United States Court of Appeals
For the First Circuit
Nos. 02-1207, 02-1208
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS ZENÓN-RODRÍGUEZ, YABUREIBO ZENÓN-ENCARNACIÓN,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Fermín L. Arraiza-Navas with whom Jose J. Nazario de la Rosa
and Pedro J. Varela were on brief for appellants.
Michael F. Hughes, Special Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Assistant United States Attorney, were on brief for
appellee.
April 29, 2002
LYNCH, Circuit Judge. Carlos Zenón-Rodríguez and
Yabureibo Zenón-Encarnación appeal their convictions for violating
18 U.S.C. § 1382 by trespassing on a United States Navy
Installation on October 4, 2001. The defendants were protesting
the military exercises conducted by the U.S. Navy at and around the
Camp Garcia Naval Installation at Vieques, Puerto Rico. They were
each sentenced to 180 days in prison, the maximum under the
statute. We affirm the convictions.
I.
For the purposes of the Zenóns' sufficiency of the
evidence claims, we describe the facts in the light most favorable
to the verdict. United States v. Van Horn, 277 F.3d 48, 54 (1st
Cir. 2002).
On October 4, 2001, at approximately 11:30 a.m., Puerto
Rico police found Carlos Zenón-Rodríguez and his son Yabureibo
Zenón-Encarnación on two separate small boats in the waters of
Bahia Salinas del Sur (or South Salinas Bay), about 150-200 feet
off Camp Garcia, the U.S. military installation on the island of
Vieques, Puerto Rico. The Navy was conducting military exercises
on that day and had given prior notice of that fact.
Kathleen Cossairt, a U.S. Navy security liaison, spotted
the two civilian vessels earlier that morning from an observation
post on Camp Garcia known as O.P. 1. The Rapid Action Force Unit
of the Puerto Rico Police Department, "FURA," was contacted and
informed that there were two civilian boats in South Salinas Bay.
FURA sent four vessels toward the civilian boats in the bay, which
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remained about 150-200 feet off shore.
The FURA boats had to chase the Zenóns' boats. When the
FURA officers reached the Zenóns, the officers informed them that
they were in a "restricted area." The son, Zenón-Encarnación,
refused to talk with the officers and told them as much. According
to one of the officers, the father, Zenón-Rodríguez, told them,
repeatedly, "you are our brothers and we don't want problems with
you, but we have to put an end to this."
After a forty-minute negotiation with the officers, at
approximately 12:10 p.m., the Zenóns agreed to leave the area, and
did leave, but only after the FURA boats left first. Despite the
warnings, the Zenóns did not leave the prohibited area for some
period after the FURA boats left. By this time, they had disrupted
the military exercises for about two hours because the range was
considered foul while they were in the bay.
When the FURA officers found the Zenóns in South Salinas
Bay, the Zenóns were within the danger zone1 around Camp Garcia
outlined in 33 C.F.R. § 343.1470.2
1
A danger zone is "[a] defined water area (or areas) used
for target practice, bombing, rocket firing or other especially
hazardous operations, normally of the armed forces. The danger
zones may be closed to the public on a full-time or intermittent
basis, as stated in the regulations." 33 C.F.R. § 334.2 (2001).
2
33 C.F.R. § 334.1470 reads:
(a) The danger zone. From Punta Conejo on the south
coast of Vieqeus at latitude 18/ 06'30", longitude
65/ 22'33"; thence to latitude 18/ 03'00", longitude
65/ 21'00"; thence to latitude 18/ 03'00", longitude
65/ 15'30"; thence to latitude 18/ 11'30", longitude
65/ 14'30"; thence to latitude 18/ 12'00", longitude
65/ 20'00"; and thence to Cabellos Colorados on the north
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A regular weekly fishermen's warning notice, which in the
normal course is sent to nine locations, was distributed on
September 26, 2001, for the week of October 1 to October 7, 2001.
The notice is routinely posted in various locations, including the
Vieques post office, the Fishermen's Association, the Port
Authority, and marinas in the area. It clearly stated that there
would be "dangerous naval activities" in "Danger Area B" from 8:00
a.m. until 11:00 p.m. on October 4. The notice, as it normally
does, included a map which depicted Vieques and Danger Area B.
South Salinas Bay is in Danger Area B.
