United States Court of Appeals
For the First Circuit
No. 02-1140
UNITED STATES OF AMERICA,
Appellee,
v.
HECTOR VENTURA-MELENDEZ,
Defendant, Appellant.
No. 02-1141
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL VENTURA-MELENDEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Linda A. Backiel for appellants.
Stacy J. Pintar, Special Assistant U.S. Attorney, with whom
H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabon,
Assistant United States Attorney, were on brief for appellee.
February 25, 2003
COFFIN, Senior Circuit Judge. The defendants appeal their
convictions for entering a temporarily off-limits military area in
the ocean waters adjacent to Camp Garcia, on the island of Vieques,
Puerto Rico, in violation of 18 U.S.C. § 1382. Because a lawful
regulation barring entry existed and the defendants had actual
notice of it, we affirm the convictions.
I. Background
The record reflects that on April 28, 2001, brothers Hector
and Angel Ventura-Melendez, the defendants, left the Esperanza
harbor in Puerto Rico in a small fishing boat at approximately
10:00 a.m. with eight to ten other small boats headed in the
direction of the nearby Navy firing range in the waters adjacent to
Camp Garcia. The defendants were fishermen whose family
traditionally fished in those waters.
The Coast Guard cutter VASHON, patrolling the area to enforce
a temporary security zone, observed the fleet of small boats
heading toward the prohibited area. The regulation creating the
temporary security zone, although signed and dated April 26, 2001,
was not published until May 3, 2001. Thus, the publication
provided only retrospective notice of the zone's creation from
April 26 through April 30 for a bombing and gunnery range. 66 Fed.
Reg. 22,121 (May 3, 2001). The regulation prohibited vessels and
people from entering the zone unless specifically authorized to do
so. Id.
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The Coast Guard announced the security zone over VHF radio on
the morning of the defendants' apprehension, although the
defendants' boat was not equipped with a VHF radio and they were
unlikely to have heard the broadcasts. There is no indication in
the record whether the Coast Guard utilized other notification
procedures such as postings in public places or placement in local
newspapers.
Concerned that the flotilla of small boats was headed directly
into the zone, the Coast Guard dispatched a rigid hull inflatable
boat and four personnel to intercept the flotilla. The Coast
Guard's inflatable boat was bright orange and clearly marked "U.S.
Coast Guard." In addition, the Coast Guard personnel were wearing
coveralls with "U.S. Coast Guard" written on the front and back in
large lettering as well as life jackets marked "U.S. Coast Guard."
The lieutenant in charge, who remained on the VASHON, directed the
Coast Guard personnel on the small boat to ask the fishing boats to
turn around immediately and give them an opportunity to leave the
security zone.
As the Coast Guard boats approached the flotilla, the
Guardsmen attempted to stop the fishermen, yelling in Spanish,
waving their arms, and using hand signals. The Guardsmen hoped to
come alongside the small boats and explain that they were entering
a security zone. Members of the flotilla, however, refused to heed
the Coast Guard's warnings; the defendants in particular shook
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their fists and shouted "carajo."1 The Coast Guard boat, along
with a Navy harbor security boat and a second inflatable boat
dispatched from another Coast Guard cutter, gave chase to the
fishing boats.
When the Coast Guard personnel yelled, from a distance of
approximately twenty yards, "Security zone, stop your boat," the
defendants looked at them and sped further into the zone. Because
there were several boats from the flotilla then entering the
security area, the Coast Guard focused its efforts on intercepting
the slowest of the boats, which belonged to the defendants. The
Coast Guard gave chase and was eventually granted permission to
forcibly stop the defendants' boat within the security zone.
Following a nonjury trial, the defendants' Rule 29 motions for
acquittal were denied and they were convicted of violating section
1382, prohibiting entry into "any military, naval, or Coast Guard
reservation, post, fort, arsenal, yard, station, or installation,
for any purpose prohibited by law or lawful regulation," and
sentenced. The defendants argue that a lawful regulation, required
by section 1382, did not exist, and, even if it did, it could not
be enforced against them because they had no notice of it. We
review the district court's interpretation of federal statutes de
1
The district court explained that this Spanish term "is
considered foul language and is generally used to express disgust,
at times of surprise or anger." United States v. Ventura Melendez,
186 F. Supp.2d 55, 62 n.3 (D.P.R. 2001).
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novo. See United States v. Maxwell, 254 F.3d 21, 24 (1st Cir.
