United States Court of Appeals

For the First Circuit

No. 02-1140

UNITED STATES OF AMERICA,

Appellee,

v.

HECTOR VENTURA-MELENDEZ,

Defendant, Appellant.

No. 02-1141

UNITED STATES OF AMERICA,

Appellee,

v.

ANGEL VENTURA-MELENDEZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.
Linda A. Backiel for appellants.

Stacy J. Pintar, Special Assistant U.S. Attorney, with whom

H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabon,

Assistant United States Attorney, were on brief for appellee.

February 25, 2003
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COFFIN, Senior Circuit Judge. The defendants appeal their

convictions for entering a temporarily off-limits military area in

the ocean waters adjacent to Camp Garcia, on the island of Vieques,

Puerto Rico, in violation of 18 U.S.C. § 1382. Because a lawful

regulation barring entry existed and the defendants had actual

notice of it, we affirm the convictions.

I. Background

The record reflects that on April 28, 2001, brothers Hector

and Angel Ventura-Melendez, the defendants, left the Esperanza

harbor in Puerto Rico in a small fishing boat at approximately

10:00 a.m. with eight to ten other small boats headed in the

direction of the nearby Navy firing range in the waters adjacent to

Camp Garcia. The defendants were fishermen whose family

traditionally fished in those waters.

The Coast Guard cutter VASHON, patrolling the area to enforce

a temporary security zone, observed the fleet of small boats

heading toward the prohibited area. The regulation creating the

temporary security zone, although signed and dated April 26, 2001,

was not published until May 3, 2001. Thus, the publication

provided only retrospective notice of the zone's creation from

April 26 through April 30 for a bombing and gunnery range. 66 Fed.

Reg. 22,121 (May 3, 2001). The regulation prohibited vessels and

people from entering the zone unless specifically authorized to do

so. Id.
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The Coast Guard announced the security zone over VHF radio on

the morning of the defendants' apprehension, although the

defendants' boat was not equipped with a VHF radio and they were

unlikely to have heard the broadcasts. There is no indication in

the record whether the Coast Guard utilized other notification

procedures such as postings in public places or placement in local

newspapers.

Concerned that the flotilla of small boats was headed directly

into the zone, the Coast Guard dispatched a rigid hull inflatable

boat and four personnel to intercept the flotilla. The Coast

Guard's inflatable boat was bright orange and clearly marked "U.S.

Coast Guard." In addition, the Coast Guard personnel were wearing

coveralls with "U.S. Coast Guard" written on the front and back in

large lettering as well as life jackets marked "U.S. Coast Guard."

The lieutenant in charge, who remained on the VASHON, directed the

Coast Guard personnel on the small boat to ask the fishing boats to

turn around immediately and give them an opportunity to leave the

security zone.

As the Coast Guard boats approached the flotilla, the

Guardsmen attempted to stop the fishermen, yelling in Spanish,

waving their arms, and using hand signals. The Guardsmen hoped to

come alongside the small boats and explain that they were entering

a security zone. Members of the flotilla, however, refused to heed

the Coast Guard's warnings; the defendants in particular shook
1The district court explained that this Spanish term "is

considered foul language and is generally used to express disgust,

at times of surprise or anger." United States v. Ventura Melendez,

186 F. Supp.2d 55, 62 n.3 (D.P.R. 2001).

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their fists and shouted "carajo."1 The Coast Guard boat, along

with a Navy harbor security boat and a second inflatable boat

dispatched from another Coast Guard cutter, gave chase to the

fishing boats. 

When the Coast Guard personnel yelled, from a distance of

approximately twenty yards, "Security zone, stop your boat," the

defendants looked at them and sped further into the zone. Because

there were several boats from the flotilla then entering the

security area, the Coast Guard focused its efforts on intercepting

the slowest of the boats, which belonged to the defendants. The

Coast Guard gave chase and was eventually granted permission to

forcibly stop the defendants' boat within the security zone. 

