United coming up thing “[A] with rules like (Cust.Ct.1955). 473, F.Supp. Congress may be within the letter of the statute may well have been concerned that courts yet not within the Church statute.” origin a foreign requirement would read Holy Trinity v. United 143 U.S. adding into 457, 459, (1892). responded by the statute and 12 S.Ct. 36 L.Ed. “any “Any place” Congress’s way telling place.”4 us the words 951(a). “import'' broadly precautions similar in section That took defin- Congress majority coverage a catch-22: In words, hands clause 2. other shipped contraband a place from simple language, judges If it will find uses (but inside the United States not within implicit it all limita- hidden within sorts territory e.g., customs the U.S. tions, if it adds language but underscore — Islands) Virgin would first pass through broad, given that a statute should be international waters before it entered compass, judges point literal will into the territory customs of the United redundancy justification as a for a narrow- Hence, States.... government’s all, er reading because, after the literal — reading of clause renders clause 1 meaning implicit in the would have been completely superfluous. text. judicial unadorned This card three majority admits, monte is us reach Id. at 1138. As the letting Maj. useful whatev- op. at 627 n. theory is based on a please, suspect er Congress result we but I geographical premise demonstrably that’s prefer we take it at its word. Virgin false. The very U.S. Islands —the purports rely 3. The also territory noncustoms Ramirez-Ferrer sin- Maj. on statutory op. structure.' at 627- gled example out as an contigu- fact is —in 28. It Ra- argument borrows its from ous territory, namely, customs mirez-Ferrer, 1137-39, which Puerto Rico. See Nat’l & Oceanic Atmo- Admin., thought government’s spheric that the interpretа- # Virgin Chart 25650: (33d 952(a) Passage and Sonda de Vieques tion of second ed. clause section Mar.9, 2002), appendix.5 attached as an (“into United from any place States Thomas, Flights Islands, St. Virgin thereof’) outside would render the first anywhere to almost in Puerto Rico never (“into territory clause the customs leave U.S. airspace, unless make an any place outside enormous detour to the north south. (but States)”) thereof within the United easy pass It’s from noncustoms territo- superfluous. explained: ry leaving to customs without government’s broad reading by doing toso violate 2 ... brings any clause conduct conceiv- 952(a) first clause of section without ably addressed under clause 1 within violating also the second. not, however, miles, definition does render the words but the strait between them is littered "any place" islands, in section redundant. notably with smaller the Puerto Rican interpreting Courts tariff laws read other island, "[ejvery And island Culebra. even "import” "bring

limits into the terms in”— occupation, those too small effective for has a example, that the defendant have "intention Schoenbaum, territorial sea.” Thomas J. port to unlade” enter "within limits aof 2-10, (2d Admiralty Law at 29 Maritime entry” just passing through rather than terri- ed.1994). As attached nautical chart Boshell, E.g., torial waters. Ct. Cust. at 275. shows, distance the easternmost 951(a) rejects Section the technical tariff defini- (Isla Culebrita, point of Puerto off Rico specify tion but doesn't which elements of Culebra) east coast of to the westernmost definition as views technical and (Sail Rock, Virgin Islands south- which it concept views inherent in the Island, southwest of Savana in turn west of "bringing "Any place” any linger- in.” resolves Thomas) St. is a mere seven miles—nowhere ing ambiguity foreign origin require- over a twenty-four. points close All between ment. Puerto Rico’s main and St. Thomas are island well within twelve miles of St. Thomas and Puerto Rico some smaller is- Island them- land, separated by twenty-four selves are contiguous. more than so the two are miles, four from Thus, leagues, claimed tend i.е. twelve Ramirez-Ferrer when shore); shipped place on Terri- “any that contraband see also Convention (but not within Zone, States Contiguous Apr. inside the United torial Sea and the ...) pass first territory 29, 1958, 24, 206, 220; the customs 4 art. 516 U.N.T.S. it en- through international waters before 20, § 489 Digest (Dep’t Whiteman at of the territory customs tered into the 1965). State States,” 1138, at it was United 952(a) to Section does not refer territori- “[a]ny place it wrong. claimed When waters, States,” 21 al to but “United territory of just is the customs outside 952(a), places as “all U.S.C. defined waters,” international the United States is waters, insular, to subject continental or id., it that an wrong. it claimed was When jurisdiction of the Id. United States.” entering the individual customs 951(b). 