

April 12, 1996    UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 94-1016

                          UNITED STATES,
                            Appellee,

                                v.

                      FELIPE RAMIREZ-FERRER,
                      Defendant - Appellant.

                                           

No. 94-1017

                          UNITED STATES,
                            Appellee,

                                v.

                      JORGE L. SUAREZ-MAYA,
                      Defendant - Appellant.

                                           

No. 94-1018

                          UNITED STATES,
                            Appellee,

                                v.

                        PAUL TROCHE-MATOS,
                      Defendant - Appellant.

                                           

                           ERRATA SHEET

     The en banc opinion of this Court issued on March 27,  1996,
is amended as follows:

     On  the  cover  sheet,  government's  counsel  should  read:
Kathleen A.  Felton, Attorney,  Department of Justice,  with whom                             
Guillermo Gil,  United States Attorney, Jos   A. Quiles-Espinosa,                                                                          
Senior  Litigation Counsel, and  Epifanio Morales-Cruz, Assistant                                                                
United States Attorney, were on supplemental brief for appellee.

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-1016

                          UNITED STATES,

                            Appellee,

                                v.

                      FELIPE RAMIREZ-FERRER,

                      Defendant - Appellant.

                                           

No. 94-1017

                          UNITED STATES,

                            Appellee,

                                v.

                      JORGE L. SUAREZ-MAYA,

                      Defendant - Appellant.

                                           

No. 94-1018

                          UNITED STATES,

                            Appellee,

                                v.

                        PAUL TROCHE-MATOS,

                      Defendant - Appellant.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                                                  

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                 Campbell, Senior Circuit Judge,                                                         

               Selya, Cyr, Boudin, Stahl and Lynch,

                         Circuit Judges.                                                 

                                           

     Roxana Matienzo-Carri n,  by Appointment  of the  Court, for                                      
appellant Felipe Ram rez-Ferrer.
     Ram n Garc a-Garc a for appellant Jorge L. Su rez-Maya.                                  
     Francisco Serrano-Walker for appellant Ra l Troche-Matos.                                       
     Kathleen A. Felton,  Attorney, Department  of Justice,  with                                 
whom Guillermo Gil, United  States Attorney, and Jos  A.  Quiles-                                                                           
Espinosa,  Senior Litigation  Counsel, and  Epifanio Morales-Cruz                                                                           
were on supplemental brief for appellee.

                                           

                          March 27, 1996
                                           

                         OPINION EN BANC
                                           

                               -2-

          TORRUELLA,   Chief    Judge.      Defendants-appellants                    TORRUELLA,   Chief    Judge                                               

(collectively,  "defendants")  Felipe  Ram rez-Ferrer  ("Ram rez-

Ferrer"), Jorge L.  Su rez-Maya ("Su rez-Maya") and Ra l  Troche-

Matos ("Troche-Matos") appeal to  this court their convictions on

drug and firearm charges.  A panel of this court: 1) affirmed the

convictions  of all  defendants  for possession  of cocaine  with

intent to distribute; 2)  affirmed the convictions of Su rez-Maya

and  Ram rez-Ferrer for  using a  firearm in  relation to  a drug

trafficking offense, but reversed  the conviction of Troche-Matos

on  a  similar charge;  and 3)  reversed  the convictions  of all

defendants for  importation of narcotics into  the United States.

Thereafter, the full court reheard the case en banc.  The en banc                                                                           

court  now  reverses  the   convictions  of  all  defendants  for

importation of narcotics into the  United States and remands  the

firearm  convictions for  further  consideration in  light of  an

intervening Supreme Court decision.

                          I.  BACKGROUND                                    I.  BACKGROUND

          The evidence, taken in the  light most favorable to the

government, United  States v.  Abreu,  952 F.2d  1458, 1460  (1st                                              

Cir.), cert. denied, 503  U.S. 994 (1992), permitted the  jury to                             

find the facts  that follow.  We emphasize the facts pertinent to

the importation charge.  On March 13,  1993, the Police of Puerto

Rico ("POPR") received an anonymous  telephone call.  The  caller

informed  the POPR  that  defendant Su rez-Maya  and three  other

individuals  had left  for Mona  Island, Puerto  Rico, in  a boat

belonging to a  relation of  Su rez-Maya, and that  the four  men

                               -3-

were going to acquire  a load of cocaine and ferry it to the main

island of  Puerto Rico.   Mona  Island is  one of numerous  small

islands  near Puerto  Rico's  main island,  and  is part  of  the

Municipality of Cabo Rojo,  which also includes part of  the main

island's southwest corner.1   Mona Island is physically separated

by about 39 miles of water from the main island of Puerto Rico.

          Prior  to 1989,  the  boundaries of  the United  States

extended  three miles offshore.   United States  v. Williams, 617                                                                      

F.2d 1063,  1073 n.6 (5th  Cir. 1980).   In that year,  they were

extended by Presidential  Proclamation with qualifications to  12

miles.   Proclamation No. 5928,  54 Fed. Reg.  777 (1989) (citing

the 1982  United Nations  Convention on the  Law of  the Sea,  to

which  the  U.S.  is a  signatory,  but  which the  U.S.  had not

ratified as of February,  1996).  Thus, given the  12-mile limit,

to  travel from  Mona Island  to the main  island of  Puerto Rico

requires that a vessel cross international waters.

          After verifying  that the  boat in question  was indeed

away from its  mooring, the United States  Customs Service (USCS)

and  POPR  flew  to  Mona  Island on  a  USCS  helicopter.    The

                                                  

1  The  only evidence in the record is  that defendants picked up                                             
the   cocaine  at  Mona  Island.     Mona  Island   is  not  just
geographically  part  of  the   Puerto  Rico  Archipelago,  which
includes the Islands of  Puerto Rico, Culebra, Vieques, Desecheo,
Caja de Muertos, Mona and Monito, as well as various other  minor
islets  and keys.   Mona Island  is also politically  part of the
Senatorial District of Mayaguez  and of the Municipality of  Cabo
Rojo  within  that district.   P.R.  Const.  art. VIII,    1, IV.
Thus, in effect, the defendants transported the drugs in question
between  two points  within the  same municipality  within Puerto
Rico, the equivalent  of within two places within  Suffolk County
in Massachusetts.

                               -4-

authorities located the subject boat and Su rez-Maya, accompanied

by three other men as described.  At approximately 12:30 p.m. the

next  day, the authorities learned that the boat was leaving Mona

Island.   The  boat  was  interdicted  about  one  mile  off  the

southwest coast of Puerto Rico.

          After  the boat was seized, it was found to be carrying

about  16 kilograms of cocaine.  A subsequent inventory search of

the boat turned up a firearm.  The   seized  firearm,   a  loaded

revolver,  was  found covered  by  a  T-shirt, behind  a  storage

compartment  near  the  location  where Ram rez-Ferrer  had  been

seated at the time of the interdiction.  The search also revealed

evidence linking the vessel to a relative of Su rez-Maya.

          On March  31, 1993,  a grand jury  indicted defendants,

charging  all  three  in each  of  three  separate  counts.   The

indictment   charged  each   with  possessing   approximately  16

kilograms  of  cocaine with  intent to  distribute (count  1), 21

U.S.C.    841(a) (1) (1994); with importing such cocaine into the

United States (count 2), id.   952(a) (1994); and with possessing                                      

and  carrying a firearm in  relation to a  drug trafficking crime

(count  3),  18  U.S.C.      924(c)(1)  (1994).    A  superseding

indictment  corrected the  description of  the seized  firearm in

count 3.

          On  September  28, 1993,  a  jury  convicted all  three

defendants  on  each  count.   On  counts  1 and  2,  relating to

possession and importation of cocaine, Su rez-Maya  was sentenced

to life imprisonment, Ram rez-Ferrer to a term of 240 months, and

                               -5-

Troche-Matos to a  term of 120 months.   The sentences of Su rez-

Maya and Ram rez-Ferrer  were enhanced under 21  U.S.C.    841(b)

and 960(b) on account of prior drug crimes.  On count  3, the gun

count,  each appellant was sentenced  to a mandatory minimum term

of  60  months to  be served  consecutively,  as required  by the

statute.

          In  a decision released April 27, 1995, a panel of this

court reversed  all  three defendants'  importation  convictions,

reversed  Troche-Matos'  firearm  conviction,  and  affirmed  the

remaining  convictions.  On June  26, 1995, this  court agreed to

rehear the case en banc on the issue of the importation statute's                                 

interpretation.   Additionally,  the court  asked the  parties to

address  again  the firearms  convictions  of Ram rez-Ferrer  and

Su rez-Maya.    The  en  banc   court  heard  oral  argument   on                                       

September 13, 1995.   While the  case was pending  before the  en                                                                           

banc  court, the  Supreme Court  on December  6, 1995  issued its              

opinion in  Bailey v. United States,     U.S.    , 116 S. Ct. 501                                             

(1995), overturning  precedent in this  and other circuits  as to

the proper construction of the term "use" in section 924(c)(1).

        II.  THE POSSESSION CHARGE AND THE FIREARM CHARGE                  II.  THE POSSESSION CHARGE AND THE FIREARM CHARGE

          On  the  possession charge  under  count  1, the  panel

concluded  that  the evidence  was  sufficient to  show  that the

defendants  knowingly possessed  the drugs  or aided  and abetted

their possession.  Among  other evidence, the testimony permitted

the jury to conclude that the drugs  were stored in a bag with  a

broken  zipper  and that  the  drugs  were  plainly visible  from

                               -6-

outside the bag, easily seen by anyone on the 20-foot  boat.  The

en banc court did not request further argument on this issue.                 

