U.S. v. Saade

• Decision Date: 30 June 1981
• Docket Number: 80-1224,Nos. 80-1223,s. 80-1223
• Parties: UNITED STATES of America, Appellee, v. Pedro SAADE, Appellant. UNITED STATES of America, Appellee, v. Carlos Zenon RODRIGUEZ, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1126

652 F.2d 1126

UNITED STATES of America, Appellee, v. Pedro SAADE, Appellant.

UNITED STATES of America, Appellee, v. Carlos Zenon RODRIGUEZ, Appellant.

Nos. 80-1223, 80-1224.

United States Court of Appeals First Circuit.

Argued Feb. 4, 1981.

Decided June 30, 1981.

Michael Ratner, New York City, with whom Luis F. Camacho, Cayey, P. R., Pedro Varela, Hato Rey, P. R., Margaret Ratner, Jose Antonio Lugo, and Doris Peterson, New York City, were on brief, for appellants.

Joel M. Gershowitz, Atty., U. S. Dept. of Justice, Washington, D. C., with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., and William G. Otis, Atty., U. S. Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before CAMPBELL, BOWNES, and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

Following a bench trial, Pedro Saade and Carlos Zenon Rodriguez were convicted of unauthorized entry into a military danger zone located off the southeastern coast of the island of Vieques during a naval gunnery practice session, in violation of 33 C.F.R. § 204.234 ¹ and 33 U.S.C. § 1. ² The district court sentenced both of the appellants to the maximum term of six months imprisonment. Of the numerous grounds for reversal advanced by the appellants, the most telling is their challenge to the validity of 33 C.F.R. § 204.234. Before addressing this issue, we briefly describe the central events leading up to their convictions.

Early on the morning of January 19, 1980, three Navy destroyers began to conduct ship-to-shore gunnery target practice within the southeastern Vieques danger zone. Thus, in accordance with 33 C.F.R. § 204.234, the zone was closed to nonmilitary navigation. Sometime in the week prior to January 19th the Navy had announced the practice session in a notice which it customarily published to alert fishermen and sailors of when the zone would be closed for target practice. According to a Government witness, the Navy distributes these notices "to the various agencies." Notice of a target practice is also transmitted daily by radio by the Hydrographic-Topographic Center of the Defense Mapping Agency. And, as was customary, the Navy flew a red warning flag from the top of a pole about thirty feet high located on the crest of Cerro Matias, the highest hill in the eastern half of Vieques.

Nonetheless, at around 9:30 a. m. a flotilla of eleven small boats carrying approximately thirty-five people approached the zone from the west. When the Navy officer responsible for coordinating the target practice learned of the flotilla's approach, he directed a patrol boat to "intercept" the lead boat in the flotilla and advise the occupants that the zone was closed. The patrol boat intercepted the lead boat but the flotilla continued on into the zone. At this point, the Navy suspended the gunnery practice.

After entering the zone the flotilla congregated in the waters of the Bahia Salina del Sur near a ship-to-shore land target. For the next three to four hours they remained just off shore of this target. Soon after the flotilla arrived in the Bahia Salina del Sur, a second patrol boat approached to within hailing distance. A civilian employee of the Navy aboard the patrol boat, with the flotilla now circling around him, informed them by megaphone, in English and Spanish, that they were violating 33 C.F.R. § 204.234 and warned that if they did not depart the zone at once they were subject to criminal prosecution. None of the boats left the area. A contingent of United States deputy marshals stationed on the beach of the Bahia boarded small boats and approached the flotilla in a vain effort to arrest the intruders. As the marshals came near, the members of the flotilla drove them off with lead pellets fired from slingshots; one of the boats of the flotilla also rammed one of the marshals' boats. After this unsuccessful enforcement effort, it appears there were no further clashes and in a few hours the flotilla headed off into the west. ³

Although the marshals were unable to arrest any of the intruders at the scene, they were able to positively identify through eyewitnesses two of the people aboard boats in the flotilla Pedro Saade and Carlos Zenon Rodriguez. As a result, Saade and Zenon were subsequently charged by information with violating 33 C.F.R. § 204.234 and 33 U.S.C. § 1.