The Zenóns were charged with illegally entering naval
property in violation of 18 U.S.C. § 1382. They filed a motion to
dismiss the indictment on January 3, 2002, which the district court
denied on January 14. A one-day bench trial was held on January
15, 2002. After the government rested its case, the Zenóns raised
coast of Vieques at latitude 18/ 09'49", longitude
65/ 23'27".
(b) Regulations. (1) It will be open to navigation
at all times except when firing is being conducted. At
such times, no persons or surface vessels, except those
patrolling the area, shall enter or remain within the
danger area. Prior to conducting each firing or dropping
of ordnance the danger area will be patrolled to insure
that no watercraft are within the danger area. Any
watercraft in the vicinity will be warned that practice
firing is about to take place and advised to vacate the
area.
(2) The regulations will be enforced by the
Commander, U.S. Naval Forces Caribbean, U.S. Naval
Station, Roosevelt Roads, Puerto Rico, and such agencies
and subordinate commands as he/she may designate.
33 C.F.R. § 334.1470 (2001).
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a motion for judgment of acquittal. Fed. R. Crim. P. 29. After
hearing argument on the motion, the court denied the motion and
found both the Zenóns guilty. The court sentenced each of them to
the maximum penalty of 180 days in prison.
Defendants now appeal their convictions. They make four
main arguments, which they made previously in their motion to
dismiss the indictment and in their Rule 29 motion. First, they
argue that the danger zone is not part of Camp Garcia and is not
U.S. property, and so they cannot be convicted for trespassing on
U.S. naval property under 18 U.S.C. § 1382. Second, they argue
that the court erred in not granting their Rule 29 motion, because
the government did not prove all the elements of the offense
charged. Third, they argue that under 33 C.F.R. § 334.3(c)3 they
3
33 C.F.R. § 334.3(c) states:
(c) Temporary, occasional or intermittent use. If
the use of the water area is desired for a short period
of time, not to exceed thirty days in duration, and that
planned operations can be conducted safely without
imposing unreasonable restrictions on navigation, and
without promulgating restricted area regulations in
accordance with the regulations in this section,
applicants may be informed that formal regulations are
not required. Activities of this type shall not reoccur
more often than biennially (every other year), unless
danger zone/restricted area rules are promulgated under
this part. Proper notices for mariners requesting that
vessels avoid the area will be issued by the Agency
requesting such use of the water area, or if appropriate,
by the District Engineer, to all known interested
persons. Copies will also be sent to appropriate State
agencies, the Commandant, U.S. Coast Guard, Washington,
DC 20590, and Director, Defense Mapping Agency,
Hydrographic Center, Washington, DC 20390, ATTN: Code NS
12. Notification to all parties and Agencies shall be
made at least two weeks prior to the planned event, or
earlier, if required for distribution of Local Notice to
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were entitled to at least two weeks' advance notice of the military
exercise and the prohibition from entering the danger zone on
October 4, 2001. Fourth, they argue that the regulation creating
the danger zone is invalid because it unreasonably interferes with
Puerto Rico's food fishing industry. They say that the district
court was obligated to hold an evidentiary hearing on this issue.
II.
A. Whether Incursions into the Danger Zone May Violate
18 U.S.C. § 1382
Defendants' primary argument is a territorial one: they
say that the danger zone outlined in 33 C.F.R. § 334.1470 is not
part of Camp Garcia and is not U.S. property, and so trespassers
there may not be prosecuted under 18 U.S.C. § 1382. Defendants
claim that because they were in the waters of South Salinas Bay,
which is not owned by the U.S. government, they did not violate 18
U.S.C. § 1382.
Whether prosecutions under 18 U.S.C. § 1382 may include
trespassers in the danger zone around Camp Garcia is a question of
law, and "[w]e review the district court's construction of a
federal statute de novo," United States v. Maxwell, 254 F.3d 21, 24
(1st Cir. 2001). The statute, 18 U.S.C. § 1382, in relevant part,
prohibits, "within the jurisdiction of the United States," entry
"upon any military, naval, or Coast Guard reservation, post, fort,
Mariners by the Coast Guard.
33 C.F.R. § 334.3(c) (2001).
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arsenal, yard, station, or installation, for any purpose prohibited
by law or lawful regulation." The danger zone regulation itself
says that when firing is conducted in the area "no persons or
surface vessels . . . shall enter or remain within the danger
area." 33 C.F.R. § 334.1470(b).
