United States v. Pedro Saade, United States of America v. Carlos Zenon Rodriguez

license, leases, Bellotti, a operating without after Massachusetts v. League of hood application permissible licensing of 1981). Appel- proper (which may be however, appellees criteria able sought de- also complaint, lants’ their earlier relief, challenging demonstrate on remand in suit claratory and appellants did constitutionality respect an relief action with to these of act such remedy represent); fact or to enact kind of does not which offers an alternative law, non-discretionary zoning non-licensing, showing of those elements. require See unduly overall not availa- Moore’s Federal Practice restrictive generally 6A (2d 1979); bility particular expression ed. 7 id. formal at 57-182 § 51-18[2] majority of approved by been 65-132. We have reviewed has at § 65-18[2] Young request declaratory Supreme v. American as a Court. See their claim Mini-Theaters, 62-63, provisions supra, 427 U.S. at declaring certain relief — Justices). of five facially (opinion and an- S.Ct. at 2448 constitutional ordinances unconstitutional, facially remand- other sum, no put In the matter we can better court for a find- to the district factual Supreme than did the Court Erznoznik v. ing necessary to a determination of the Jacksonville, City supra, of at U.S. 217- constitutionality the valid provision of as 18, 95 S.Ct. at 2276-2277: express accordingly no view applied —and “In concluding that this ordinance is only relevant to the is- those elements deprecate legiti- invalid we do injunctive of relief. suance city. mate interests asserted . . . present We hold Finally, appropriate only we think it ordinance impact satisfy rigorous does not word on the of this case constitution- add a policy recog apply.... al standards that Where First pragmatic social terms. We Boston, persons living at stake City of Amendment freedoms are nize that adja emphasized preci- have working repeatedly in the Combat Zone and areas, parties strong drafting clarity sion of of purpose and other have cent fostering legitimate prerequisites interests both in are essential. These are ab- redevelopment of economic under sent the kind here.” lying assuring this case and in that such Vacated and remanded. projects proceed free from excessive disruption. some as Because strike judicial impede unwarranted intrusion redevelopment for sake of a few shows,

operators pornographic peep two

points First, emphasis. as noted bear

above, appellees have never contended that America, Appellee, UNITED STATES by appellants the movies shown are obscene v. not within the First Amend otherwise ment, majority Supreme and —as a SAADE, Appellant. Pedro recently sexually has ex Court reaffirmed — America, Appellee, UNITED STATES materials, plicit non-obscene however but distasteful, protection to no are entitled less expression. Young forms of

than other RODRIGUEZ, Appellant. Carlos Zenon Mini-Theaters, supra, American 80-1223, Nos. 80-1224. (Powell, at 2453 J. concur Appeals, United States Court (dissenting opinion ring); id. at 84 of four First Circuit. Stores, Justices); Hart v. Edmisten Book Second, supra, F.2d at 826-28. our Argued Feb. holding way appellees’ in no diminishes abil June Decided ity regulate the location of businesses any of such as three distinct