Following a nonjury trial, the defendants' Rule 29 motions for

acquittal were denied and they were convicted of violating section

1382, prohibiting entry into "any military, naval, or Coast Guard

reservation, post, fort, arsenal, yard, station, or installation,

for any purpose prohibited by law or lawful regulation," and

sentenced. The defendants argue that a lawful regulation, required

by section 1382, did not exist, and, even if it did, it could not

be enforced against them because they had no notice of it. We

review the district court's interpretation of federal statutes de
2The defendants also suggest that the Coast Guard's failure to

publish the rule until after the security zone had expired violated

44 U.S.C. § 1505, part of the Federal Register Act. Because

section 1505 lists generally the types of information to be

published in the Federal Register, while the APA provides detailed

dictates for the creation of regulations, we focus our analysis on

the latter. 

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

2001) (citing United States v. Carroll, 105 F.3d 740, 744 (1st Cir.

1997)).

II. Whether a "Lawful Regulation" Existed

The defendants argue that a "lawful regulation" did not exist

at the time they were arrested because the rule establishing the

temporary security zone had not yet been published, assertedly in

violation of the Administrative Procedures Act (APA), 5 U.S.C. §§

500-596.2

Notice of a proposed rule, opportunity for public comment, and

publication of the final rule are central tenets of the rule making

process outlined by section 553 of the APA. See 5 U.S.C. § 553(b)

& (d). Nevertheless, rules involving a "military or foreign

affairs function" of the federal government are exempted. Id. §

553(a)(1). The defendants contend that creation of the rule here,

regardless of its purpose of setting aside an area for military

activity, was a civilian rather than a military function. They

reason, without citing authority, that a rule regulating civilians

fulfills a civilian, not a military, function. 
3This distinguishes the instant case from Independent Guard

Ass'n of Nevada v. O'Leary, 57 F.3d 766 (9th Cir. 1995), amended by

69 F.3d 1038 (9th Cir. 1995), in which a Department of Energy

personnel regulation governing civilian contracted guards was held

to fall outside the military function exception, the court

observing that it had found no authority applying the exception to

rules regulating civilian contractors. Id. at 770.

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Here, the rule created a temporary security zone comprised of

a combined area of ocean and land adjacent to a bombing range at a

military installation. A rule designed to render safe and feasible

the performance of a military function by preventing interference

on the part of civilians necessarily serves a military function as

well as a civilian one. Specifying a security zone seems to us no

less directly related to military action than identifying targets

or establishing the time for artillery exercises.3 Thus, the

proposed zone was well within the concept of military function.

The defendants also contend that even if the military function

exception saves the rule from having violated section 553, it

failed to hurdle the publication requirement of section 552, which

was not, they assert, subject to the exception. Because the rule

was not published until after its implementation, the defendants

contend that section 552 was violated.

Regardless of whether the military function exception applies

to section 552, however, there was no inconsistency with that

provision because it also provides a role for actual notice.

Section 552(a)(1) contemplates that actual notice may at times

supercede constructive notice through publication, explaining that
4We note that 33 C.F.R. § 165.7(a), regarding notification of

security and safety zones, includes "on-scene oral notice" as a

valid means of conveying notice to trespassers.

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"[e]xcept to the extent that a person has actual and timely notice

of the terms thereof, a person may not in any manner be required to

resort to, or be adversely affected by, a matter required to be

published in the Federal Register and not so published." See also

United States v. Mowat, 582 F.2d 1194, 1201 n.5 (9th Cir. 1978)

("By virtue of [section 552(a)(1)'s actual notice] provision,

regulations that are unpublished in violation of the [APA] are

unlawful only as against those who have no actual and timely

knowledge of their contents.").4

Because the rule's promulgation did not violate the APA, the

fact that the rule was not published until after the defendants'

arrest for violating the temporary security zone does not disabuse

the rule of its status as a "lawful regulation." 

III. Whether the Defendants had Actual Notice

The defendants next argue that even if the regulation was

valid, they had no notice of it, and therefore enforcing it against

them violated their due process rights as well as the Ex Post Facto

Clause of Article I, prohibiting the criminalization of innocent

actions after the fact. We do not reach the issue of whether the

defendants had constructive notice through VHF radio transmissions

since the government has not so alleged. The government instead

argues that the defendants had actual notice that their entry onto
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the zone was prohibited. See Maxwell, 254 F.3d at 24 (holding that

convictions under section 1382 require "knowledge or notice, actual

or constructive, that such entry was prohibited"); see also Nason

v. Kennebec County CETA, 646 F.2d 10, 19 (1st Cir. 1981) ("[E]ven

were publication called for, its absence would not invalidate an

otherwise proper rule where the party adversely affected had

'actual and timely notice.'").