802(28); incorporated by id. directly shipping from always “would be Four cases have considered whether this id., waters,” wrong. it was definition invoked the federal twelve-mile away pages hammering two spent When jurisdiction interdiction rather than jewel crown of its single point at —the narrower three-mile one and concluded actually nails analysis driving was —it contiguous that it did: twelve-mile “[T]he jurisprudential into its coffin. own zone over which the United exercis- States salvage something In an effort authority es customs ... is included in the wreckage, glorious Ramirez-Ferrer’s meaning of ‘the United 21 States’ U.S..C. majority up anemic theories. offers two 952(a).” 845; at Goggin, 853 F.2d ac- that, though Ramirez- argues first even Nuevo, 884; Lueck, cord 979 F.2d at 678 wrong it was today, Ferrer’s is premise Seni, 905; F.2d at F.2d at But 662 Congress passed correct in 1970 when sec- Perez, (addressing 776 F.2d at 802 n. 5 cf. 952(a) tion then because States contig- analogous issue a territorial only miles claimed a territorial sea three zone).6 uous Maj. op. rather than twelve. at 628-629. authority This mountain consistent sea, however, only the The territorial impediment majority: no for the It’s two- jurisdiction. boundary general-purpose for day Emporium, at Split for-one Circuit Congress long ago special, established boldly go where no other has circuit inter- boundary specifically twelve-mile 5, 438, gone holding before in that section 1935, of Aug. diction. Act ch. See (codified contiguous 201, 203, 517, apply does not zone. §§ 49 521-22 Stat. 1401(j), holding prac- §§ This will have tremendous part in relevant 19 U.S.C. 1581(a)-(b)) significance given tical (granting customs and Coast the President’s re- jurisdiction contiguous cent Guard officers board vessels extension zone waters, to ex- to twenty-four within customs defined twelve miles. See Procla- U.S.- occurring porated 6. Nueva involved conduct after the into domestic criminal law until 1996, proclamation extended territori- see Antiterrorism and Effective Death 1996, 104-132, proclamation Penalty al sea twelve But the No. miles. Act of Pub.L. non-self-executing, highly itself was see Proclamation 110 Stat. 1317. It is No. Territorial Sea of debatable whether could have America, (Dec. Fed.Reg. prosecuted proclamation based on the alone. 1988) (“Nothing understandably pre-1988 in this Proclamation ... ex- Nueva relied thus existing interpreting or tends or otherwise alters Federal decisions “United States’’ to in- any jurisdiction, rights, legal contiguous State or clude the zone rather than the law interests, (cit- obligations proclamation. therefrom See F.2d at 884 derived ”), boundary ing Goggin). .... and the new was not incor- 7219, Contiguous well-recognized mation Zone of the in both No. international and 48,701 Fed.Reg. (Aug. federal statutory Presuming law. 1999). prospect forcing But the the Congress intends to invoke it when it boundary in the government to follow one passes relating a statute specific every- and a different one Ninth Circuit subject drug matter of interdiction does gives majority pause. no where else present the same issues of extraterri- toriality jurisdiction as asserting over two- authority offers is planet. thirds Argentine Republic v. Amerada Hess 428, Shipping Corp., ‍‌​​‌​​​‌​​​‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌​‌​‌‌​​​‌​‌​‌​‌​​​​‍488 109 S.Ct. U.S. majority good has no excuse for (1989), 683, 102 L.Ed.2d 818 a case that putting every us at odds with other circuit do with either inter- nothing drug has to to have considered this issue. We should contiguous Argentine diction or the zone. ranks on an break issue that’s at best against invoked the canon extra- Republic solely hope- debatable to save an otherwise that territoriality holding Foreign argument. necessary less textual itWere Sovereign apply Immunities Act does not issue, to reach the I would that hold Con- 439-41, high to the seas. Id. S.Ct. gress invoked the twelve-mile interdiction thing argue, is one to as the boundary plena- rather than the three-mile respondents Argentine Republic, did in 952(a). ry