U.S. v. Parrilla Bonilla, s. 79-1462

• Decision Date: 19 May 1981
• Docket Number: Nos. 79-1462,79-1479,79-1528 and 79-1533,s. 79-1462
• Citation: 648 F.2d 1373
• Parties: UNITED STATES, Appellee, v. Antulio PARRILLA BONILLA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Judith BERKAN, Defendant, Appellant. UNITED STATES, Appellee, v. Salvador TIO, Defendant, Appellant. UNITED STATES of America, Appellee, v. William Andres TREVATHAN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1373

648 F.2d 1373

UNITED STATES, Appellee, v. Antulio PARRILLA BONILLA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Judith BERKAN, Defendant, Appellant.

UNITED STATES, Appellee, v. Salvador TIO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. William Andres TREVATHAN, Defendant, Appellant.

Nos. 79-1462, 79-1479, 79-1528 and 79-1533.

United States Court of Appeals First Circuit.

Argued Feb. 2, 1981.

Decided May 19, 1981.

Harry Anduze Montano, Santurce, P. R. and Michael Ratner, New York City, with whom Roberto Buso, Santurce, P. R., Alvaro R. Calderon, Hato Rey, P. R., Margaret Ratner, New York City, Jose Antonio Lugo, Hato Rey, P. R., and Doris Peterson, New York City, were on brief, for appellants.

David B. Smith, Atty., Dept. of Justice, Washington, D. C., with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., was on brief, for appellee.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Each of the appellants was convicted at a separate non-jury trial held in the District Court for the District of Puerto Rico of entering upon a United States naval reservation in violation of 18 U.S.C. § 1382. ¹ Of their numerous challenges to the convictions and ensuing sentences, the most substantial is their contention that in each case the government failed to prove all elements of the offense charged. We agree, and on this basis are constrained to reverse the convictions.

I.

Appellants were among 21 persons arrested on May 19, 1979 at Bahia de la Chiva, also known as Blue Beach, located on the southeastern coast of the island of Vieques. The United States Navy owns approximately 76 percent of Vieques, a municipality of the Commonwealth of Puerto Rico, and periodically conducts military operations there, including exercises in weapons fire and amphibious landings. See Romero Barcelo v. Brown, 643 F.2d 835, 838-840 (1st Cir. 1981). On May 19, 1979, the Navy planned to use Bahia de la Chiva as part of an amphibious maneuvers exercise.

The district court took "judicial notice" that for over a year preceding appellants' arrests there had been widely publicized controversy regarding the Navy's presence on Vieques. At the trials of Tio and Trevathan Nineteen of the 21 persons arrested on May 19, 1979 ⁴ (including appellants) were charged in separate informations with violating section 1382 by "(going) upon Bahia de la Chiva Beach, also known as Blue Beach, Camp Garcia Annex, U.S. Naval Station, Roosevelt Roads, for a purpose prohibited by lawful regulation, in that (they) did enter without proper authorization from the Commanding Officer as required by Title 32, Code of Federal Regulations, Section 765.4 and NAVSTAINST 5510.9H of November 9, 1978." Although appellants stood trial separately, both the evidence presented against them and the district court's findings were largely the same, as follows.

                evidence was introduced indicating that demonstrations against the Navy had been conducted on Vieques, and on Bahia de la Chiva in particular, during the week prior to May 19, 1979.  2 One such incident occurred on May 16, 1979, when a group of fishermen attempted to disrupt an amphibious landing on Bahia de la Chiva.  3
                

Lieutenant Commander Samuel Meiss, attached to the Special Warfare Group at Roosevelt Roads Naval Station, Puerto Rico, ⁵ testified that about 7:00 a. m. on May 19, 1979 he received orders to deploy security forces to Camp Garcia, following reports that a number of privately owned ships had been sighted in the vicinity of Blue Beach. His forces, 30 uniformed Navy security personnel, were transported from Roosevelt Roads to Vieques by helicopter. Once there, they approached Blue Beach by land, in two separate groups. When Meiss first arrived at Blue Beach, between 10:00 a. m. and 12:00 noon, ⁶ he stationed himself and his men behind a line of trees. He observed about 200 people "milling about" on the beach and noticed that some tents had been pitched there. A large number of craft were drawn up on the beach. During the time he was present, Meiss saw at least three of the appellants at a point above the "brim line" or "high water mark" on the beach. ⁷ Soon after his arrival, the two groups of security personnel consolidated and moved out in plain view of the civilians; shortly after that, Admiral Knoizen, Commander of Naval Forces, Caribbean, ordered Meiss to detain the civilians. The detention process, which was marked by minor altercations, lasted about an hour, during which time many of the 200 persons retreated to boats and left the area. ⁸ Nineteen persons were forceably detained and taken aboard a Navy landing craft; appellants Parrilla and Trevathan walked aboard the landing craft voluntarily and were arrested along with the other detainees.

