332 F.3d 622 (9th Cir. 2003), 98-10159, U.S. v. Cabaccang

Docket Nº:98-10159
Citation:332 F.3d 622
Party Name:U.S. v. Cabaccang
Case Date:June 06, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 622

332 F.3d 622 (9th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,

v.

United States Court of Appeals, Ninth Circuit

James CABACCANG, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Richard T. Cabaccang, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Roy Toves Cabaccang, Defendant-Appellant.

Nos. 98-10159, 98-10195, 98-10203.

United States Court of Appeals, Ninth Circuit

June 6, 2003.

Argued and Submitted En Banc Dec. 9, 2002.

Page 623

Rory K. Little, San Francisco, California, for the defendants-appellants Cabaccang.

Elizabeth A. Fisher, Honolulu, Hawaii, for the defendant-appellant James Cabaccang.

Arthur E. Ross, Honolulu, Hawaii, for the defendant-appellant Richard T. Cabaccang.

Sarah Courageous, Honolulu, Hawaii, for the defendant-appellant Roy Toves Cabaccang.

Kathleen A. Felton, Assistant United States Attorney, Washington, D.C., for the plaintiff-appellee.

Appeal from the United States District Court for the District of Guam; John S. Unpingco, District Judge, Presiding. D.C. Nos. CR-97-00095-3-JSU, CR-97-00095-2-JSU, CR-97-00095-1-JSU.

Before SCHROEDER, Chief Judge, KOZINSKI, O'SCANNLAIN, KLEINFELD, HAWKINS, GRABER, McKEOWN, W. FLETCHER, FISHER, PAEZ and TALLMAN, Circuit Judges.

Opinion by Judge FISHER; Concurrence by Chief Judge SCHROEDER; Dissent by Judge KOZINSKI

OPINION

FISHER, Circuit Judge:

Appellants James, Richard and Roy Cabaccang appeal their convictions on a variety of charges relating to their involvement in a drug trafficking ring that transported large quantities of methamphetamine from California to Guam in the early and mid-1990s. The Cabaccangs' primary contention on appeal is that the transport of drugs on a nonstop flight from one location within the United States to another does not constitute importation within the meaning of 21 U.S.C. § 952(a), even though the flight traveled through international airspace. We agree, and therefore we reverse the appellants' convictions on all importation-related counts.

Factual and Procedural Background

In the early 1990s, Roy Cabaccang began selling methamphetamine out of his house in Long Beach, California, to customers introduced to him by his younger brothers Richard and James. The Cabaccangs eventually expanded their operation to include large-scale shipments of methamphetamine to Guam for local distribution. To transport the drugs to Guam, Roy recruited various people to fly from Los Angeles to Guam with packages of

Page 624

methamphetamine concealed under their clothing. Richard helped the couriers tape the packages of methamphetamine to their bodies. The Cabaccangs also sent packages of methamphetamine from California to Guam through the United States mail. After Roy's associates sold the methamphetamine in Guam, they sent the proceeds back to California via courier and wire transfer. Each of the Cabaccang brothers received wire transfers of profits from the drug sales.

After a long investigation, the Cabaccangs were indicted in 1997 on numerous charges relating to their involvement in the methamphetamine ring. A jury convicted all three brothers of conspiracy to import methamphetamine, in violation of 21 U.S.C. §§ 952(a), 960 and 963; conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956. 1 The district court sentenced all three brothers to concurrent terms of life in prison on at least one of the importation counts and at least one of the non-importation counts (with concurrent shorter terms on other counts). 2

The Cabaccangs appealed their convictions to this court, claiming that the transport of drugs from California to Guam does not constitute importation merely because the drugs traveled through international airspace en route to Guam. 3 Relying on our decisions in Guam v. Sugiyama, 846 F.2d 570 (9th Cir. 1988) (per curiam), and United States v. Perez, 776 F.2d 797 (9th Cir. 1985), a three-judge panel affirmed the convictions in an unpublished disposition, stating that "we have clearly declared that transporting drugs from one point in the United States to another through or over international waters constitutes importation." 4 United States v. Cabaccang, 16 Fed. Appx. 566, 568, 2001 WL 760553 (9th Cir. 2001) ("Cabaccang I "). We granted rehearing en banc to reexamine the importation statute and determine whether it does prohibit the transport of drugs through international airspace on a nonstop flight from one point within the United States to another.