The defendants' argument is premised on the erroneous
notion that the United States must own the portion of the danger
zone where the defendants were found in order to prosecute them for
trespassing. In United States v. Ventura-Meléndez, 275 F.3d 9 (1st
Cir. 2001), this court held that "'government ownership of the
property in question is not a requisite to violating Section
1382.'" Id. at 17 (quoting United States v. Allen, 924 F.2d 29, 31
(2d Cir. 1991)). Instead, "§ 1382 requires only that the
government demonstrate either a possessory interest in, or
occupation or control of, the area reserved by the miliary." Id.
Ventura-Meléndez also held that § 1382 extends to prosecution of
those who enter a danger zone in proximity to a military
installation. Id. at 17-18.
In this case, the United States demonstrated its
occupation and control of South Salinas Bay in two ways. First,
the regulation itself, 33 C.F.R. § 334.1470(a), is such a
demonstration. It outlines a large area, which extends from the
Camp Garcia beach, and designates it as a danger zone. As we
discuss later in the opinion, South Salinas Bay is within the
danger zone outlined by the coordinates in the regulation. Second,
as a matter of fact, the portion of the danger zone that includes
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South Salinas Bay was under the occupation and control of the U.S.
on October 4, 2001. Cossairt, the U.S. Navy security liaison,
testified that there were military exercises occurring on that day,
and that South Salinas Bay was in the live impact area. The U.S.
Navy observes the area to see if there are intruders and arranges
for vessels to apprehend the intruders. Because the U.S. exercised
control over the South Salinas Bay area on October 4, 2001,
unlawful entry onto that area was prohibited under 18 U.S.C. §
1382.
B. Rule 29 Motion: Elements of 18 U.S.C. § 1382
The Zenóns argue that the court erred in not granting
their Rule 29 motion, because the government did not prove all the
elements of the offense charged. They say the government presented
insufficient evidence to convict them. We review a district
court's denial of a Rule 29 motion de novo. Ventura-Meléndez, 275
F.3d at 17. The defendants have a high burden to meet on an
insufficiency of the evidence claim: we affirm the conviction
"unless the evidence, viewed in the light most favorable to the
government, could not have persuaded any trier of fact of the
defendant's guilt beyond a reasonable doubt." United States v.
Hernández, 218 F.3d 58, 64 (1st Cir. 2000) (quoting United States
v. Paradis, 802 F.2d 553, 559 (1st Cir. 1986)). The defendants
fail to meet this burden.
To prove a prohibited purpose in violation of § 1382, the
government must prove that the defendants deliberately entered or
remained in the prohibited area without authorization, and that
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they knew or had notice, actual or constructive, that the entry was
prohibited. United States v. Sued-Jiménez, 275 F.3d 1, 6 (1st Cir.
2001); Maxwell, 254 F.3d at 24 (explaining that "an unauthorized
entry itself can constitute a prohibited purpose" under § 1382; the
only state of mind required is a purpose to enter with actual or
constructive notice that entry is prohibited). And, because the
regulation establishing the danger zone states that "[i]t will be
open to navigation at all times except when firing is being
conducted," 33 C.F.R. § 334.1470(b)(1), to prove a violation of §
1382, the government was required to prove that notice was given
that the danger zone was closed to the public at the time of
arrest. United States v. Ayala Ayala, No. 01-2148, slip op. at 13
(1st Cir. Apr. 29, 2002). The Zenóns argue that the government did
not prove either of these elements.
First, the Zenóns argue that the government did not
establish that they entered the prohibited area. They say the
government failed to show that either they or South Salinas Bay
were within the danger zone outlined in the regulation. Their
premise is that the government must "locat[e] defendants within the
longitudes, latitudes and degrees specified in the regulation
allegedly violated," a burden not met here. The argument
overstates the government's burden.
The government provided ample evidence that the
defendants were in South Salinas Bay, and that South Salinas Bay
was within the danger zone. As to the defendants' location,
Sergeant Luis Martinez, one of the FURA officers who intercepted
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the defendants, testified that he found them in South Salinas Bay,
and that his supervisors had earlier informed him that the bay was
part of a danger zone. He also testified that he recognized them
as "Mr. Zenon, the father, and . . . the son" from seeing pictures
of them in newspapers. Another FURA officer, Wilfredo Padilla
Sepulveda, who intercepted the defendants, testified that he found
the defendants "inside the restricted zone" in South Salinas Bay.
