United States v. Anaya

• Decision Date: 19 December 1980
• Docket Number: No. 80-231-CR-EPS.,80-231-CR-EPS.
• Parties: UNITED STATES of America, Plaintiff, v. Francisco ANAYA et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

509 F. Supp. 289

UNITED STATES of America, Plaintiff, v. Francisco ANAYA et al., Defendants.^*

No. 80-231-CR-EPS.

United States District Court, S. D. Florida.

December 19, 1980.

COPYRIGHT MATERIAL OMITTED

Atlee W. Wampler, III, U. S. Atty., Miami, Fla., for plaintiff.

Theodore J. Sakowitz, Federal Public Defender, Miami, Fla., for defendants.

Before ATKINS, Chief Judge, and EATON, KING, ROETTGER, ARONOVITZ, HOEVELER, GONZALEZ, PAINE, KEHOE, SPELLMAN, DAVIS and HASTINGS, District Judges.

SPELLMAN, District Judge:

MEMORANDUM OPINION AND ORDER GRANTING MOTIONS TO DISMISS

The eighty-four indictments before the Court today are a consequence of the massive "Cuban Refugee Freedom Flotilla"¹ which took place in the Spring of 1980 and which resulted in over 125,000 undocumented Cuban nationals being transported from Mariel, Cuba to Key West, Florida. In total, the 84 indictments name 336 defendants, charging each with a substantive violation of 8 U.S.C. ž 1324(a)(1) or a conspiracy to violate 8 U.S.C. ž 1324(a). That statute, in pertinent part, proscribes bringing into or landing in the United States an alien who has not been duly admitted by an immigration officer or who is not lawfully entitled to enter or reside in the United States. The indictments do not, therefore, allege violations of law by the Cuban nationals who were transported from Mariel, Cuba, and were subsequently admitted to this country on "parole status;" rather, the criminal charges have been brought against those persons who transported the aliens to the United States.

The defendants have moved, under Federal Rule of Criminal Procedure 12(b), to dismiss the indictments. An examination of those motions and the government's responses thereto reveals agreement on certain essential factual and legal issues. In addition to the facts alleged in the indictments, the following stipulation has been entered into by all parties:

1. Defendants are owners, captains and/or crew members of vessels which departed from Mariel Harbor, Cuba, or were en route 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. ž 1182(d)(5), granting them parole status.

The government and the defense have agreed that, in view of the stipulation, the Court may constitutionally rule on the motions to dismiss without invading the province of the ultimate finder of fact. The Court looked askance upon the motions when they were received. A reading of United States v. Mann, 517 F.2d 259 (5th Cir. 1975) informed the Court of what it could not do. However, United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 74 (1969), United States v. Korn, 557 F.2d 1089 (5th Cir. 1977) and United States v. Jones, 542 F.2d 661 (6th Cir. 1976) convinced the Court that the contentions of the government and the defense had merit; because of the stipulation, the motions present a defense capable of determination, and trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.

As the Court emphasized at the November 13, 1980 hearing on the motions, it has considered the stipulation specifically and solely for the purpose of these motions to dismiss. The stipulation is enforceable for that purpose and only that purpose and shall not be binding for any other reason including, but not limited to, trial of the general issue. Thus, the defendants have not waived their right to trial by jury on any issue of fact in these cases.

Given the admitted facts, the parties further agree that one legal issue underlies all the motions to dismiss, that is, whether, as a matter of law, the defendants' acts are not criminally proscribed by 8 U.S.C. ž 1324(a). For the reasons elaborated below, the Court is persuaded that the motions are meritorious and that the statute under which the defendants are charged does not apply to the circumstances outlined by the stipulated facts above, where aliens were presented to immigration officials at the Key West port of entry and requested political asylum. As a preliminary matter, however, we address the compelling circumstances which warrant, and the legal authorities which permit, en banc consideration and disposition of the motions to dismiss.

I. EN BANC JURISDICTION

Pursuant to 28 U.S.C. žž 132, 137 and in accordance with an order authorized by all active judges and issued by the Chief Judge of the United States District Court for the Southern District of Florida, these eighty-four (84) criminal cases were transferred to this Court en banc for the specific purpose of hearing argument and ruling upon certain substantially similar motions to dismiss.

