United States Court of Appeals
For the First Circuit
________________
No. 03-2517
UNITED STATES OF AMERICA,
Appellee,
v.
CACIMAR ZENÓN-ENCARNACIÓN,
Defendant, Appellant.
______________________
No. 03-2518
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO ZENÓN-ENCARNACIÓN,
Defendant, Appellant.
________________________
No. 03-2519
UNITED STATES OF AMERICA,
Appellee,
v.
REGALADO MIRÓ-CORCINO,
Defendant, Appellant.
________________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
________________________
Before
Boudin, Chief Judge,
Lynch, Circuit Judge, and
Schwarzer, Senior District Judge.*
____________________
Fermin L. Arriaza-Navas, with whom Harry Anduze Montaño was on
the brief, for appellants.
Julie B. Mosley, Assistant United States Attorney, with whom
H. S. Garcia, United States Attorney, and Sonia I. Torres-Pabón,
Assistant United States Attorney, were on the brief, for appellee.
October 25, 2004
*
Of the Northern District of California, sitting by
designation.
SCHWARZER, Senior District Judge. Appellants Pedro
Zenón-Encarnación, Cacimar Zenón-Encarnación, and Regalado
Miró-Corcino appeal their convictions for violating 18 U.S.C.
§ 1382 by illegally entering certain waters designated as a “danger
zone” around the island of Vieques during a United States Navy
training exercise. We vacate the convictions and remand for further
proceedings.
FACTUAL AND PROCEDURAL HISTORY
We recite the facts as found by the district court in the
light most favorable to the verdict. United States v. Van Horn,
277 F.3d 48, 54 (1st Cir. 2002).
On April 9, 2002, the Navy was conducting a training
exercise in South Salinas Bay, part of the waters around the island
of Vieques. By regulation the bay had been designated a “danger
zone” closed to the public during such exercises. 33 C.F.R.
§ 334.1470. The Navy had previously posted notices announcing the
exercise in both Spanish and English. During the exercise, two
small boats carrying five passengers wearing wet suits and ski
masks entered the bay. The exercise was halted, and naval security
approached the trespassers, advising them to leave. They refused
and remained in the area for over an hour, interfering with naval
operations. Ultimately, the appellants were identified as the
occupants of the boats and were charged and brought to trial.
There is no dispute that appellants were occupants of these boats.
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Trial was held before Magistrate Judge Aida Delgado Colón
in November 2002. All of the appellants were adjudged guilty of
criminal trespass in violation of 18 U.S.C. § 1382. The magistrate
judge sentenced Regalado Miró-Corcino to one year probation and
forty-five days of incarceration and Pedro and Cacimar
Zenón-Encarnación to one year probation and four months of
incarceration each.
Appellants appealed their convictions and sentences to
the district court, which affirmed. United States v. Zenón, 285
F. Supp. 2d 109, 111 (D.P.R. 2003). Appellants timely appealed to
this court.
DISCUSSION
I. STANDARD OF REVIEW
Appellants’ arguments raise questions of law and
statutory interpretation, which we review de novo. Pride Hyundai,
Inc. v. Chrysler Fin. Co., L.L.C., 369 F.3d 603, 612 (1st Cir.
2004); United States v. Maxwell, 254 F.3d 21, 24 (1st Cir. 2004).
II. THE MERITS
A. Designation of South Salinas Bay as a “Danger Zone”
Section 1382 makes it illegal to “go[] upon any military,
naval, or Coast Guard reservation, post, fort, . . . or
installation for any purpose prohibited by law or lawful
regulation.” 18 U.S.C. § 1382. The regulation at issue in this
case (the “danger zone regulation”) designates an area including
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South Salinas Bay “open to navigation at all times except when
firing is being conducted.” 33 C.F.R. § 334.1470(b)(1). When
firing is being conducted, “no persons or surface vessels, except
those patrolling the area, shall enter or remain within the danger
area.” Id. Entry into the designated area during firing therefore
constitutes a violation of § 1382.