ways: expi their to enforce eviction at leases; to do under their

ration of so Gershowitz,

Joel M. Atty., Dept, U. S. C., Justice, Washington, Ray- D. with whom Acosta, Atty., Juan, mond L. U. S. San P. R., Otis, Atty., and William Dept, G. U. S. Justice, C., Washington, brief, D. were on appellee. CAMPBELL, BOWNES, Before BREYER, Judges. Circuit BOWNES, Judge. Circuit Following trial, a bench Pedro Saade and Rodriguez Carlos Zenon were convicted of entry unauthorized military danger into a zone located off the southeastern coast of Vieques during the island of gun- a naval nery practice session, in violation of 33 C.F.R. 204.2341and 33 l.2 § U.S.C. The court appel- district sentenced both of the lants to the maximum term of six months imprisonment. grounds Of the numerous appellants, reversal advanced telling most challenge is their to the validi- ty of 33 C.F.R. 204.234. Before address- Ratner, City, with Michael New York issue, ing this briefly describe the cen- Camacho, R., Cayey, whom Luis F. P. Pedro leading up tral events to their convictions. Varela, R., Ratner, Rey, Margaret Hato P. Early morning on the Peterson, Lugo, Jose Antonio and Doris brief, Navy destroyers began three City, appel- New York were on con- ship-to-shore gunnery target lants. duct practice Juan, P.R., provides: agencies 33 C.F.R. 204.234 and such as he designate. (a) danger Conejo The zone. From Punta Vieques on the south coast of at latitude provides pertinent part: 2. 33 U.S.C. 1 in 18°06'30", 65°22'33"; longitude thence to duty Secretary It shall be the of the 18°03'00", 65'21'00", longitude latitude Army prescribe regulations such for the 18°03'00", longitude thence to latitude use, administration, navigation 65°15'30"; 18°11'30", thence to latitude lon- navigable waters of the United States as in 65°14'30"; gitude thence to latitude judgment public necessity may his quire re- 18°12'00", 65°20'00"; longitude and thence protection property, for the of life and to Vieques on the north Cabellos Colorados coast of operations or of of the United States in chan- 18°09'49", longitude latitude improvement, covering nel all matters not 65°23'27". specifically delegated by law to some other (b) Regulations. (1) open It will be to nav- department. regulations executive Such igation except firing at all times when posted, conspicuous appropri- shall be in being conducted. At such times no surface places, public; ate and for the information of the vessels, area, except patrolling the those every person every corporation danger shall enter or remain within the area. regulations which shall violate such shall be conducting firing dropping Prior to each or guilty and, deemed of a misdemeanor on con- patrolled ordnance the area will be viction thereof district court of the insure that no watercraft are within the dan- ger juris- United diction such offense ted, $500, within whose territorial Any vicinity area. will watercraft in the have been commit- practice firing be warned that is about to punished by exceeding shall be a fine not place take and advised to vacate the area. by imprisonment (in the case of a (2) regulations will be enforced months, person) exceeding natural not six Commander, Frontier, Sea Caribbean San of the court. discretion boat, Navy patrol aboard the Vieques danger ee the southeastern within him, circling in- Thus, with 33 C.F.R. now around accordance the flotilla zone. English was closed to nonmili- 204.234, by megaphone, zone formed them in the week tary navigation. they violating Sometime were 33 C.F.R. Spanish, that Navy had an- January 19th the they prior to warned that if did 204.234 and in a notice session practice subject nounced at once were depart the zone fish- customarily published to alert which it prosecution. None of the boats to criminal the zone would of when and sailors ermen contingent of United area. A left According to target practice. be closed for deputy marshals stationed witness, Navy distributes a Government small Bahia boarded boats and beach of the agencies.” the various “to these notices in a vain effort to approached the flotilla practice is also transmit- target Notice of a marshals came As the arrest the intruders. Hydrographic-Top- by the daily by radio ted near, drove of the flotilla members Mapping Defense ographic Center of sling- from pellets with lead fired them off And, customary, Navy Agency. as shots; the flotilla also one of the boats of top warning flag from flew a red marshals’ boats. After rammed one of the high on the thirty feet located pole about effort, ap- this unsuccessful enforcement Matías, highest hill of Cerro crest further clashes and in a pears there were no Vieques. half of eastern off into the few hours the flotilla headed Nonetheless, 9:30 a. m. a flotil- at around west.3 carrying approxi- boats of eleven small la Although the marshals were unable to people approached the mately thirty-five scene, any of the intruders at the arrest Navy When the offi- zone from the west. identify positively were able to coordinating target responsible for the cer through eyewitnesses people two of the approach, the flotilla’s practice learned of aboard boats in the flotilla—Pedro Saade “intercept” the patrol boat to he directed a result, Rodriguez. As a and Carlos Zenon the flotilla and advise the occu- lead boat in subsequently and Zenon were Saade patrol was closed. The pants that the zone violating charged by information intercepted boat but the flotil- the lead boat C.F.R. 204.234and 33 U.S.C. § § into the zone. At la continued on Challenge Validity of 33 C.F.R. to the suspended gunnery point, Navy the the 204.234 § practice. motions, pretrial In one of his several entering the flotilla con- After the zone the information contended that waters of the Bahia Salina gregated in the alia, because, inter failed to state an offense target. ship-to-shore land del Sur near danger regulation, 33 C.F.R. the zone they re- next three to four hours For the Saade, 204.234, According to is invalid. target. § just mained off shore of Soon Army pro- have Secretary the of the should the Bahia flotilla arrived in Salina after the pursuant mulgated 204.234 to 33 U.S.C. Sur, approached patrol § boat del a second 3,4 erroneously invoked 33 employ- but instead hailing A civilian § within distance. record, appellants’ pre- of the or waters under waters United States the 3. Evidence court, jurisdiction ap- endan- and the the gered of the United States sentence statements to the fairly likely endangered by Artillery pellants’ that this brief make it clear or to be * * * protest otherwise, target practice as a form of incident was undertaken fire in Provided, against Navy’s presence Vieques. authority the shall That the conferred unreasonably so exercised as not to inter- be fere with or restrict the food part: provides pertinent § 4. 33 U.S.C. 3 fishing industry, defense, regulations prescribed pursuance national In the interest of the and the property protection provide of life and for the better for the use of such hereof shall navigable operating by of the United on the waters under food fishermen waters Secretary Army Department is authorized and permits granted the regulations empowered prescribe as such Army .... navigation for the use and he of deem best navigable any portion or area 13, 1902, 1079, 11, appropriate statutory au- Act June c. § 1 as Stat. § U.S.C. Finally, Congress in 1917 responded by substantially re- thority. The Government provision, bestowing altered the on the Sec- opinion district court’s in Bar- lying on the retary apparently comprehensive more Brown, (D.P.R.1979), F.Supp. 646 eelo v. authority currently provided for in 1.§ regulation which the court held that August 18, Section 7 of the Act of “properly issued and within the fall[s] made it 1 and 3.” Id. at purview of 33 U.S.C. §§ Denying duty Secretary pre- to dismiss the of War Saade’s motion use, regulations scribe such information, for the ad- the trial court treated the ministration, navigation of the navi- challenge quibble as a of no conse- technical gable waters of the United as in 7(c)(3), quence, see Fed.R.Crim.P. and left judgment public his necessity may validity regulation. unaddressed the require protection for the of life and argue appeal, On property covering . . . all matters not recognize district court’s failure that § specifically delegated by law to some oth- danger regula- but not authorizes zone department. er executive effectively pur- foreclosed them tions from suing what would have been a successful According C. 40 Stat. 266. to the Government, upon requirements defense based of 3. zone unquestionably responsibili- falls within the Congress original In 1894 enacted the ty imposed by Secretary on the predecessor to the current 1 of title 33. regulate navigation the use and of the navi- provision That authorized gable protection waters “for the of life and Secretary prescribe of War to such property.” Id. use, regulations rules and for the admin- isolation, If we were to consider 1 in istration, navigation or all adopt would be inclined to the Govern- navigation canals and similar works of position, given sweep ment’s of the stat- owned, operated, ... or maintained utory language. Yet in the same Act of judgment the United as in his 1, Congress 1917 that created extant § public necessity may require. separate provision also spe- enacted a that 4, 18,1894, 299, August Act of c. 28 Stat. § cifically Secretary, authorized the Congress amended the statute in 1902 in the interest of the national defense by expanding Secretary’s power to also protection and for the better of life and include the of [,] prescribe regula- property ... to such speed and movement of vessels and tions as he deem best for the use and any public navigable (sic) other water in navigation any portion craft of areas of of navigable improved channel which has been waters of the United States under endangered likely to be endan- whenever, . . . or authority Congress, of in his gered by Artillery target fire in Coast judgment, regulations such necessary are practice or otherwise .... protect improved to such channels from injury, prevent or to interference with 18, 1917, 49, 8, August Act of c. 40 Stat. § operations of the United States in Although the Government acknowl- improving navigable injury waters or to edges provides specifically that this section any plant employed authority target practice, be in such for i. e. dan- zone, regulations, 1 operations. ger it maintains that § by tary pursuant regulations Secretary be deemed made of to this section shall misdemeanor, upon Army pursuant guilty of a convic- the posted places, designated to this section shall be competent juris- conspicuous appropriate tion thereof in diction shall ceeding court of in him, by by punished a fine not ex- for the informa- $500, (in by imprisonment public; every person tion of the every corporation who and exceeding person) willfully not six vio- case of a natural which shall months, any regulations in of the court. Secre- the discretion late made said 1132 authority regulations.7 zone This conclusion accords independent source of

