U.S. v. Zayas-Morales, ZAYAS-MORALES

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore FAY and KRAVITCH; FAY
Citation685 F.2d 1272
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Ignacio Antonio, et al., Defendants-Appellees.
Docket NumberNo. 81-5066,ZAYAS-MORALES
Decision Date13 September 1982

Page 1272

685 F.2d 1272
UNITED STATES of America, Plaintiff-Appellant,
v.
Ignacio Antonio ZAYAS-MORALES, et al., Defendants-Appellees.
No. 81-5066.
United States Court of Appeals,
Eleventh Circuit.
Sept. 13, 1982.

Page 1273

David J. Kline, Gen. Litigation & Advice, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Theodore J. Sakowitz, Robyn J. Herman, Miami, Fla. Jorge Sibila, Coral Gables, Fla., for Zayas-Morales.

Fabio A. Ruiz-Rojas, Coral Gables, Fla., for Luis Ramos-Bonet, et al.

Steven E. Chaykin, Miami, Fla., for Mariando-Pereira, Reyes-Pereira, Monzo & Monzo.

Melvyn Kessler, L. Mark Dachs, Brian R. McComb, Miami, Fla., for Henriquez-Godinez, Sanchez, Jiminez-Delgado, Alazamora-Ortega, Ramos De Falcon, Rivero-Alonzo.

Henri Gonzalez, Miami, Fla., for Yeyille-Defernandey & Gonzalez-Yeyille.

Stephen J. Kogan, Miami, Fla., for Fernadez-Pertierra.

Peter C. Clemente, Miami, Fla., for Fraga Lopez, Nunez De Pla, Iglesias Suarez.

Julian R. Murray, Jr., New Orleans, La., for Leopold Frade, Morris Doss, Hutchinson.

Blas E. Padrino, Coral Gables, Fla., for Perez-Hernandez, Rodriquez, Sainz, Basto Rodriquez, Cuello, Rodriquez, Alarez, Hurtado & Martinez-Valdes.

Steven E. Kreisberg, Miami, Fla., foor Dorta, Bordas, Paz, Vera-Garcia.

Irma V. Hermandez, Hialeah, Fla., for Campas-Valdes & Diaz-Molina.

Fernando Edwardo Heria, Hialeah, Fla., for Anaya, Fonticiella, Farinas-Alvarez, Romeu, Gordillo.

Robin B. Gluck, Miami, Fla., for Cusidor.

David S. Kaufman, Lopez & Harris, Miami, Fla., for Estevez, Marrero-Ruiz, Linares-Luna.

Thomas J. McLaughlin, Miami, Fla., for Fernandez.

Edward McHale, Coral Gables, Fla., for Barberis.

Thomas G. Sherman, Terry DeMeo, Coral Gables, Fla., for Adolfo Padron & Harford Weld.

Ivar M. Scholnicoff, Lopez & Harris, Miami, Fla., for Gustavo, Evelio Linares-Lunes, George Marrero.

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

Before FAY and KRAVITCH, Circuit Judges, and YOUNG *, District Judge.

FAY, Circuit Judge:

The Spring and Summer of 1980 witnessed a mass exodus of Cuban refugees from Mariel Harbor to Key West, Florida in what has been designated the "Freedom Flotilla." This appeal results from criminal charges brought against those responsible for transporting these aliens to the United States pursuant to 8 U.S.C. § 1324(a)(1). In a rare, but not unprecedented, procedure, the United States District Court for the Southern District of Florida sat en banc for argument on the defendants' motions to dismiss the indictments. The government and the defendants entered into a stipulation of the relevant facts, which permitted the court to rule on the motions based on its interpretation of the legal requirements for conviction under 8 U.S.C. § 1324(a)(1) (1976).

