             United States Court of Appeals
                         For the First Circuit


  Nos. 01-1869, 01-1870, 01-1871
       01-1872, 01-1881, 01-1882
       01-1883, 01-1884

                             UNITED STATES,

                                Appellee,

                                    v.

RAÚL MULERO-JOUBERT, IVÁN SOBRADO-SIERRA, CARLOS R. AGUIRRE-FLORES,
  ANGEL CARMONA-TAPIA, JOSÉ MOLINA-ENCARNACIÓN, JUAN SANTOS-CENTENO,
  CARLOS SANTIAGO-RIVERA, AND ANGEL LUIS CLASS-ALVARADO,

                        Defendants, Appellants.


           APPEALS FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF PUERTO RICO

         [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                                  Before

                          Selya, Circuit Judge,
                     Stahl, Senior Circuit Judge,
                       and Lynch, Circuit Judge.



        Julie Ann Soderlund, with whom Guillermo Ramos-Luiña and Enrique
  Colon Santana, were on brief, for appellants.
        Michael Hughes, Special Assistant United States Attorney, with
  whom Stella J. Song, Special Assistant United States Attorney, Jorge E.
  Vega-Pacheco, Assistant United States Attorney, and Guillermo Gil,
  United States Attorney, were on brief, for appellee.
                             May 8, 2002


          STAHL, Senior Circuit Judge. Defendants-appellants challenge

the district court's finding of guilt against them in one-count

informations for trespassing on a military installation in violation of

18 U.S.C. § 1382. We reverse their convictions because the government

did not prove an essential element of its case.

                            I. BACKGROUND

          Appellants were arrested by Navy officials on April 27, 2001,

on Cayo Yayí, also known as Fisherman's Island, a small island about 75

feet off the shore of the live impact area1 of the Camp García Naval

Installation, which is located on the island of Vieques, Puerto Rico.

On April 30, 2001, the government filed a one-count information against

each of the appellants, charging them with entering, "knowingly and

unlawfully," upon Camp García, "for any purpose prohibited by law or

lawful regulation, that is, 32 C.F.R. Section 770.35 through 770.40,2

without first having obtained permission from the Commanding Officer as

required by the aforesaid regulations," in violation of 18 U.S.C. §



     1
     The live impact area is a part of Camp García that receives
bombs and ordnance in the course of military target practice.
     2
     Sections 770.35 through 770.40 of Title 32 of the Code of
Federal Regulations set up entry restrictions and entry
procedures for enumerated naval installations and properties in
Puerto Rico, including Camp García.

                                 -2-
1382. Section 1382 reads in relevant part as follows: "Whoever, within

the jurisdiction of the United States, goes upon any military, naval,

or Coast Guard reservation, post, fort, arsenal, yard, station, or

installation, for any purpose prohibited by law or lawful regulation .

. . [s]hall be fined under this title or imprisoned not more than six

months, or both."       18 U.S.C. § 1382.

              A bench trial was held on June 5, 2001. During the trial

testimony -- and at oral argument before us -- the government conceded

that Fisherman's Island was not United States property, despite its

proximity to Camp García. At trial, however, the government introduced

as evidence maps reflecting a "danger zone," established by 33 C.F.R.

§ 334.1470, which included the island within its boundaries. A danger

zone is "[a] defined water area         . . . used for target practice,

bombing, rocket firing or other especially hazardous operations,

normally for the armed forces," and "may be closed to the public on a

full-time or intermittent basis, as stated in the regulations." Id. §

334.2(a).      The regulation creating the danger zone that includes

Fisherman's Island specifies that "[i]t will be open to navigation at

all   times    except   when   firing   is   being   conducted."   Id.   §

334.1470(b)(1).