Standard of Review

The construction or interpretation of a statute is a question of law that we

Page 625

review de novo. United States v. Carranza, 289 F.3d 634, 642 (9th Cir.), cert. denied, --- U.S. ----, 123 S.Ct. 572, 154 L.Ed.2d 458 (2002).

Discussion

I.

"We interpret a federal statute by ascertaining the intent of Congress and by giving effect to its legislative will." Bedroc Ltd. v. United States, 314 F.3d 1080, 1083 (9th Cir. 2002) (internal quotation marks omitted). The starting point of this inquiry is the language of the statute itself. United States v. Hackett, 311 F.3d 989, 991 (9th Cir. 2002). Section 952(a) states that "[i]t shall be unlawful[1] to import into the customs territory of the United States from any place outside thereof (but within the United States), or [2] to import into the United States from any place outside thereof, any controlled substance." 21 U.S.C. § 952 (emphasis added). Section 951(a), which furnishes the relevant definitions for the terms used in § 952, defines "import" broadly as "any bringing in or introduction of such article into any area (whether or not such bringing in or introduction constitutes an importation within the meaning of the tariff laws of the United States)." Id. § 951(a)(1). It is the second clause of § 952(a) that is at issue here, as it is undisputed that the Cabaccangs did not bring drugs into the customs territory of the United States. 5

The Cabaccangs argue that they are not guilty of importation because they did not bring drugs into the United States from a "place outside thereof." They contend that the transit of drugs through international airspace en route from one location in the United States (California) to another (Guam) is insufficient to support a charge of importation under § 952. 6 The government counters that international airspace is itself a "place outside" the United States within the meaning of the statute. Pointing to § 951's definition of "import" as "any bringing in," the government argues that the entry of contraband into the United States from international airspace is all that the statute requires. That the flight carrying the contraband departed from a domestic location is irrelevant, the government maintains, because § 952(a) is unconcerned with the origin of a shipment of drugs that enters the United States from international airspace.

The problem with the government's argument is that despite § 951's broad definition of importation as "any bringing in," section 952(a) itself specifies that the bringing in be "from any place outside " the United States. (Emphasis added.) This requirement was not an element of § 952(a)'s predecessor statute, 21 U.S.C. § 174, which provided criminal penalties for "fraudulently or knowingly import[ing]

Page 626

or bring[ing] any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law." (Emphasis added.) 7 In 1970, Congress replaced § 174 with § 952, inserting the phrase "from any place outside thereof" after the words "into the United States" without explanation. 8 If, as the government urges, Congress was concerned only with the destination of the drugs, it would have been sufficient to retain the original language of the importation statute, simply prohibiting the import of drugs "into the United States" without reference to the point of origin. The addition of the phrase "from any place outside the United States" undercuts the government's contention that Congress intended the origin of a drug shipment to be irrelevant to a finding of importation under § 952(a). See Webster's Third New International Dictionary 913 (1981) (defining "from" as "used as a function word to indicate a starting point: as (1) a point or place where an actual physical movement ... has its beginning ..."); The American Heritage Dictionary of the English Language 729 (3rd ed.1996) (defining "from" as "[u]sed to indicate a specified place or time as a starting point: walked home from the station ...").

The question, then, is whether drugs that pass through international airspace on a nonstop flight en route from one U.S. location to another, without touching down on either land or water, are "from" a "place outside" the United States for the purposes of § 952(a). When Congress has not provided special definitions, we must construe words in a statute "according to their ordinary, contemporary, common meaning[s]." Hackett, 311 F.3d at 992 (alteration in original) (internal quotation marks and citation omitted). Turning to the word "place," we acknowledge that it can have many meanings, some of which, when viewed in isolation, might seem to apply to international airspace. The critical question, however, is what the term reasonably can be understood to encompass as it is used, not in isolation, but in the phrase "from any place outside [the United States]," and in the larger context of § 952, which is concerned with the importation of drugs into the United States.

In the ordinary sense of the term, drugs do not come from international airspace, although they certainly can move...

To continue reading

FREE SIGN UP