Alexander de la Zerda, a naval liaison officer on Vieques, testified that the usual procedure for entering Camp Garcia, to which Blue Beach is appended, is to proceed Tommy Thompson, security officer at the Roosevelt Roads Naval Station, testified concerning the procedure governing entrance to the naval reservation on Vieques, a procedure embodied in Naval Instruction 5510.9H, which was introduced into evidence. In brief, non-military personnel must obtain a pass to enter the naval base. Based on his search of the relevant records, Thompson testified that no passes were issued to appellants on May 19, 1979. According to Thompson, apprehended trespassers are usually brought to the security office and given a letter barring reentry on the naval facility; Thompson admitted that this procedure, and other of the "normal procedures" for dealing with apprehended trespassers, were not followed in these cases. ⁹

through a main gate, located about four miles from Blue Beach, and obtain a visitor's pass. He testified further that two "roving patrols" traverse Camp Garcia and the adjacent Navy lands on a regular basis, searching for unauthorized personnel. During the first week in May 1979, de la Zerda participated in the distribution of a document warning "fishermen and other interested persons" not to use certain of the waters surrounding Vieques during the week of May 14-20, 1979, because of potentially dangerous Navy activities. Copies of the notice were given to the Fishermen's Association on Vieques and were posted at the Vieques police station, post office, and at the front gate of Camp Garcia.

Joseph Loyacano, a member of the Navy's Civil Engineer Corps, testified primarily concerning a map and written description of Navy property on Vieques taken from court records of the 1942 condemnation proceedings pursuant to which the United States acquired private lands on Vieques for the establishment of fleet operating facilities. ¹⁰ With reference to these documents, Loyacano testified that Bahia de la Chiva was included within the Navy's property, and that the southern border of the Navy's land at this point was the "ordinary high tide line." In addition, the government introduced a certification from the Registry of Property, Humacao Section, Puerto Rico, showing that title to the parcel to which Loyacano referred is registered in the name of the United States. ¹¹

II.

18 U.S.C. § 1382 provides, in relevant 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 Shall be fined not more than $500 or imprisoned not more than six months, or both." ¹²

The informations charge appellants with entering Camp Garcia Annex for the purpose of violating 32 C.F.R. § 765.4 and Naval Instruction 5510.9H, both "lawful regulations." See part I, supra. 32 C.F.R. § 765.4 provides that "access to any naval activity" is subject to the authorization and control of the officer in command and to "restrictions prescribed by law or cognizant authority." Naval Instruction 5510.9H, an internal, unpublished Navy document, requires, inter alia, that persons entering Camp Garcia obtain authorization and receive a pass. In essence, then, appellants are charged with entering a restricted naval reservation "for the purpose" of entering without authorization.

There is a threshold question whether these informations are sufficient to allege the elements of a section 1382 violation. Appellants and the government agree that one element of the offense is unauthorized entry on a restricted United States military reservation. Appellants contend, however, that the government must allege and in addition that the trespasser intended to commit a crime other than the entry itself, such as arson, larceny, or espionage. Alternatively, appellants argue that the government must allege and demonstrate the defendant's "specific intent" to violate the precise regulation restricting access to the military facility.

We conclude, in essential agreement with virtually every other court that has considered the issue, that the requisite prohibited "purpose" under section 1382 can consist of unauthorized entry itself, and that no "specific intent," in the strict sense, to violate the law or regulation prohibiting such entry need be shown. United States v. Mowat, 582 F.2d 1194 (9th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 458, 58 L.Ed.2d 426 (1978); United States v. Floyd, 477 F.2d 217 (10th Cir.), cert. denied, 414 U.S. 1044, 94 S.Ct. 550, 38 L.Ed.2d 336 (1973); see also United States v. Holmes, 414 F.Supp. 831 (D.Md.1976); United States v. Bishop, 261 F.Supp. 969 (N.D.Cal.1966); cf. United States v. Patz, 584 F.2d 927, 929 (9th Cir. 1978). Such an interpretation is suggested by the words of the statute, which prohibit entry for any purpose prohibited by a lawful regulation. This language does not indicate a requirement that the defendant harbor a "specific intent" to violate a particular regulation, only that he act with a "purpose" that is in contravention of the...