2001) (citing United States v. Carroll, 105 F.3d 740, 744 (1st Cir.
1997)).
II. Whether a "Lawful Regulation" Existed
The defendants argue that a "lawful regulation" did not exist
at the time they were arrested because the rule establishing the
temporary security zone had not yet been published, assertedly in
violation of the Administrative Procedures Act (APA), 5 U.S.C. §§
500-596.2
Notice of a proposed rule, opportunity for public comment, and
publication of the final rule are central tenets of the rule making
process outlined by section 553 of the APA. See 5 U.S.C. § 553(b)
& (d). Nevertheless, rules involving a "military or foreign
affairs function" of the federal government are exempted. Id. §
553(a)(1). The defendants contend that creation of the rule here,
regardless of its purpose of setting aside an area for military
activity, was a civilian rather than a military function. They
reason, without citing authority, that a rule regulating civilians
fulfills a civilian, not a military, function.
2
The defendants also suggest that the Coast Guard's failure to
publish the rule until after the security zone had expired violated
44 U.S.C. § 1505, part of the Federal Register Act. Because
section 1505 lists generally the types of information to be
published in the Federal Register, while the APA provides detailed
dictates for the creation of regulations, we focus our analysis on
the latter.
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Here, the rule created a temporary security zone comprised of
a combined area of ocean and land adjacent to a bombing range at a
military installation. A rule designed to render safe and feasible
the performance of a military function by preventing interference
on the part of civilians necessarily serves a military function as
well as a civilian one. Specifying a security zone seems to us no
less directly related to military action than identifying targets
or establishing the time for artillery exercises.3 Thus, the
proposed zone was well within the concept of military function.
The defendants also contend that even if the military function
exception saves the rule from having violated section 553, it
failed to hurdle the publication requirement of section 552, which
was not, they assert, subject to the exception. Because the rule
was not published until after its implementation, the defendants
contend that section 552 was violated.
Regardless of whether the military function exception applies
to section 552, however, there was no inconsistency with that
provision because it also provides a role for actual notice.
Section 552(a)(1) contemplates that actual notice may at times
supercede constructive notice through publication, explaining that
3
This distinguishes the instant case from Independent Guard
Ass'n of Nevada v. O'Leary, 57 F.3d 766 (9th Cir. 1995), amended by
69 F.3d 1038 (9th Cir. 1995), in which a Department of Energy
personnel regulation governing civilian contracted guards was held
to fall outside the military function exception, the court
observing that it had found no authority applying the exception to
rules regulating civilian contractors. Id. at 770.
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"[e]xcept to the extent that a person has actual and timely notice
of the terms thereof, a person may not in any manner be required to
resort to, or be adversely affected by, a matter required to be
published in the Federal Register and not so published." See also
United States v. Mowat, 582 F.2d 1194, 1201 n.5 (9th Cir. 1978)
("By virtue of [section 552(a)(1)'s actual notice] provision,
regulations that are unpublished in violation of the [APA] are
unlawful only as against those who have no actual and timely
knowledge of their contents.").4
Because the rule's promulgation did not violate the APA, the
fact that the rule was not published until after the defendants'
arrest for violating the temporary security zone does not disabuse
the rule of its status as a "lawful regulation."
III. Whether the Defendants had Actual Notice
The defendants next argue that even if the regulation was
valid, they had no notice of it, and therefore enforcing it against
them violated their due process rights as well as the Ex Post Facto
Clause of Article I, prohibiting the criminalization of innocent
actions after the fact. We do not reach the issue of whether the
defendants had constructive notice through VHF radio transmissions
since the government has not so alleged. The government instead
argues that the defendants had actual notice that their entry onto
4
We note that 33 C.F.R. § 165.7(a), regarding notification of
security and safety zones, includes "on-scene oral notice" as a
valid means of conveying notice to trespassers.
