U.S. v. Greenpeace, Inc.

• Decision Date: 15 April 2004
• Docket Number: No. 03-20577-CR-JORDAN.,03-20577-CR-JORDAN.
• Citation: 314 F.Supp.2d 1252
• Parties: UNITED STATES of America v. GREENPEACE, INC.
• Court: U.S. District Court — Southern District of Florida

314 F.Supp.2d 1252

UNITED STATES of America v. GREENPEACE, INC.

No. 03-20577-CR-JORDAN.

United States District Court, S.D. Florida, Miami Division.

April 15, 2004.

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Jane Wollner Moscowitz, Moscowitz Moscowitz & Magolnick, John Michael Hogan, Dana Lynn Choi, Holland & Knight, Miami, FL, Thomas W. Wetterer, David Halperin, Washington, DC, for Defendant.

Ralf Gunars Brookes, Cape Coral, FL, for Interested Party.

ORDER ON PENDING MOTIONS

JORDAN, District Judge.

On the afternoon of April 12, 2002, several miles outside the Port of Miami, various members of Greenpeace, Inc., a world-wide environmental organization, boarded the M/V APL Jade, a cargo vessel which was believed to be bringing illegally logged mahogany from Brazil into the United States. The Greenpeace members, once on board, intended to unfurl a banner which urged President Bush to stop illegal logging, but they were taken into custody before they could do so.

In May of 2002, the government charged several Greenpeace members by information with the commission of a misdemeanor in violation of 18 U.S.C. § 2279.¹ Those individuals pled guilty or no contest, and I sentenced them to time served plus fines ranging from $100 to $500. See United States v. Dombowsky et al., No. 02-20470-Cr-Jordan. In July of 2003, the government obtained a grand jury indictment charging Greenpeace with violating § 2279, and subsequently obtained a superseding indictment adding a charge of conspiracy to violate § 2279, in violation of 18 U.S.C. § 371.

This order addresses Greenpeace's motion to dismiss the indictment, Greenpeace's motion for a jury trial, and the government's motion for a non-jury trial. I held a hearing on these and other motions on December 12, 2003.

I. THE MOTION TO DISMISS

Greenpeace has moved to dismiss the superseding indictment, arguing that § 2279 does not apply to the conduct alleged in the indictment and that § 2279 is impermissibly vague. For the reasons which follow, the motion to dismiss is denied in part and deferred in part.

In analyzing Greenpeace's motion, I am limited to the allegations contained within the four corners of the indictment, and must read those allegations in the light most favorable to the government. See, e.g., United States v. Plummer, 221 F.3d 1298, 1302 (11th Cir.2000); United States v. deVegter, 198 F.3d 1324, 1327 (11th Cir.1999). To the extent that Greenpeace is challenging the allegations of the indictment, any contested evidentiary matters which form the basis of the motion are not amenable to pretrial disposition. See United States v. Knox, 396 U.S. 77, 83 n. 7, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); United States v. Critzer, 951 F.2d 306, 307 (11th Cir.1992). There is, however, one exception. At the hearing on the pending motions, the government stipulated that I could consider, or take judicial notice of, one fact not alleged in the indictment. That fact is that the boarding of the APL Jade took place 3.24 miles off the coast of Miami Beach.²

A. THE SCOPE OF § 2279

Congress enacted the predecessor to § 2279 in 1872. See Act of June 7, 1872, § 6, Rev. Stat. § 4606 (then codified at 46 U.S.C. § 708). Since then, there have only been two reported cases discussing § 2279 or its predecessor. Those cases are over 100 years old, and do not address the issues raised here by Greenpeace. See United States v. Sullivan, 43 F. 602, 602-05 (C.C.D.Or.1890) (statute applies to foreign vessels); United States v. Anderson, 24 F.Cas. 812, 812 (C.C.S.D.N.Y.1872) (government need not prove that the defendant was not in the United States service or was not authorized by law to go on board). Sullivan does, however, discuss the intended purpose of § 2279:

The evil which this section is intended to prevent and remedy is apparent, and in this district notorious. For instance, lawless persons, in the interest or employ of what may be called `sailor-mongers,' get on board vessels bound for Portland as soon as they get in the Columbia river, and by the help of intoxicants, and the use of other means, often savoring of violence, get the crews ashore, and leave the vessel without help to manage or care for her. The sailor thereby loses the wages of the voyage, and is dependent on the boarding-house for the necessaries of life, where he is kept, until sold by his captors to an outgoing vessel, at an enormous price.