Appellants challenge their convictions on the ground that
the Navy could not lawfully designate a danger zone under the
regulation because it lacked a valid National Pollutant Discharge
Elimination System (NPDES) permit on April 9, 2002. 33 U.S.C.
§§ 1311(a), 1323(a) (NPDES requirement). See Romero-Barcelo v.
Brown, 478 F. Supp. 646, 664 (D.P.R. 1979) (requiring permit for
Navy exercises), aff’d on other grounds, Weinberger v. Romero-
Barcelo, 456 U.S. 305 (1982), after being rev’d on other grounds,
643 F.3d 835 (1st Cir. 1981). The Navy received a valid NPDES
permit in 1984. That permit expired in 1989, and the Navy applied
to the Environmental Protection Agency (“EPA”) for a new permit.
The EPA deemed the application complete but failed to act on it.
Under the applicable regulation, this failure meant that the 1984
permit “continue[d] in force” despite its expiration.1 40 C.F.R.
1
The regulation provides that, “[w]hen EPA is the permit-
issuing authority, the conditions of an expired permit continue in
force until the effective date of a new permit . . . if: (1) The
permittee has submitted a timely application . . . which is a
complete . . . application for a new permit; and (2) the Regional
Administrator [of the EPA] through no fault of the permittee does
not issue a new permit with an effective date . . . on or before
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§ 122.6(a).
Appellants contend, however, that the Clean Water Act
requires not only EPA approval but also certification by the
relevant state (in this case, Puerto Rico) that the proposed
pollution meets state water quality standards (in the form of a
“water quality certificate” or “WQC”). 33 U.S.C. § 1341(a). The
WQC is a prerequisite to the EPA’s issuance of an NPDES permit. In
February 2000, the Puerto Rico Environmental Quality Board (“EQB”)
denied the Navy’s application for a WQC, and that denial became
final. As a consequence, say appellants, the 1984 permit no longer
continues in force because EPA could not have issued a new one
following denial of the WQC.
We disagree. The EPA did not revoke or terminate the
permit or deny the application, nor did the Navy withdraw its
application until after April 9, 2002. Even after the EQB’s denial
of the WQC application, the application process before the EPA
continued through April 9, 2002. Thus, under the terms of the
regulation, the permit was administratively continued in force on
the date of the incident.
B. Trial Before a Magistrate Judge
Appellants contend that their convictions must be vacated
because trial was held before a magistrate judge. They argue that
the case involved misdemeanors for which they received sentences
the expiration date of the previous permit.” 40 C.F.R. § 122.6(a).
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of imprisonment, rather than petty offenses, and that their consent
was a prerequisite to a trial before a magistrate judge.
This contention is readily disposed of. Under 28 U.S.C.
§ 636(a)(4), magistrate judges have “the power to enter a sentence
for a petty offense.” See also 18 U.S.C. § 3401 (“(a) [A]ny United
States magistrate shall have jurisdiction to try persons accused
of, and sentence persons convicted of, misdemeanors committed
within that judicial district. (b) Any person charged with a
misdemeanor, other than a petty offense may elect, however, to be
tried before a district judge for the district in which the offense
was committed.”) (emphasis added). Under these provisions, a
magistrate judge has authority to try and sentence a person charged
with a petty offense.
Section 19 defines “petty offense” as “a Class B
misdemeanor, a Class C misdemeanor, or an infraction, for which the
maximum fine is no greater than the amount set forth for such an
offense in section 3571(b)(6) or (7) in the case of an individual.”
18 U.S.C. § 19. Section 3571(b) sets the maximum fine for an
individual for a Class B or C misdemeanor that does not result in
death at $5000. Class B and C misdemeanors and infractions are
further defined under § 3581 (a)(7)-(9) by their authorized terms
of imprisonment, six months in the case of Class B misdemeanors.