          On the  firearm charge, the story  is more complicated.

Section 924(c)(1) is directed against anyone who "uses or carries

a firearm during and in relation to a drug trafficking crime" and

the  district court  charged the  jury with  the language  of the

statute, defining  "use" in  accordance with circuit  precedent.2

Assuming that  each  appellant was  aware  of the  revolver,  its

presence on  the vessel made it available  for use to protect the

drugs.   The panel ruled that, assuming knowledge of the firearm,

its proximity and potential for use permitted the jury to convict

under the so-called "fortress"  theory previously adopted by this

court and others.   See,  e.g., United States  v. Wilkinson,  926                                                                     

F.2d 22,  25-26  (1st Cir.),  cert. denied,  111 S.  Ct. at  2813                                                    

(1991).

          The  panel had  more  difficulty with  the question  of

whether  a reasonable jury could find that each of the defendants

knew that the gun was present;  unlike the drugs, the gun was not

in  plain  view.   The panel  upheld  the conviction  of Ram rez-

Ferrer,  since  the revolver  was  located  behind a  compartment

adjacent to his seat and served an obvious purpose to protect the

cocaine.  The  panel also upheld  the conviction of  Su rez-Maya,

who was the central figure in the drug venture and the captain of

                                                  

2  The indictment mistakenly charged the defendants  with "having
possess[ed] and carr[ied] the  firearm."  There is no  claim that
the variance was prejudicial error.

                               -7-

the boat.  As to Troche-Matos, the court ruled that a  reasonable

jury could not infer that he knew of the weapon.

          In their petitions for rehearing on this issue, Su rez-

Maya and Ram rez-Ferrer  drew our attention  to United States  v.                                                                       

Torres-Maldonado,  14 F.3d 95  (1st Cir.  1994), arguing  that on                          

somewhat  similar facts  a  panel of  this  court had  found  the

evidence   insufficient  to  support  convictions  under  section

924(c)(1).   In that  case, the  weapon was  found in  a zippered

opaque tote bag on a sofa in a room in which drugs and money were

also found, and the court concluded the evidence was not adequate

to establish that two of the individuals  in the room actually or

constructively  possessed the weapon.   Id. at 102.   Despite its                                                     

differing  outcome, Torres-Maldonado  does not conflict  with the                                              

original Ram rez-Ferrer panel on the proper legal standards to be                                 

applied.

          Although the en banc court agreed to rehear the case as                                        

a whole, sufficiency of  the evidence is not normally  a question

for en  banc consideration unless  a mistaken legal  standard has                      

been  used.  Any possible  tension between the  panel opinion and

the decision  in Torres-Maldonado stems from  their appraisals of                                           

their own  respective  facts.    But given  the  kaleidoscope  of

different facts presented in  drug and gun cases and  the varying

compositions of panels  in the court, the en  banc court was, and                                                            

remains, of  the view that  differences in weighing  evidence are

inevitable  in cases of this  kind even within  a single circuit.

Nothing will  produce perfect  harmony among outcomes  unless the

                               -8-

court  chooses to hear every drug and  gun case en banc, a course                                                                 

that is  neither practical  nor useful.   Therefore,  we conclude

that the full court should not seek to decide en banc whether the                                                               

evidence  against  each appellant  in this  case  was or  was not

sufficient  on the gun  charge.  As  a result, the  en banc court                                                                     

declines to review the adequacy of the evidence on either count 1

or count 3.

          This  does not  end  the matter.    While the  en  banc                                                                           

opinion  was being  prepared, the  Supreme Court  decided Bailey.                                                                          

There, the Supreme Court determined that a conviction for firearm

"use"  under section 924(c)(1)  required "evidence  sufficient to

show an active employment of the firearm by the defendant, a  use                                   

that makes the  firearm an  operative factor in  relation to  the

predicate offense."   Bailey,     U.S. at    , 116 S. Ct. at 505.                                      

As  far as  "use" is  concerned, the  Supreme Court  rejected the

fortress  theory, disagreeing  with  the suggestion  that "a  gun

placed  in  the  closet  is  'used'  because  its  mere  presence

emboldens or protects  its owner."  Id.,     U.S.  at    , 116 S.                                                 

Ct. at 508.

          Although  the Supreme  Court has rejected  the fortress

theory of "use" under which defendants were convicted,  the issue

of  their  firearm  convictions   remains  unresolved.    Section

924(c)(1) imposes a prison term upon a person who "during and  in

relation to  any .  . .  drug  trafficking crime  . .  . uses  or

carries  a  firearm."   18 U.S.C.    924(c)(1)  (emphasis added).                 

Defendants  were convicted on a  gun count that  went to the jury

                               -9-

with  instructions that permitted the jury to convict if it found

that defendants either used or carried the weapon found under the

T-shirt behind Ram rez-Ferrer.   The interpretive problems  posed

by  the term "carry" are  apparent, given the  shadow that Bailey                                                                           

casts over previous circuit precedent.  Moreover, Bailey contains                                                                  

little  comment  on  the  proper  scope  of  "carry"  in  section

924(c)(1).   By contrast, the Supreme Court went on to state that

"use" cannot extend to hypothetical situations where the offender

has "hid[den  the firearm]  where he  can grab it  and use  it if

necessary,"  id.,       U.S.  at     ,  116  S.  Ct.  at  508,  a                          

description that, in the best  light for the government, includes

the set of  facts before this en banc panel.   However, the Court                                               

went on to state that the carry prong could cover situations that

the  use prong could  not, noting that  a firearm  can be carried

without being used, "e.g., when an offender keeps a gun hidden in                                   

his  clothing throughout a drug  transaction."  Id.,      U.S. at                                                             

   , 116  S. Ct. at 507.  As a result, defendants' conviction for

"use"   should   be   vacated,   and  they   should   face   only

reconsideration of their convictions under the carry prong, since

Bailey  has both  limited the word  "use" to  the extent  that it                

cannot  apply in the instant case and emphasized that "carry" has

meanings not covered by "use."  Id.,      U.S. at    , 116 S. Ct.                                             

at  508-09 (cautioning against  readings of  the word  "use" that

render the term "carry"  superfluous, and remanding two unrelated

defendants' convictions for consideration under the carry prong).

                               -10-

          In  light of Bailey, then, we decline to decide en banc                                                                           

defendants'  firearm  convictions,  and  instead  require further

consideration  of count 3 under section 924(c)(1).  We think that

these  problems should  be  addressed in  proceedings before  the

panel rather than the en banc court.                                        

                               -11-

                   III.  THE IMPORTATION COUNTS                             III.  THE IMPORTATION COUNTS

          In accord with the panel's  decision, the en banc court                                                                     

has concluded that the importation statute, 21 U.S.C.   952, does

not embrace  defendants' conduct in transporting  16 kilograms of

cocaine from Mona Island, Puerto Rico, to  approximately one mile

offshore of the main  island of Puerto Rico, notwithstanding  the

fact that  the contraband  traversed international waters  during

the  journey.    The  court concludes  that  this  interpretation

accords  with  both  the  wording  of  the  statute  and  general

principles of statutory construction.  Furthermore, absent either

pertinent  legislative history  or precedent,  the en  banc court                                                                     

likewise  concludes  that  the  historical  application  and  the

potential  future application  of the  statute by  the government

weigh in favor of this interpretation.

                      A.  Statutory Language                                A.  Statutory Language

          The defendants were convicted  under 21 U.S.C.   952(a)

for  importing drugs into the  United States.   In relevant part,

  952(a) provides that

            it shall be unlawful . . . to import into
            the United States  from any place outside
            thereof, any controlled substance.

The defendants  contend that they  did not  violate this  statute

because they did  not bring the  drugs at  issue into the  United

States from a  "place outside  thereof."  To  the contrary,  they

argue  that the evidence in the record only establishes that they

brought the drugs  from one location  within the jurisdiction  of

the United  States  (i.e., Mona  Island)  to another  (i.e.,  the                                                                     

                               -12-

waters  off Puerto Rico's main  island).  The  government, on the

other  hand,  claims  that,  because  the  drugs  passed  through

international waters  on their way  from Mona  Island, the  drugs

were  brought  into the  United  States  from  a  "place  outside

thereof"   (i.e.,  international   waters).     Essentially,  the                          

government  argues that  the  quoted language  of section  952(a)

establishes   a  kind   of   transparent   curtain   around   the

jurisdictional boundaries  of the  United States,  and proscribes

any  deliberate shipment  of drugs  through that  curtain without

regard  to   the  "place"   from  which  the   shipment  actually

originated.

          In Price  Waterhouse v.  Hopkins, 490 U.S.  228 (1989),                                                    

the Supreme Court stated:  "We need not leave our common sense at

the doorstep  when we interpret  a statute."   Id. at  241.   The                                                            

government's newly  minted interpretation  of section  952(a) not

only is contrary to the plain  language of the statute, and flies

in  the face  of  every common  and logical  meaning of  the word

"importation," but also places  at risk of prosecution thousands,

perhaps hundreds of thousands, of persons  who up to now have not

been prosecuted under this novel construction of section 952(a).