As to the bay being in the danger zone, Cossairt
testified that on the morning of October 4, 2001, she saw two
civilian boats in South Salinas Bay from her observation point.
She pointed out this location on an aerial photograph, which
depicted the danger zone. Schedules Officer Ramon DeJesus, who
supervises the processing of airspace and surface area requests and
is responsible for the creation of fishermen's warnings, also
testified that South Salinas Bay is within "Danger Area B,"
depicted on the map attached to the fishermen's warning for the
week of October 1 to October 7, 2001. In addition, the court took
judicial notice of 33 C.F.R. § 334.1470, which outlines the danger
zone in question in this case.
Second, the Zenóns say that they did not know or have
notice of the fact that South Salinas Bay was a prohibited area on
October 4, 2001, in the sense that the Navy did not alert people to
the use of the area for military exercises, and therefore, that it
was closed to navigation. In addition to contesting the facts
concerning notice, the Zenóns raise one issue of law, which we
discuss later, as to the timing of the prior notice required. The
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government counters that the Zenóns had both constructive and
actual notice that entry into South Salinas Bay was prohibited.
The evidence supports the government.
Officer DeJesus testified that he is responsible for the
creation and dissemination of a weekly fishermen's warning, which
includes, in Spanish and in English, notice of "what areas are to
be used [for military exercises] and what areas are off-limits for
non-participants." Such a notice is created and distributed each
Wednesday, and includes information about what military exercises,
if any, are scheduled for that week. The warnings are regularly
sent to, and posted in, nine locations around Vieques and on
mainland Puerto Rico. DeJesus testified that a routine weekly
fishermen's notice was sent out on Wednesday, September 26, to all
the usual locations. A copy of the warning, in evidence, included
information about the military exercises for the week of October 1
to October 7. The notice stated that there would be "dangerous
naval activities" in "Danger Area B" from 8:00 a.m. until 11:00
p.m. on October 4. The attached map indicated where Danger Area B
was, and South Salinas Bay is within it. Taking the evidence most
favorably to the verdict permits the conclusion that the warning
was actually posted as part of a regular weekly practice. The
fishermen's warning constituted constructive notice to the Zenóns
that military exercises were going to take place in South Salinas
Bay on October 4, 2001.
In addition, the Zenóns also had actual notice that their
presence in South Salinas Bay, on October 4, was not allowed.
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Sergeant Martinez informed the Zenóns in their boats that they were
in a "restricted area" and that they were not allowed to be there.
Officer Sepulveda also said that the FURA officers "informed one of
them that they could not be there, that this was a restricted
zone." Nevertheless, the Zenóns remained.
The defendants claim that because the FURA officers told
them that they were in a "restricted area" and not a "danger zone"
the notice was insufficient. Specifically, they say that because
the fishermen's warning referred to a "danger area," they did not
know that they were not allowed in the "restricted area." The
Zenóns attempt to rely on the separate definitions given to a
"danger zone" and to a "restricted area" in 33 C.F.R. § 334.2,4 but
their argument is to no avail. Whatever the differences, they are
not material in this case. The defendants knew from the FURA
officers' warnings that they were not allowed in the area, no
matter what the officers called that area.
Because the government presented sufficient evidence to
4
33 C.F.R. § 334.2 reads:
(a) Danger zone. A defined water area (or areas) used
for target practice, bombing, rocket firing or other
especially hazardous operations, normally for the armed
forces. The danger zones may be closed to the public on
a full-time or intermittent basis, as stated in the
regulations.
(b) Restricted area. A defined water area for the
purpose of prohibiting or limiting public access to the
area. Restricted areas generally provide security for
Government property and/or protection to the public from
the risks of damage or injury arising from the
Government's use of that area.
33 C.F.R. § 334.2 (2001).
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show both that South Salinas Bay was a prohibited area, and that
the Zenóns knew or had notice that it was a prohibited area, the
district court did not err in denying the Rule 29 motion, and the
defendants' insufficiency of the evidence claim fails.