In cases with similar fact patterns, courts have confirmed

that actual notice is sufficient to support a conviction. In

United States v. Parrilla Bonilla, 648 F.2d 1373 (1st Cir. 1981),

the defendants asserted that they had not seen the Naval

Instruction prohibiting entry into a beach closed for naval

operations. Id. at 1378. This court found that even if the

defendants had not seen the Naval Instruction, the convictions were

sustainable if the government showed that the defendants

"reasonably understood that naval authorities had declared the base

closed to all persons who lacked passes or other authorization."

Id. at 1378, 1383 (overturning the convictions and holding that "it

is doubtful whether the record supports a finding that appellants

reasonably knew that their presence was forbidden"). In Mowat,

the Ninth Circuit upheld the defendants' convictions because they

had actual notice that their unauthorized entry into a military

reservation violated a regulation, even though it was not published

until many months after their arrests. Mowat, 582 F.2d at 1201-03.
5The court also stated that "Defendants themselves accept that

– at the least – the Coast Guard not only tried to notify them, but

went so far as to try to physically prevent them from trespassing."

Ventura Melendez, 186 F. Supp.2d at 58. The defendants dispute the

district court's interpretation that they conceded having heard the

Coast Guard's verbal warning. They contend that the noise of the

outboard motors of several boats and the distance between the boats

and the Coast Guard vessel suggest that it is unlikely that they

could have heard accurately. Nevertheless, the district court's

interpretation that the defendants had actual notice is soundly

supported by the evidence, regardless of whether or not the

defendants made an admission to that effect.

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The district court here concluded that ample circumstantial

evidence showed that the defendants were aware that the Coast Guard

was trying to stop them from entering a security zone. United

States v. Ventura Melendez, 186 F. Supp.2d 55, 59 (D.R.I. 2001).

The court noted that "the Coast Guard intercepted the Defendants,

yelled at them to stop, in an attempt to impede transgression into

a security zone only to receive from them obscene words followed by

a defiant speed-off. . . . Hand signals were also used urging

Defendants to stop to no avail." Id. The court concluded that

"[e]ven accepting as true Defendants' version of the facts in this

case, the Court is left with only one acceptable conclusion: they

had actual knowledge that the security zone had been established

prior to their trespass." Id. at 58.5

Nevertheless, the defendants suggest that their reaction

reflected only frustration with perceived harassment in their

traditional fishing grounds. They claim that their shouting and

fist waving did not indicate an awareness that they were entering
6The timeliness of the actual notice given to the defendants

would likely have been suspect had the Coast Guard attempted to

arrest them immediately upon observing them enter the zone. The

Coast Guard instead tried to warn the defendants to leave the area,

although the defendants ignored the warning, forcing the Coast

Guard to chase them further into the zone and eventually secure

their arrests.

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a forbidden zone, but rather distress that they would be unable to

fish in their customary area or even to remove their traps to avoid

damage from passing military vessels. One may empathize with their

predicament, but the fact remains that they blatantly disregarded

the Coast Guard's order that they leave the area.6

Reviewing the record, we conclude that the court's finding of

actual notice was amply supported. As such, the defendants'

convictions were not invalid and did not violate the Due Process or

Ex Post Facto Clauses.

IV. Whether One of the Defendants was a Mere Passenger

The defendants' final argument is that one of them was a "mere

passenger" who did not possess the "purpose" required by section

1382. The defendants baldly assert that one of them -- they do not

specify which -- was a passenger who was merely present in the

zone, rather than willfully transgressing it. The evidence

presented, however, suggested that both inhabitants of the vessel

were involved in shouting and waving fists at the Coast Guard.

More importantly, the evidence does not reveal any suggestion that

either defendant at any time expressed a desire to exit the boat,

turn it around, or otherwise leave the security zone. Without
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more, it is difficult to conceive that the actions of either

defendant were not purposeful.

For the reasons set forth above, the order of the district court is

affirmed.