These principles are well settled. See United States v. Chavez,
204 F.3d 1305, 1311 (11th Cir. 2000) (“Assault by striking,
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beating, or wounding is presumptively a petty offense. It carries
a maximum penalty of six months’ imprisonment or a $5000 fine or
both. The offense is classified as a Class B misdemeanor.
Congress has expressly designated Class B misdemeanors as ‘petty
offense[s].’ See 18 U.S.C. § 19.” (some citations omitted)
(alteration in original)); United States v. Kozel, 908 F.2d 205,
206-07 (7th Cir. 1999) (concluding that the argument that 18 U.S.C.
§ 19, by its silence on imprisonment, abolishes prison sentences
for all “petty offenses” is “nonsense” and that “[t]he purpose of
§ 19 is simply to limit prison time for crimes covered by that
section to 6 months”).2
Appellants were charged with violation of § 1382, which
provides for a fine or imprisonment of not more than six months.
Because violation of that section is a petty offense, the
magistrate judge had authority to try and sentence appellants
without their consent.
C. Charging Under 18 U.S.C. § 1382
1. Applicability of the statute
Appellants challenge their convictions on the ground that
entry into a danger zone can be prosecuted only under 33 U.S.C.
2
Appellants also argue that Federal Rule of Criminal Procedure
58 guarantees them a jury trial and precludes their trial before a
magistrate judge without their consent. However, the version of
Rule 58 that appellants cite has been superseded. Rule 58 now
expressly provides that defendants have “the right to trial,
judgment, and sentencing before a district judge — unless: (i) the
charge is a petty offense.” Rule 58(b)(2)(E).
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§ 3, and not under 18 U.S.C. § 1382 or any other statute, because
the regulation establishing the danger zone, 33 C.F.R. § 334.1470,
was promulgated under 33 U.S.C. § 3.
The argument is without merit. As noted above, § 1382
provides that persons who “go[] upon any military, naval, or Coast
Guard reservation, post, fort, arsenal, yard, station, or
installation, for any purpose prohibited by law or lawful
regulation . . . [s]hall be fined under this title or imprisoned
not more than six months, or both.” 18 U.S.C. § 1382 (emphasis
added). The statute’s plain language demonstrates that § 1382
applies to persons who violate any law or lawful regulation by
trespassing onto a naval installation. We have repeatedly held
that the Navy’s lawful designation of a regulatory danger zone
suffices to establish liability under § 1382. United States v.
Zenón-Rodríguez, 289 F.3d 28, 31-32 (1st Cir. 2002) (“Because the
U.S. exercised control over the South Salinas Bay area [by properly
establishing it as a danger zone under 33 C.F.R. § 334.1470] . . .,
unlawful entry onto that area was prohibited under 18 U.S.C.
§ 1382.”); United States v. Ventura-Meléndez, 275 F.3d 9, 17 (1st
Cir. 2001) (holding that the permissible designation of a danger
zone subjects trespassers to § 1382 liability).
Appellants’ reliance on footnote five of United States v.
Saade, 652 F.2d 1126 (1st Cir. 1981) (“Saade I”), is misplaced.
The court noted there that § 1 could not serve as a parallel grant
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of criminal jurisdiction to § 3 because § 1 did not authorize
danger zone regulations. Id. at 1132 n.5. The observation is not
relevant to the instant prosecution under § 1382, which does not
limit violations to particular regulations, but criminalizes all
trespassing on any naval installation for any purpose prohibited by
law or lawful regulation. The Navy’s designation of the instant
danger zone plainly prohibited the defendants’ actions, and thus
subjected them to § 1382 liability.
2. Availability of the food fishing
proviso defense
Appellants have a second string to their bow. They argue
that by electing to charge under § 1382 instead of § 3, the
government denied them the right to assert a valid jurisdictional
defense since § 3 entitles them to a mandatory evidentiary hearing
on whether promulgation of a danger zone would unreasonably
interfere with or restrict the food fishing industry. 33 U.S.C.