C. Timing of Notice
The defendants say that the time period for adequate
notice is governed by 33 C.F.R. § 334.3(c), which requires two
weeks' advance notice, and here the fishermen's notice was posted
only nine days before October 4, 2001. Section 334.3(c) is simply
inapplicable in this case. It only applies to situations in which
the military's expected use of the water area is sufficiently short
and infrequent that "formal regulations are not required" and in
which a danger zone or restricted area has not been promulgated.
33 C.F.R. § 334.3(c) (2001); see also United States v. de Jesus,
108 F. Supp. 2d 68, 71 (D.P.R. 2000). Here a danger zone was
promulgated. Two weeks' notice in this case was unnecessary, and
the notice which was provided was sufficient.
D. Validity of 33 C.F.R. § 334.1470
The defendants argue that the indictment should have been
dismissed because 33 C.F.R. § 334.1470 was improperly promulgated
under 33 U.S.C. § 1, and that it should have been promulgated under
33 U.S.C. § 3, which requires that the regulation will not
"unreasonably . . . interfere with or restrict the food fishing
industry." 33 U.S.C. § 3 (1994). Because they raised this issue
before the district court in their motion to dismiss the
indictment, the Zenóns argue that the district court was obligated
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to hold an evidentiary hearing on whether the regulation
unreasonably interfered with the food fishing industry.
The defendants rely on United States v. Saade, 652 F.2d
1126 (1st Cir. 1981). Saade held that the appropriate statutory
authority for an almost identical regulation to § 334.1470 was 33
U.S.C. § 3 and not 33 U.S.C. § 1, because § 3 refers more
specifically to the promulgation of regulations for the prevention
of injuries from target practice. Id. at 1130-32. Saade remanded
the case to the district court to hold an evidentiary hearing to
determine whether the regulation unreasonably interfered with the
food fishing industry. Id. at 1133-34. The defendants urge us to
do the same here.
In our view, this case is not identical to Saade. The
regulatory context has changed significantly. In 1993, a new
provision, explicitly promulgated under 33 U.S.C. § 3, was added to
the danger zone and restricted area regulations. See Danger Zone
and Restricted Area Regulations, 58 Fed. Reg. 37,606, 37,606 (July
12, 1993). This added provision states:
The authority to prescribe danger zone and restricted
area regulations must be exercised so as not to
unreasonably interfere with or restrict the food fishing
industry. Whenever the proposed establishment of a
danger zone or restricted area may affect fishing
operations, the District Engineer will consult with the
Regional Director, U.S. Fish and Wildlife Service,
Department of the Interior and the Regional Director,
National Marine Fisheries Service, National Oceanic &
Atmospheric Administration (NOAA).
33 C.F.R. § 334.3(b) (2001). Although the danger zone regulation
in this case was promulgated under 33 U.S.C. § 1, both regulations
are found in part 334 of title 33 of the Code of Federal
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Regulations, which deals with danger zones and restricted areas.
33 C.F.R. § 334.3(b) applies to 33 C.F.R. § 334.1470, and so the
two must be read together, thus satisfying the concern in 33 U.S.C.
§ 3. Saade seems to have been satisfied by the addition of 33
C.F.R. § 334.3(b). To the extent that the defendants rely on
Saade, their reliance is misplaced.
Beyond that, at the district court level the defendants
made this argument about the effect on the food fishing industry in
only one sentence of their motion to dismiss the indictment. In a
nine-page motion they said only that "the Danger Zone in question
was improperly promulgated pursuant to 33 U.S.C. § 1, and not 33
U.S.C. § 3 . . . and . . . the regulation unreasonably affects the
food fishing industry in Vieques and Puerto Rico." In response,
the district court said that the defendants did not properly raise
the argument because they provided no legal or factual support for
it. We agree. For example, the defendants do not anywhere make
the argument that the government did not here follow the
notification procedure outlined in 33 C.F.R. § 334.3(b). An
argument made off-hand in one sentence of a motion is not
sufficient to preserve an issue. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived."). The defendants did not adequately raise this
issue before the district court, and have therefore forfeited the
argument on appeal. United States v. Slade, 980 F.2d 27, 30 (1st
Cir. 1992) ("It is a bedrock rule that when a party has not
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presented an argument to the district court, she may not unveil it
in the court of appeals.").
III.
The judgment of the district court is affirmed.
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