one when it enacted section At high that the United States includes the least, very Congress reasonably could i.e., roughly 70% of the Earth’s sur- seas — have believed that courts interpret would quite say face area. It is another to that way the statute that in fact —as drug the term in a “United States” inter- enough have—and that’s to render in- diction statute invokes the twelve-mile nonsuperfluous.7 first clause boundary terdiction rather than the three- majority’s glue second effort to plenary mile one. The former is a Ra- bona pieces together mirez-Ferrees back con- application fide extraterritorial of federal law, that, theory if clearly implicating purposes sists of the even Puerto Rico just clearly Virgin contiguous, canon. The latter as is not. and the Islands were boundary Congress Maj. The twelve-mile interdiction didn’t know or didn’t care. See, e.g., Drug 7. The misses the boat when it claims will be construed. Food and enough Congress is not ... that "[i]t Administration Modernization Act 105-115, 'reasonably could have believed’ that Pub.L. No. 111 Stat. juris- ("Nothing invoked this 12 mile interdiction Act ... be con- limited shall Maj. op. question diction.” at 628. It’s true that strued to affect the of whether the statute, interpreting any authority regulate any when we're a ‘‘[o]ur [FDA] role has to- intent, ”). Congress’ product power tois determine actual not its bacco .... Our to resolve case, however, possible change intent.” Id. In this those uncertainties doesn't the fact Congress always predict issue is not can’t what we’ll three-mile/twelve-mile question statutory interpretation presented. explanations do. There are two reasonable conducting surplusage analysis, government’s We're a and a for clause 1 consistent with the (1) provision nonsurplus theory: Congress actually can be even if it re- intended to en- (2) sponds only possibility boundary; that another act the twelve-mile Con- provision might interpreted particular gress be a wasn't whether courts would sure use Echazabal, way. boundary See Chevron Inc. v. U.S.A. the twelve-mile or the three-mile 73, 87, (maybe Congress 536 U.S. 122 S.Ct. 153 L.Ed.2d one even members of (2002) that, (finding nonsurplus agree), passed provision a couldn't and it clause 1 so though merely way, Virgin even it "made conclusion either Islands-Puerto Rico might fought perfect- clear that otherwise have been border would be covered. Either is a litigation”). legislates Congress ly over in clause valid reason to enact so canon uncertainty against surplusage apply. shadow of over how its statutes doesn't boy go can home But this stands the canon Dutch he because op. at 629-30. one leak. one dike has on its head. It’s against surplusage statutory thing give provision of section Without the first clause avoid what strained construction impossible prosecute it would be It’s genuine redundancy. abe otherwise drug St. shipments after thing altogether do so another two Thomas to Puerto Rico. Because the assuming redundancy by manufacturing a contiguous, any territories or boat care know didn’t Congress either didn’t Virgin plane carrying across the circumstances about the real world Passage “importing] would not be into the question independent give language any place United States outside Presuming must force. is not se- well-kept thereof.” This some details of confused about the been cret; from even the most is obvious just because a bunch geography American cursory glance at a nautical chart. Coast lawyers judges of federal and Guard and customs officers use those to very me as close ignorant were strikes if a in daily, charts and there’s hole the chutzpah. See classic definition drugs slip through, customs net where Lawsuit, Volokh, Eugene & Alеx Kozinski bring fact every incentive to (1993). Shmawsuit, 463 103 Yale L.J. Congress’s to attention. The statute’s necessary absolutely first clause is to ren- Congress That went trouble illegal. this der traffic phrase convoluted including somewhat “superfluous, is first clause thus not territory of “into customs void, or all the insignificant,” and (but any place outside thereof against requires. canon Dun- surplusage States)” it was within the United shows Walker, 167, 174, v. can U.S. S.Ct. very problem. There specific on a focused (2001) (internal 2120, 150 quo- L.Ed.2d many aren’t territories to be- noncustoms omitted). tation marks The text of the with; significant gin almost all the ones indisputable statute and the facts of Amer- Samoa) (Guam, way