USA v. Maxwell, MAXWELL-ANTHON
| Citation | 254 F.3d 21 |
| Decision Date | 05 June 2001 |
| Docket Number | D,MAXWELL-ANTHON,No. 00-2084,00-2084 |
| Parties | (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. RAUL MAXWELL, A/K/A RAULefendant, Appellant. Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
[Copyrighted Material Omitted]
Linda A. Backiel for appellant.
Antonio R. Bazan, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco and W. Clay Caldwell, Assistant United States Attorneys, were on brief, for appellee.
Before Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Lipez, Circuit Judge.
Defendant-appellant Raul Maxwell-Anthony (Maxwell) entered United States Navy property on the Puerto Rican island of Vieques without authorization. Following a bench trial, the district court found Maxwell guilty of violating 18 U.S.C. § 1382 and sentenced him to thirty days in prison for this Class B misdemeanor. Maxwell appeals. We affirm.
The United States Navy maintains a naval installation known as Camp Garcia on the island of Vieques, Puerto Rico, and periodically conducts military training operations there. Pursuant to regulations promulgated by the Department of the Navy, Camp Garcia is a "closed" base, meaning that entry by members of the general public requires permission from the commanding officer. See 32 C.F.R. §§ 770.35-770.40. Camp Garcia contains a "live impact area," historically used by the Navy for live-fire artillery and bombardment exercises. The Navy's presence on Vieques spans some sixty years, and these exercises have sparked numerous protests. See, e.g., United States v. Sharpton, 252 F.3d 536, 538-39 (1st Cir. 2001) (per curiam) (); United States v. Parrilla Bonilla, 648 F.2d 1373, 1374-75 (1st Cir. 1981) ().
The political controversy attendant to the Navy's use of Vieques recently reached a fever pitch. In the calendar year 2000, approximately 400 persons were prosecuted for protest-related trespasses. See Sharpton, 252 F.3d at 539. Maxwell joined this effort: the authorities arrested him three times in quick succession (June 1, June 13, and June 21, 2000) for entering Camp Garcia without the permission of its commanding officer.
The June 13 arrest which underlies this appeal came about after Maxwell peacefully approached a naval security officer inside the north fence line of the base, identified himself as a protester, and asked for a bottle of water. In the wake of this arrest, the government charged Maxwell, by means of a one-count information, with violating a statute which reads in pertinent part:
Whoever, within the jurisdiction of the United States, goes 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. Insofar as relevant here, the "purpose prohibited by . . . lawful regulation" is the one set out in 32 C.F.R. § 770.38, namely, "entry . . . for any purpose whatsoever without the advance consent of the Commanding Officer."
Maxwell filed a pretrial motion, accompanied by an exegetic offer of proof, reflecting his desire to present affirmative defenses based upon necessity and international law. The government objected and the district court ruled, as a matter of law, that the proposed defenses could not be maintained because of the lack of a proper predicate. United States v. Maxwell-Anthony, 129 F. Supp. 2d 101, 104-07 (D.P.R. 2000). For the same reason, the court excluded the tendered evidence as irrelevant. Id.
The trial itself was anticlimactic: the court, sitting without a jury, found that Maxwell had knowingly entered Camp Garcia without leave and in so doing had violated 18 U.S.C. § 1382. The court thereupon imposed a thirty-day incarcerative sentence. This timely appeal followed.
On appeal (as below), Maxwell does not dispute either that Camp Garcia is Navy property or that he entered the base on June 13 without prior permission. He nonetheless asseverates that the lower court erred both in construing the "purpose" element of the statute of conviction and in pretermitting his suggested affirmative defenses (and, concomitantly, excluding the expert testimony related thereto). We consider each asseveration.
Maxwell asserts that because section 1382 criminalizes entry onto the grounds of a military or naval installation "for any purpose prohibited," the government must show that a defendant had an improper purpose in entering such a facility. Because the government failed to prove this element, his thesis runs, the instant conviction cannot stand. We review the district court's construction of a federal statute de novo. SeeUnited States v. Carroll, 105 F.3d 740, 744 (1st Cir. 1997).