§ 3 (the food fishing proviso).
Appellants are mistaken. As we pointed out in Zenón-
Rodríguez, 289 F.3d at 35, since 1993 the authority to promulgate
danger zone regulations has resided in both 33 U.S.C. § 1 and
33 U.S.C. § 3, since 33 C.F.R. § 334.3(b) contains a food fishing
proviso substantially identical to that in 33 U.S.C. § 3.3 “33
3
The regulation provides, in part: “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
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C.F.R. § 334.3(b) applies to 33 C.F.R. § 334.1470.” Id. For
purposes of the application of the food fishing proviso, it is
therefore immaterial whether the charge is under § 3 or § 1382.
Appellants sought an evidentiary hearing in the district
court on the issue of whether the designated danger zone
unreasonably interfered with or restricted the food fishing
industry in the area, offering extensive evidence.4 The district
court denied the hearing. Appellants now contend that this was
error requiring that the convictions be vacated.
The district court reasoned that Zenón-Rodríguez disposed
of appellants’ claim, stating that
the Court of Appeals has held that 33 C.F.R.
§ 334.1470 would have been validly promulgated
under either 33 U.S.C. § 1 or 33 U.S.C. § 3,
because the existence of 33 C.F.R. § 334.3(b)
ensures that the requirements of the “food
fishing proviso” will be applicable to the
danger zone established in 33 C.F.R.
§ 334.1470, regardless of whether it was
promulgated under 33 U.S.C. § 3 or 33 U.S.C.
§ 1. . . . Given the First Circuit’s recent
decision regarding the very issue raised
before the Court by Defendants, we must find
that we need not remand the case for an
evidentiary hearing on the “food fishing
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).
4
This included evidence detailing the Navy’s improper
discharges of heavy metals, evidence of disturbance of ecological
systems including seagrass beds and coral reefs, and evidence of
toxic substances in plant and animal tissue samples.
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proviso” issue.
Zenón, 285 F. Supp. 2d at 114. The district court misapprehended
the holding of Zenón-Rodríguez. That case rejected a challenge to
prosecution under § 1382 on the ground that the danger zone
regulation had been promulgated under 33 U.S.C. § 1, which lacked
a food fishing proviso limiting the discretion of the Secretary of
the Army, and not under 33 U.S.C. § 3, which contained such a
proviso. 289 F.3d at 35. It did not reach the question whether
the defendants were entitled to an evidentiary hearing under the
food fishing proviso, the court having found that the appellants
had forfeited the issue.
We addressed this issue squarely in Saade I, in which we
held that defendants were entitled to challenge the validity of the
danger zone regulation under the food fishing proviso, stating that
“the district court had an obligation to ascertain whether the
Secretary had complied with the proviso when issuing the
regulation.” 652 F.2d at 1134. We remanded for further
proceedings to determine whether 33 C.F.R. § 204.234 unreasonably
interfered with the food fishing industry. On remand, the district
court declined to hold an evidentiary hearing and decided the case
in favor of the government on the administrative record. On
appeal, we again remanded, stating:
It is plain to us that the district court
erred in refusing to hold the evidentiary
hearing that the defendants requested. We
remanded for that very purpose. . . . We
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recognize that, in recent years, parties
challenging the validity of a regulation often
do so at the time it is issued, on the basis
of the administrative record. But, an older
and still valid legal tradition allows a party
to wait, challenging the regulation’s validity
when the agency seeks to enforce the
regulation. Then, if the claim of invalidity
requires an evidentiary hearing, the court may
permit the creation of an appropriate factual
record. That is what we ordered. We
therefore reiterate that appellants may
present evidence designed to show that the
regulation unreasonably interfered with the
food fishing industry.
United States v. Saade (Saade II), 800 F.2d 269, 273 (1st Cir.
