U.S. v. Frade

• Decision Date: 18 July 1983
• Docket Number: No. 82-5179,82-5179
• Citation: 709 F.2d 1387
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leopold FRADE and Joe Morris Doss, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1387

709 F.2d 1387

UNITED STATES of America, Plaintiff-Appellee, v. Leopold FRADE and Joe Morris Doss, Defendants-Appellants.

No. 82-5179.

United States Court of Appeals Eleventh Circuit.

July 18, 1983.

Julian R. Murray, Jr., Murray, Murray, Ellis, Braden & Landry, New Orleans, La., for defendants-appellants.

W. Peter Burns, Steel, Hector & Davis, Miami, Fla., for amicus curiae presiding bishop of Episcopal Church in U.S.

Stanley Marcus, U.S. Atty., Jon May, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before VANCE and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

VANCE, Circuit Judge:

Appellants, Father Joe Morris Doss, Rector of Grace Episcopal Church in New Orleans, and Father Leopold Frade, Curate of Grace Episcopal Church and chairman of the National Commission for Hispanic Ministry at the time of the events giving rise to this appeal, appeal their convictions for violation of the Trading With the Enemy Act, 50 U.S.C., Appendix Sec. 5(b) (1968 & Supp.1983) (TWEA) and 31 C.F.R. Sec. 515.415(a), ¹ a regulation promulgated under section 5(b) of the Act, as an addition to the Cuban Assets Control Regulations.

The events giving rise to the convictions are those of the now famous Mariel boatlift, or freedom flotilla, of spring 1980, by which some 114,000 Cuban refugees, in nearly 1,800 boats, crossed the 90 miles of ocean and great political divide between Cuba and the United States. See Pollgreen v. Morris, 496 F.Supp. 1042 (S.D.Fla.1980). In early April 1980, some 10,800 Cuban citizens claiming status as political refugees sought sanctuary in the Peruvian Embassy in Havana. On April 14, 1980, President Carter declared that, pursuant to the Refugee Act of 1980, up to 3,500 of these refugees would be admitted into the United States. He allocated up to $4.25 million for their resettlement. 45 Fed.Reg. 28079 (April 28, 1980). An airlift was started, but within three days Castro stopped the flights, announcing that anyone who wanted to leave could do so through the harbor of Mariel. Almost immediately, small boats, funded by the members of the Cuban-American community, began leaving Key West.

Cuban-American parishioners of Grace Church implored Fathers Frade and Doss to help in arranging for a boat to bring their relatives from Cuba. Although the priests first considered the idea impractical they changed their minds because their parishioners, like other Cuban-Americans, were paying extortionate prices to cross the Florida Straits in small, unsafe boats, only to find, upon arriving in Mariel, that they were forced to return with criminals, the mentally ill, and other undesirables, rather than the relatives for whom they had come. Frade and Doss recognized they could avoid these problems by chartering a large, safe vessel at an affordable per-passenger price. Because Father Frade had previously dealt directly with Cuban officials through his participating in the Cuban Political Prisoner Program, sponsored by the Episcopal Church and arranged in coordination with the Immigration and Naturalization Service and United States Customs, he believed he could negotiate an agreement which would avoid their returning with undesirables.

A meeting, held by the priests at Grace Church on May 3 to organize the rescue mission, was attended by 650 people and met with immediate overwhelming response. Based on the cost estimates for the boat, Frade and Doss had requested $800 per passenger. Within forty-eight hours, the necessary minimum of $170,000 was collected. Eventually $215,000 was raised. The priests told the subscribers that they could not guarantee that anyone would be brought back or any money refunded.

On May 7, 1980, Frade and Doss negotiated with the Cuban Interest Section at the Czechoslovakian Embassy in Washington. They obtained assurances that they would not be forced to bring back undesirables, and would receive a favorable ratio of persons on their list to ex-political prisoners selected by the Cuban government. The Cuban Interest Section insisted, as part of the Cuban government commitment, that Frade and Doss turn over the list of the people they proposed to pick up. On May 9, 1980, the priests submitted a list of 260 names which were immediately telexed to Havana. An additional 106 names were telexed on May 11.

Although the priests understood that, in the week following their meeting at the Cuban Interest Section, Administration attitude towards the boatlift had changed, they realized that, once the names had been telexed, they had passed the point of no return. Father Frade had been told by a Cuban official, during his last refugee flight to Cuba on May 5, that a "national purge was taking place," those applying for permission to leave Cuba were losing jobs, houses, and ration cards, and sometimes being attacked, beaten and killed. Trial witnesses testified to the vengeful and bloody "repudiation meetings" which were arranged for would-be emigres. As the district judge observed at sentence "[O]nce the list of names had been given over to the Cuba officials ... it would have been very difficult, a very difficult decision of conscience to stop at that time."