          We should, first of all, leave no doubt as to what this

case is not about.  We are  not faced with a factual situation in                     

which a defendant leaves  United States domestic territory empty-

handed,  proceeds  to  international   waters  or  to  a  foreign

territory  to  acquire  contraband  there, and  then  returns  to

domestic  territory with  this  contraband (for  example, when  a

                               -13-

vessel  leaves the  United  States, sails  out  to sea  where  it

obtains  drugs from  a  "mother ship"  anchored in  international

waters,  and then  returns  to  the  United  States).    In  that

hypothetical situation, the government might have a somewhat more

convincing argument  that international waters can  be deemed the

"place"  from which  the controlled  substance is  being imported

into  the  United  States.3    While   we  might  imagine  strong

arguments  on  both sides,  we are  presently  faced with  a much

narrower factual situation.  We need only decide whether Congress

intended to  treat in-transit  international waters as  a "place"                                       

for  purposes of  the importation  statute when  the government's

evidence  shows that both the origination  and the destination of

thecontrolled substance occurred within United States territory.4
                                                  

3  We agree with the  dissent that both the day hiker  who strays
into  Canadian territory and then crosses back into the U.S., and
the tourist returning from British  territory, see dissent at 44,                                                            
would violate section 952 if they carry contraband drugs, because
they obviously  would be entering  U.S. territory  from a  "place
outside thereof."

4     The   government   treats  defendants'   trip  across   the
international waters  between Mona Island and  Puerto Rico's main
island as being the same as  if defendants had carried drugs from
Mona Island  into another  sovereign nation  and  then back  into
Puerto  Rico.     Doubtless   the  latter  would   constitute  an
importation.    International waters,  however, are  not anything
like  a sovereign nation.  Waters twelve miles beyond Mona Island
and the main  island of  Puerto Rico are  "international" in  the
sense that the  vessels of  other nations  have a  right of  free
navigation  through   them.    See   54  Fed.  Reg.   777  (1988)                                            
(Proclamation  5928,  entitled  "Territorial Sea  of  the  United
States of America") (citing the 1982 United Nations Convention on
the Law of  the Sea (to which the U.S. is  a signatory, but which
the U.S. had not ratified  as of January 1996)).  For  200 miles,
however, they are subject to exclusive  United States fishing and
mineral rights.  See 1982 United Nations Convention on the Law of                              
the  Sea, Articles 5, 57, 76(1); Burke, The New International Law                                                                           
of  Fisheries  1  (1994)  (describing this  regime  as  customary                       

                               -14-

          "The starting point in statutory interpretation is 'the

language  [of the statute] itself.'"  United States v. James, 478                                                                      

U.S.  597, 604 (1986).  In its argument, the government overlooks

the  fact that  the text  of section  952(a) includes  a separate

clause not  directly at issue in  this case.  With  this separate

clause  included,   section  952(a),  entitled   "importation  of

controlled substances," provides

            [i]t shall be unlawful [1] to import into
            the  customs  territory  of   the  United
            States  from  any  place outside  thereof
            (but within the United States), or [2] to
            import  into the  United States  from any
            place  outside  thereof,  any  controlled
            substance.

21  U.S.C.  952(a).   The court  concludes  that, given  a proper

interpretation  of 21 U.S.C.   952(a), transport from one part of

the United  States  to another  does  not rise  to the  level  of

importation  simply  by  involving travel  through  international

waters.

          The   definition  of   "import"  ("any   bringing  in")

appearing  in  section 951  does not  implicate  the origin  of a

shipment  of drugs.  Thus, the government argues that the statute

                                                  

international law).   See also  43 U.S.C.    1332  (Congressional                                        
declaration of  policy  regarding the  outer Continental  Shelf).
After a  United States  vessel has  gone beyond the  twelve-mile-
limit into  "international" waters, it  is not expected  to clear
United States  customs when it reenters  United States territory,
as would be  required had  the vessel entered  a foreign  country
during  the voyage.    Coastal and  fishing  vessels and  private
yachts commonly  navigate  interchangeably in  international  and
domestic waters when making  local trips, paying little attention
to where the  one ends and the other begins,  and with no thought
that  they are making some kind of reentry into the United States
upon their return to domestic waters.

                               -15-

does  not require any  inquiry into the  origin of a  shipment of

drugs; by the government's reading,  any shipment into the United

States that must pass into international waters or airspace would

be punishable under clause 2 of section 952(a).  However, section

952(a)  itself  requires that  the  importation  into the  United

States  be "from any place outside thereof" (emphasis added).  It                                    

is  the word "place" in  section 952(a), when  read together with

"from .  . . outside," that needs to be considered in the present

circumstances,  not just  the  word "import."   The  government's

interpretation rests on the  assumption that Congress intended to

focus only on a result (i.e., each introduction of the drugs into                                                         

the  United States), irrespective of whether  its place of origin

was  another part  of the United  States.   But if  this were the

case, Congress  would not  have proscribed importation  "from any                                                                       

place outside  thereof," but merely importation  "into the United                                                                

States," omitting any mention of a place of origin.  Furthermore,

we should also consider the following test of the "plain meaning"

of the word "place" in section 952(a).  Anyone aware of the facts

in the record of this case, if asked, "From what  'place' was the                                                                  

illegal substance brought?" would  answer "From Mona Island," not

as is argued, "From international waters."

          In  addition to its failure  to comport with the normal

understanding    of   the   word    "place,"   the   government's

interpretation  of  clause  2   cannot  be  reconciled  with  any

reasonable  reading of clause  1.  Clauses  1 and  2 were enacted

simultaneously  in 1970.   If  the phrase in  clause 2  -- "place

                               -16-

outside thereof" refers to the location of the drugs  immediately

before  they pass  through  the "transparent  curtain" into  U.S.

territory,  it must  be given  the same  connotation in  clause 1

absent  an  indication that  Congress  intended  otherwise.   See                                                                           

Atlantic Cleaners  v.  United States,  286 U.S.  427, 433  (1932)                                              

(noting presumption that a word or phrase used more  than once in

statute  has same meaning); Fortin v. Marshall, 608 F.2d 525, 528                                                        

(1st Cir. 1979)  (same).  The government argues that  clause 2 is

merely  the successor  to 21 U.S.C.    174  (enacted in  1909 and

repealed in  1970), whereas  clause  1 introduces  a new  concept

added to the  statute in 1970  out of  "an abundance of  caution"

lest  some   unidentified  types  of   transportation  from  U.S.

territories   into   U.S.    customs   territory   might    prove

nonprosecutable.     Although the government states that clause 2

is the direct successor to repealed 21 U.S.C.   174, it points to

no pre-1970 case law that would corroborate the thesis that   174

(which  imposed  penalties against  anyone  who  "fraudulently or

knowingly imports  or brings  any narcotic  drug into  the United

States or  any territory under its control  or jurisdiction") had

ever been  construed so narrowly  as to foreclose  prosecution of

importation  from a U.S. territory  not part of  the U.S. customs

territory (e.g., the  United States Virgin Islands, Guam) to part                         

of the U.S. which  is part of  the U.S. customs territory  (i.e.,                                                                          

Puerto Rico, the 50  states, and the District  of Columbia).   We

must bear in  mind the  principle that Courts  must presume  that

Congress   knows   of   prior   judicial   or   executive  branch

                               -17-

interpretations  of  a  statute  when  it  reenacts  or  amends a

statute.  See Lorillard v. Pons, 434 U.S. 575, 580 (1978); Sierra                                                                           

Club v. Secretary of the Army, 820 F.2d 513, 522 (1st Cir. 1987).                                       

If  we presume  per Lorillard  that Congress  knew  that pre-1970                                       

decisional   law   portended   no   risk   of  less-than-intended

enforcement, we cannot accept the government's thesis that clause

1 was passed out of an "abundance of caution."5

            "A  statute ought, upon the whole, to be so construed

that, if it can be prevented, no clause, sentence, or  word shall

be  superfluous,  void  or  insignificant."6   United  States  v.                                                                       

Campos-Serrano, 404 U.S. 293, 301  n.14 (1971); see United States                                                                           
                                                  

5   Moreover,  even if  we did  accept it,  we think  this thesis
actually cuts  against the  government's reading of  the statute.
In  other words, if Congress had doubts that the existing statute
did not proscribe shipment of drugs from  a non-customs territory
into  customs territory,  it  must  have  had, a  fortiori,  even                                                                    
greater uncertainty  that the  statute proscribed  shipments from
customs territory to  customs territory (the conduct  at issue in
this case).  But it is clear, that by enacting clause 1, Congress
did not proscribe such activity.

6  Although we are charged by our dissenting colleagues with  the
commission   of  major   mayhem  to   the  canons   of  statutory
construction, this claim may very  well be a case of whose  ox is
gored.  See Karl N. Llewellyn, Remarks on the Theory of Appellate                                                                           
Decision  and the Rules  or Canons About  How Statutes  Are to Be                                                                           
Construed,  3 Vand.  L. Rev. 395  (1950).   It is  interesting to                   
note, that by  suggesting that  the cocaine in  question did  not
originate in Mona Island,  see dissent at 35, the  dissent itself                                        
violates a  fundamental rule  of appellate review,  one which  is
anchored  in elementary principles of  due process, to the effect
that appellate courts are not to  go outside the record.  In this
case, the suggestion that "Mona Island is  a transshipment point"
is not only not part  of the record but is in  fact immaterial to
the  charge.     Puerto  Rico   or  Florida  or   California  are
transshipment points of imported drugs to other internal areas of                                                                  
the United States.  Yet such internal transshipment of contraband                                               
that  may have  originated  outside the  United  States does  not
itself  constitute a  violation of  21 U.S.C.    952,  which only
covers importation from a "place outside thereof."