              The government also introduced evidence that, on the day of

the arrests, Fisherman's Island was in a temporary "security zone,"

established by 66 F.R. 22,121 (published May 3, 2001), effective from


                                    -3-
3 p.m., April 26, 2001 until 11:59 p.m., April 30, 2001. "A security

zone is an area of land, water, or land and water which is so

designated by the Captain of the Port or District Commander for such

time as necessary to prevent damage or injury to any vessel or

waterfront facility, to safeguard ports, harbors, territories, or

waters of the United States or to secure the observance of the rights

and obligations of the United States." 33 C.F.R. § 165.30(a). The

regulations provide that "[n]o person or vessel may enter or remain in

a security zone without permission of the Captain of the Port." Id. §

165.33(a). At trial appellants noted that 66 F.R. 22,121, although

dated April 26, 2001, a day before their arrests, was published on May

3, 2001.

           At the close of the prosecution's case, appellants raised a

motion for judgment of acquittal under Rule 29 of the Federal Rules of

Criminal Procedure, stating that the government had failed to present

evidence of certain necessary elements of the offense as charged in the

informations filed against them. Appellants argued in particular that

the informations charged them with violation of 18 U.S.C. § 1382, for

entering Camp García without authorization, but that the evidence

presented only proved that they were on Fisherman's Island, not Camp

García, at the time of their arrests. The court denied the Rule 29

motion and, after the defense rested without presenting any evidence,




                                 -4-
proceeded to find the appellants guilty of trespass in violation of 18

U.S.C. § 1382.    Thereafter, timely appeals were filed.

          Before us, appellants essentially raise three arguments. The

first is that Fisherman's Island was not part of a danger zone and/or

security zone that was duly activated and in effect on April 27, 2001

and that the government therefore did not prove that it exerted control

over Fisherman's Island sufficient to convict appellants of entering a

naval installation, as section 1382 requires. Second, appellants argue

that they did not have notice of the offense charged and therefore

similarly could not be convicted under section 1382.      Their third

argument posits that, to the extent that the government has not been

able to show that the United States exerted control over Fisherman's

Island, the district court erred in denying appellants' Rule 29 motion,

where the prosecution failed to prove any of the elements of the

offense charged in the informations.

          "We review the district court's construction of a federal

statute de novo." United States v. Maxwell, 254 F.3d 21, 24 (1st Cir.

2001). On the record before us, we find that the government failed to

prove that appellants had actual or constructive notice that

Fisherman's Island was closed to public use on April 27, 2001, and that

the district court therefore erred in holding that their presence

violated section 1382. We accordingly reverse. Because we find that

lack of notice in this case is sufficient to reverse appellants'


                                 -5-
convictions, we reach the other issues raised by appellants only to the

extent they are necessary to set the groundwork for our holding on

notice.

                            II. ANALYSIS

          A conviction under 18 U.S.C. § 1382 "requires only that the

government demonstrate either a possessory interest in, or occupation

or control of, the area reserved by the military," and not actual

government ownership of the area in question.        United States v.

Ventura-Meléndez, 275 F.3d 9, 17 (1st Cir. 2001).

          It is now well-established under our case law that the

existence of a duly promulgated danger zone, encompassing the area in

question, is sufficient to show occupation and control of the area by

the government. See United States v. Ayala Ayala, Nos. 01-2148, 01-

2150, 01-2151, 01-2152, 2002 WL 723876, at *3-4 (1st Cir. Apr. 29,

2002); United States v. Zenón-Rodríguez, Nos. 02-1207, 02-1208, 2002 WL

729216, at *2-3 (1st Cir. Apr. 29, 2002); Ventura-Meléndez, 275 F.3d at

17. It is uncontested here that Fisherman's Island was included in the

danger zone defined in 33 C.F.R. § 334.1470, and we therefore find

that, on April 27, 2001, appellants "within the jurisdiction of the

United States, [went] upon [a] . . . naval . . . installation," within

the meaning of 18 U.S.C. § 1382.

          The government further argues that 33 F.R. 22,121, the

previously mentioned regulation establishing a temporary security zone


                                 -6-
that incorporated Fisherman's Island and was in effect from 3 p.m.,

April 26, 2001 until 11:59 p.m., April 30, 2001, provided an additional

and independent ground for finding that the government exerted control

over the island during the dates in question.    See United States v.