Challenge to the Validity of 33 C.F.R. § 204.234

In one of his several pretrial motions, Saade contended that the information failed to state an offense because, inter alia, the danger zone regulation, 33 C.F.R. § 204.234, is invalid. According to Saade, the Secretary of the Army should have promulgated § 204.234 pursuant to 33 U.S.C. § 3, ⁴ but instead erroneously invoked 33 U.S.C. § 1 as the appropriate statutory authority. The Government responded by relying on the district court's opinion in Barcelo v. Brown, 478 F.Supp. 646 (D.P.R.1979), in which the court held that the regulation was "properly issued and fall(s) within the purview of 33 U.S.C. §§ 1 and 3." Id. at 700. Denying Saade's motion to dismiss the information, the trial court treated the challenge as a technical quibble of no consequence, see Fed.R.Crim.P. 7(c)(3), and left unaddressed the validity of the regulation. On appeal, the appellants argue that the district court's failure to recognize that § 3, but not § 1, authorizes danger zone regulations effectively foreclosed them from pursuing what would have been a successful defense based upon the requirements of § 3.

In 1894 Congress enacted the original predecessor to the current § 1 of title 33. That provision authorized

the Secretary of War to prescribe such rules and regulations for the use, administration, and navigation of any or all canals and similar works of navigation ... owned, operated, or maintained by the United States as in his judgment the public necessity may require.

Act of August 18, 1894, c. 299, § 4, 28 Stat. 362. Congress amended the statute in 1902 by expanding the Secretary's power to also include the regulation of

the speed and movement of vessels and other water craft in any public navigable channel which has been improved under authority of Congress, whenever, in his judgment, such regulations are necessary to protect such improved channels from injury, or to prevent interference with the operations of the United States in improving navigable waters or injury to any plant that may be employed in such operations.

Act of June 13, 1902, c. 1079, § 11, 32 Stat. 374. Finally, in 1917 Congress substantially altered the provision, bestowing on the Secretary the apparently more comprehensive authority currently provided for in § 1. Section 7 of the Act of August 18, 1917 made it

the duty of the Secretary of War to prescribe such regulations for the use, administration, and navigation of the navigable waters of the United States as in his judgment the public necessity may require for the protection of life and property ... covering all matters not specifically delegated by law to some other executive department.

C. 49, § 7, 40 Stat. 266. According to the Government, the danger zone regulation unquestionably falls within the responsibility imposed by § 1 on the Secretary to regulate the use and navigation of the navigable waters "for the protection of life and property." Id.

If we were to consider § 1 in isolation, we would be inclined to adopt the Government's position, given the sweep of the statutory language. Yet in the same Act of 1917 that created the extant § 1, Congress also enacted a separate provision that specifically authorized the Secretary,

in the interest of the national defense and for the better protection of life and property (,) ... to prescribe such regulations as he may deem best for the use and navigation of any portion of (sic) areas of the navigable waters of the United States ... endangered or likely to be endangered by Coast Artillery fire in target practice or otherwise ....

Act of August 18, 1917, c. 49, § 8, 40 Stat. 266. Although the Government acknowledges that this section specifically provides the authority for target practice, i. e. danger zone, regulations, it maintains that § 1 remains an independent source of authority for such regulations. ⁵

Two factors lead us to disagree. First, the contemporaneous enactment of §§ 1 and 3 in a single act strongly evidences that Congress intended that § 3, not § 1, would govern the promulgation of regulations such as 33 C.F.R. § 204.234. To conclude otherwise would render § 3 superfluous, a result we find difficult to accept in the absence of clear evidence that in the one Act Congress intended to enact a redundancy. The unlikelihood of such an irrational design becomes even more apparent in light of the second factor.

In the year after § 3 and the final form of § 1 were adopted, Congress amended § 3, expressly restricting the Secretary's power to prescribe target practice regulations by requiring that the Secretary ensure such regulations do "not unreasonably ... interfere with or restrict the food fishing industry." Army Appropriation Act for 1919, subc. 19, 40 Stat. 892 (1918). If the Secretary were permitted to proceed under § 1, he could ignore the effect of a regulation on the food fishing industry, circumventing the limited protection of food fishing mandated by the 1918 amendment. Unsurprisingly, the Government offers no evidence from which we can infer that in amending § 3 within one year of the 1917 Act, Congress nonetheless intended that § 1 permit the Secretary to evade the restriction imposed by this amendment. ⁶ See United States v. United Continental Tuna Corp., 425 U.S. 164, 168-169, 96 S.Ct. 1319, 1322-1323, 47 L.Ed.2d 653 (1976). Thus, the existence of this proviso reinforces our conclusion that § 3 alone authorizes danger zone regulations. ⁷ This conclusion accords with an elementary principle of statutory construction; a court confronted with competing statutory provisions ordinarily should follow the dictates of the...