                               -18-

v.  Holmquist, 36 F.3d 154, 160 (1st  Cir. 1994) (same).  The key                       

to  the "whole  act" approach  is that  all provisions  and other

features of  the enactment must  be given  force, and  provisions

must be interpreted so as not to derogate from the force of other

provisions and  features  of the  whole statute.   See  generally                                                                           

Norman J.   Singer, Sutherland Statutory Construction   47.02, at                                                               

120 (5th ed. 1992).   A close analysis of section  952(a) reveals

that the government's broad interpretation of clause 2 would both

render clause 1 superfluous and make it technically impossible to

violate.  Furthermore, the analysis makes it clear that  Congress

considered  the  conduct  at  issue in  this  case  and  rejected

proscribing it under the statute.

          First, clause 1  proscribes the importation  of illegal

drugs  into the  customs territory  of the  United States  from a

place  outside the  customs territory  of the United  States, but

within the United States.   The "customs territory of  the United

States"  is defined as "the States, the District of Columbia, and

Puerto  Rico."   See  Harmonized Tariff  Schedule  of the  United                              

States, n.2.   Thus,  clause  1 proscribes  importation from  any

other U.S. territory not within the customs territory (e.g., U.S.                                                                     

Virgin Islands, Guam) into "the States, the District of Columbia,

and Puerto Rico."

          That  Congress  specifically  addressed this  situation

suggests  that it believed that the language  of clause 2 did not

necessarily cover  such conduct.  The  government's broad reading

of clause  2, however,  brings any conduct  conceivably addressed

                               -19-

under clause 1 within the coverage of clause 2.   In other words,

any contraband shipped from a place inside the United States (but

not  within  the  customs  territory  --  e.g.,  the U.S.  Virgin                                                        

Islands) would first pass  through international waters before it

entered into the customs  territory of the United States.   Thus,

the conduct  aimed at under  clause 1 would be  proscribed by the

government's interpretation of clause 2.  Hence, the government's

reading of clause 2 renders clause 1 completely superfluous.

          Second,  the government's  broad  reading  of clause  2

would  make  it arguably  impossible  to  prosecute anyone  under

clause  1.  Under the government's reading, the phrase "any place

outside  thereof" essentially means the point  at which the drugs

were located  immediately before  passing into the  United States

(i.e., the  international space  just outside the  jurisdictional               

limit of the United States).   If one applies this reading to the

same phrase  in clause 1, it  is impossible to violate  clause 1.

In  other  words,  there  is  no  "place"  just  outside  of  the

jurisdictional  limits of  the  customs territory  of the  United

States, that is also within the United States.  Any place that is

just  outside  the customs  territory  of  the United  States  is

international waters.   Thus,  arguably no individual  could ever

violate clause 1  because no one could  ship from a place  within

the United  States (but  outside the customs  territory) directly

into  the customs territory of the United States:  the individual

would always be directly shipping from  international waters.  If

a prosecutor attempted to  charge a defendant under clause  1 for

                               -20-

shipping drugs  from the U.S. Virgin Islands  to Florida (conduct

clearly  meant to be proscribed by clause 1), the defendant could

argue that  he  or she  did not  violate the  clause because  the

"place"  from  which the  drugs were  imported  was not  the U.S.

Virgin  Islands  but  the  international space  just  outside  of

Florida.   Although the prosecutor  could argue that  the "place"

referred to by the statute included  both the international space

and  the U.S. Virgin  Islands, such a  reading  would  be hard to

square with the  gloss the  government puts on  the phrase  under

clause 2.7

          Third, and perhaps most convincing, a close analysis of

clause  1  reveals  that  Congress contemplated  whether  or  not

illegal  drugs shipped from one part of the United States through

international  waters and back  into the United  States should be

prohibited under 21 U.S.C.   952.  Specifically, clause 1 evinces

Congress'  intent  to  proscribe  such  conduct  in  the  certain

instances  in which drugs are imported into the customs territory

                                                  

7   One  could quibble here  because national  territorial waters
extend farther  than state territorial waters off any one state's
coast.  Thus,  it is possible  to argue that an  individual could
violate clause 1 by importing from the national waters (arguably,
outside the customs territory, but inside the United States) into
the  state  waters.   However, the  point  fails to  undercut our
analysis  in  any  significant way.    In  other  words, even  if
"states" in the  definition of customs territory  extends only to
the  state  jurisdictional  waters  (a  point  which  we  do  not
necessarily concede),  it seems unlikely that  in enacting clause
1,  Congress was aiming only at drugs  shipped from one state out
into  national waters  and back  into that  or another  state (as
everything else that would violate clause 1 would fall within the
government's broad interpretation of clause 2).  Moreover, such a
reading  would be inconsistent with the general usage of the term
"customs territory" in the Harmonized Tariff Schedule.

                               -21-

of the  United  States from  a  point in  the  United States  but

outside the customs territory.  Clearly, Congress could have gone

further and  proscribed any shipment of  drugs originating inside

the United  States that  passed through international  waters and

entered  back  into the  United  States,  but  it  did not.    By

explicitly  limiting the  statute  to the  conduct proscribed  by

clause 1, it  is fair to  infer that Congress  did not intend  to

proscribe  the additional  conduct at  issue in  this case.   The

reason  for this  is  clear.   In  enacting   952,  Congress  was

attacking  classic  cases of  importation,  meaning international

importation, not domestic transportation, of drugs.8

          Thus,    unlike    the   government's    reading,   the

interpretation adopted by the en banc court both accords with the                                               

plain language of the statute and gives meaning to section 952 as

a  whole act.   However,  even  if such  were not  the case,  the

confusion that is patent even from the government's discussion of

the statute brings into play the rule of lenity,  and requires us

to  give defendants  the  benefit of  the  doubt on  this  issue.

Ratzlaf v. United States, 114 S.  Ct. 655, 663 (1994); McBoyle v.                                                                        

United States, 283 U.S. 25, 27 (1931) (Holmes, J.); United States                                                                           

v. Maravilla, 907 F.2d 216, 223 (1st Cir. 1990) (Breyer, C.J.).                      

                     B.  Congressional Intent                               B.  Congressional Intent

                                                  

8  Cf. Llewellyn, 3 Vand.  L. Rev. at 401 (concluding that courts                
should adopt  statutory interpretations  that accord with  "[t]he
good  sense  of  the  situation"  and that  represent  "a  simple                                                                           
construction of the available language to achieve that  sense, by                                                                           
a  tenable means,  out of  the  statutory language"  (emphasis in                                                            
original)).

                               -22-

          On the specific point at issue, there is no legislative

history.  Nonetheless,  the dissent claims that  Congress did not

"care one whit whether the drugs were brought  from international

waters [or international  airspace9] or from  a foreign land,  so

long as they crossed the U.S. boundary."  See dissent at 43.  But                                                       

Congress  might well  be concerned  whether the drugs  were being

brought from  one place within the United States to another.  The                                                          

obvious  fact that Congress  may be generally  presumed to oppose

the drug trade neither renders the language in question ambiguous

nor  justifies  its strained  interpretation.    Congress can  be

similarly presumed to oppose murder, arson and robbery, but we do

not  rely  on  such  facts  as  justifying  strained readings  of

statutes in those  areas.   We can find  no legitimate reason  to

follow a different course here.

                       C.  The "Precedents"                                 C.  The "Precedents"

          As   discussed,   the  interpretation   urged   by  the

government leads to unreasonable  results.  Turning to precedent,
                                                  

9  We  agree with  the dissent's concessions  to the effect  that
"[i]t is  far from  clear  whether a  scheduled non-stop  airline
flight  between   two  U.S.  points  could  ever  be  treated  as
importation  under the main clause [of section 952]," and that "a
defendant would certainly argue  that for all practical purposes,
drugs on  such a  flight are  never outside  the  country."   See                                                                           
dissent  at   39.    This  contention   purportedly  refutes  our
superfluousness    argument,    yet   leaves    unexplained   the
disappearance  of   the  "transparent  curtain"   which  Congress
envisioned  "around the  boundaries  of the  United States,"  the
penetration  of   which,  bearing   drugs,  "is  the   crime  [of
importation]."  We fail  to see how a principled  distinction can
be made  between such  an incursion into  international airspace,
and the present case involving travel  between "two U.S. points."
The  dissent's  "yes if  by  water, no  if  by  air" formula  for
installing  its  transparent curtain  appears  to  respond to  no
statutory purpose identified by the dissent.

                               -23-

we see that the case law does not support the outcome proposed by

the  government.   The  government  views  precedent as  carrying

special  weight  in formulating  its interpretation  of   952(a).

This is obviously a  principle which we generally agree  with, as

far as it goes.  However, the "precedent" on which the government

relies, with one exception, is inapposite.

          The language  cited from United States  v. Peabody, 626                                                                      

F.2d 1300, 1301  (5th Cir.  1980) ("Had the  cargo of  contraband

originated in Texas,  that would not  alter the fact that  it was

meant  to reenter  the United  States from  international waters.

That  is enough."), which is  both the seminal  authority for the

cases that follow and the anchor upon which the government relies

for its  interpretation  of    952(a),  is  particularly  flawed.