remains an regulations.5 elementary principle statutory with an of for such construction; a court confronted com- First, disagree. us lead to Two factors statutory provisions ordinarily peting 1 contemporaneous of §§ enactment provision follow the should dictates single strongly act evidences in a and 3 1, problem 3, specifically applicable to the would more Congress intended § § regulations hand, govern promulgation see Busic v. United 446 at U.S. To conclude 406, 1747, 1753, such as 33 C.F.R. 204.234. 398, § 64 100 S.Ct. L.Ed.2d superfluous, a render 3 otherwise would Mancari, § Morton v. accept difficult result we find to 550-51, 2474, 2482-83, 535, S.Ct. the one of clear evidence that absence which, (1974), ease, in this L.Ed.2d Congress intended a redundan- Act to enact §3. cy. an irrational The unlikelihood of such argues to The Government treat 3§ light apparent even design becomes more legislative as the sole authorization dan- of the second factor. implicit ger regulations an re- zone works final year In the after 3 and the § 1, unjustifiably peal of one facet of con- § adopted, Congress were amend form of 1§ scope stricting its the clear without evi- 3, restricting Secretary’s expressly ed congressional required approval dence regula power prescribe target practice See, implicit g., repeal. find an e. United requiring Secretary ensure tions Corp., v. United Tuna Continental unreasonably . . . regulations do such “not 1322-23; 168-69, at at 425 U.S. 96 S.Ct. fishing interfere with or restrict the food Mancari, 550-51, v. Morton 417 U.S. at industry.” Army Appropriation Act 2482-83; Borden 19, (1918). 1919, If the sube. 40 Stat. 892 Co., Secretary permitted proceed under were (1939). assumes L.Ed. 181 But this 1§ regula ignore he could effect power danger delegates the issue zone fishing industry, food circum tion on the regulations, we do assumption not ac- protection venting limited of food fish Moreover, cept. argu- the Government’s by the mandated 1918 amendment. ways. recog- cuts both If we were to ment Unsurprisingly, offers no Government delegation 1 as an nize alternative evidence from which infer that we can prescribe regulations, power zone amending year 3 within one nullify including the we would limited Act, Congress intended that 1§ nonetheless protection fishing. Faced for food with a permit Secretary the restric to evade narrowing the merely pur- choice between imposed by tion amendment.6 ported purview effectively 1 and re- Tuna United States United Continental 3, pealing the less 164, 1319, follow severe Corp., 168-169, § 425 U.S. 96 S.Ct. course, 1322-1323,47 Thus, leaving thus the more intact exact (1976). L.Ed.2d the 653 congressional Secretary’s proviso existence of this con definition of the reinforces our clusion that 3 power. § alone authorizes principle conclusively relies The Government on the that if these Because two factors estab- applies promulgation governs more than one criminal to statute the § lish that 3 alone the of question, prosecution may 204.234, appellants’ conduct in the elect we need the § not evaluate among bringing those statutes criminal arguments legisla- the additional from drawn Batchelder, charges. g.e. See United States v. history dealing 1§ tive of a line of cases 114, 123-24, 2198, 2203-2204, 99 442 U.S. S.Ct. property compensation with claims for for lost (1979). Only 60 L.Ed.2d 755 danger if 1 authorizes target conducted’pursu- practice as a result of regulations principle zone would regulation. Todd v. ant to a 3 United possibly apply. States, 841, 292 F.2d 155 Ct.Cl. States, F.Supp. 1019, Jackson v. United Congress recently thought if In fact that the (Ct.Cl.1952). Ct.Cl. regula- target practice revised 1 authorized tion, it is reasonable to 1 would assume that similarly have been amended. question did to consider how this con- Saade not the reasonableness

