U.S. v. Zenon-Rodriguez, 02-1207.

• Decision Date: 29 April 2002
• Docket Number: No. 02-1207.,No. 02-1208.,02-1207.,02-1208.
• Citation: 289 F.3d 28
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Carlos ZENÓN-RODRÍGUEZ, Yabureibo Zenón-Encarnación, Defendants, Appellants.

289 F.3d 28

UNITED STATES of America, Appellee, v. Carlos ZENÓN-RODRÍGUEZ, Yabureibo Zenón-Encarnación, Defendants, Appellants.

No. 02-1207.

No. 02-1208.

United States Court of Appeals, First Circuit.

Heard April 4, 2002.

Decided April 29, 2002.

Fermín L. Arraiza-Navas with whom Jose J. Nazario de la Rosa and Pedro J. Varela were on brief for appellants.

Michael F. Hughes, Special Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief for appellee.

Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Carlos Zenón-Rodríguez and Yabureibo Zenón-Encarnación appeal their convictions for violating 18 U.S.C. § 1382 by trespassing on a United States Navy Installation on October 4, 2001. The defendants were protesting the military exercises conducted by the U.S. Navy at and around the Camp Garcia Naval Installation at Vieques, Puerto Rico. They were each sentenced to 180 days in prison, the maximum under the statute. We affirm the convictions.

I.

For the purposes of the Zenóns' sufficiency of the evidence claims, we describe the facts in the light most favorable to the verdict. United States v. Van Horn, 277 F.3d 48, 54 (1st Cir.2002).

On October 4, 2001, at approximately 11:30 a.m., Puerto Rico police found Carlos Zenón-Rodríguez and his son Yabureibo Zenón-Encarnación on two separate small boats in the waters of Bahia Salinas del Sur (or South Salinas Bay), about 150-200 feet off Camp Garcia, the U.S. military installation on the island of Vieques, Puerto Rico. The Navy was conducting military exercises on that day and had given prior notice of that fact.

Kathleen Cossairt, a U.S. Navy security liaison, spotted the two civilian vessels earlier that morning from an observation post on Camp Garcia known as O.P. 1. The Rapid Action Force Unit of the Puerto Rico Police Department, "FURA," was contacted and informed that there were two civilian boats in South Salinas Bay. FURA sent four vessels toward the civilian boats in the bay, which remained about 150-200 feet off shore.

The FURA boats had to chase the Zenóns' boats. When the FURA officers reached the Zenóns, the officers informed them that they were in a "restricted area." The son, Zenón-Encarnación, refused to talk with the officers and told them as much. According to one of the officers, the father, Zenón-Rodríguez, told them, repeatedly, "you are our brothers and we don't want problems with you, but we have to put an end to this."

After a forty-minute negotiation with the officers, at approximately 12:10 p.m., the Zenóns agreed to leave the area, and did leave, but only after the FURA boats left first. Despite the warnings, the Zenóns did not leave the prohibited area for some period after the FURA boats left. By this time, they had disrupted the military exercises for about two hours because the range was considered foul while they were in the bay.

When the FURA officers found the Zenóns in South Salinas Bay, the Zenóns were within the danger zone¹ around Camp Garcia outlined in 33 C.F.R. § 334.1470.²

A regular weekly fishermen's warning notice, which in the normal course is sent to nine locations, was distributed on September 26, 2001, for the week of October 1 to October 7, 2001. The notice is routinely posted in various locations, including the Vieques post office, the Fishermen's Association, the Port Authority, and marinas in the area. It clearly stated that there would be "dangerous naval activities" in "Danger Area B" from 8:00 a.m. until 11:00 p.m. on October 4. The notice, as it normally does, included a map which depicted Vieques and Danger Area B. South Salinas Bay is in Danger Area B.

The Zenóns were charged with illegally entering naval property in violation of 18 U.S.C. § 1382. They filed a motion to dismiss the indictment on January 3, 2002, which the district court denied on January 14. A one-day bench trial was held on January 15, 2002. After the government rested its case, the Zenóns raised a motion for judgment of acquittal. Fed.R.Crim.P. 29. After hearing argument on the motion, the court denied the motion and found both the Zenóns guilty. The court sentenced each of them to the maximum penalty of 180 days in prison.