Although the  cryptic statement in Peabody  fits the government's                                                    

glove,  a reading  of  that case  clearly  demonstrates that  the

proposition for which it stands is  total dicta, and is not based

on  even a  superficial  analysis of  the  issues raised  in  the

present appeal.  Indeed that opinion does not even cite   952(a),

although it may  perhaps be surmised that such is  the statute at

issue.  Nevertheless,  nothing in the factual  background of that

case  supports the  proposition  relied upon  by the  government.

Without question the  contraband in Peabody  was not coming  from                                                     

another domestic area in the  United States, Texas or  otherwise,

and  thus the court's hyperbole was pure  dicta.  Peabody and its                                                                   

progeny constitute flimsy precedent upon which to hang one's hat.

                               -24-

          In United  States v. Phillips, 667 F.2d  971, 1033 (5th                                                 

Cir.  1981)  (holding  that   the  importation  "element  may  be

established  by evidence  that  a boat  from which  marihuana was

unloaded  went outside  United States  territorial waters  or met

with any other vessels that had -- for example, a "mother ship"),

the  facts  involved contraband  brought  directly from  Colombia

through motherships off Florida.  Id. at 987.  As in Peabody, the                                                                      

present  issue was not decided  and the quoted  language is again

dicta.  In  United States v.  Lueck, 678 F.2d  895, 904-05  (11th                                             

Cir.  1982),  the  Eleventh  Circuit,  relying  on  the  specific

language quoted from Peabody,  rejected the contention that proof                                      

of  importing  controlled substances  from  a  specific point  on

foreign soil is required as an element of   952(a).   Id. at 905.                                                                   

However,  Lueck's holding must be read and understood in light of                         

the fact that  the airplane  in question had  been spotted  first

flying  over the Bahamas.  The record evidence in Lueck supported                                                                 

the  finding  of  importation  upon  the  airplane's  entry  into

domestic airspace.   Id. at 897.  In stark  contrast to Lueck, we                                                                       

do  not have here any evidence supporting such a finding, rather,

all  we have is evidence  that the illegal  substance was brought

from a place  within the United States.  United States v. Goggin,                                                                          

853  F.2d  843,  845 (11th  Cir.  1988),  another  case from  the

Eleventh Circuit, which relies on  Lueck, also concerns a  flight                                                  

from the Bahamas,  id. at  844, 847, and  is therefore  different                                

from the present appeal.

                               -25-

          In United States v. Doyal, 437 F.2d 271 (5th Cir. 1971)                                             

(involving  the  predecessor  statute to    952),  the  defendant

contended  that although  he  was caught  entering the  U.S. from

Mexico with illegal drugs,  he had in fact acquired  the drugs in

the  U.S.,  taken  them  into  Mexico,  and  brought  them  back;

therefore,   argued  the   defendant,  he   was  not   guilty  of

importation.   Id. at 274-75.  Although the drugs in question had                            

originated  in  the United  States, the  fact  is that  they were

brought into Mexico, and it was from there that they  entered the                                                    

domestic territory  of the United States.   Id. at 272.   Such an                                                         

entry  from a foreign country (i.e., a "place outside" the United                                                       

States)  is  not what  we  have  before  us.   United  States  v.                                                                       

Friedman,  501 F.2d  1352  (9th Cir.  1974),  also cited  by  the                  

government,  involved  another entry  from  a  place outside  the                                                              

United States -- Mexico as in Doyal.                                             

          Reliance on the language used by  our Circuit in United                                                                           

States v.  Nueva, 979 F.2d  880, 884 (1st Cir.  1992), is equally                          

unhelpful in  the present situation.   In Nueva,  law enforcement                                                         

authorities  spotted  a  suspect  aircraft  traveling  from South

America  to Puerto Rico; the  authorities tracked the  plane to a

point  above the  ocean off  the coast  of Puerto Rico,  where it

dropped bales of illegal drugs at a  rendezvous point for a boat.

Id. at 881-83.  Picking up contraband by going into international             

waters,  id., stands on the same footing  as going into a foreign                      

country to do so (i.e., Friedman, Doyal, Goggin, Lueck, Phillips,                                                                          

Peabody).   We do not question  that such a place  from which the                                                           

                               -26-

defendant gains  possession of  the contraband, is  "outside [the

United States]," and thus, that the entry from such a place, into                                                                     

the  United States, meets that element  of the importation charge

in   952(a).

          We  thus come to United  States v. P rez,  776 F.2d 797                                                            

(9th  Cir.  1985).    This  is  the  only  case  which  factually

approximates  the  present  one.10   There,  an  illegal load  of

marihuana was  transported by  boat from the  Mariana Islands  (a

United   States  Trust   Territory  in   the  Pacific),   through

international waters to  Guam, another U.S.  domestic area.   The

court  squarely  holds  that  the  transit through  international

waters  is  sufficient to  sustain  an  importation charge  under

  952(a).    It would  perhaps  have  been  helpful  for  present

purposes,  had the deciding  court discussed the  issue with some

original analysis  or some  enlightening reasoning in  support of

its ephemeral  conclusion, but  such was  not to  be.   The court

merely  "rounded up the  usual suspects," by  citing its Friedman                                                                           

case  (importation  from Mexico),  and  Peabody  and its  progeny                                                         

(Lueck and Phillips), as being "instructive," id. at 801, without                                                           

providing much more to  support the resolution of an  issue which

it had admittedly "never [before] addressed."  Id.11                                                            
                                                  

10   A difference is that in the  present case the two places are
within the same jurisdiction, in fact the same municipality.  See                                                                           
footnote 1.

11  This  is despite precedent such as United  States v. Carri n,                                                                          
457  F.2d 200 (9th  Cir. 1972), in which  the Ninth Circuit ruled
that evidence that  an aircraft  landed in Los  Angeles with  404
pounds  of marihuana, that it had used enough fuel and had enough
time  to go to Mexico, that the  marihuana was in boxes marked in

                               -27-

          Thus, the "precedent" cited  amounts to bald assertions

without analysis.

            D.  Historical Application of the Statute                      D.  Historical Application of the Statute

          Actions speak louder than words.  In this case this old

adage is not simply poetic expression, for  the interpretation of

21 U.S.C.   952(a) promoted  by the government is most  certainly

at odds  with the  government's past enforcement  practices under

this statute throughout its long life.

          It is  difficult to  accept that Congress  intended the

government's reading  of   952(a), considering  that this reading

of the statute has somehow lain lifeless for 25 years until given

breath in this  case by  the prosecution.   The government  would

have us believe that  throughout the life of this  statute, which

has been on the books in practically the same form since 1970, in

every  direct flight,  commercial or  private, between,  say, the

Mainland and Puerto Rico,  or the Mainland and Hawaii  or Alaska,

or vice versa, or even between Miami and New  York, or Nantucket,

Massachusetts and Boston, etc., all of whom at some point (or, in

fact, throughout most of  their passage) fly within international

airspace  before returning  to domestic territory,  the occupants

have always  been subject to  being charged  under this  hitherto

overlooked definition of "importation."  The government's novelty

seems   all   the   more   striking  in   this   Circuit,   where

notwithstanding the hundreds  (perhaps thousands)  of such  daily                                                                           
                                                  

Spanish, and that  one of the passengers had a  map of Mexico, as
well as  a match box from  a Mexico motel, was  not sufficient to                                                             
establish that the marihuana had been imported from Mexico!

                               -28-

flights, the  government has somehow throughout  these many years

never pressed such a theory of importation.  Is this attributable

to  prosecutorial  benevolence or  incompetence?   Certainly not.

What  we have is the  tacit recognition that  such acts could not

reasonably   be   considered   "importation"   within     952(a).

"Whatever other  statutes defendants may have  violated, they did

not violate this one."  Maravilla, 907 F.2d at 223 (Breyer, C.J.)                                           

(holding  that custom agents who murdered a Dominican citizen who

was temporarily in the United States did not violate civil rights

statute because the victim was not an "inhabitant").

          We  have a similar  situation with water-borne traffic.

There  are literally thousands of  vessels of all  sizes and with

all  kinds  of purposes  that  daily  pass through  international

waters as they move between domestic areas which, without picking

up  contraband  in  international   waters  or  visiting  foreign

jurisdictions, would  be subject to this  expanded interpretation

of    952(a).   Not  only is  there  the obvious  marine  traffic

between  the Mainland  and its  outlying domestic  areas (Hawaii,

Alaska,  Puerto  Rico,  U.S.   Virgin  Islands,  etc.),  and  the

considerable coastwise traffic in the Atlantic, Pacific, Gulf and

Great Lakes waters which as a matter of course continuously exits

and reenters international  waters.  There  are also hundreds  of

thousands  of commercial fishermen, as well as those who fish for

sport,  who  on  a  daily  basis  leave  domestic  waters,  enter                                   

international  waters,  and  return  to  domestic  waters,  again

without acquiring contraband in international waters or  entering

                               -29-

foreign  jurisdictions, who  would  be subject  to the  contested

interpretation   of    952(a).      However,   contrary  to   the

government's assertions at oral argument, it does not  stop here.

For example,  a passenger  on a commercial  whale-watching vessel

who   left  Provincetown,  Massachusetts,   went  thirteen  miles

offshore into international waters  to watch these behemoths, and

then  reentered domestic waters would  be subject to  a charge of

importation if he or she had drugs when he or she originally left

Provincetown.  A maritime worker traveling to and from an oil rig

on international waters in  the Gulf of Mexico off  Louisiana, or

on George's Bank  off New England, would  be equally exposed.   A

sailboat  tacking  up  the  coast  would  engage  in  an  act  of

"importation" every  time it reentered domestic  territory, if it

had contraband aboard when it  tacked out of domestic  territory.