43 F. at 604-05.

Greenpeace's first argument is that § 2279 does not apply to its alleged conduct because a vessel 3 miles offshore is not "about to arrive at the place of her destination." Words in a statute are to be given their "ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import," Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (internal quotation marks omitted), and it is an accepted practice for courts to look to dictionaries for definitions, as in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 n. 5, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). According to Greenpeace, the phrase "about to" means "on the point or verge of," see WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 5 (1976), and connotes imminence and immediacy. I agree with Greenpeace's reading, which is supported by dictionary definitions and the few cases interpreting the phrase. See, e.g., E.E.O.C. v. Swift Transportation Co., 120 F.Supp.2d 982, 992 (D.Kan.2000) (interpreting phrase "about to" in 29 U.S.C. § 215(a)(3) to mean "on the point or verge of" or "ready or prepared to do something"); United States v. 200 Watches, 66 F.Supp. 228, 231 (S.D.N.Y.1946) (same ruling with respect to phrase "about to" in former 22 U.S.C. § 401). I also think Greenpeace is right in arguing that the phrase "before she has been completely moored" suggests some measure of physical proximity to land for the statute to be applicable. But I do not concur with Greenpeace that this means, as a matter of law, that § 2279 is inapplicable when the subject vessel is 3.24 miles from shore. See Anderson, 24 F.Cas. at 812 (statute was violated by boarding of inbound vessel which was temporarily anchored in the Bay of New York and which had not yet arrived at pier of destination in New York City).³

There may be a case where the distance from shore or port is so removed from the act of arrival that the statute will not apply, but I cannot say, on this limited record, that this is one of them. The reason is that there are many unknown facts which might bear on the question of whether the APL Jade was "about to arrive at the place of her destination" when she was boarded by the Greenpeace members. What was the APL Jade doing at the time of the boarding? What are the boundaries of the Port of Miami and of the channel leading into it? Where exactly in the Port of Miami was the APL Jade supposed to dock? How far away from the final docking place was the APL Jade when it was boarded? At what distance are pilots generally sent to guide vessels of this size into the Port of Miami? At what distance was the APL Jade when the pilot actually arrived? Were tugboats going to be used, and if so, when? How far was the APL Jade from the channel of the Port of Miami at the time of boarding? These questions can only be answered at trial.

B. THE VAGUENESS CHALLENGE TO § 2279

Greenpeace's second challenge to the indictment is that § 2279 is unconstitutionally vague. Specifically, Greenpeace contends that the statute is subject to facial attack because it "fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits [.]" City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality opinion concluding that ordinance which defined loitering as "remain[ing] in any one place with no apparent purpose" was unconstitutionally vague and therefore facially invalid). See generally Horton v. City of St. Augustine, 272 F.3d 1318, 1329-30 (11th Cir.2001) (applying Morales to street performance ordinance).

That § 2279 reaches conduct other than so-called "sailor-mongering" — the type of conduct at which the statute was apparently directed — does not, by itself, create a constitutional infirmity. "[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth." Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (internal quotation marks and citations omitted). Neither does the executive branch's failure to use or enforce the statute for over a century:

The failure of the executive branch to enforce the law does not result in its modification or repeal.... Cases of hardship are put where criminal laws so long in disuse as to be no longer known to exist are enforced against innocent parties. But that condition does not bear on the continuing validity of the law; it is only an ameliorating factor in enforcement.

District of Columbia v. John R. Thompson Co., 346 U.S. 100, 113-14, 73 S.Ct. 1007, 97 L.Ed. 1480 (1953) (upholding use of 1872 law, which prohibited the refusal of service on the basis of a person's color, in 1952 criminal prosecution despite lack of enforcement over the years). Cf. Corey Chivers, Desuetude, Due Process, and the Scarlet Letter Revisited, 1992 UTAH L. REV. 449, 451 (1992) (proposing that when a statute has fallen into disuse or desuetude, courts "could refuse to enforce [it] in those particular cases where enforcement would create identifiable failures of due process").

Turning to Greenpeace's argument, "[v]oid for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. In determining the sufficiency of the notice a statute must of necessity be examined in light of the conduct with which a defendant is charged." United States v....