It remains then appellants’ the convictions. regulation pretrial motion, clusion affects in his court’s dismissal of at- The district Saade’s focusing on the Government’s erroneous in validity, according the 204.234’s to tack on § proper statutory vocation 1 as the of § their defense appellants, short-circuited authority, his silence below does not neces regulation unreasonably interferes that the sarily preclude fully explored challenge on fishing Viequen industry food appeal. Federal Rule of Criminal Proce is therefore invalid.8 The Government ad- 12(b)(2) dure mandates that a claim that an ap- rejecting several vances reasons information fails to state an offense “shall contends, First, pellants’ position. with- any during by be noticed the court at time evidence, supporting authority or out pendency proceedings.” This Congress question that that intended language interpreted encompass has been to only in a civil be decided action. Section by such defenses even if first raised a de not, however, legis- part unique one of a appeal by appeals a court fendant on or of scheme such as that at issue in Yakus lative See, sponte. g., sua e. United States v. 660, 414, 64 321 U.S. S.Ct. United Meacham, 503, 1980); 626 F.2d (1944). underlying The statute 88 L.Ed. 834 Virgin Greenidge, Government of Islands v. compre- controversy in Yakus created a (3d 1979); 439 n.2 regulatory administration to control hensive Seuss, 387 n.2 prices during part War II. As of World denied, Cir.), cert. scheme, Congress provided an exclu- (1973). interpreted, 37 L.Ed.2d 155 So including by procedure, review sive appears require rule that we enter emergency appeals, by court of which an appellants’ regula tain the claim that aggrieved party challenge validity could unreasonably tion interferes with the food prohibit- price regulation expressly fishing industry. recognition challenge such a as a ed charge defense to a criminal for violation But the Government’s final line of de- regulation.9 Id. at important 427— fense underscores an difference similarly pre- 668-70. In the absence of a appellants’ challenge and those between the applicable reg- legislative clusive scheme typically protected by part of Rule pursuant we will ulations issued 12(b)(2) cited above. In most cases where a efforts to show foreclose validity of a statute defendant attacks premised on a their convictions were violated, challenge allegedly stands he invalid, that, because has no le- law, questions of analysis falls on gal effect. dimension. When a often of constitutional questions validity criminal defendant Second, apparently the Government however, regulation, the issue more often failed, suggests because is not amenable to resolution without appeal, pursue until their claim fact-findings, benefit of as is the case here. regulation unreasonably fishing, restricts prac- Although argues target The Government they have waived this defense. legislative similar in this 8. The advance as a second defense 9. Whether a scheme respect today alleged Secretary designate to that sustained in Yakus could failure of the “conspicuous appropriate challenge places” Vie- withstand a a crimi- constitutional ques public posting of nal defendant is not settled Yakus. See 33 C.F.R. 204.234. States, however, fishing proviso, Wrecking v. United Unlike the food the Adamo 275, 279-85, Co. 566, 569-73, posting requirement pertains not sub- 54 L.Ed.2d to the 289-91, validity regulation 538 id. at 98 S.Ct. at 575-76 § stantive 3 but to its enforcement, J., (Powell, concurring); specifically, problem v. United the of a de- Yakus States, 460-88, knowledge regulation. 64 at 684-98 fendant’s Since J., Hart, (Rutledge, dissenting); appellants they Power of the not not do claim did Congress regulation, Limit the Jurisdiction of Federal have notice of the there is no reason to Dialectics, Secretary the Courts: An Exercise in Harv.L. to decide whether the fulfilled (1953). posting requirement. Rev. 1362 major 1 and 3 is the § distinction between § with 204.234 § in accordance conducted tice fishing the for the food indus- unreasonably proviso interfere with latter’s not does Vieques. obligation But nei- fishing industry try, the district court had food trial on this Secretary evidence at had com- party adduced whether the ther ascertain not question issuing district court did proviso and thus the when the plied with the findings. pertinent provide any us with regulation.11 obligation arises from This Navy’s knowing in fact the Without how jurisdiction court has the fact that a federal fishing in the Vie- target practice hinders only when the infor- try cases criminal all, waters, decide we cannot quen if at alleges violation of a a mation or indictment is reasonable under practice whether law; ultimately is the and it valid federal Thus, recognize appellants’ if we the 3.10 § jurisdic- to ensure that responsibility court’s choice but to challenge, we have no belated potentially with a tion exists. Confronted court, the district the case to remand anomaly promulgation of significant in the What us to hesitate. prospect that causes validity of which is es- regulation, the the 12(b)(2), applied, so us is that Rule concerns court jurisdiction, the district sential to its in this situa- opens way the for defendants further, regardless of inquired should have knowing appeal, until tion to remain silent motion. inadequacy of the defendant’s the delay and fur- gain at least some can Thus, fur we remand the case for through re- ther burden the Government to determine whether 33 proceedings ther fact-findings for the to the trial court mand unreasonably interferes C.F.R. 204.234 regulation’s validi- necessary to determine fishing industry.12 If the food with the concern, Having expressed our we ty. danger zone court rules that the district under the facts conclude that nevertheless fishing provi with the regulation complies challenge should case the of this so, If the court convictions shall stand. the recognized. contrary, shall dismiss the rules to the it Although question not did informations. fishing compliance with the regulation’s case, Although we con- we remand court, he did proviso before the district to review the other appropriate sider it potentially to a draw the court’s attention so that grounds raised promulgation of defect in the substantial subsequent appellate review of these any Secretary’s misplaced regulation, convictions, necessary, if will be limited 1. the Secre reliance on 33 U.S.C. Given which we now remand.13 error, facially apparent question upon tary’s and that a proper legislative facially explained by conforms with As this court in Romero-Barce- See, Secretary’s authority, Brown, (1st e. 835 at 851-52 source of the lo v. Brown, 1981), g., National Bank v. the district court Barcelo Merchants (D.P.R.1979), F.Supp. rule did not complies with on whether 33 C.F.R. 204.234 determination, itself, making the court In fishing proviso. the food jury, relevant issues of not a should decide applied The standard to be is whether fact. the materials available 11. Nor can we tell from action, light presented, agency of the facts Secretary actually attempted to us whether the arbitrary, capricious of discretion. or an abuse comply fishing proviso. the food When And, agency so should be notified formally proposed, the Sec- regulation. generally Na- defend its retary statutory 1§§ cited both and 3 as the thanson, Probing the Mind of the Administra- Fed.Reg. (1974). authority. 39 Follow- Hearing of Judi- Variations and Standards tor: comment, period public allowed for the Administrative Proce- cial Review Under however, Secretary published reg- when the Statutes, 75 Colum. dure Act and Other Federal solely on ulation final he relied 1. 39 as (1975). 