The height  of absurdity,12  however, is  that  according to  the

government's interpretation  as expressed  at oral  argument, the

act   of  leaving  domestic  territory  would  in  turn  also  be                           

considered  an  illegal  exportation  subject  to   charge  under                                              

  952(a)'s companion  provision,   953(a), even  though there was

no  intention  or act  of visiting  a  foreign territory  or off-

loading the  exported contraband  onto a vessel  in international

waters.   Thus, under  this scenario,  a sailboat tacking  twenty

times up  the East Coast of  the United States from  Miami to New

York,  which had  aboard  illegal substances  acquired in  Miami,
                                                  

12  See In re Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 643                                                        
(1978)  (holding  that  an  absurd  result  militates  against  a
proposed statutory interpretation).  

                               -30-

would  be  subject to  being  charged with  twenty  violations of

exportation under   953(a), and  twenty violations of importation

under   952(a),  one  for each  time it  tacked out  to and  from

international waters.

          As if the above scenarios were not ludicrous enough, at

oral  argument, the government also informed us that in the above

situations,  since international  borders  were  crossed,  border

crossing  rules  are  applicable,  with  all  of  the  consequent

diminished Fourth Amendment implications such circumstances bring

into play.   See United States v.  Ram rez, 431 U.S.  606, 616-19                                                    

(1976) (holding that government's right to search all persons and

their  belongings  who  cross  its  borders  is  plenary  and  is

"reasonable"  per se  within  the Fourth  Amendment); Carroll  v.                                                                       

United States, 267 U.S. 132,  153-54 (1925) (stating that  border                       

searches require  no probable cause);  see also United  States v.                                                                        

Montoya  de  Hern ndez, 473  U.S.  531,  537-38 (1986)  ("Routine                                

searches  of persons and effects  of entrants are  not subject to

any  requirement  of  reasonable  suspicion,  probable cause,  or

warrant . . .").13       Clearly,   the   implications   of   the

government's proposed  interpretation  go  far  beyond  the  mere

crossing of  a stretch  of water between  two points in  the same

municipality in Puerto Rico.  Cf. Torres v. Puerto Rico, 442 U.S.                                                                 

465,  474  (1978)  (concluding  no  international  border  exists

                                                  

13   Indeed,  the  Fourth  Amendment  issues  here  may  be  more
troubling  than in the land border cases, given the relative lack
of  notice upon  entering the  United States  by water  versus by
land, since land borders are often marked.  

                               -31-

between Puerto Rico and continental United States).  A  passenger

and his or her  belongings on a Boston to Nantucket flight, which

is  partially  over international  waters  and  airspace, can  be

subjected hereafter to a border search upon arrival in Nantucket,

as  well as to another  such intrusion upon  returning to Boston.

In light  of these possibilities  and in light  of the  fact that

drug  possession  statutes  already  exist  to  address  domestic                                                                           

conduct,14  we   cannot  accept   the  government's   reading  of

  952(a).  By its interpretation  of   952(a), the government has

chosen to ignore  a basic rule  of statutory interpretation,  one

firmly  imbedded   in   the  jurisprudence   of   this   Circuit:

"[U]nreasonableness  of   the  result  produced   by  one   among

alternative possible  interpretations of  a statute is  [a valid]

reason  for rejecting  that  interpretation in  favor of  another

which  would produce  a  reasonable result."    United States  v.                                                                       

Bayko, 774 F.2d  516, 522  (1st Cir.  1985) (quoting  Sutherland,               

Statutory Construction,   45.12 (4th Ed. 1984)).                                

          Furthermore, the undeniable fact is that section 952(a)

has  not been  used at  all in  the fashion  now promoted  by the                                     

prosecution.  On this point, there should be no need to engage in
                                                  

14    These real  possibilities  are  not  merely lurking  Fourth
Amendment  problems to  be resolved  in future  cases.   Although
obviously they are  not at  issue in this  case, particularly  in
view of the Government's assertions  at oral argument, they  fall
within  the realm  of  consequences  that  will follow  from  the
government's proposed interpretation  of section 952(a), and  are
valid factors to be considered in determining whether Congress in
enacting  that  statute  intended  the  result  espoused  by  the
government.   Needless to say, the  mere possibility is extremely
worrisome  as nothing  of  this sort  has  ever occurred  in  the
Nation's history.

                               -32-

speculation regarding  whether or not there are  other uncited or

unreported prosecutions demonstrative of the government's view of

  952(a).   At  oral  argument, the  government was  specifically

asked  to produce evidence of  such a prosecution.  Nevertheless,

the government has failed to cite  even one case in this circuit,                                                     

at any level,  reported or  otherwise, in which  a defendant  was

even charged, much less convicted, in the manner now claimed, nor

has our own search revealed the existence of such a case.

          Considering the possibility that the government may not

have  prosecuted  "small quantities"  of  drugs  transported over

international  space from  a  prior United  States connection  as

importation under   952(a), but that similarly transported  large

amounts  have been  considered violations  of that  provision, we

conducted our own search of reported cases.  The inquiry revealed

that such a distinction simply does not exist.  See, e.g., United                                                                           

States v. Marcel, 1995  WL 732747, *1 (2d Cir.  1995) (discussing                          

convictions  of  two  co-conspirators  who  participated  in  the

transportation of 48 kilograms of cocaine from Puerto Rico to New                                        

York,  but who  apparently  faced  no  charge or  conviction  for

importation);  United  States  v.  P rez, 1994  WL  702058,  *1-2                                                  

(discussing  suppression motion  of two  co-conspirators arrested

with approximately 30 kilograms of cocaine shortly after arriving                                         

at John F. Kennedy International Airport aboard a flight from San

Juan; the  two defendants faced  a two-count indictment  that did

not include an importation charge).  This court can take judicial

notice  of the  substantial traffic  in narcotics  between Puerto

                               -33-

Rico and the  mainland United States  involving large amounts  of

contraband.  See P rez,  at *4 (describing San Juan,  Puerto Rico                                

as "a  location known to  [Organized Crime  and Drug  Enforcement

Task  Force] agents to be an active departure point for narcotics

smuggling activities into New York").  Yet, we are unaware of any

case  in   which  the  government   has  in  fact   charged  that

transporting the contraband from Puerto Rico  to the mainland (or

vice versa) constituted an importation violation under   952(a).

          Nor  is  the possibility  of  such  forbearance by  the

government  from  prosecuting  such  cases  in  the  future  very

reassuring.  Cf. Donovan v. United States,  114 S. Ct. 873 (1994)                                                   

(in  light of Ratzlaf  v. United States,  114 S. Ct.  655 (1994),                                                 

vacating and remanding  First Circuit case  that tried to  uphold

the  prosecution of  defendant pursuant  to the  money laundering

statute even though defendant's structuring was merely an attempt

to  hide money from his  wife in a  divorce proceeding), vacating                                                                           

United States v. Aversa, 984 F.2d 493 (1st Cir.  1993).  Although                                 

prosecutors should perhaps  not be faulted for  seeking to expand

the  limits  of the  law, courts  cannot  allow themselves  to be

caught up  in this  euphoria.   Rather,  they are  duty bound  to

contain   the  government   within  established   limits.     The

government's  actions in not prosecuting such cases up to now are

powerful evidence that Congress did not intend the interpretation

now promoted by the  government.  Such lengthy non-action  should

not be glibly overlooked.

                               -34-

          The government also claims  that the interpretation set

forth  here would  inordinately burden  prosecutors by  adding to

their burden the obligation of identifying and proving  the point

of  origin of  drugs in  smuggling operations.   However,  when a

drug-laden ship coming from  an unknown point of origin  is shown

to have traversed international waters and brought drugs into the

United  States,   a  jury  could  presume,   without  more,  that

importation from a place outside the United States has occurred -

- although the precise place from which the drugs emanated is not

established.   Cf.  Turner v.  United States,  396 U.S.  398, 416                                                      

(1970) (approving statutory permissive inference that a person in

possession  of heroin  is  in knowing  possession of  an imported

narcotic  because  of  the  "high probability"  that  the  heroin

originated in a foreign country); see also Ulster County Court v.                                                                        

Allen, 442 U.S. 140,  156-57 (1979); Leary v. United  States, 395                                                                      

U.S. 6,  46-47 (1969).  In  other words, the government  can make

out  a prima facie case of  importation, within the meaning of 21

U.S.C.   952(a),  merely by  showing that a  ship carrying  drugs

from  parts  unknown  has  cruised  international  waters  before

entering the  United States.   Similar inferences would  apply to

the case of drugs off-loaded into this country from a mother ship

located within international waters.  We therefore hold only that

a  defendant can  defeat an  importation charge  by demonstrating

affirmatively by  competent evidence that the drugs came into the

United States directly from another place that is also within the

United States.   That is the case  before us.  The  charge in the                                                                    

                               -35-

present  case,  and  the  undisputed evidence  presented  by  the                                                       

government is that the drugs were picked up in Mona Island (i.e.,                                                                          

domestic U.S. territory) and brought to another place within U.S.

domestic  territory.  The government never made out a prima facie

case that the drugs came from  a place outside the United States,                                                        

as the statutory language requires.