On May 26, 1980, the God's Mercy, a large, safe vessel, equipped with $10,000 in added safety equipment, and manned by an experienced crew, including a doctor and a nurse, set sail for Mariel. Frade and Doss, realizing that they would be unable to make a return trip, flew to Havana to renegotiate for an improved ratio of persons on their lists. After two weeks of intense negotiation, over the dinners demanded by the Cuban officials at "mind-blowing" expense, they succeeded. On June 12, 1980, the God's Mercy arrived in Key West, with the priests and 402 refugees including 288 persons from the lists.

The God's Mercy was escorted into Key West by two Coast Guard cutters. Frade and Doss were arrested immediately. Father Frade received $431,000 in civil fines and the God's Mercy was forfeited to the government.

The priests were first indicted under 8 U.S.C. Sec. 1324(a)(1) (Supp.1982) for transporting and landing illegal aliens and conspiracy to commit the same offense. The district court, sitting en banc, dismissed the indictment, finding an absence of the "fraudulent, evasive, or surreptitious" entry required for a violation of 8 U.S.C. Sec. 1324(a)(1). United States v. Anaya, 509 F.Supp. 289, 297 (S.D.Fla.1980). This court affirmed the dismissal, holding on the stipulated facts that the transportation of aliens for purposes of their seeking lawful entry into the United States did not constitute general criminal intent to violate the statute. United States v. Zayas-Morales, 685 F.2d 1272, 1275 (11th Cir.1982). Only after the charges against the priests were dismissed by the district court did the government bring an indictment against them under the TWEA.

THE ISSUE OF CRIMINAL INTENT

Appellants contend that the trial court erred in denying their motion for judgment of acquittal and alternative motion for a new trial on the grounds that there was no evidence to establish the requisite criminal intent to violate the TWEA. To be criminal, violation of regulations promulgated pursuant to the TWEA must be willful. McGrath v. Manufacturers Trust Co., 338 U.S. 241, 247, 248, 70 S.Ct. 4, 7, 8, 94 L.Ed. 31 (1949). 50 U.S.C., Appendix Sec. 16 (Supp.1983), which defines the punishment for violations of the TWEA, states in pertinent part:

Whoever shall willfully violate any of the provisions of this Act ... or of any ... rule, or regulation issued thereunder ... or refuse to comply with any order of the President issued in compliance with the provisions of this Act shall, upon conviction, be fined not more than $50,000 or, if a natural person, imprisoned for not more than ten years, or both. ²

(parenthetical omitted).

When used in a criminal statute "the word 'willfully' ... generally connotes a voluntary, intentional violation of a known legal duty." United States v. Bishop, 412 U.S. 346, 360, 93 S.Ct. 2008, 2017, 36 L.Ed.2d 941 (1973). Accord United States v. Hernandez, 662 F.2d 289, 292 (5th Cir.1981); United States v. Davis, 583 F.2d 190, 193 (5th Cir.1978).

The regulation under which the priests were convicted, 31 C.F.R. Sec. 515.415, was quietly promulgated, unexpected, and unannounced on May 15, 1980--after the list of names had been tendered to Cuba. It criminalized behavior (travel to, from, and within Cuba), which previously had been expressly authorized in published regulation 31 C.F.R. Sec. 515.560, ³ and which, in fact, remained lawful, except when done in connection with the transportation of Cuban nationals, an activity which also is not generally criminal. It penalized the paying of port fees in a foreign harbor and duly incurred hotel, motel and restaurant bills--activities which laymen do not consider wrong nor lawyers classify as malum in se --and which, in fact, ordinary people consider to be their legal responsibility to perform.

In such circumstances, criminal willfulness requires more than the ordinary legal assumption that the person charged know what he is doing and act deliberately. A finding of specific intent is essential. United States v. Davis, 583 F.2d at 193; United States v. Schnaiderman, 568 F.2d 1208, 1211 (5th Cir.1978); United States v. Granda, 565 F.2d 922, 926 (5th Cir.1978). Because the activities denoted unlawful "are spelled out in administrative regulations and include items not known generally to be controlled by the government," United States v. Davis, 583 F.2d at 193, the regulatory provisions must be "actually known" and "intentionally violated" for a crime to be committed. United States v. Warren, 612 F.2d 887, 890 (5th Cir.) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980) (emphasis in original). Accord United States v. Schnaiderman, 568 F.2d at 1211....