Defendants now appeal their convictions. They make four main arguments, which they made previously in their motion to dismiss the indictment and in their Rule 29 motion. First, they argue that the danger zone is not part of Camp Garcia and is not U.S. property, and so they cannot be convicted for trespassing on U.S. naval property under 18 U.S.C. § 1382. Second, they argue that the court erred in not granting their Rule 29 motion, because the government did not prove all the elements of the offense charged. Third, they argue that under 33 C.F.R. § 334.3(c)³ they were entitled to at least two weeks' advance notice of the military exercise and the prohibition from entering the danger zone on October 4, 2001. Fourth, they argue that the regulation creating the danger zone is invalid because it unreasonably interferes with Puerto Rico's food fishing industry. They say that the district court was obligated to hold an evidentiary hearing on this issue.

II.

A. Whether Incursions into the Danger Zone May Violate 18 U.S.C. § 1382

Defendants' primary argument is a territorial one: they say that the danger zone outlined in 33 C.F.R. § 334.1470 is not part of Camp Garcia and is not U.S. property, and so trespassers there may not be prosecuted under 18 U.S.C. § 1382. Defendants claim that because they were in the waters of South Salinas Bay, which is not owned by the U.S. government, they did not violate 18 U.S.C. § 1382.

Whether prosecutions under 18 U.S.C. § 1382 may include trespassers in the danger zone around Camp Garcia is a question of law, and "[w]e review the district court's construction of a federal statute de novo," United States v. Maxwell, 254 F.3d 21, 24 (1st Cir.2001). The statute, 18 U.S.C. § 1382, in relevant part, prohibits, "within the jurisdiction of the United States," entry "upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation." The danger zone regulation itself says that when firing is conducted in the area "no persons or surface vessels ... shall enter or remain within the danger area." 33 C.F.R. § 334.1470(b).

The defendants' argument is premised on the erroneous notion that the United States must own the portion of the danger zone where the defendants were found in order to prosecute them for trespassing. In United States v. Ventura-Meléndez, 275 F.3d 9 (1st Cir.2001), this court held that "`government ownership of the property in question is not a requisite to violating Section 1382.'" Id. at 17 (quoting United States v. Allen, 924 F.2d 29, 31 (2d Cir.1991)). Instead, "§ 1382 requires only that the government demonstrate either a possessory interest in, or occupation or control of, the area reserved by the military." Id. Ventura-Meléndez also held that § 1382 extends to prosecution of those who enter a danger zone in proximity to a military installation. Id. at 17-18.

In this case, the United States demonstrated its occupation and control of South Salinas Bay in two ways. First, the regulation itself, 33 C.F.R. § 334.1470(a), is such a demonstration. It outlines a large area, which extends from the Camp Garcia beach, and designates it as a danger zone. As we discuss later in the opinion, South Salinas Bay is within the danger zone outlined by the coordinates in the regulation. Second, as a matter of fact, the portion of the danger zone that includes South Salinas Bay was under the occupation and control of the U.S. on October 4, 2001. Cossairt, the U.S. Navy security liaison, testified that there were military exercises occurring on that day, and that South Salinas Bay was in the live impact area. The U.S. Navy observes the area to see if there are intruders and arranges for vessels to apprehend the intruders. Because the U.S. exercised control over the South Salinas Bay area on October 4, 2001, unlawful entry onto that area was prohibited under 18 U.S.C. § 1382.

B. Rule 29 Motion: Elements of 18 U.S.C. § 1382

The Zenóns argue that the court erred in not granting their Rule 29 motion, because the government did not prove all the elements of the offense charged. They say the government presented insufficient evidence to convict them. We review a district court's denial of a Rule 29 motion de novo. Ventura-Meléndez, 275 F.3d at 17. The defendants have a high burden to meet on an insufficiency of the evidence claim: we affirm the conviction "unless the evidence, viewed in the light most favorable to the government, could not have persuaded any trier of fact of the defendant's guilt beyond a reasonable doubt." United States v. Hernández, 218 F.3d 58, 64 (1st Cir.2000) (quoting United States v. Paradis, 802 F.2d 553, 559 (1st Cir.1986)). The defendants fail to meet this burden.

To prove a prohibited purpose in violation of § 1382, the government must prove that the defendants deliberately entered or remained in the prohibited area without authorization, and that they knew or had notice, actual or constructive, that the entry was prohibited. United States v. Sued-Jiménez, 275 F.3d 1, 6 (1st Cir. 2001); Maxwell, 254 F.3d at 24 (explaining that "an unauthorized entry itself can constitute a prohibited purpose" under § 1382; the only state of mind required is a purpose to enter with actual or constructive notice that entry is prohibited). And, because the regulation establishing the danger zone states that "[i]t will be open to navigation at all times except when firing is being conducted," 33 C.F.R. § 334.1470(b)(1), to prove a violation of § 1382, the government was required to prove that notice was given that the danger zone was...