Allen, 924 F.2d 29, 31 (2d Cir. 1991) (holding that the designation of

a security zone is sufficient evidence that the Navy "occupied and

controlled" the waters in question). In making this argument, the

government concedes that 33 F.R. 22,121 was published on May 3, 2001,

after the date on which appellants allegedly trespassed on Fisherman's

Island, but contends that the regulation was nevertheless duly

promulgated because it was exempt

from notice and comment rulemaking and advance publication, see 5

U.S.C. § 553, under the military and/or good cause exceptions of 5

U.S.C. § 553 (a)(1), (b)(B) and (d)(3).3 Without resolving the question


     3Section 553 reads in relevant part as follows:

     (a) This section applies, according to the provisions
     thereof, except to the extent that there is involved
     --
          (1)a military or foreign affairs function of
          the United States
     . . . .
     (b) General notice of proposed rule making shall be
     published in the Federal Register . . .
     Except when notice or hearing is required by statute,
     this subsection does not apply --
     . . .
          (B) when the agency for good cause finds . .
          . that notice and public procedure thereon
          are impracticable, unnecessary, or contrary
          to the public interest.

                                 -7-
of whether the security zone in this case was properly promulgated --

or the question of whether it was sufficient here to prove occupation

and control by the Navy of Fisherman's Island -- we assume, arguendo,

that the security zone provided an additional way in which appellants

"within the jurisdiction of the United States, [went] upon [a] . . .

naval . . . installation," on April 27, 2001, within the meaning of 18

U.S.C. § 1382.   We move on to the question of notice.4


     (c) After notice required by this section, the agency
     shall give interested persons an opportunity to
     participate in the rule making through submission of
     written data, views, or arguments with or without
     opportunity for oral presentation. . . .
     (d) The required publication or service of a
     substantive rule shall be made not less than 30 days
     before its effective date, except --
     . . .
          (3) as otherwise provided by the agency for
          good cause found and published with the
          rule.
     . . .
     4The government has additionally argued that Fisherman's
Island was closed to the public continuously, regardless of
whether there was live firing or a temporary security zone. At
trial, three Navy personnel testified variously that the Navy
regularly patrolled and observed Fisherman's Island, that all
the offshore islands in close proximity to Camp García were
considered under the control of the U.S. Navy, and that the only
authorized access to Fisherman's Island was through Camp García.
(Appellants have argued in response that Fisherman's Island was
used by the public for fishing and recreation, although we do
not see evidence of this use in the record.)         We find that,
regardless of what the Navy's usual practice as to patrolling
Fisherman's Island or authorizing entry to the island may be,
the government cannot claim that the island was closed to the
public continuously, when it was undeniably within a danger zone
that is "open to navigation at all times except when firing is being
conducted." 33 C.F.R. § 334.1470 (discussed further in section A ,

                                 -8-
A. Constructive Notice

          In order to establish a violation of section 1382, we must

also find that appellants entered the naval installation "for any

purpose prohibited by law or lawful regulation." 18 U.S.C. § 1382.

"The requisite prohibited 'purpose' under section 1382 can consist of

unauthorized entry itself. . . . On the other hand, when a section

1382 prosecution proceeds on the basis that the defendant has entered

a restricted military reservation 'for the purpose of' unauthorized

entry, we think it must be shown that the defendant had knowledge or

notice that such entry was, in fact, prohibited." United States v.

Parrilla Bonilla, 648 F.2d 1373, 1377 (1st Cir. 1981).

          In this case, the regulation establishing the danger zone

states that the zone "will be open to navigation at all times except

when firing is being conducted." 33 C.F.R. § 334.1470. As we held in

Ayala Ayala -- which dealt with the same danger zone regulation we

analyze here -- "[t]o prove a violation of § 1382, then, the government

was required to demonstrate that notice was given that the danger zone

was closed to the public at the time of the arrests." Ayala Ayala, 2002

WL 723876, at *4.

          Alternatively, assuming again arguendo that the security zone

was duly promulgated and sufficient to establish control and

occupation, the government needed to establish that appellants had


infra).

                                 -9-
notice that a security zone was in effect on April 27, 2001, in order

for us to conclude that appellants were on Fisherman's Island "for the

purpose of unauthorized entry" in violation of section 1382.