The majority of the court held that 8 U.S.C. § 1324(a)(1) requires proof of a "fraudulent, evasive, or surreptitious entry," which could not be proven under the stipulated facts. Three concurring judges found that conviction under § 1324(a)(1) did not require an "entry," but that "intent to smuggle" was an element of the statute. One judge dissented, failing to perceive the need for either additional requirement. These conclusions resulted in the dismissal of the indictments. From this dismissal the government now appeals. We are persuaded by the clear, simple logic which underlies the concurring opinion, but refrain from adding the requirement of specific intent. We therefore affirm the dismissal based on the government's inability to prove the defendants possessed a general criminal intent under the stipulated facts. Affirmed.

The Freedom Flotilla

For centuries the United States of America has served as a haven to refugees fleeing from their native lands in search of

Page 1274

freedom. The plight of over 125,000 undocumented Cuban nationals who were transported to the United States during the Freedom Flotilla resulted in the eighty-four indictments dismissed by the District Court in this case. The indictment charged 336 defendants with substantive violations of 8 U.S.C. § 1324(a)(1) 1 or with conspiracy to violate that statute. Notably, the defendants in this case are not the aliens, but rather those owners, captains, and crew members responsible for transporting the Cuban nationals to the United States.

The first group of aliens arrived in the United States on April 21, 1980. Two days later, the United States Coast Guard initiated warnings by means of radio broadcasts alerting all listeners to the possibility of arrests and seizure of vessels for transporting undocumented aliens to the United States. By that time many of the vessels had left the United States for Mariel Harbor. At approximately the same time, the United States Customs Service began issuing written notices requiring customs clearance prior to departure from United States ports and warning that transportation of undocumented aliens was illegal. Dissatisfied with the results of the initial efforts to halt the mass influx of aliens, on May 14, 1980, the President imposed an embargo on boats attempting to leave our territorial waters and ordered a return of United States vessels from Mariel Harbor. Pollgreen v. Morris, 496 F.Supp. 1042, 1047 (S.D.Fla.1980). So ended the Freedom Flotilla.

The government subsequently brought the charges now at issue in this appeal. The defendants moved to dismiss the indictments pursuant to Federal Rule of Criminal Procedure 12(b). In a cooperative effort, the defendants and the government stipulated to the following facts:

1. Defendants are owners, captains and/or crew members of vessels which departed from Mariel Harbor, Cuba, or were enroute to Mariel, Cuba.

2. The object of the trip to and/or from Mariel, Cuba, was to bring back Cuban nationals without visas.

3. Defendants presented these Cuban nationals to Immigration and Naturalization Service officials at Key West, Florida, so that these Cuban nationals could seek political asylum or some other status which would permit them to come into the United States and remain.

4. The Cuban nationals were issued I-94's pursuant to 8 U.S.C. 1182(d)(5), granting them parole status.

All parties agreed the District Court possessed the ability to rule on the motions "without invading the province of the ultimate finder of fact." Record, vol. V, at 289. In addition, all agreed that a single issue was presented: whether, as a matter of law, the defendants' acts were criminally proscribed by 8 U.S.C. § 1324(a)(1).

Page 1275

The Majority's "Entry" Requirement

At the hearing on the motions to dismiss the government argued that Section 1324(a)(1), by its plain language, required only that the aliens are "brought into" the country and that there was no requirement that a formal entry be proven. 2 The majority surveyed the case law on 8 U.S.C. § 1324 and its predecessors, and found that "every reported conviction under subsection (a) (1) (had) involved a surreptitious, fraudulent or evasive entry into this country by aliens." Id. at 293 (emphasis supplied). It also found support for the entry requirement in the legislative history of the statute.

The court then engaged in a great war of semantics with the government over the true interpretation of the statutory language of Section 1324(a)(1). The battle of words involved a fine distinction drawn by the majority between the phrases "bringing to" and "bringing into." The court armed itself with a comparative analysis of the three civil penalty sections preceding section 1324. All three sections (1321, 1322, and 1323) imposed civil penalties for bringing aliens to the United States. Section 1324, however, contained the phrases "bring into," "land in," and "entry." The court found this to clearly demonstrate Congress' intent to distinguish "to" from "into." "Common sense and the elementary principles of the English language dictate that "bringing in," "bringing into" or "inducing the entry into" are words that must necessarily be used to describe the aiding and abetting of "coming into," all of which deal with "entry." Id. at 298. Further, Congress had defined "entry" as "any coming of an alien into the United States...." 8 U.S.C. § 1101(a)(13) (1976) (emphasis supplied). The majority thus concluded that § 1324 had been congressionally designed to prohibit the "illegal entry of aliens into the United States in a fraudulent, evasive, or surreptitious manner." Id.