and are the Marianas proof geography enough ican are that Con- Pacific, out in 3000 miles from about doing. it gress pre- knew what was It is that, customs border. After nearest sumptuous and to a insulting somewhat get places. pretty we into some obscure of government coordinate to as- branch See, e.g., Farrell United Congress responsi- sume doesn’t take its (9th Cir.2002) 1214, (locating John- seriously when performing bilities its cen- ston 700 miles west-southwest Island I, tral for drafting function of statutes. helpful providing Hawaii and tax advice one, cannot that view. subscribe to residents). its or so But there is thousand Is- significant exception: Virgin Virgin one Islands-Puerto Rico border lands, majori- kicks the out under props situated the midst the Caribbe- an, cheek-to-jowl argument ignore Puerto Rico. It is must ty’s drug manufacturing easy within reach of literal terms of statute order America, redundancy. no contemporary sources Central and South avoid But necessary into launching pad smuggling example justify reading an ideal for Rico, only a minutes Puerto which is few law as written. defined two most, away and, by plane couple prohibit. at classes of conduct meant diverge overlap be- Ignoring hours boat. border Whether those classes contiguity,” depends geography politics, cause it’s the “lone on which 629, Maj. example, at the little For op. telling hardly is like set stone. 1970, precedent. since the Northern Mariana Islands Ferrer’s value as That case commonwealth, nearly issue, pages have become wasted two on this all Islands, Palau figment Marshall Micronesia and based that the customs and independent have all states. See noncustoms become territories are contigu- never 6726, Full Placing No. into ous. Proclamation was decided the thinnest of Compact (4-3), Effect of Free margins Force and and the outcome no doubt Palau, with the Republic flipped Association would have had the First Circuit 1994) 49,777, 49,777 27, Fed.Reg. (Sept. been aware of the truth.

(summarizing developments). The Canal Panama, The Precedents Zone has reverted to see Panama 39, Treaty, Sept. Canal 33 U.S.T. The effort to today’s reconcile decision and the States has extended both with cases in the Fifth and Eleventh Cir- zone, its sea contiguous territorial and its scrutiny; cuits does not bear serious see 54 Fed.Reg. Proclamation No. at majority would do better to acknowledge 777; Fed.Reg. Proclamation No. the conflict. It claims that those cases “do 48,701. Many people want Guam not directly address factual scenario commonwealth; become a others clamor here,” presented Maj. op. at because Puerto Rico to become state. Con- plane concededly our took off from Califor- gress was no doubt aware that the status nia, in Peabody while Phillips, there regions subject and scope juris- to U.S. “no was evidence” that the drugs orig- had time, change diction over and drafted States, in 633-34, inated the United at id. generic statute that would cover future and in Lueck. Goggin, the evidence contingencies. silly That neither nor is “suggested flights that the in question had implausible. precisely It’s what we would Bahamas,” in originated at the id. 634. expect legislating to do in Congress when Yes, so what? but area marked flux. Clause would any place outside “[F]rom thereof’ is an thus surplusage not be even if it were offense; of a govern- elemеnt criminal the entirely particular redundant at a moment ment the of proof. bears burden Absence history.8 favoring government evidence the is case, In any the legally equivalent customs and noncus- to irrefutable evidence contiguous, favoring toms territories are the way, as defendant —either the Thus, goes were 1970 when the example, enacted defendant free. it statute. This inescapable geographical does not matter that there nowas evidence fact not only majority’s Peabody drugs undercuts the the had come the plausible argument, also but Ramirez- United because there also no was Guam, hand, majority 8. principle The thinks the of expres- from California to on the other 952(a) violate does section because he “yet my sio unius is another hurdle” to inter- —not goes territory from customs to noncustoms pretation. Maj. op. banning By at 630-31. (which OK), territory agree allwe is but be- territory cus- noncustoms goes cause he from international territory, Congress implied ship- toms that territory. majority The noncustoms doesn't territory ments from customs noncustoms counts, precisely that but think that's the