                            CONCLUSION                                      CONCLUSION

          We affirm  defendants'  convictions on  the  possession

counts.   We  also  remand the  issues  surrounding the  firearms

convictions  to the  original  panel for  further proceedings  in

light of this opinion.

          This  en  banc  decision  determines, as  a  matter  of                                  

statutory interpretation, that  the importation statute  does not

apply to  the shipment in this  case from one part  of the United

States and  its customs territory  (Mona Island, Puerto  Rico) to

another (the  main island of Puerto  Rico).  We thus  reverse the

importation convictions of all three defendants.

          Accordingly, the  judgment  of the  district  court  is

affirmed in part, remanded in part, and reversed in part.                                                                  

                               -36-

          CYR,  Circuit Judge  (concurring).   I  agree that  the                    CYR,  Circuit Judge  (concurring).                                       

importation  convictions must  be vacated,  as ably  explained in

Section  III.A of Chief Judge Torruella's opinion for the en banc                                                                           

court.  I  write separately  because I believe  that neither  the

majority opinion  nor the dissent succeeds  in demonstrating that

the opposing result is absurd.  Whichever result Congress clearly

chose to  require could not have  been rejected by  the courts as

absurd.   Moreover, in  my view the  interpretation given section

952  by  the en  banc court  reflects  greater allegiance  to the                               

ordinary meaning of the statutory language Congress did use.

                                             "Dissenting" follows

                               -37-

          BOUDIN,  Circuit  Judge,  with whom  SELYA  and  LYNCH,                    BOUDIN,  Circuit  Judge,  with whom  SELYA  and  LYNCH,                                           

Circuit Judges, join, dissenting.  Dr. Johnson once remarked that          Circuit Judges, join, dissenting                        

a man may  have a reason why 2 plus 2  equals 5 but it will still

equal  but 4.  The majority has  an endless supply of reasons why

the  statute does  not mean  what it  says.   But the  majority's

opinion defies  the plain language of the statute; it contradicts

uniform rulings in  three other circuits;  and it undermines  the

purpose and administration of  the drug laws.  In  the majority's

effort, scarcely a major canon of construction escapes damage.

          The evidence showed  that the  defendants collected  16

kilograms of cocaine hidden  on Mona Island, an island  under the

jurisdiction  of  Puerto  Rico  but  physically  separated   from

mainland Puerto Rico by about 39 miles of water.   Assuming a 12-

mile  limit for  U.S. territorial  waters, at  least 15  miles of

international waters  separate Mona  Island from  mainland Puerto

Rico.  Any ship traveling between Mona Island and mainland Puerto

Rico is  unquestionably  outside the  United  States for  a  good

portion of the trip.

          In this case, the origin of the cocaine is unknown; but

the ship's captain  reported that it  was part of a  larger cache

hidden on  Mona Island.   In  all likelihood,  Mona  Island is  a

transhipment  point.   Being  subject to  less surveillance  than

mainland Puerto Rico, drugs can be brought to Mona Island in bulk

from foreign origins and  then smuggled in smaller quantities  to

the  Puerto  Rico mainland  and  then to  the  continental United

States.   In all events, the defendants were arrested after their

                               -38-

small  boat crossed  from international  waters into  U.S. waters

surrounding Puerto Rico.

          The  defendants  were  convicted  of  various  offenses

including violation  of 21  U.S.C.    952(a) which prohibits  the

importation of specified drugs into  the United States.   Neither

at  trial nor  on  appeal did  the  defendants argue  that  their

conduct  fell  outside section  952;  but at  oral  argument, the

parties  were  directed  by  the  original  panel  to  brief  the

statutory issue.  Subsequently,  the panel by a 2-to-1  vote held

that section 952 did not reach the defendants' conduct.

          The panel majority's decision conflicted with a host of

decisions  in  the  Fifth,  Ninth  and  Eleventh  Circuits.   Not

surprisingly,  the full court voted  to rehear the  case en banc.

What is surprising is that,  by a 4-to-3 vote, the en  banc court

has  now concluded  that  section  952  does  not  apply  to  the

defendants'  conduct in  bringing  16 kilograms  of cocaine  from

international waters  to mainland  Puerto Rico.   This result  is

wrong, and it does not take a treatise to show why.

          1.  "The starting  point in statutory interpretation is

'the language [of the statute] itself.'"  United States v. James,                                                                          

478  U.S.  597, 604  (1986).    Section 952(a)  says  that it  is

unlawful "to import [specified drugs] into the United States from

any place outside thereof . .  . ."  "Import" is given a  special                                                                           

definition  for the illegal drugs  subchapter:  it  is defined to

mean  "any bringing in or  introduction of such  article into any

area .  . .  ."  21  U.S.C.   951(b).   The  prohibited area--the

                               -39-

United  States--is  defined  to  mean  "all  places  and  waters,

continental or insular, subject to the jurisdiction of the United

States."  21 U.S.C.   802(28).

          In  this case, the  defendants brought prohibited drugs

from international waters between Mona Island and mainland Puerto

Rico to  within a mile or  so of the mainland  coastline, a point

that is unquestionably within the United States.  The drugs were,

therefore, brought  or introduced  "into the United  States" from

"any place outside thereof," namely, international waters--unless

"any place"  has to  be  a land  area or  unless  "import" has  a

specialized meaning  excluding  drugs first  acquired within  the

United States.

          The   phrase  "any  place  outside  thereof"  assuredly

includes international waters.  See, United States v. Goggin, 853                                                                      

F.2d 843, 845 (11th Cir. 1988).   If drugs were manufactured on a

ship at  sea or found floating  on a raft, and  were then brought

into  shore by  motorboat, that  would be  an importation  from a

place outside the  United States.  The  juxtaposition of "places"

and "waters" in section 802(28) was almost surely a precautionary

redundancy.  Adding  "waters" to "places" avoids  the chance that

anyone might mistakenly read "places" to mean only dry land.

          The majority  does not  deny that  international waters

may be  a  "place" under  the  statute:   it  assumes that  drugs

acquired from a mother  ship at sea might  be imported under  the

statute;  but it says that in this case defendants first acquired

the  drugs within the United  States, i.e., on  Mona Island.  But                                                    

                               -40-

the  statute  says  nothing  about  where  the  defendants  first

acquired their drugs.  Indeed, drugs "acquired" by a defendant in

the United States but  carried abroad can later be  illegally re-

imported.   E.g., United States v. Friedman, 501 F.2d 1352, 1353-                                                     

54  (9th  Cir.),  cert.  denied, 419  U.S.  1054  (1974) (transit                                         

through Mexico).

          As for the term "import," absent a statutory definition

the common  connotation of foreign-country origin  might prevail.

But courts are  bound, Coluatti  v. Franklin, 439  U.S. 379,  392                                                      

n.10  (1979),  by  Congress'  special   definition  of  "import,"                                               

incorporated  into  section  952  by  section   951(b),  defining

"import" in  relation to destination,  not origin.   E.g., United                                                                           

States v. Peabody,  626 F.2d  1300, 1301 (5th  Cir. 1980).   This                           

definition  applies  "whether  or  not  such  a  bringing  in  or

introduction constitutes an importation within the meaning of the

tariff laws of the United States."  21 U.S.C.   951(a)(1).

          In a further  language argument, the majority  suggests

that its reading of section  952 is supported by a  comparison of

subsection (a)'s  two clauses.  The main  clause, barring imports

"into the United  States," is the core  provision whose substance

can be  traced back to 1909.   The other clause--added  in a 1970

recodification  of drug  laws--covers imports  into U.S.  customs

territory (the states, the District of Columbia  and Puerto Rico)

from any U.S.  possession.   The majority contends  that, on  the

government's reading  of the  main clause, the  customs territory

clause is superfluous and has no independent effect.

                               -41-

          The origin and purpose  of the customs territory clause

are remarkably obscure  (it appeared only in  certain House bills

and was  nowhere  explained).   But  it  is fair  to  think  that

smuggling from some U.S.  possessions to the states had  become a

problem  and  Congress  therefore  included  language  that would

unquestionably cover such shipments.  At the time Congress had no

knowledge of  precisely how the main clause would be read, and it

certainly  had no  interest in  narrowing the  scope of  the main

clause by implication.

          In any event, the customs clause is neither superfluous

nor without substantial independent application.   It is far from

clear whether carrying drugs  aboard a scheduled non-stop airline

flight  between  two   U.S.  points  could  ever  be  treated  as

importation under  the main  clause; a defendant  would certainly

argue that for all practical purposes, drugs on such a flight are

never  outside the  country.    Yet such  a  flight  from a  U.S.

possession  to  U.S. customs  territory,  say  from  Guam to  Los

Angeles  or from  the  U.S. Virgin  Islands  to San  Juan,  could

readily be  prosecuted under the customs territory  clause.  That

geographic   content  to   the  customs  clause   eliminates  the

majority's superfluousness argument.

          It is not  the government's position,  but that of  the

majority,  that ruptures  the superfluousness  canon.   Under the

special  definition  of   import  in  section  951(b),   Congress

envisaged a kind of transparent curtain  around the boundaries of

the United States, and bringing drugs through that curtain is the

                               -42-

crime.    The  majority  has effectively  repealed  and  rendered

meaningless Congress' specialized definition, replacing it with a

vernacular  definition  of  import  that  requires  no  statutory

definition at all.