We accept Maxwell's premise: "purpose" is indeed an element of a section 1382 offense. But the case law is consentient that an unauthorized entry itself can constitute the prohibited purpose necessary to sustain a conviction under section 1382. See Parrilla Bonilla, 648 F.2d at 1377; United States v. Mowat, 582 F.2d 1194, 1203-04 (9th Cir. 1978); United States v. Floyd, 477 F.2d 217, 225 (10th Cir. 1973); see also Sharpton, 252 F.3d at 538-39 (accepting rule subsilentio).
This statutory construction blunts the main thrust of Maxwell's argument, but it does not completely refute that argument. The Parrilla Bonilla opinion emphasized that when a prosecution proceeds on the theory that a defendant purposes to enter a restricted military reservation without authorization, the government must show that the defendant had knowledge or notice, actual or constructive, that such entry was prohibited. Parrilla Bonilla, 648 F.2d at 1377. Absent such knowledge or notice, the showing of purpose is incomplete.
This requirement, too, has been satisfied. The Department of the Navy now has promulgated regulations, 32 C.F.R. §§ 770.35-770.40, closing all naval installations in Puerto Rico to the public id. § 770.37. These regulations make pellucid that "entry upon any U.S. Navy installation or property in Puerto Rico at anytime, by any person for any purpose whatsoever without the advance consent of the Commanding Officer . . . is prohibited." Id. at § 770.38. In Sharpton, 252 F.3d at 539 n.2, we left open the question of whether the Navy, by adopting these regulations and publishing them in the Federal Register, 46 Fed. Reg. 22,756 (Apr. 21, 1981), satisfied the "knowledge or notice" requirement as to naval installations in Puerto Rico. Today, we answer that question affirmatively.
The filing of a document with the Office of the Federal Register is (with an exception not relevant here) "sufficient to give notice of the contents of the document to a person subject to or affected by it." 44 U.S.C. § 1507. It follows inexorably that section 1382's "knowledge or notice" requirement may be satisfied by the publication of a regulation specifically forbidding unauthorized entry. See Mowat, 582 F.2d at 1199-1203. Because the regulations cited above give explicit notice that any unauthorized entry onto the grounds of a naval installation situated in Puerto Rico is forbidden, all that is presently needed to satisfy section 1382's "purpose" requirement is proof that Maxwell's entry was deliberate.
The government unquestionably carried that modest burden in this case. The trial judge specifically found that Maxwell intentionally entered Camp Garcia, and the record fully supports that finding. Accordingly, Maxwell's contention that the government failed to prove each element of a section 1382 offense lacks merit.1
Maxwell also presents a variation on this theme. He asserts that the district court should have allowed him to introduce the proffered expert testimony because of its relevance to section 1382's "purpose" requirement. This argument is jejune.
The appropriate standard for reviewing the admission or exclusion of expert testimony is abuse of discretion. United States v. Hernandez-Vega, 235 F.3d 705, 710 (1st Cir. 2000). Maxwell's expert was prepared to testify, inter alia, that nuclear-armed Trident submarines (which Maxwell speculates were taking part in the Navy's exercises at Vieques) are illegal under international law and that individuals have a right to take steps that otherwise might transgress domestic law in order to prevent their deployment. In Maxwell's view, this testimony would have shown that his purpose in entering Camp Garcia preventing a violation of international law -- was lawful (and, therefore, could not constitute the prohibited purpose that the statute requires).
As is evident from what we already have said, this argument misconstrues the level of purpose that need be shown under section 1382. Where, as here, unauthorized entry is prohibited by duly promulgated regulations, the only state of mind that section 1382 requires is a purpose to enter. See Parrilla Bonilla, 648 F.2d at 1377; Mowat, 582 F.2d at 1203-04; Floyd, 477 F.2d at 225. Since Maxwell does not dispute that he had such a purpose -- nor could he, on this record -- his specific reason for trespassing is irrelevant. See Parrilla Bonilla, 648 F.2d at 1377 (); Mowat, 582 F.2d at 1203-04 (similar). Thus, the expert testimony -- which Maxwell offered to furnish support for the legitimacy of his specific reason for entering the base -- was irrelevant, and the district court acted appropriately in excluding it.
Recall that Maxwell moved, in advance of trial, for leave to present a necessity...
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