          The government here has not met the burden of showing that

the defendants had actual or constructive notice that entry was

prohibited, notice that could have been provided by prior notice of the

live firing or of the designation of the security zone.       In Ayala

Ayala, the record contained references to a "fishermen's notice,"

warning of upcoming military exercises within the danger zone and

distributed around Vieques a week in advance, and to radio broadcasts

over marine band radio alerting to the establishment of a temporary

security zone (and thus also to firing within the danger zone). Ayala

Ayala, 2002 WL 723876, at *5.    In contrast, we find nothing in the

record of the case before us that establishes notice that live firing

would be conducted in the danger zone on April 27, 2001.5 See also

Zenón-Rodríguez, 2002 WL 729216, at *4 (pointing to the existence of a

routine weekly fishermen's notice, in evidence, as proof of

constructive notice).        The government responds by contending that


     5We are aware that the date in question in Ayala Ayala,
April 28, 2001, is only one day after the day on which
appellants in this case allegedly trespassed on Fisherman's
Island.   Although we thus acknowledge that the fishermen's
notice and radio broadcasts discussed in Ayala Ayala more than
likely cover the date on which appellants were arrested, this
does not change the fact that the government, on the record in
this case, failed to show that appellants had notice that their
entry upon Fisherman's Island was prohibited.

                                 -10-
33 F.R. 22,121, which established the temporary security zone, was

sufficient to establish constructive notice, both as to live firing in

the danger zone and as to the designation of the temporary security

zone. The government's position is flawed. Even assuming again, as we

have supra, that the regulation was legally promulgated, we cannot find

that it provided notice as to the fact that Fisherman's Island was

closed to the public on April 27. The regulation itself, published

only on May 3, could have alerted the appellants neither to the fact

that the danger zone was closed due to live firing on April 27 nor to

the fact that a temporary security zone was in effect on April 27.

Even if advance publication was not required to legally designate the

security zone, we cannot accept that a post-dated regulation can

provide constructive notice of its existence, particularly when other

options for providing notice exist. See e.g., Ayala Ayala, 2002 WL

723876, at *5 (discussing radio broadcasts over marine band radio

announcing the designation of a security zone). The government has the

burden here of showing that, at the time of their entry on to

Fisherman's Island, appellants understood or should have understood

that their presence on Fisherman's Island was prohibited. It defies

common sense to say that the government can prove such notice by

pointing to a regulation published after the fact.6


     6
     In so holding, we are fully aware of our precedent stating
that "section 1382's knowledge or notice requirement may be
satisfied by the publication of a regulation specifically

                                 -11-
B. Actual Notice

          Having failed to establish constructive notice, in a last-

ditch effort, the government asks us to find that certain behavior and

language by the appellants at the time of their arrest proves that they

had actual knowledge that Fisherman's Island was closed to the public

on April 27. In particular, the government points to the fact that the

appellants chanted "Vieques, si, marina, no"7 when they were picked up

by Navy personnel. Whatever appellants' words may convey as to their

purpose for being on Fisherman's Island, we cannot take their chant as

proving that appellants had notice or knowledge that the island was

closed to the public on April 27, 2001.

          We hence hold that the government has not met its burden of

showing, on the record in this case, that appellants had actual or

constructive notice that their presence on Fisherman's Island was

prohibited by law on the date of their arrests.




forbidding unauthorized entry."     Maxwell, 254 F.3d at 25
(internal quotations omitted).   In Maxwell, the regulations
found to provide notice, 32 C.F.R. §§ 770.35-770.40, were duly
promulgated, published, and in effect indefinitely at the time
of the trespass.    Maxwell thus did not anticipate the due
process questions that arise if a post-dated rule establishing
a temporary restriction on entry is held forth as providing
notice of the prohibited act.
     7This is translated as "Vieques, yes, Navy, no."

                                 -12-
                       III. CONCLUSION

         For the foregoing reasons, the district court erred in

convicting appellants under 18 U.S.C. § 1382.

         Reversed.




                             -13-