755 & n.172 L.Rev. Fed.Reg. (1974). regula- initially presume validity 13. The also contend Though pro- “designed” to regulation, presumption tion is invalid because it is an administrative e., Navy’s target illegal activity, prac- inquiry preclude tect i. face of the does Navy does, According appellants, Secretary’s tice. reliance on 1. It erroneous activity unlawfully however, proof place from Cule- transferred this the ultimate burden of congres- Vieques of various appellants to in violation at least bra because government does the burden shift Selective Prosecution to the Invidious prosecution demonstrate that trial, Before moved to dismiss the Saade premised objective. on an invidious United sup- information the Government because Trabajadores, States v. Union Nacional de posedly singled out Zenon and had Saade 395, quoting F.2d at United States v. prosecution to deter their exer- in order 1207, Berrios, (2d 1974). 501 F.2d Cir. rights protected by the first amend- cise of not, however, present A defendant need a alternative, requested ment. In the Saade prima case in order justify facie an evi explore evidentiary hearing his claim. dentiary hearing. long So as the defendant opposed the mo- The Government of course a) alleges tending some facts to show that tion and the district court refused to con- selectively prosecuted, b) he has been and hearing duct a and denied the motion to raising a reasonable doubt propri about the appellants challenge dismiss. The that rul- ety prosecution’s purpose, see United ing. Larson, 1301, 612 F.2d States 1304-05 (8th Cir.), denied, 936, cert. considering When an attack on (1980); S.Ct. 64 L.Ed.2d 789 United exercise of its broad dis Government’s Berrios, n.4; States v. 501 F.2d at 1211-12 & prosecute in the decision whether to cretion Falk, United case, particular presume we a 1973) (in court, banc), a district in the good choice has been made in faith for reasons, countervailing absence of should governmental policy. reasons of sound See grant request hearing. a Lichenstein, United States v. prose- Saade’s claim of invidious selective denied, (5th Cir.), n.4 cert. 1281 & essentially upon cution drew two factual 64 L.Ed.2d 856 First, allegations contained his motion. v. Union Nacional de Traba persons” he asserted that of the “numerous jadores, 576 F.2d participated pro- who in the 19th presumption, To overcome this defendants protests, test action and only similar earlier heavy Only if a bear burden. defendant two, Zenon, were arrested for Saade prima can establish facie Second, violation of 33 204.234. C.F.R. he that, (1) similarly while others situated alleged a) prominent pres- that Zenon is the generally proceeded have not been Vieques ident Fishermen’s Associa- against type because conduct opposed tion and active in the movement forming charge against the basis of the area, Vieques Navy training the use of as a him, singled prosecu- he out for has been b) attorney is the for both tion, (2) government’s dis- actively Zenon and the Association and also criminatory prosecu- selection of him for Navy’s participates opposition to the faith, Saade, tion has been invidious or in bad i. Vieques. According activities e., upon impermissible allegations conclusively based such consid- these two show that race, religion, prosecuted erations as or the desire to the Government against prevent political Navy his exercise of constitutional future action to halt rights[,] training operations punish appel- and to presidential appellants’ closely Assuming sional and directives. related contention target practice raise this issue in their that this court has declared the illegal defense, gains nothing. When them is also without merit. In Romero-Barce- Brown, recently held another decision stat- lo v. enjoin we ordered the district court to applicable target practice, utes and executive directives question to this an incident of the not the action, imply private practice holding do not cause of itself. At 861-62. Our ruling Navy discharging we based that on our conclusion that must refrain from shells cognizable judicially firing there were no by standards other the coastal waters refuse into adjudicate Vieques permit which to the lawfulness until it obtains a NPDES is a alleged training cry general transfer of activities. Romero- far from a declaration that the Brown, target practice Barcelo v. 643 F.2d at 840-51. The is unlawful. appellants present no new information or theo- ry to warrant a different conclusion now. discretion,” “prosecutorial activities, invocation of id. contrary to political past lants Falk, 1152; the v. 479 F.2d response, In cf. United States first amendment. the (defendant’s allega- a memorandum stat- extensive factual submitted at 623 government alia, were Government),15 and Zenon ing, by inter that Saade the tions “unrebutted” violating charged with only ones with here Government came forth because, approx- 204.234 out C.F.R. specific explanation pros- for its decision part in imately persons who took thirty-five Zenon that is well only ecute Saade appellants protest, only 19th range of factors the within the wide without the Government could identified consider in permissibly Government investigation. undertaking extensive an Thus, prosecute. under deciding whether to Government, if at the time According court did not abuse these facts the district States marshals protest the United denying its discretion in Saade’s motion others, they safely arrested the could have entirety. its charged violating with too would have been regulation. On the basis of zone Allegation of Unlawful Electronic Surveil- allegations par- from both unsworn these lance ties, grant court refused the district motion, the information. hearing comprehensive pretrial or dismiss In a requested court order trial alone, allega Standing Saade’s to disclose whether the Government striking suggest tions coincidence any form of Government had conducted arguably reasonable doubt on the casts a telephone electronic surveillance of Saade’s design propriety of the Government’s supported the motion conversations. Saade pursuing prosecution briefly with an affidavit in which he de- warranting evidentiary hear only, thus frequent telephones scribed his use of three parried these ing. But the Government lawyer of his work as a in the course concrete, legitimate allegations with rea Legal He Puerto Rico asserted Services. supported subsequently that were sons telephone March 1979his conver- since at the trial. The full evidence adduced lawyers and other were sations clients district court also have considered that “irregularities”, specifically, disturbed Government, in an effort to husband its sounds, people of other “unusual voices resources, prosecutorial chose to limited telephone calling.” I related with the am prosecute only easily those who could be Finally, expressed his belief that he hope prosecution apprehended in the irregularities evidenced electronic surveil- illegal would deter future granted Initially, lance. the district court practice.14 disruptions Navy training upon But reconsideration Saade’s motion. Unlike the situation in United v. Steele, request the court (9th 1972), at the of the Government 461 F.2d 1148 Cir. where order and denied the mo- pros the Government defended its selective vacated its first nothing ecution with more than a bland tion.16 concluded, nothing justify Assuming prosecution also ment offer concrete to the selec- cases, appeal, appellants’ po- prosecution in but Steele as asserted on tive those fortify prominence potential presented compelling allegations would more litical Falk far effect, nothing appellants. deterrent we find evil in this than have Catlett, v. calculation. See United States compel neither a motion to submitted Zenon (8th 1978); 867-68 United States F.2d Cir. of electronic surveillance nor an affi- disclosure Ojala, 944-45 Cir. evidencing alleging facts existence of davit Although always the deterrence rationale can wire-tapping. attempt did he unlawful Nor justify prosecution, be invoked to selective its Thus, join for him in Saade’s motion. to suc- general applicability does not undermine its challenge ruling cessfully the district court’s legitimacy in the absence of evidence that con- the court committed would have to find that troverts the Government’s asserted interest Previte, plain error. See United States deterrence of the criminal conduct at issue. 1981); (1st McMillen v. United F.2d Falk, 1967); In reliance on Steele and Fed.R. only 52(b). disposition appellants ignore that not did the Govern- Given our Crim.P. ping.” United v. Nacional de appeal two-fold. States Union claim on is

