United States Court of Appeals
For the First Circuit
No. 00-2372
UNITED STATES OF AMERICA,
Appellee,
v.
ALBERTO DE LEÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Irma R. Valldejuli, by appointment of the court, for
appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Assistant United States Attorney, Chief, Criminal
Division, were on brief for the United States.
November 2, 2001
BOUDIN, Chief Judge. In this case, Alberto De León
appeals from his conviction for attempting to reenter the United
States after deportation. The facts are undisputed. De León,
a citizen of the Dominican Republic, first entered the United
States in 1980. In 1995, he was convicted in state court of
possession of heroin with intent to distribute and was sentenced
to prison. Following his release in July 1997, he was deported
based upon his conviction for drug dealing.
On May 16, 1999, a U.S. Coast Guard cutter intercepted
a small yawl about 15 nautical miles off the northwest coast of
Puerto Rico (all references are to nautical miles). The yawl
was in international waters, since U.S. territorial waters
extend only 12 miles from shore and, at the time, the U.S.
contiguous zone also extended only 12 miles from shore. 1 The
yawl flew no flag and had no lights, registration number or
other markings. De León was one of the passengers on the yawl.
When approached by the cutter, the yawl turned away
sharply but then halted and began to sink. The yawl turned out
to be carrying 72 Dominican nationals, and various passengers
1
The contiguous zone is an area in which the United States
claims certain rights short of sovereignty. In August 1999, the
President signed a proclamation to extend the contiguous zone to
24 miles from shore, but this occurred after the events
important to this case. Presidential Proclamation No. 7219, 64
Fed. Reg. 48,701 (Aug. 2, 1999).
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admitted that the yawl was attempting to transport them to
Puerto Rico. The passengers were taken by the Coast Guard to
Puerto Rico. There, an investigation revealed that De León had
been previously deported as an aggravated felon and had not
received permission from the Attorney General to enter the
United States.
A grand jury indicted De León on one count under 8
U.S.C. § 1326 (1994). That provision makes it a crime for an
alien who has previously been deported to enter, attempt to
enter, or be found in the United States unless certain
conditions are met (such as receiving express consent from the
Attorney General to apply for admission). Id. § 1326(a). The
government also invoked the more severe penalties that the
statute provides where the previous deportation occurred
subsequent to commission of an aggravated felony. Id. §
1326(b)(2). De León moved to dismiss the indictment, arguing
inter alia that he could not be convicted for an attempt to
enter based on acts that occurred entirely outside the United
States.
The district court denied the motion, and De León then
pled guilty to attempting to enter the United States in
violation of the statute and was sentenced to 70 months in
prison. However, in his plea agreement De León reserved the
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right to appeal on his claim that the statute did not apply to
conduct that occurred wholly outside the United States. That is
the only issue presented to us on this appeal.2
Apart from his claim as to territorial reach, there is
no dispute that De León violated the statute. "Attempt," here
as elsewhere, is a specific intent crime in the sense that an
"attempt to enter" requires a subjective intent on the part of
the defendant to achieve entry into the United States as well as
a substantial step toward completing that entry. United States
v. Gracidas-Ulibarry, 231 F.3d 1188, 1195-96 (9th Cir. 2000) (en
banc). However, as with most federal criminal statutes, there
is no requirement that the defendant additionally know that what
he proposes to do--i.e., attempt to enter the United States--is
for him criminal conduct. 1 LaFave & Scott, Substantive
Criminal Law § 5.1(d) (1986).
The adequacy of the factual basis for De León's plea
is not disputed, and any such dispute would be foreclosed,
absent extraordinary circumstances, by the guilty plea itself.
Acevedo-Ramos v. United States, 961 F.2d 305, 307 (1st Cir.),
cert. denied, 506 U.S. 905 (1992). As it happens, the evidence
2
Although De León also briefed a claim that his prior
deportation was invalid, he did not present that issue in the
district court or preserve it in the face of his guilty plea.
In oral argument, defense counsel in this court withdrew this
claim of error.
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was ample to show that De León was on a vessel seeking to make
a surreptitious entry into the United States, and--given the
state and behavior of the vessel and the statements of other
passengers--it is easy to infer that De León knew full well
where he was headed and was on board for that purpose.
De León does not argue, nor could he, that Congress
lacks constitutional authority to make criminal the conduct to
which he pled guilty. Although all of the alleged acts occurred
outside of the United States, its territorial waters and its
then-defined contiguous zone, the acts were deliberately
directed to producing an effect within the United States. The
constitutional power of Congress to criminalize such conduct is
not in doubt.3 Instead, De León argues Congress is presumed not
to intend an extraterritorial application of its general
criminal statutes. Alternatively, he says that to do so here
would violate a treaty whose provisions are set forth below.
It is true that "'legislation of Congress, unless a
contrary intent appears, is meant to apply only within the
territorial jurisdiction of the United States.'" Foley Bros.,
3
See Blackmer v. United States, 284 U.S. 421, 436-38 (1932);
see also Restatement(Third) of the Foreign Relations Law of the
United States § 403(3) (1987); Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 795-96 (1993); Nippon Paper Indus.