territory would not be covered. I couldn’t question bringing drugs from inter- —whether agree why more. That's someone who takes national into noncustoms is St. from Puerto Rico to Thomas doesn't importation. majority’s expressio The unius 952(a). (How violate section this "rein- best, argument totally is circular. -At it's the conclusion, majority's Maj. op. forces” the at surplusage theory, exact same “hurdle” as its mystery.) just argument. is a repackaged Someone who takes into different boundary the of the United States with they had come from elsewhere. evidence at Peabody, F.2d 1300-01. importa- contraband to establish See suffices ” stuck, so the court must conviction Goggin, (quoting tion.’ at 845 if it origin that the 905). believed Lueck, Peabody 678 F.2d at And —even matter.9 the United States —didn’t was appre- that holds were “[the defendants] know, originate the did For all we country, the heading hended outside States; simply opinion the That at enough.” in.... 626 F.2d say. doesn’t compatible Neither these rules is majority’s fall to axe. Goggin holding crossing the same that the Lueck majority “sug- that evidence boundary asserts the United States with contra- in those had de- planes cases gested” enough importa- is not band establish Bahamas, but it misreads from the parted must also tion because only pertinent reference opinions. The flight originated show abroad. planes were first de- in either Struggle may, cannot flying near Bahamas. on radar tected escape reality interpreta- its hard 844; Lueck, Goggin, 853 F.2d tion of section conflicts with that of The defendant Lueck at 896-97. Fifth and Eleventh Circuits. also off from the Florida claimed he had taken Fourth, Seni,, conflicts with that of the see into air- Keys and crossed (“The 662 F.2d at inference controlled zone around space to avoid the Carolina, vessel sailed out from North 678 F.2d at 897. The airport. the Miami limit permits, across 12 mile indeed issue, never because jury decided virtually compels, the further inference entry find made it sufficient to instructions jury that the sailed back.... The trawler airspace. Id. at 904-05. from international could, therefore, reasonably conclude that interpreted imply only a verdict to Goggin journey the- most recent ... was one in- not departed had defendant volving importation.”), recently F.2d at and until the mainland States. 853 First, Nueva, the at 884 say anything It didn’t else about see 979 F.2d 847. know, the off origin. plane (“[I]mportation For all took of a controlled substance (which, all, lies from Puerto Rico after requires proof into the United ] States! Florida). directly across the Bahamas from [conspired bring] that the ‘defendant to cases, made In each of two the court the country into cocaine the from international plane’s origin, the be- no determination of waters or excess twelve legal it that fact of no conse- cause deemed geographical miles outward from the ” quence. Goggin, (quoting coastline.’ аt 845)), not mention our own settled cir- ma- problem even with the bigger The necessary trample cuit law. If it were jority’s Sisyphean attempt to avoid a sec- precedents our and contort the statute to that, split circuit even if the cases ond circuits, hold formation with our I facts, sister legal their the reconcilable on were see might only the need to do so. But the they articulate would still be incom- rules majority’s. going majority’s way case is Ramirez- with the Lueck the patible “ and, grand fallacy both fact of cross- now that Goggin ‘[t]he hold its Ferrer — drugs originated, best.” its 9. This conclusion is not “dictum at mined where the so dis- Peabody origin necessarily Maj. op. position at the on its determi- 633. was based held origin anywhere possible Texas or nation domestic —whether deter- was else—was irrelevant. The court never irrelevant. added); far to cut tow exposed, has been better see also id. at 636 n. 23. But rope way undisputed it find its own home. there are no let facts in criminal (unless