The commonality of the facts and the legal issue set forth above was the primary impetus for our decision to treat en banc the pending motions to dismiss. We note further, that several salutary policies are served by doing so. First, en banc consideration and disposition will establish uniformity of treatment for similarly situated defendants. Where, as here, criminal sanctions are involved, the significance of uniformity, from both an individual and societal point of view, cannot be understated. Moreover, implicit in our desire for uniformity is our disinclination to depart from the doctrine of intra-court comity. That well-recognized doctrine, see, e. g., Buna v. Pacific Far East Line, Inc., 441 F.Supp. 1360, 1365 (N.D.Calif.1977); Equal Employment Opportunity Commission v. Union Oil Co. of Calif., 369 F.Supp. 579, 584 (N.D.Ala.1974); White v. Baltic Conveyor Co., 209 F.Supp. 716, 722 (D.N.J.1962); E. W. Bliss Co. v. Cold Metal Process Co., 174 F.Supp. 99, 121 (N.D.Calif.1956), establishes a general rule that, absent unusual or exceptional circumstances, judges of coordinate jurisdiction within a jurisdiction should follow brethren judges' rulings.

Second, from a pragmatic, but nonetheless judicious point of view, treatment en banc, rather than in an individual, piecemeal fashion will avoid or at least limit unnecessary duplication of effort thereby conserving scarce judicial, governmental and private resources.

Here, the Court is convinced that the interests of society and the defendants in an orderly, expeditious and fair disposition of the charges are best served by an en banc proceeding. The Court is not unmindful that countervailing considerations may exist, but neither the government nor the defendants have identified or raised, and the Court is unable to discern, any compelling considerations weighing against en banc disposition. The mere possible existence of such considerations is not, without more, sufficient to undercut our conclusion that en banc treatment of the motions to dismiss is warranted.

With respect to our authority to sit en banc, we conclude that Congress, in enacting 28 U.S.C. ž 132(c) as part of the comprehensive 1948 revision of the Judiciary Code, see Act of June 25, 1948, ch. 646, 62 Stat. 895, contemplated that a District Court might, pursuant to "rule or order of Court," conduct an en banc session.²Accord, 7B Moore's Federal Practice JC 154-154.1 (1979); Wright, Miller & Cooper, 13 Federal Practice and Procedure: Jurisdiction ž 3505 at 14; White v. Swenson, 261 F.Supp. 42 (D.Mo.1966). The legislative history to 28 U.S.C. ž 132(c) makes clear that the statute "merely recognized this established practice." House Comm. on Judiciary, Revision of Title 28, United States Code, H.R.Rep. No. 308, 80th Cong., 1st Sess. A28 (1947), reprinted in 1B B. Reams, Jr., & C. Haworth, Congress and the Courts: A Legislative History 1787-1977 1352 (1978). On at least three occasions prior to the enactment of 28 U.S.C. ž 132(c), judges in the Eastern District of Pennsylvania sat en banc to hear certain matters. Hickman v. Taylor, 4 F.R.D. 479 (E.D.Pa. 1945); Matter of Clover Drugs, Inc., 21 F.Supp. 107 (E.D.Pa.1937); Matter of Jay & Dee Store Co., 37 F.Supp. 989 (E.D.Pa.1941). Inasmuch as these 84 cases were transferred pursuant to an "order of court," we conclude that 28 U.S.C. ž 132(c) authorizes this en banc Court to hear and decide the motions to dismiss now pending before us.³

II. STATUTORY INTERPRETATION

8 U.S.C. ž 1324, set forth in the margin,^3A is entitled "Bringing in and harboring certain aliens..." It provides that it shall be a felony for any person to bring into or land in the United States certain aliens; to transport within the United States certain aliens who have recently entered the country; to conceal or harbor certain aliens; or to encourage or induce entry of certain aliens into the United States. The section applies only to aliens "not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States."

The Defendants are charged under ž 1324(a)(1). However, the Government has conceded in its memoranda and oral argument that the Defendants did not land the aliens by taking them to the port of entry and that the aliens did not enter the United States under the meaning of immigration law. The position of the Government is that the actions of the Defendants constitute bringing aliens into the United States, and that the statute does not require that an entry be made or attempted by aliens.

As the Fifth Circuit stated in United States v. Washington, 471 F.2d 402, 404 (5th Cir. 1973):

We begin by recognizing that section 1324, like all penal statutes should be strictly construed. We also note ... that the general purpose of this section of the Immigration and Nationality Act of 1952 was to prevent aliens from entering or remaining in the United States illegally. (

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