U.S. v. Zenon-Encarnacion

• Decision Date: 25 October 2004
• Docket Number: No. 03-2518.,No. 03-2519.,No. 03-2517.,03-2517.,03-2518.,03-2519.
• Citation: 387 F.3d 60
• Parties: UNITED STATES of America, Appellee, v. Cacimar ZENÓN-ENCARNACIÓN, Defendant, Appellant. United States of America, Appellee, v. Pedro Zenón-Encarnación, Defendant, Appellant. United States of America, Appellee, v. Regalado Miró-Corcino, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

387 F.3d 60

UNITED STATES of America, Appellee, v. Cacimar ZENÓN-ENCARNACIÓN, Defendant, Appellant.

United States of America, Appellee, v. Pedro Zenón-Encarnación, Defendant, Appellant.

United States of America, Appellee, v. Regalado Miró-Corcino, Defendant, Appellant.

No. 03-2517.

No. 03-2518.

No. 03-2519.

United States Court of Appeals, First Circuit.

Heard September 8, 2004.

Decided October 25, 2004.

Appeal from the United States District Court for the District of Puerto Rico, Aida Delgado Colon, United States Magistrate Judge.

COPYRIGHT MATERIAL OMITTED

Fermin L. Arriaza-Navas, with whom Harry Anduze Montaño was on the brief, for appellants.

Julie B. Mosley, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabón, Assistant United States Attorney, were on the brief, for appellee.

Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, and SCHWARZER, Senior District Judge.^*

SCHWARZER, Senior District Judge.

Appellants Pedro Zenón-Encarnación, Cacimar Zenón-Encarnación, and Regalado Miró-Corcino appeal their convictions for violating 18 U.S.C. § 1382 by illegally entering certain waters designated as a "danger zone" around the island of Vieques during a United States Navy training exercise. We vacate the convictions and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

We recite the facts as found by the district court in the light most favorable to the verdict. United States v. Van Horn, 277 F.3d 48, 54 (1st Cir.2002).

On April 9, 2002, the Navy was conducting a training exercise in South Salinas Bay, part of the waters around the island of Vieques. By regulation the bay had been designated a "danger zone" closed to the public during such exercises. 33 C.F.R. § 334.1470. The Navy had previously posted notices announcing the exercise in both Spanish and English. During the exercise, two small boats carrying five passengers wearing wet suits and ski masks entered the bay. The exercise was halted, and naval security approached the trespassers, advising them to leave. They refused and remained in the area for over an hour, interfering with naval operations. Ultimately, the appellants were identified as the occupants of the boats and were charged and brought to trial. There is no dispute that appellants were occupants of these boats.

Trial was held before Magistrate Judge Aida Delgado Colón in November 2002. All of the appellants were adjudged guilty of criminal trespass in violation of 18 U.S.C. § 1382. The magistrate judge sentenced Regalado Miró-Corcino to one year probation and forty-five days of incarceration and Pedro and Cacimar Zenón-Encarnación to one year probation and four months of incarceration each.

Appellants appealed their convictions and sentences to the district court, which affirmed. United States v. Zenón, 285 F.Supp.2d 109, 111 (D.P.R.2003). Appellants timely appealed to this court.

DISCUSSION

I. STANDARD OF REVIEW

Appellants' arguments raise questions of law and statutory interpretation, which we review de novo. Pride Hyundai, Inc. v. Chrysler Fin. Co., L.L.C., 369 F.3d 603, 612 (1st Cir.2004); United States v. Maxwell, 254 F.3d 21, 24 (1st Cir.2001).

II. THE MERITS

A. Designation of South Salinas Bay as a "Danger Zone"

Section 1382 makes it illegal to "go[ ] upon any military, naval, or Coast Guard reservation, post, fort, ... or installation for any purpose prohibited by law or lawful regulation." 18 U.S.C. § 1382. The regulation at issue in this case (the "danger zone regulation") designates an area including South Salinas Bay "open to navigation at all times except when firing is being conducted." 33 C.F.R. § 334.1470(b)(1). When firing is being conducted, "no persons or surface vessels, except those patrolling the area, shall enter or remain within the danger area." Id. Entry into the designated area during firing therefore constitutes a violation of § 1382.

Appellants challenge their convictions on the ground that the Navy could not lawfully designate a danger zone under the regulation because it lacked a valid National Pollutant Discharge Elimination System (NPDES) permit on April 9, 2002. 33 U.S.C. §§ 1311(a), 1323(a) (NPDES requirement). See Romero-Barcelo v. Brown, 478 F.Supp. 646, 664 (D.P.R.1979) (requiring permit for Navy exercises), aff'd on other grounds, Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), after being rev'd on other grounds, 643 F.2d 835 (1st Cir.1981). The Navy received a valid NPDES permit in 1984. That permit expired in 1989, and the Navy applied to the Environmental Protection Agency ("EPA") for a new permit. The EPA deemed the application complete but failed to act on it. Under the applicable regulation, this failure meant that the 1984 permit "continue[d] in force" despite its expiration.¹ 40 C.F.R. § 122.6(a).