cases the defendant finds some Consequences advantage in stipulating The what he knows government can prove anyway). devastating 1. can No one doubt any place “[F]rom outside thereof’ is an impact holding on inter- drug our will have offense, element so government today, government diction. Until duty has a prove constitutional it to a support importation charge could mere- beyond jury a reasonable doubt. See In re ly by tracking a on radar it plane Winship, 358, 364, 397 U.S. 90 S.Ct. it airspace. prove entered Now must U.S. (1970).10 25 L.Ed.2d prosecu- If the trip originated Every smug- abroad. present tion fails to sufficient evidence to gler flying single engine prop has a so, do it must lose. no Because defense ready-to-serve defense: He took off lawyer would be dumb enough stipulate airfield, air- strayed U.S. into international crime, away key element of the just coming space and was back in when government always prove will have to be- surely got caught. government he yond a reasonable doubt that every cannot track the air- movement originated majority’s abroad.11 The “un- craft everywhere globe, so it must disputed evidence” is a pipe limitation prove foreign origin now circumstantial dream. may evidence. In some be cases so, many able to do and in it will others course, entry Of from international air- prosecutorial have to divert resources space is circumstantial of foreign evidence could be put better use. See Ramirez- origin. Maj. 635. op. at But it’s circum- Ferrer, (Boudin, J., dis- stantial evidence the same away defen- senting). presence dant’s at the murder scene is its holding claims that circumstantial evidence he’s the killer. evidence, “addresses those cases in which the undis- hardly It’s some but sufficient. defendant, puted nonstop evidence shows that To convict flight ... departed and landed produce excluding every Unit- ‘must evidence Maj. ed op. possible explanation States.” at 685 (emphasis innocent for his con- “ could, course, ‘presumed likely make domestic that the fact is more than " origin 405, an affirmative defense. See v. proved Patterson flow not to from the fact.' Id. at York, 210, 2319, 197, Netv 432 U.S. 97 S.Ct. States, (quoting Leary 90 S.Ct. 642 v. United (1977). 53 L.Ed.2d 281 But it has not done 6, 36, 1532, 395 U.S. 89 S.Ct. 23 L.Ed.2d 57 any place so. If "from outside is a thereof” (1969)). offense, For of a elements criminal (as scope major- limitation on the statute's hand, proof on the other standard believes), ity way there is to no read it as likely "beyond not "more not” than but a anything other than an element of the offense. See Winship, reasonable doubt.” 397 U.S. at 364, Judges 90 S.Ct. not free 1068. to egre- equally 11. committed an Ramirez-Ferrer by inventing down water this standard their gious jury when error it said that a could presumptions. ignored own Ramirez-Ferrer presume foreign origin the mere from arrival truly this distinction. It’s unfortunate that drug-laden ship. of a 82 F.3d at 1144. courts, tiny the federal in an effort to save a States, relied on Turner v. United 396 U.S. group clearly caught 398, guilty 642, defendants red- (1970). 90 24 S.Ct. L.Ed.2d 610 handed, Turner, however, a diluted bedrock rule of consti- pre- statutorily involved a 404-05, designed рrotect presump- law to presumption. tutional scribed id. at 90 See prescribes S.Ct. pre- 642. Where a tion innocence for all defendants in all statute a sumption, government only need show cases. criminal 650 Cir.1997) banc). (9th (en But Vasquez-Chan, v. United States

duct. See Cir.1992). (9th very power wisely it’s a exer- The mean 978 F.2d doesn’t to majority prop up offers its long- cised time we examples every disagree flights Pate, from reading of the statute — the McKinney v. precedent. settled See Hawaii, (11th Cir.1994) (en to Alaska or forty-eight lower n. 21 Baltimore, Tampa to Miami to banc). government’s interdiction Houston, Angeles to San or from Los strategies vary on depending doubtless Francisco, Maj. at 681 — undercut op. see origin or prove foreign whether it must entry alone is sufficient the claim that merely it to entry. requires Our decision smugglers no guilt. And will proof of strategies de- revamp may well those places the best to soon out figure doubt prosecutions already investigations rail to make it in order enter U.S. already ob- underway convictions —even reentry. look like a domestic States, Bousley tained. v. See logical to duck the Striving again once 614, 619-21, 118 U.S. S.Ct. majority ruling, its consequences of (1998) Teague v. (holding L.Ed.2d 828 entry mum to whether alone stays nonretroactivity inapplica- Lane principles support finding foreign origin. a interpretation of rules ble substantive it id. at 635-36. It’s obvious would See law). criminal Carrion, not. United States See holding Our also in standards results Cir.1972) (9th cu- (per F.2d 201-02 gov- vary from circuit circuit. The riam) (insufficient foreign ori- evidence already faces prospect ernment plane