Saade’s Trabajadores, First, his 576 F.2d at 393. As was that fourth amend- he contends Nacional, by the in Union the conduct rights may have been violated case ment illegal were convicted “was through which obtained use of evidence id.; see,” open Second, questions whether for all to wiretapping. he out rights eye-witness consisted Government’s case of and his clients’ sixth amendment his by govern- testimony military officers and attorney-client of effective assistance by undisputed documentary impaired agents ment and may have been conversations completely unpersuasive We con- evidence. find illegal attorney-client of surveillance sepa- appellants’ attempt explain how this these We consider issues versations. illegal by could been evidence have tainted rately.17 wiretapping. 3504(a)(1), when 18 Under U.S.C. of aggrieved” claims evidence The sixth amendment facet “party that

a by him claim for a different reason. may against be is tainted Saade’s fails that used motion, accompanying must In his his illegal wiretapping, the Government affidavit alleged expressed of the al his belief that deny or the occurrence Saade “affirm wiretapping his Id.18 main was “in connection with” leged unlawful act.” Saade “representation Viequens my and his stated a claim which of tains that affidavit 19, 1980,” alleged duty under and triggered arrest Government’s “engaged in of 3504(aXl). or not the dis he had conversations But whether recognized my with in Vie- Saade’s confidential nature clients trict court should have claim,19 lawyers ques people no and with allegations as a harm befell other Vieques working of motion. are in too.” Assum from the denial a from the of record convinces us defendant draw Our review right appel analogous used to amendment a to that “of the evidence convict sixth none wiretap- by 3504(a)(1),20see of Union Nacion- lants could have been fruit created 17. The tion. consult ble opinion Saade’s poses in or before (a) ment, officer, other unlawful unlawful (1) upon mary product of an unlawful evidence affirm or means mechanical, Constitution or laws any regulation (b) As used suant thereto. section As to what constitutes 18 support for In U.S.C. 3504 of 18 U.S.C. First of this authority challenge, ^[******] any 2510(5) obtained act; act, a claim deny trial, Circuit Rule act [sic] inadmissible because it is the Court, or any or standard agency, Toscanino, the occurrence of the of this of hearing, other device counsel, this section we do opponent of by court, grand provides position the United 3504(a)(1), compare, would well advised the use a title) party regulatory body, 14. or who find considera- exploitation promulgated pur- other “claim” for United States reach an “unlawful States— violation of the act the claim shall aggrieved pertinent (as any jury, unpublished proceeding or because defined in electronic, depart- alleged of an ques- part: e. act” pur- pri- g., or 43 L.Ed.2d 673 F.2d considerations the grand F.2d (10th similar to ant’s claim triggering S.Ct. many (2d note States 774 Gardner, lenges against 1974), cert. denied, 1247 United States v. 3504(a)(1). James, grand 18 U.S.C. § actionable context of Cir. (1980). (2d at 1062: In re 1059, Cir. (D.C.Cir.1971), with jury witness, v. Those courts supra. 1974), jury context). 611 Yanagita, Saade’s 1975), denied, the Government’s 1062 47 L.Ed.2d decisions 1976) F.2d claim. 3504(a)(1) pertains only to chal- F.2d Cf. implicated (1975), with In contempt proceeding against a See, warrant a lower threshold cert. (2d have doubted that use of tainted evidence. 770, In re In re (policy concerns 552 presented 505 Vigil, See the somewhat denied, Cir. 774 51 F.2d Millow, But see United Evans, F.2d 170 In (2d (9th 524 F.2d 1977), 992, United re (1976). 940, re 845, 425 question criminal 1082, L.Ed.2d with Cir. 452 F.2d Archuleta, Archuleta, 95 S.Ct. duty 856 U.S. 943 1979), allegations 1980), applicable they form States v. 209, different Because (2d arise in 927, defend United under 1428, 1239, cert. Cir. Cir. 214 561 561 96 represented him in this case or conversa- al, allegations fail to F.2d at these attorney and tions between him or that claim related raise a sixth amendment directly related to persons third that were issue here.21 prosecution the criminal charge. defense of this Saade’s Rather, allegations appear to seek a possible electronic wholesale disclosure properly The district court denied Saade’s respect to his surveillance compel of electronic motion to disclosure Vieques generally on behalf work surveillance. Viequen Association and other Fishermen’s remaining The issues raised clients, including Although Zenon.22 require only and Zenon brief discus ideologically related to the may be work appellants sion. The contend that in sen events that led to the immediate tencing to the maximum term of them both convictions, that connection alone does not imprisonment, six months the district court suffice to raise a viable sixth amendment- regard without to them as individuals acted in context of a criminal based claim “impermissible” and relied on factors. As case. previously emphasized, we have “a court of applied As to a criminal defend appeals may tamper with not reverse or “claim,” 3504(a)(1) ant’s works within the limits,” legal within sentence that is United prosecution, offering limits of a criminal Foss, 522, (1st v. 501 F.2d 527 Cir. protection some to a defendant from a con 1974), unless the record shows trial through tainted evidence. viction secured “improper” assumption, relied court on an analogue amendment to this So too a sixth Wardlaw, 932, United States v. 576 F.2d 937 “ statutory right pro be confined to should 1978), Cir. or followed a ‘mechanistic’ right tecting individual’s to the effective an concept particular type of what a of crime defending against assistance of counsel deserves,” invariably any “mitigat blind to Thus, charge. criminal for such a claim to applicable factors” to the individual de survive, allege the affidavit must facts Foss, fendant’s case. United States v. 501 tending to show that conversations between 527; Dorszynski F.2d at see v. United attorney defending a defendant and the 424, 443, U.S. against charge, him the criminal or conver L.Ed.2d United States attorney sations of the defendant or his 938; Wardlaw, 576 F.2d at United States persons pertaining third to that de Hartford, (5th fense, wiretapped. have been Where the 1974). appellants’ argument Neither the allegedly conversations were overheard be record, appeal, nor review of the dis our attorney tween the or the defendant and closes evidence that the district court parties, allegations third should set mechanistically determining acted pertinent forth the dates of the conversa only sentences. The record shows tions, persons the identities of the third opportunity court offered the connection between those conversations potentially to inform it of ameliorative fac charge. and the defense of the criminal appellants accepted this tors: both of the See, g., Vielguth, e. United States v. politi invitation with a brief account of the 1974); F.2d 1259-60 January 19th impetus cal for the incident. Alter, 1016, 1026(9th States v. Cir. Finally, the cannot be heard for allege Saade failed to facts suffi appeal complain because the first time on support forego cient to even a colorable claim that reasonably prep court decided to tapped presentence reports. either Government conversa See Fed.R. aration 32(c). attorney tions between him and the who Crim.P. pretrial appellate allegations nature of