Appellants contend, however, that the Clean Water Act requires not only EPA approval but also certification by the relevant state (in this case, Puerto Rico) that the proposed pollution meets state water quality standards (in the form of a "water quality certificate" or "WQC"). 33 U.S.C. § 1341(a). The WQC is a prerequisite to the EPA's issuance of an NPDES permit. In February 2000, the Puerto Rico Environmental Quality Board ("EQB") denied the Navy's application for a WQC, and that denial became final. As a consequence, say appellants, the 1984 permit no longer continues in force because EPA could not have issued a new one following denial of the WQC.

We disagree. The EPA did not revoke or terminate the permit or deny the application, nor did the Navy withdraw its application until after April 9, 2002. Even after the EQB's denial of the WQC application, the application process before the EPA continued through April 9, 2002. Thus, under the terms of the regulation the permit was administratively continued in force on the date of the incident.

B. Trial Before a Magistrate Judge

Appellants contend that their convictions must be vacated because trial was held before a magistrate judge. They argue that the case involved misdemeanors for which they received sentences of imprisonment, rather than petty offenses, and that their consent was a prerequisite to a trial before a magistrate judge.

This contention is readily disposed of. Under 28 U.S.C. § 636(a)(4), magistrate judges have "the power to enter a sentence for a petty offense." See also 18 U.S.C. § 3401("(a) [A]ny United States magistrate shall have jurisdiction to try persons accused of, and sentence persons convicted of, misdemeanors committed within that judicial district. (b) Any person charged with a misdemeanor, other than a petty offense may elect, however, to be tried before a district judge for the district in which the offense was committed.") (emphasis added). Under these provisions, a magistrate judge has authority to try and sentence a person charged with a petty offense.

Section 19 defines "petty offense" as "a Class B misdemeanor, a Class C misdemeanor, or an infraction, for which the maximum fine is no greater than the amount set forth for such an offense in section 3571(b)(6) or (7) in the case of an individual." 18 U.S.C. § 19. Section 3571(b) sets the maximum fine for an individual for a Class B or C misdemeanor that does not result in death at $5000. Class B and C misdemeanors and infractions are further defined under § 3581(a)(7)-(9) by their authorized terms of imprisonment, six months in the case of Class B misdemeanors. These principles are well settled. See United States v. Chavez, 204 F.3d 1305, 1311 (11th Cir. 2000) ("Assault by striking, beating, or wounding is presumptively a petty offense. It carries a maximum penalty of six months' imprisonment or a $5000 fine or both. The offense is classified as a Class B misdemeanor. Congress has expressly designated Class B misdemeanors as `petty offense[s].' See 18 U.S.C. § 19." (some citations omitted) (alteration in original)); United States v. Kozel, 908 F.2d 205, 206-07 (7th Cir.1990) (concluding that the argument that 18 U.S.C. § 19, by its silence on imprisonment, abolishes prison sentences for all "petty offenses" is "nonsense" and that "[t]he purpose of § 19 is simply to limit prison time for crimes covered by that section to 6 months").²

Appellants were charged with violation of § 1382, which provides for a fine or imprisonment of not more than six months. Because violation of that section is a petty offense, the magistrate judge had authority to try and sentence appellants without their consent.

C. Charging Under 18 U.S.C. § 1382

1. Applicability of the statute

Appellants challenge their convictions on the ground that entry into a danger zone can be prosecuted only under 33 U.S.C. § 3, and not under 18 U.S.C. § 1382 or any other statute, because the regulation establishing the danger zone, 33 C.F.R. § 334.1470, was promulgated under 33 U.S.C. § 3.

The argument is without merit. As noted above, § 1382 provides that persons who "go[ ] upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation... [s]hall be fined under this title or imprisoned not more than six months, or both." 18 U.S.C. § 1382 (emphasis added). The statute's plain language demonstrates that § 1382 applies to persons who violate any law or lawful regulation by trespassing onto a naval installation. We have repeatedly held that the Navy's lawful designation of a regulatory danger zone suffices to establish liability under § 1382. United States v. Zenón-Rodríguez, 289 F.3d 28, 31-32 (1st Cir.2002) ("Because the U.S. exercised control over the South Salinas Bay area [by properly establishing it as a danger zone under 33 C.F.R. § 334.1470] ..., unlawful entry onto that area was prohibited under 18 U.S.C. § 1382."); United States v. Ventura-Meléndez, 275 F.3d 9, 17 (1st Cir.2001) (holding that the permissible designation of a danger...