Angeles a landed in Los gin where Ramirez-Ferrer, we exacer- greatly but marijuana pounds of with 404 boxes bate Our circuit problem. enormous bearing Spanish writing, one defendant entire covers not west coast a carrying map was of Mexico and Hawaii, Alaska, States, but also motel, from a Mexican and the matchbook Guam and the Marianas. If Ramirez- plane enough had fuel a round used govern- a wrench Ferrer threw into the Chan, Mexico); trip Vasquez cf. machine, ment’s throw in interdiction (insufficient 550-53 evidence the toolbox. in the possession where cocaine was found the other the scale— Now for side of fingerprints defendant’s bedroom with her containers). conceit would, majority’s if it achieves But even on the lawyers majority’s greater consistency fairness and with its defense will use as a la- opinion pointing interpretation. hornbook out tortured jury many ways passenger bag ments that “a who carries a prove failed to that the defendant did not marijuana from Portland take off from and con- crime of Anchorage has committed the juries many scientious will come back with importation, drug-carrying traveler while unjust acquittals. departs who from the terminal at the same mere airport guilty only Portland is

By rejecting both our own circuit’s set- possession flight ... if his in Phoe- lands precedent overwhelming tled and the Maj. Anchorage.” op. nix than at rather elsewhere, majori- weight authority dealing 631. not a stat- We are here with ty government’s frustrates vital inter- ute innocent that criminalizes otherwise uniform interpreta- est consistent and conduct; at the difference in treatment certainly tion of the It’s our drug laws. sentencing disparity. best a Possession of court to prerogative an en banc overrule Wood, of- illegal already narcotics is a serious circuit law. See F.3d Jeffries on fense, tacking narcotics a commer ter off than the sailboat out taking Ramirez-Ferrer, wrong pair even of of U.S. waters. cial airliner —where Cf. Why at 1142. is this clippers means serious trouble —is mode-of-trans- toenail portation any discrimination illegal incredibly stupid. arbitrary This less only not but majority than the one the finds repug- so may stupidity be form of strikes nant? majority close to home—the criminals today not

purports spare the usual And just hemp- that’s the start. The inner-city drug casualties of draconian toting directly freshman who flies home Calderon, laws, Bonin v. 59 F.3d Fairbanks cf. from Seattle now treated (9th Cir.1995) J., (Kozinski, n.& favorably plane more than one whose concurring), on passengers but interstate Vancouver, briefly touches down if even a lot our flights commercial who look like suitcase, latter had his daughters coming own home sons which was checked through to his destina- college. majority’s for concern Surely tion. equitable there is no differ- easily identify criminal defendants we can two, yet ence between the under the ma- be touching, really with is should we but rationale, jority’s the latter is worse off rewriting drug just laws be nation’s than drug commercial dealers like the Ca- group happen might to favor be cause a baccangs. wayward strays hiker who harshly? too treated briefly into (perhaps Canadian by many overcome one too handfuls of majority Any misplaces doubt that mix”) special smuggler, “trail is a id. at its sympathy is erased its reliance on— cf. n. drug while the courier whose things lenity. Maj. op. ‍‌​​‌​​​‌​​​‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌​‌​‌‌​​​‌​‌​‌​‌​​​​‍of all rule of —the Cessna veers into international airspace course, at Of be people 635. should not newly avoid storm is not. None of these in jail if fair thrown did created distinctions is more equitable warning illegal. their conduct was than the one the elim- purports to Nguyen, See States v. inate. (9th Cir.1995). relying But on the rule justification overruling as a for lenity judicial policy-seekers Even hard-core settled law makes little sense. After Perez today’s For all cringe should at decision. Cabaccangs Sugiyama, couldn’t manhandling statutory their text and possibly have that their believed conduct only manage precedent, my colleagues 952(a). wasn’t covered section Invok- arbitrary one replace distinction clearly the rule to exonerate conduct many others. illegal lenity; when committed isn’t it’s attempt 3. This abortive to redraft the drug windfall convicted dealers. lessons, statute several most teaches