Under the stipulated facts, the defendants presented the Cuban nationals to Immigration and Naturalization Service officials thereby precluding any assertion by the government of a fraudulent or evasive entry....

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38 practice notes
  • Jahn v. Regan, Civ. No. 82-72012.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • May 21, 1985
    ...determination. See e.g., United States v. Anaya, 509 F.Supp. 289, 293 (S.D.Fla. 1980), aff'd sum nom, United States v. Zayas-Morales, 685 F.2d 1272 (11th Cir. 1982) ("absent unusual or exceptional circumstances, judges of coordinate jurisdiction within a jurisdiction should follow brethren ......
  • U.S. v. Al-Arian, No. 8:03-CR-77-T-30TBM.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • March 12, 2004
    ...one of the relevant facts is disputed. See United States v. Korn, 557 F.2d 1089, 1090 (5th Cir.1977);17 United States v. Zayas-Morales, 685 F.2d 1272, 1273 (11th Cir.1982) (concluding that it was appropriate for a district court to rule on a motion to dismiss when parties stipulated undispu......
  • United States v. Dominguez, No. 07–13405.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 31, 2011
    ...supported by its statutory history. That history, as pertinent to this case, begins with our decision in United States v. Zayas–Morales, 685 F.2d 1272 (11th Cir.1982). Zayas–Morales involved the criminal prosecution of over 300 American vessel owners, captains, and crew members responsible ......
  • U.S. v. Lopez, No. 05-50415.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 7, 2007
    ...United States v. Anaya, 509 F.Supp. 289, 297 (S.D.Fla.1980) (en banc), aff'd on other grounds sub nom. United States v. Zayas-Morales, 685 F.2d 1272 (11th 10. Our construction of § 1324(a)(2) is also consistent with what we have previously stated about the "transports within" offense. In Un......
  • Request a trial to view additional results
38 cases
  • Jahn v. Regan, Civ. No. 82-72012.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • May 21, 1985
    ...determination. See e.g., United States v. Anaya, 509 F.Supp. 289, 293 (S.D.Fla. 1980), aff'd sum nom, United States v. Zayas-Morales, 685 F.2d 1272 (11th Cir. 1982) ("absent unusual or exceptional circumstances, judges of coordinate jurisdiction within a jurisdiction should follow brethren ......
  • U.S. v. Al-Arian, No. 8:03-CR-77-T-30TBM.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • March 12, 2004
    ...one of the relevant facts is disputed. See United States v. Korn, 557 F.2d 1089, 1090 (5th Cir.1977);17 United States v. Zayas-Morales, 685 F.2d 1272, 1273 (11th Cir.1982) (concluding that it was appropriate for a district court to rule on a motion to dismiss when parties stipulated undispu......
  • United States v. Dominguez, No. 07–13405.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 31, 2011
    ...supported by its statutory history. That history, as pertinent to this case, begins with our decision in United States v. Zayas–Morales, 685 F.2d 1272 (11th Cir.1982). Zayas–Morales involved the criminal prosecution of over 300 American vessel owners, captains, and crew members responsible ......
  • U.S. v. Lopez, No. 05-50415.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 7, 2007
    ...United States v. Anaya, 509 F.Supp. 289, 297 (S.D.Fla.1980) (en banc), aff'd on other grounds sub nom. United States v. Zayas-Morales, 685 F.2d 1272 (11th 10. Our construction of § 1324(a)(2) is also consistent with what we have previously stated about the "transports within" offense. In Un......
  • Request a trial to view additional results

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