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the zone was prohibited. See Maxwell, 254 F.3d at 24 (holding that
convictions under section 1382 require "knowledge or notice, actual
or constructive, that such entry was prohibited"); see also Nason
v. Kennebec County CETA, 646 F.2d 10, 19 (1st Cir. 1981) ("[E]ven
were publication called for, its absence would not invalidate an
otherwise proper rule where the party adversely affected had
'actual and timely notice.'").
In cases with similar fact patterns, courts have confirmed
that actual notice is sufficient to support a conviction. In
United States v. Parrilla Bonilla, 648 F.2d 1373 (1st Cir. 1981),
the defendants asserted that they had not seen the Naval
Instruction prohibiting entry into a beach closed for naval
operations. Id. at 1378. This court found that even if the
defendants had not seen the Naval Instruction, the convictions were
sustainable if the government showed that the defendants
"reasonably understood that naval authorities had declared the base
closed to all persons who lacked passes or other authorization."
Id. at 1378, 1383 (overturning the convictions and holding that "it
is doubtful whether the record supports a finding that appellants
reasonably knew that their presence was forbidden"). In Mowat,
the Ninth Circuit upheld the defendants' convictions because they
had actual notice that their unauthorized entry into a military
reservation violated a regulation, even though it was not published
until many months after their arrests. Mowat, 582 F.2d at 1201-03.
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The district court here concluded that ample circumstantial
evidence showed that the defendants were aware that the Coast Guard
was trying to stop them from entering a security zone. United
States v. Ventura Melendez, 186 F. Supp.2d 55, 59 (D.R.I. 2001).
The court noted that "the Coast Guard intercepted the Defendants,
yelled at them to stop, in an attempt to impede transgression into
a security zone only to receive from them obscene words followed by
a defiant speed-off. . . . Hand signals were also used urging
Defendants to stop to no avail." Id. The court concluded that
"[e]ven accepting as true Defendants' version of the facts in this
case, the Court is left with only one acceptable conclusion: they
had actual knowledge that the security zone had been established
prior to their trespass." Id. at 58.5
Nevertheless, the defendants suggest that their reaction
reflected only frustration with perceived harassment in their
traditional fishing grounds. They claim that their shouting and
fist waving did not indicate an awareness that they were entering
5
The court also stated that "Defendants themselves accept that
– at the least – the Coast Guard not only tried to notify them, but
went so far as to try to physically prevent them from trespassing."
Ventura Melendez, 186 F. Supp.2d at 58. The defendants dispute the
district court's interpretation that they conceded having heard the
Coast Guard's verbal warning. They contend that the noise of the
outboard motors of several boats and the distance between the boats
and the Coast Guard vessel suggest that it is unlikely that they
could have heard accurately. Nevertheless, the district court's
interpretation that the defendants had actual notice is soundly
supported by the evidence, regardless of whether or not the
defendants made an admission to that effect.
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a forbidden zone, but rather distress that they would be unable to
fish in their customary area or even to remove their traps to avoid
damage from passing military vessels. One may empathize with their
predicament, but the fact remains that they blatantly disregarded
the Coast Guard's order that they leave the area.6
Reviewing the record, we conclude that the court's finding of
actual notice was amply supported. As such, the defendants'
convictions were not invalid and did not violate the Due Process or
Ex Post Facto Clauses.
IV. Whether One of the Defendants was a Mere Passenger
The defendants' final argument is that one of them was a "mere
passenger" who did not possess the "purpose" required by section
1382. The defendants baldly assert that one of them -- they do not
specify which -- was a passenger who was merely present in the
zone, rather than willfully transgressing it. The evidence
presented, however, suggested that both inhabitants of the vessel
were involved in shouting and waving fists at the Coast Guard.
More importantly, the evidence does not reveal any suggestion that
either defendant at any time expressed a desire to exit the boat,
turn it around, or otherwise leave the security zone. Without
6
The timeliness of the actual notice given to the defendants
would likely have been suspect had the Coast Guard attempted to
arrest them immediately upon observing them enter the zone. The
Coast Guard instead tried to warn the defendants to leave the area,
although the defendants ignored the warning, forcing the Coast
Guard to chase them further into the zone and eventually secure
their arrests.
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more, it is difficult to conceive that the actions of either
defendant were not purposeful.
For the reasons set forth above, the order of the district court is
affirmed.
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