21. Saade’s memorandum and 22. The wholesale Saade’s attempt brief to flesh out the nature of the further evidenced the fact that Saade’s compel during irregularities his sixth amendment facet to motion disclosure. But these efforts can be fruitful only refers to conver- affidavit early sations that occurred as as ten months required January if contains sufficient affidavit before the 19th incident. allegations upon argu- factual which to build an ment. atop highest point on half of the eastern appellants also claim that island; intercepted patrol boat imper determining the sentences the court and, it entered the zone flotilla before on a Government witness’ missibly relied inferred, the lead boat not may be warned Zen- testimony newspaper reports of as to gunnery practice; to enter because plan related to the public on’s statements patrol warned them that and another boat action. ning protest 19th danger zoné they were in violation of the record, is this only, light of the Not after had entered recog conjecture, appellants fail to but the approxi- they still did not leave for appropriate deciding upon the zone— nize that in Considering mately this evi- three hours.25 properly consider sentence a trial court inferences, dence, and all reasonable infor or ‘out-of-court’ “responsible unsworn Government, light to the most favorable the circumstances mation relative to ” as a whole suffi- conclude that the evidence Oklahoma, 358 . Williams v. crime . . . finding ciently supports trial court’s 576, 584, 3 L.Ed.2d appellants knew the zone was (1959).23 consider If the trial court did nonmilitary navigation before closed to sentencing specific information this they it.26 entered discretion. it acted within its appellants, stated, For we remand the the reasons Zenon assail their con and pro- court for further case to the district ground on the Government victions opinion. ceedings with this consistent Navy was prove they knew the failed to Remanded. practice they time conducting target at the this zone.24 Much of entered CAMPBELL, Judge LEVIN H. Circuit against grounds argument is directed (concurring dissenting). court in its find articulated the district should, regulation agree, I have been The ings, particular, supposedly its considera promulgated under 33 U.S.C. not sec- testimony inadmissible ble reliance on follow, however, 1. It does not tion reported statements of Zenon as related remand, defendants are entitled to a for supra. newspapers. note several See hearing evidentiary on a fac- purpose of an exagger Although appellants we think the they before the dis- tual issue never raised evidence to the importance ate the of this regulation namely, trict whether findings, entirely if it were court’s even court— interference constituted an unreasonable appel disregarded other evidence of the industry. fishing the food with knowledge is substantial. Sometime lants’ preceding 19th in the week pre-trial only claimed Defendants’ motion a notice of Navy routinely had distributed failed to state an of- that the information schedule; Mapping practice the Defense regulation they were fense because Agency invalid, transmitted the information as violating having had charged was part daily its radio broadcasts for the promulgated under section expressly been fishermen; red benefit of local sailors of Title 33. district not section routinely the motion. As this warning flag, properly used to alert fisher denied court holds, inappo- citation to an target practice, flew court in effect men and sailors of Moreover, Although warning given although appellants correctly after the was zone, testimony hearsay entered the it remains relevant as a double characterize knowledge entry. prior A to show person of what have been admissible account admissions of practice ignorant target Zenon, they object who was failed to unlikely they be entered the zone would testimony when during the introduction of this the trial. Thus the warned, flouting the instruc- remain once to tions testimony part of the rec- government personnel. ord before the district court. review the We see no reason to question the court’s do not 24. The assistant United belated claim Attorney, regulation finding they knew of the at the called as a wit- whom the defense they zone. entered the time ness, disqualified from serv- should have been counsel. as the Government’s enabling creating sufficient rea statute site statute is not a offense is unconstitu tional, Seuss, an information where au son invalidate see United challenged regulation denied, thority (1st Cir.), for the exists cert. another statute. Johnson v. United (1973). See 37 L.Ed.2d 155 It 807, 14 Alaska 380 challenge even be the case that a to the validity regulation may be raised for appeal adequate the first time on if an basis At no time defendants advance below did appellate decision is to be found in the proposition that the the further and distinct Johnson, record. 206 F.2d 806. But I regula- information was invalid because the 12(b)(2) have found no case in which Rule proviso comply tion did not with the has been invoked to allow a defendant section 3 that a thereunder must appeal raise first time on such fac unreasonably not interfere with the food wholly undeveloped tual fishing issues as are industry. Nothing on the face of Moreover, at stake here. I regulation gives rise have found no to such a claim. nothing prevent There was whatever to de- case in which the issue of an indictment’s making fendants from this claim in the failure state an offense has been re district court wished to had do so. To manded to the district court. This is but sure, judge might have overruled point further illustration of the that under claim, made, such a had it been on one or 12(b)(2) requiring Rule issues extensive fac ground, including, possibly, another the mis- development may tual not be raised for the ground taken applied, that section 1 appeal. first time proce If this sort of proviso that no such existed in section 1. allowed, litigants only dure is to be will not might adopted But the court not have encouraged up to save ammunition for approach. any We shall never know. In court, appellate de novo use in the but event, litigants are not excused from already overburdened will up courts end presenting simply matters in the trial court holding hearings expense double at the they judge because deny believe the will litigants yet other whose claims have to be request. Surely if defendants here heard at all. had real belief that the could I would judgment affirm the below. fishing, be shown to interfere with food point would have made the in their supporting motion and extensive brief filed They