1986) (Breyer, J.) (citations omitted).
Saade II remains good law. Indeed, far from undermining
the decision by repeal of its regulations, the Army Corps of
Engineers has since amended the relevant regulations, see 33 C.F.R.
§ 334.3(b); 58 Fed. Reg. 37,607 (July 12, 1993), clarifying and
reinforcing the application of the food fishing proviso to all
danger zone and restricted area regulations. 58 Fed. Reg. 37,607
(July 12, 1993); see Zenón-Rodríguez, 289 F.3d at 35 (stating that
the added provision changed the “regulatory context
. . . significantly”).
CONCLUSION
The district court erred in denying the defendants an
evidentiary hearing. We remand the case for proceedings consistent
with this opinion. If, after an evidentiary hearing, the district
court rules that the danger zone regulation complies with the food
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fishing proviso, the convictions shall stand. See Saade I, 652
F.3d at 1134.
REMANDED.
-- concurrence follows --
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BOUDIN, Chief Judge, and Lynch, Circuit Judge,
concurring. Although we agree that this remand is required by
United States v. Saade ("Saade I"), 652 F.2d 1126 (1st Cir. 1981),
we question the soundness of that decision. If a fisherman or
other affected party thought that the zone were unlawful because of
its impact on commercial fishing, a proper means of challenging the
regulation would be an action for declaratory and injunctive relief
in the district court. Such an action would lie under established
precedent, see Shields v. Utah Idaho Cent. R.R., 305 U.S. 177, 183-
85 (1938); Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94,
108-111 (1902); R.I. Dep't of Env't Mgmt. v. United States, 304
F.3d 31, 40-45 (1st Cir. 2002); 5 U.S.C. § 702 (2000), as the
enabling statute provides no means for judicial review of orders
authorizing such zones. 33 U.S.C. §§ 1, 3 (2000).
Given the opportunity for a direct challenge to such a
zone, it seems to us open to question whether either a fisherman or
a protester should be allowed to sail deliberately into a known
restricted military zone and then challenge the regulation by way
of defense in a criminal case. It is hard to believe that
Congress, if it had provided expressly for judicial review of zones
created under 33 U.S.C. §§ 1 and 3, would have made the remedy
optional and contemplated that the regulation could also be
challenged by defiance--a course that could present dangers both
for the challenger and for military operations.
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The Administrative Procedure Act makes clear that the
ability to test a regulation during enforcement proceedings does
not exist where the law provides an alternative remedy that is
adequate and exclusive. See 5 U.S.C. § 703 (2000). This certainly
encompasses situations where Congress creates the direct remedy and
provides (either explicitly or otherwise) that it is exclusive.
See Yakus v. United States, 321 U.S. 414, 443-47 (1944); see also
Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345-53 (1984). But
where the direct means of challenging the regulation derives from
court precedent (or its codification in the generally phrased APA),
arguably the courts may determine whether the direct remedy is or
is not exclusive and, also arguably, the direct remedy should be
exclusive here.
The government has not raised this objection, but has
relied instead on an attempt to distinguish Saade I that the panel
opinion properly rejects. Only the en banc court can revisit Saade
with respect to any holding of that decision. See Ed Peters
Jewelry Co. v. C & J Jewelry Co., 215 F.3d 182, 190-91 (1st Cir.
2000). Because of public interest concerns, we would not
necessarily regard the government's failure to raise the above
objection as precluding the exclusivity argument if the government
chose to raise it by petition for rehearing en banc, although we
are not committed to accept the argument unless and until the
matter is adequately briefed.
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We think it proper to raise this possibility not only
because of our uncertainty as to the correctness of Saade I but
also because the government otherwise has no incentive to contest
a seemingly settled holding. This is at least the third case in
which a defendant seeks to defend against prosecution by raising
the same challenge to the same zone--a fact that underscores doubts
about the Saade I regime.
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