Finally, by arbitrarily exempting only nonstop trav- important which is that dis- through closely el ma- indi- airspace, parate international treatment situated jority inequity may resolves one to create is all well viduals but inevitable. drug- several others. For no example, legislative be that there is “articulable college kid packing purpose punishing transport who flies Port- through land to Juneau air- on a flight passes international domestic space gets through now off easier than the se- one who more nonstop ferry takes a than on a verely internation- the identical conduct al weaving entirely waters. And the Cessna in and within travels way out airspace.” Maj. op. of international its But certainly to Angeles purpose Los San Francisco is there is an articulable bet- caprice? thing That “from” means one for border-crossing with treating for severely posses- than mere for general planes something more and else cars? arbitrary in a Seemingly treatment sion. system to political Our has mechanisms to is not a valid reason particular case unambigu- deal harsh of applications with terms; there no disregard a statute’s prose- ous The most obvious is statutes. tailoring” principle of free-floating “narrow its Despite sympathy cutorial discretion. Congress If statutory construction. enacts caught per- for of plight tourists drug people for over prescription a benefit flights Angeles sonal stashes Los can’t sixty-five, sixty year qualify old a Francisco, majority point to can’t San health unique prob- if his proves even he government to a instance single where constructively years five lems him make prosecuted importa- has such an offense as Congress drunk older. And if bans driv- identify tion. can it a case Nor where parks, motorist can’t de- national a his has by showing superior applied fend himself his And if up hypotheti- skills for inebriation. laws of its extreme made to other imposes age majority requirement, (Ours, an cals. not obviously, is such a case— it for precocious we don’t waive seventeen Cabaccangs massive masterminded a may these year olds. All distinctions seem network.) drug distribution Ramirez- facts, arbitrary particular on their but relied on of such prose- Ferrer the absence are all with the text the stat- consistent justification artificially a for its cutions as logic. underlying utes their and interpretation. narrow See me, history But to 1141^12. shows to majority’s interpretive method is prosecutorial effectiveness of discre- a poses greater a defendant ask whether avoiding ineq- tion a mechanism for person hypothetical menace than some not prosecutors If uities the fears. not, and, if con- covered the statute to charging as importa- start such offenses be exempt clude that the defendant must tion, outcry public may prompt Congress are we as well. There obvious reasons statutory to the statute. But rewrite way. Judges don’t statutes this interpret amendment, discretion, prosecutorial like Congress’s pur- often about what disagree a to function reserved another branch. poses particular how conduct im- are and may Two plicates them. defendants seem Seemingly arbitrary distinctions are judge night to but similarly situated one consequence inevitable of the rule of law. day and another. we discard the Once governing prospectively by costs of its text as acid test cover- statute’s word, however, written more bear- age, justification it as a our lose judiciary of retrospec- able than those a authority. If the student who college flies quest tive In its for the equity-brokers. years gets a more than Anchorage few laws, holy drug grail of fairness in the one and who flies to Phoenix wants majority cuts a swath destruction know why, we can text statutory precedent, text and say, you “Because entered government’s already job hard makes thereof,’ place States ‘from a outside policing our borders much more diffi- more made that serious cult. I our role as the more Because view crime.” But if the drives home one who written applying limited one statutes as gets years more than the few one who flies, questions leaving of fairness majority possibly say what can the judicial politically political him he is accountable— convince victim —and government, branches of I respectfully dis-

sent.

Case Details

Case Name: United States v. James Cabaccang, United States of America v. Richard T. Cabaccang, United States of America v. Roy Toves Cabaccang

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 6, 2003

Citation: 332 F.3d 622

Docket Number: 98-10159, 98-10195, 98-10203

Court Abbreviation: 9th Cir.