          2.   The precedents  from other circuits,  reflecting a

previously  uniform application  of  the statute,  all treat  the                                                                

introduction of  drugs from international waters or international

airspace as a  violation of the import statute.15   This has been

the consistent position  of the Fifth Circuit,  the Ninth Circuit

and  the Eleventh  Circuit,  the  three  circuits whose  area  of

jurisdiction includes the  entire Pacific and Gulf  coasts of the

United  States.    Until this  case,  no  circuit  has taken  the                                                  

contrary view.

          For  example,  in affirming  a  conviction  based on  a

shipment  intercepted in  Florida  waters, the  Fifth Circuit  in

Peabody stated:                 

          Had their cargo or contraband  originated in,
          say,  Texas, that  would not  alter  the fact
          that  it  was  meant  to  reenter the  United
          States  from international  waters.   That is
          enough.

626 F.2d at 1301.   In Goggin, the Eleventh Circuit said  that it                                       

was  importation   to  bring  cocaine  "into   the  country  from

international  waters  or  from  airspace  in  excess  of  twelve
                                                  

15  See United States v. Peabody, 626 F.2d 1300  (5th Cir. 1980);                                          
United  States v. Phillips, 664  F.2d 971, 1033  (5th Cir. 1981),                                    
cert. denied, 457 U.S.  1136 (1982); United States v.  P rez, 776                                                                      
F.2d  797 (9th  Cir.  1985);  People  of  Territory  of  Guam  v.                                                                       
Sugiyama,  846 F.2d 570, 572  (9th Cir. 1988),  cert. denied, 490                                                                      
U.S. 1010 (1989); United States v. Lueck, 678 F.2d 895 (11th Cir.                                                  
1982); United States v. Goggin, 853 F.2d 843 (11th Cir. 1988).                                        

                               -43-

geographical  miles outward from the coast."  Goggin, 843 F.2d at                                                              

845.  The Ninth Circuit in P rez likewise deemed "transit through                                          

international  waters" a basis for importation.  776 F.2d at 800-

01.

          Moreover, as the quote from Peabody shows, the circuits                                                       

treat the U.S. origin of the drugs as no defense if the drugs are

removed from the United States and then reintroduced.  Similarly,

in United  States v. Doyal, 437  F.2d 271, 275, (5th  Cir. 1971),                                    

involving a predecessor to section 952, the court flatly rejected

the defense  that the  re-imported  drugs had  originated in  the

United States, saying:   "[e]ach time the drug was  imported into

the United States a  violation would occur."  See  also Friedman,                                                                          

501 F.2d at 1354.

          Cases  like Peabody  and Doyal  also underline  a major                                                  

fallacy  in  the  majority's   opinion,  namely,  the  majority's

assumption that a drug  shipment can only come from  one "place."

It  is evident  that the  defendants in  this case  possessed the

drugs  both  on Mona  Island  and,  thereafter, in  international                     

waters.  But it was from international waters that the defendants

finally "[brought] in or  introduc[ed] . . . such  articles into"

the United States, 21 U.S.C.   951(b); and reimportation is not a

defense to drug smuggling.

          The present decision actually contradicts  precedent in

a fourth  circuit as well:   In United States v.  Nueva, 979 F.2d                                                                 

880  (1st Cir. 1992),  cert. denied, 113 S.  Ct. 1615 (1993), the                                             

defendants, located in a  boat in international waters, retrieved

                               -44-

packages of cocaine dropped from a plane.  This circuit in Nueva,                                                                          

quoting Goggin,  ruled that "importation" into  the United States                        

under section 952 "requires  proof that the 'defendant [conspired

to  bring] cocaine into the  country from international waters or

airspace in excess of twelve geographical miles  outward from the

coastline.'"  Id. at 884.                           

          The majority's answer to all of these cases is that the

decisions of other circuits are ill-reasoned, or that their plain

language--adverse to the dissent--was  unnecessary, or both.  But

none  of  the many  different  judges who  participated  in these

decisions apparently  thought the statute  should be read  as the

majority reads it.   As of today, a  major criminal statute means

one  thing in  the 15  states of  the Fifth,  Ninth  and Eleventh

Circuits; and it means  something eccentrically different in four

Northeastern states and Puerto Rico.

          This parade  of appellate cases from  other circuits is

surely  only a  sample of  similar prosecutions  and convictions;

there must  certainly be  others where,  as here,  the defendants

were convicted for importing  drugs from international waters and

then did not choose to  dispute the import charge on appeal.   By

themselves,  the  authorities  from  three  circuits  refute  the

majority's claim that  the government's reading of the statute is

newly minted or  at odds  with enforcement practices.   The  only

novelty in this case is the majority's decision.

          3.  A final test of statutory meaning is the underlying

purpose of the statute.   Borella v. Borden Co., 145 F.2d  63, 64                                                         

                               -45-

(2d Cir. 1944) (L. Hand), aff'd, 325 U.S. 679 (1945).   Congress'                                         

interest in protecting U.S. borders echoes through the history of                                             

the  statute.   In  proposing  the  legislation, the  President's

special message said that the import provisions were intended "to

intercept [drugs] at their point of illegal entry into the United

States," and  there are  numerous  references--by the  President,

from law enforcement witnesses,  and by legislators--to  guarding

the nation's "borders" against drugs.16

          The legislators had no reason  to care one whit whether

the  drugs were  brought  from  international  waters or  from  a

foreign land, so long as they crossed the U.S. boundary.  Indeed,

Congress' indifference to origins  is reflected three times over:

in  its  expressed purpose  to  protect  our  "borders,"  in  the

expansive phrase  "from  any place  outside  thereof," and  in  a

companion  statute  making  it  unlawful for  anyone  to  possess

prohibited  drugs  on board  a  vessel "arriving"  in  the United

States unless  manifested  as cargo  or  official supplies.    21

U.S.C.   955.

          It  was irrelevant  to  Congress' purpose  whether  the

drugs were originally produced within the United States, as might

matter under  a tariff statute  designed to protect  U.S. markets
                                                  

16  1969 Public Papers of the Presidents of the United States 513                                                                       
(Presidential  message);  Hearings  on  Legislation  to  Regulate                                                                           
Controlled Dangerous Substances and Amend Narcotics and Drug Laws                                                                           
Before the House Ways  and Means Committee, 91st Cong.,  2d Sess.                                                    
205  (1970) (statement of the Director of the Bureau of Narcotics
and  Dangerous Drugs);  id. at  322 (statement  of Representative                                     
Pepper).

                               -46-

from  foreign competition  and  to  favor  local producers.    In

enacting section 952, Congress was using the border crossing as a

convenient  jurisdictional  hook on  which to  catch traffickers.

See Peabody,  626 F.2d at  1301.  Thus,  the statute is  violated                     

where drugs are produced  within the United States, carried  to a

foreign country  and then reintroduced into this country.  Accord                                                                           

Friedman,  501  F.2d  at 1353-54;  cf.  Hearings,  supra, at  205                                                                  

(reintroduction of drugs after export).

          In   smuggling   operations   a  boat   arriving   from

international  waters,  or  a  small   plane  from  international

airspace, often comes  from an unknown point  of origin.  If  one

added  to the government's burden of proof the obligation to show

the point of origin, time would be spent by courts and parties on

an issue wholly irrelevant to Congress' concern to exclude drugs.

In many cases, the  government would win; in some  it might lose.

Such proof serves no  purpose except to waste time,  squander law

enforcement and judicial resources, and  cause occasional erratic

acquittals of drug importers.

          To suggest  that Congress  could not have  intended the

statute  to apply,  the majority  summons up  visions of  federal

agents  arresting day  sailors or  airline  passengers transiting

from one U.S. point to another with a few joints  of marijuana on

board.   But such dubious  results are not  avoided by distorting

the statute: a  day hiker with a few joints  who strayed over the

border  to Canada  and then back  again or  a tourist  with a few

                               -47-

joints returning from London  by plane would be importing  by any

definition.

          More to the point, there is no record  of prosecutorial

abuse of section 952.  Indeed, the majority twists this fact into

a claim that the government's interpretation must  therefore be a

radical  change in  position, but  the majority has  confused two

different points.  The  government has not abused the  statute by

applying  it  to trivial  amounts for  personal  use; but  it has

applied it  to major  drug shipments arriving  from international

waters  or international air space.   As the  precedents show, it

has been upheld in every reported case.

          The courts  are capable of warding  off unjust results,

if and when they arise.  E.g., United States v.  Aversa, 984 F.2d                                                                 

493 (1st  Cir. 1993), vacated, 114  S. Ct. 873 (1994).   But such                                       

surgery is properly done  with a scalpel rather than  an axe, and

there  is no  cause for any  surgery here.     In this  case, the                                                                

defendants  were not day sailors or tourists; they were importing

16 kilograms of cocaine into Puerto Rico after a substantial trip

through  international waters.    They fall  squarely within  the

purpose, as well as the plain language, of section 952.  The rule

of lenity has nothing to do with such a case.

          To  conclude:   The majority  opinion is  not  short of

"reasons" for  its  result; after  many  pages of  argument,  one

emerges  half-dazed  from the  labyrinth  of  explanations.   But

nothing the majority  says can  overcome a single  phrase in  the

statute--section 951(b)'s definition of "import" as "any bringing

                               -48-

in  or introduction" of  drugs into the  United States.   That is

what  the defendants  did in  this case,  and that  is  why their

convictions under section 952 should be affirmed.

                               -49-