in the district court. did not. I am why

therefore at a loss to understand

permit them to raise the matter at juncture. was, indeed, question YORK, MALRITE T. V. OF NEW et appellate even raised in their brief. It first al., Petitioners, during argument surfaced oral before this court. 12(b)(2) not, Citation to Fed.R.Crim.P. I FEDERAL COMMUNICATIONS

think, adequate explanation COMMISSION, United States court’s result. An indictment be chal America, Respondents. lenged appeal for the first time on under 80-4120, Nos. 1284 to Dockets 12(b)(2) Rule necessary where omits a 80-4160, 80-4202 and 80-4204. charged, element of the crime see Walker v. Appeals, United States Court of (5th Cir.), cert. Second Circuit. denied, charges L.Ed.2d 97 where it a de Argued March fendant with a crime that does not exist Decided June statute, under see United States v.

Meacham, 1980); 626 F.2d 503 Virgin Greenidge, Islands v.

Government (3d 1979);

600 F.2d 437 or where the

Case Details

Case Name: United States v. Pedro Saade, United States of America v. Carlos Zenon Rodriguez

Court Name: Court of Appeals for the First Circuit

Date Published: Jun 30, 1981

Citation: 652 F.2d 1126

Docket Number: 80-1223, 80-1224

Court Abbreviation: 1st Cir.