                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-2006

USA v. Polanco
Precedential or Non-Precedential: Precedential

Docket No. 06-1328




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Recommended Citation
"USA v. Polanco" (2006). 2006 Decisions. Paper 796.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/796


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                        PRECEDENTIAL OPINION
         UNITES STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 06-1328


             UNITED STATES OF AMERICA

                             v.

            EDWARD ROSARIO POLANCO,
                              Appellant


   On Appeal from the District Court of the Virgin Islands
          (Division of St. Thomas and St. John)
                     No. 04-cr-00087
       Chief Judge: Honorable Raymond L. Finch


        Submitted under Third Circuit LAR 34.1(a)
                    on May 12, 2006

 BEFORE: FISHER, COWEN and ROTH*, Circuit Judges.

                   (Filed June 12, 2006)

Anthony J. Jenkins, Esquire
United States Attorney
Nelson L. Jones, Esquire
Assistant U.S. Attorney
Office of the U.S. Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00802-6924

             Attorney for Appellee
*Effective May 31, 2006 Judge Roth assumed senior status.

George H. Hodge, Jr., Esquire
P. O. Box 803
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00804

              Attorney for Appellant




                          OPINION




ROTH, Circuit Judge:

       On February 17, 2004, Edwardo Rosario Polanco 1
entered St. Thomas, USVI, while en route to the Dominican
Republic from the Netherlands Antilles.       United States
Immigration and Customs Enforcement found Polanco to be in
possession of three compact discs and a computer hard drive
containing child pornography and arrested Polanco. Polanco
was charged with knowingly transporting in interstate and
foreign commerce visual depictions of minors engaging in
sexually explicit conduct in violation of 18 U.S.C. §§
2252(a)(1)(B)2 and 2252A(a)(1).3


      1
       Appellant’s first name is variously given as Edwardo
and Edward in the parties’ briefs.
      2
          18 U.S.C. § 2252(a)(1) provides:

              (a) Any person who--
                    (1) know ingly transports or ships in
                    interstate or foreign commerce by any
                    means including by computer or mails, any
                    visual depiction, if--
                            (A) the producing of such visual

                                2
        Polanco filed a motion to dismiss for lack of jurisdiction.
The District Court of the Virgin Islands denied the motion.
Polanco then entered into a plea agreement that reserved his
right to challenge jurisdiction on appeal. Polanco was sentenced
to five years imprisonment, five years supervised release, and a
$300 special assessment.

       The District Court of the Virgin Islands had jurisdiction
under 18 U.S.C. § 3231 and 48 U.S.C. § 1612. We have
appellate jurisdiction under 28 U.S.C. § 1291, and undertake a
plenary review of the District Court’s interpretation of a
provision of law. Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir.
1998).

        Polanco argues that his activities do not fall within the
ambit of §§ 2252(a)(1)(B) and 2252A(a)(1) because these
statutory provisions do not apply to the Virgin Islands. He bases
this claim on the comparative phrasing of different sections of
the Child Pornography Prevention Act of 1996, 18 U.S.C. §
2251 et seq. Specifically, Polanco claims that, when Congress
wanted provisions of the Act to apply to territories such as the



                                depiction involves the use of a
                                minor engaging in sexually explicit
                                conduct; and
                                (B) such visual depiction is of such
conduct . . .

       shall be punished as provided in subsection (b) of this
section.
       3
           18 U.S.C. § 2252A(a)(1) provides:

                 (a) Any person who--
                        (1) knowingly mails, or transports or ships in
                        interstate or foreign commerce by any means,
                        including by computer, any child pornography
                        ...

       shall be punished as provided in subsection (b).

                                   3
Virgin Islands, it used specific language to so indicate. For
example, various provisions of the Act apply to: “interstate or
foreign commerce, or in any Territory or Possession of the
United States,” 18 U.S.C. § 2251(a); “interstate or foreign
commerce, or within the special maritime and territorial
jurisdiction of the United States,” 18 U.S.C. § 2422(b); or
“interstate or foreign commerce, or in any commonwealth,
territory or possession of the United States,” 18 U.S.C. §
2423(a).

        The specific inclusion of territorial jurisdiction in these
provisions contrasts with §§ 2252 and 2252A, which apply to
only “interstate or foreign commerce.” The inference, Polanco
urges, is that “Possession or Territory” was deliberatively
excluded from §§ 2252 and 2252A by Congress because it did
not intend these sections to cover anything other than commerce
between the states or foreign commerce.

        Polanco’s argument must be rejected for two reasons.
First, even under Polanco’s reading, he is subject to §§ 2252 and
2252A because he was engaged in foreign commerce. Polanco
was traveling on a commercial flight from the Netherlands
Antilles to the Dominican Republic via the Virgin Islands. On
this basis alone, §§ 2252 and 2252A apply to Polanco. The
Child Pornography Prevention Act makes very clear that the
United States may not be used as a conduit for transporting child
pornography between foreign nations.

       Second, the term “interstate commerce” in §§ 2252 and
2252A also includes all United States territorial possessions. 18
U.S.C. § 10 defines “interstate commerce” to include commerce
between territories and possessions, as well as States:

       The term “interstate commerce”, as used in this title,
       includes commerce between one State, Territory,
       Possession, or the District of Columbia and another
       State, Territory, Possession, or the District of Columbia.

       The term “foreign commerce”, as used in this title,
       includes commerce with a foreign country.

                                4
As the District Court correctly ruled, the plain wording of 18
U.S.C. § 10 controls. The Reviser’s Notes to 18 U.S.C. § 10
state that “a narrower construction should be handled by express
statutory exclusion in those crimes which Congress intends to
restrict to commerce within the continental United States.”
Reviser’s Notes, Appendix to H.R. R EP. N O. 80-304, at 2451
(1948).

        In light of 18 U.S.C. § 10 and its legislative history,
Polanco’s argument cannot stand. Inclusio unius est exclusio
alterius is a key canon in our interpretive arsenal, but we do not
deploy it when it produces a patently absurd result or when there
is a direct statutory provision on point. Clinton v. City of New
York, 524 U.S. 417, 429 (U.S. 1998). Here, Polanco is asking
us to adopt a reading that suggests Congress intended to create
child pornography havens in American Samoa, the District of
Columbia, Guam, Guantanamo Bay, the National Parks and
Monuments, Puerto Rico, the United States Minor Outlying
Islands, and the United States Virgin Islands. As 18 U.S.C. § 10
indicates, Congress assuredly did not desire laxer child
pornography laws for the Virgin Islands or other federal
territories and commonwealths than for the States. “[T]he
absurdity . . . would be so monstrous, that all mankind would,
without hesitation, unite in rejecting” it.            Sturges v.
Crowinshield, 17 U.S. (4 Wheat.) 122, 203 (1819) (Marshall,
C.J.).

       Accordingly, we will affirm the District Court’s judgment
in favor of the government.




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