Moreno Rios v. United States, 5283.

• Decision Date: 19 May 1958
• Docket Number: No. 5283.,5283.
• Citation: 256 F.2d 68
• Parties: Miguel A. MORENO RIOS, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

256 F.2d 68 (1958)

Miguel A. MORENO RIOS, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 5283.

United States Court of Appeals First Circuit.

Heard February 4, 1958.

Decided May 19, 1958.

Gerardo Ortiz Del Rivero, San Juan, P. R., for appellant.

Ruben Rodriguez-Antongiorgi, U. S. Atty., San Juan, P. R., for appellee.

Juan B. Fernandez Badillo, Atty. Gen., Commonwealth of Puerto Rico, Arturo Estrella, Asst. Atty. Gen., Abe Fortas, Washington, D. C., and Jose Trias Monge, San Juan, P. R., on the brief for the Commonwealth of Puerto Rico, as amicus curiae.

Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges.

MAGRUDER, Chief Judge.

Miguel A. Moreno Rios, after having pleaded guilty to an information charging a violation of the Narcotic Drugs Import and Export Act, 21 U.S.C.A. §§ 171, 173, 174, and having been sentenced thereon as a second offender to a term of seven years' imprisonment plus a nominal fine by Hon. A. Cecil Snyder, Chief Justice of the Supreme Court of Puerto Rico, serving as Acting Judge in the United States District Court for the District of Puerto Rico, filed in the same court a motion under 28 U.S.C. § 2255 seeking to have the judgment of conviction set aside and vacated as a nullity. From an order entered by the regular district judge denying this motion to vacate, the present appeal was duly taken.

Two grounds are urged by appellant to support his proposition that the judgment of conviction is void: (1) Because the federal criminal statute in question is inapplicable to the Commonwealth of Puerto Rico, and (2) because Chief Justice Snyder was not lawfully designated to serve as acting judge in the federal district court. Neither point amounts to anything. In this determination we are in accord with the conclusions reached by the Commonwealth Government in its brief amicus curiae.

We address ourselves to the two points in reverse order.

In § 41 of the Puerto Rico Organic Act of 1917 it was provided that, in case of vacancy or of the death, absence or other legal disability on the part of the regular judge of the district court, the President of the United States was authorized to designate one of the judges of the Supreme Court of Puerto Rico to discharge the duties of judge in the said federal district court. 39 Stat. 966, 48 U.S.C.A. § 863. That authorization was still in the law when the Congress in 1950 enacted Public Law 600, 48 U.S. C.A. § 731b et seq., offering to the people of Puerto Rico a "compact" under which they might "organize a government pursuant to a constitution of their own adoption." 64 Stat. 319. It was provided in § 5 of Public Law 600 that certain sections of the Organic Act, as amended, should be deemed repealed at such time as the Constitution of Puerto Rico became effective, but § 41 of the Organic Act was left untouched and unrepealed. Section 4 of Public Law 600 stated that except as provided in § 5, the Organic Act of 1917, as amended, "is hereby continued in force and effect and may hereafter be cited as the `Puerto Rican Federal Relations Act'." The people of Puerto Rico having by referendum voted to accept the terms of the compact offered to them and having adopted a Constitution of the Commonwealth of Puerto Rico, the said constitution was approved by Joint Resolution of the Congress on July 3, 1952, 66 Stat. 327. Since the Constitution of the Commonwealth, as thus approved, 48 U.S.C.A. § 731d note, provides in § 8 of Art. V that the justices of the Supreme Court of Puerto Rico shall be appointed by the Governor of the Commonwealth instead of by the President of the United States as had previously been prescribed in the Organic Act, it is contended that the provision of § 41 of the old Organic Act, authorizing the President to designate a judge of the Supreme Court of Puerto Rico to serve as acting judge in the federal court, must be deemed to have been impliedly repealed by force of the Joint Resolution of the Congress approving the Puerto Rican Constitution. 66 Stat. 327. This is said to be because an attempt by the President to impose such duties upon a justice of the Supreme Court of Puerto Rico would invade and disregard the sovereign powers given to the Governor of the Commonwealth under the Constitution.

