
USCA1 Opinion

	




          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-