Co., 109 F.3d 1, 4 (1st Cir. 1997); United States v. Plummer,
221 F.3d 1298, 1305-07 (11th Cir. 2000).
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Inc. v. Filardo, 336 U.S. 281, 285 (1949). The policy reasons
are obvious: one is "the common sense notion that Congress
generally legislates with domestic concerns in mind." Smith v.
United States, 507 U.S. 197, 204 n.5 (1993). And the
presumption also "serves to protect against intended clashes
between our laws and those of other nations . . . ." EEOC v.
Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).
Here, statutory language taken alone does not disclose
Congress' intent; although the statute makes criminal "attempts
to enter" without limitation as to where the attempts occur,
that would be true of many provisions in the Criminal Code,
e.g., 18 U.S.C. § 1028 (1994) (false ID documents), but few of
those provisions would be read automatically to apply to conduct
occurring solely in France or Norway. Nor does the government
point to any legislative history that might suggest a special
concern with attempts to enter the United States that occur on
the high seas or in foreign countries but which never reach U.S.
territory. At the same time, this seems to us a singularly easy
case to conclude that Congress did mean to reach De León's
conduct.
In the ordinary situation, Congress has little reason
to care whether citizens in other countries behave in ways that
would be forbidden in this country. But where the crime
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involves a prior deportee's effort to re-enter the United States
illegally, the federal interest is just about the same as that
which leads Congress to punish one who "enters . . . or is at
any time found in, the United States" after deportation. 8
U.S.C. § 1326(a)(2). Why would Congress want someone caught
several miles outside territorial waters, who is shown to be
attempting to enter illegally, to be freed and given a second
chance to make a more successful entry?
No challenge is made here to the lawfulness of the
seizure. Had the yawl not been classed as a stateless vessel,
this could have affected the authority of the Coast Guard to
arrest De León at sea--absent permission from the flag state.
See 46 U.S.C. app. § 1903(c)(1)(C) (Supp. II 1996). But such
limitations on place of arrest would not alter Congress'
interest in criminalizing De León's conduct or in prosecuting
him if the government could lawfully acquire custody.
The more interesting question is whether the statute
would apply if the acts comprising the "attempt" took place
solely within the territory of a foreign state. In some cases,
the conduct--if distant and preliminary--might easily fail to
constitute an attempt, see United States v. Doyon, 194 F.3d 207,
211 (1st Cir. 1999); but one can imagine other cases where an
attempt would be made out (e.g., suppose De León had been caught
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in Canada a mile from the border and admitted that he was en
route to Detroit). Without suggesting any doubt about Congress'
power to punish such conduct, we need not decide now whether
there is any such limitation on the statute's reach.
This brings us to De León's argument based on the
Convention on the Territorial Sea and the Contiguous Zone. The
gist of the argument is that by ratifying the Convention--which
affirmatively authorizes the enforcement of national immigration
laws in its contiguous zone and territorial sea--the United
States has impliedly agreed that it will not apply its laws to
conduct occurring beyond the zone, at least as to "customs,
fiscal, immigration or sanitary regulations . . . ."
The Convention, ratified by the Senate in 1961 and
entered into force in 1964, pertinently reads as follows:
(1) In a zone of the high seas contiguous
to its territorial sea, the coastal State
may exercise the control necessary to:
(a) Prevent infringement of
its customs, fiscal,
immigration or sanitary
regulations within its
territory or territorial sea;
(b) Punish infringement of the
above regulations committed
within its territory or
territorial sea.
(2) The contiguous zone may not extend
beyond twelve miles from the baseline from
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which the breadth of the territorial sea is
measured [i.e., the shore].
Convention on the Territorial Sea and the Contiguous Zone, Apr.
29, 1958, art. 24, 15 U.S.T. 1606, 1612.
It is unclear how far the Convention is concerned with
authority to proscribe conduct as opposed to authority to
enforce. The introductory language--the coastal state "may
exercise the control necessary to"--suggests enforcement
measures, giving the coastal state (for example) the power to
halt and arrest vessels of other states engaged in infringing
the named categories of rules. Cf. Dean, The Geneva Conference
on the Law of the Sea: What Was Accomplished, 52 Am. J. Int'l L.
607, 624 (1958) ("Thus, hot pursuit of a vessel which has
committed an offense within the territorial sea may commence
even though the vessel is first sighted, not within the
territorial sea, but within the contiguous zone").
More important, assuming that the Convention also
provides or ratifies a power to regulate certain conduct within
the contiguous zone, the Convention nowhere purports to bar the
application of federal statutes to conduct, whether within or
beyond the contiguous zone, that has a substantial adverse
effect within the United States. That power was assumed to
exist well before the Convention, e.g., Logan Act, 18 U.S.C. §
954 (1994), and well after, Foreign Trade Antitrust Improvements
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Act of 1982, 18 U.S.C. § 6a (1994), and it is confirmed both by
case law and commentary. See note 3, above. At most,
prescriptions beyond the contiguous zone do not get the
diplomatic protection that the Convention may afford if and when
foreign states object.
Affirmed.
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