The foregoing objection is somewhat reminiscent of the case of Spiers v. Bowles, Em.App.1945, 151 F.2d 77. In that case one Jack Spiers, describing the nature of his business as "The sale of whisky in the State of Mississippi in violation of the prohibition laws of said state", filed a protest with the Price Administrator challenging the validity of certain provisions of a federal price regulation imposing ceiling prices on the sales of whisky, so far as the said regulation applied to the State of Mississippi where, under state law, all sales of liquor were forbidden. It was contended that such action by the federal government would trench upon the powers of the sovereign State of Mississippi. Although such an argument would have come with better grace from the government of Mississippi, no objection was forthcoming from that source. So, in the case at bar, the Commonwealth of Puerto Rico has offered no objection that the President's Executive Order of January 6, 1956, No. 10653, (1956) U.S.Code Cong. & Adm. News, p. 4913, designating Chief Justice Snyder to serve as acting judge in the federal district court during that year, was void as being in conflict with the Constitution of the Commonwealth. Upon the contrary, the Commonwealth has filed a brief amicus curiae in the present case in which the following comment is made upon this provision of the Puerto Rican Federal Relations Act:

"This section simply authorizes the President, as a matter of administrative convenience, to appoint a Commonwealth Justice, and him to serve, as acting United States District Judge for the District of Puerto Rico, just as it could have authorized the President so to appoint any member of the Puerto Rican bar. The rendering of such judicial service is, on the other hand, necessarily predicated on the availability and acceptance of the person concerned. The President not being authorized under the statute to compel a Justice of the Supreme Court to serve, it certainly cannot be said that the President is interfering with the judicial administration of Puerto Rico or that he is exercising executive or judicial powers that properly belong to the Commonwealth."

While we assume that appellant had standing to challenge the lawfulness of the tribunal before which he appeared for sentencing, we hold, on the merits, that the challenge is not well taken.

This particular question is not likely to arise again, since the justices of the Supreme Court of Puerto Rico are now unwilling to act in the federal district court, and the President of the United States, being unable to compel them to serve, makes no such designation. The result is that, for the future, resort must be had to the general provisions of the Judicial Code, 28 U.S.C. §§ 291-296.

With reference to the coverage of the Narcotic Drugs Import and Export Act, appellant does not contend, indeed could not successfully contend, that the Congress of the United States lacks the power to extend its provisions to the Commonwealth of Puerto Rico. Under the terms of the "compact" to which the people of Puerto Rico have manifested assent, there remains in the Puerto Rican Federal Relations Act the important provision: "The statutory laws of the United States not locally inapplicable * * * shall have the same force and effect in Puerto Rico as in the United States * * *." 48 U.S.C.A. § 734. Since the terms of the Narcotic Drugs Import and Export Act would affect Puerto Rico in the same manner as they do the States of the Union, and since the problem dealt with is a general one, certainly not "locally inapplicable" to Puerto Rico, it is clear that Congress has the power to apply the Act to Puerto Rico; and the only remaining question is whether Congress has intended such application.

As bearing on the intention of Congress, it is worth while to note (1) that the maxim expressio unius est exclusio alterius is nothing but an aid to interpretation, and as an aid it is pretty weak when applied to acts of Congress enacted at widely separated times. Also (2) when Congress uses the term "territory", this may be meant to be synonymous only with "place" or "area", and not necessarily to indicate that Congress has in mind the niceties of language of a political scientist who might say that Puerto Rico under its commonwealth status has ceased to be an unincorporated "territory" of the United States.

There can be no doubt that the Narcotic Drugs Import and Export Act applied to Puerto Rico just prior to the date in 1952 when the Commonwealth came into being. That Act, originally passed in 1909 (35 Stat. 614), was amended in 1922 (42 Stat. 596) so as to define the term "United States", when used in a geographical sense, as including "the several States and Territories, and the District of Columbia". The same amendment imposed a penalty, in § 2(c) of the Act, upon any person who fraudulently or knowingly "brings any narcotic drug into the United States or any territory under its control or jurisdiction,...