United States Court of Appeals

For the First Circuit

No. 00-2084

UNITED STATES OF AMERICA,

Appellee,

v.

RAUL MAXWELL, A/K/A RAUL MAXWELL-ANTHONY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lipez, Circuit Judge.

Linda A. Backiel for appellant.

Antonio R. Bazán, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, Jorge E. VegaPacheco and W. Clay Caldwell, Assistant United States Attorneys,

were on brief, for appellee.

June 29, 2001

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SELYA, Circuit Judge. Defendant-appellant Raúl

Maxwell-Anthony (Maxwell) entered United States Navy property on

the Puerto Rican island of Vieques without authorization.

Following a bench trial, the district court found Maxwell guilty

of violating 18 U.S.C. § 1382 and sentenced him to thirty days

in prison for this Class B misdemeanor. Maxwell appeals. We

affirm.

I. BACKGROUND

The United States Navy maintains a naval installation

known as Camp García on the island of Vieques, Puerto Rico, and

periodically conducts military training operations there.

Pursuant to regulations promulgated by the Department of the

Navy, Camp García is a "closed" base, meaning that entry by

members of the general public requires permission from the

commanding officer. See 32 C.F.R. §§ 770.35-770.40. Camp

García contains a "live impact area," historically used by the

Navy for live-fire artillery and bombardment exercises. The

Navy's presence on Vieques spans some sixty years, and these

exercises have sparked numerous protests. See, e.g., United

States v. Sharpton, ___ F.3d ___, ___ (1st Cir. 2001) (per

curiam) [No. 01-1780, slip op. at 3-4] (discussing recent spate

of incidents); United States v. Parrilla Bonilla, 648 F.2d 1373,
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1374-75 (1st Cir. 1981) (discussing earlier furor over Navy's

presence on Vieques).

The political controversy attendant to the Navy's use

of Vieques recently reached a fever pitch. In the calendar year

2000, approximately 400 persons were prosecuted for protestrelated trespasses. See Sharpton, ___ F.3d at ___ [slip op. at

4]. Maxwell joined this effort: the authorities arrested him

three times in quick succession (June 1, June 13, and June 21,

2000) for entering Camp García without the permission of its

commanding officer.

The June 13 arrest which underlies this appeal came

about after Maxwell peacefully approached a naval security

officer inside the north fence line of the base, identified

himself as a protester, and asked for a bottle of water. In the

wake of this arrest, the government charged Maxwell, by means of

a one-count information, with violating a statute which reads in

pertinent part:

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. Insofar as relevant here, the "purpose

prohibited by . . . lawful regulation" is the one set out in 32
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C.F.R. § 770.38, namely, "entry . . . for any purpose whatsoever

without the advance consent of the Commanding Officer."

Maxwell filed a pretrial motion, accompanied by an

exegetic offer of proof, reflecting his desire to present

affirmative defenses based upon necessity and international law.

The government objected and the district court ruled, as a

matter of law, that the proposed defenses could not be

maintained because of the lack of a proper predicate. United

States v. Maxwell-Anthony, 129 F. Supp. 2d 101, 104-07 (D.P.R.

2000). For the same reason, the court excluded the tendered

evidence as irrelevant. Id.

The trial itself was anticlimactic: the court, sitting

without a jury, found that Maxwell had knowingly entered Camp

García without leave and in so doing had violated 18 U.S.C. §

1382. The court thereupon imposed a thirty-day incarcerative

sentence. This timely appeal followed.

II. ANALYSIS

On appeal (as below), Maxwell does not dispute either

that Camp García is Navy property or that he entered the base on

June 13 without prior permission. He nonetheless asseverates

that the lower court erred both in construing the "purpose"

element of the statute of conviction and in pretermitting his

suggested affirmative defenses (and, concomitantly, excluding
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the expert testimony related thereto). We consider each

asseveration.

A. The Statute of Conviction.

Maxwell asserts that because section 1382 criminalizes

entry onto the grounds of a military or naval installation "for

any purpose prohibited," the government must show that a

defendant had an improper purpose in entering such a facility.

Because the government failed to prove this element, his thesis

runs, the instant conviction cannot stand. We review the

district court's construction of a federal statute de novo. See

United States v. Carroll, 105 F.3d 740, 744 (1st Cir. 1997).

We accept Maxwell's premise: "purpose" is indeed an

element of a section 1382 offense. But the case law is

consentient that an unauthorized entry itself can constitute the

prohibited purpose necessary to sustain a conviction under

section 1382. See Parrilla Bonilla, 648 F.2d at 1377; United

States v. Mowat, 582 F.2d 1194, 1203-04 (9th Cir. 1978); United

States v. Floyd, 477 F.2d 217, 225 (10th Cir. 1973); see also

Sharpton, ___ F.3d at ___ [slip op. at 3-4] (accepting rule sub

silentio).

This statutory construction blunts the main thrust of

Maxwell's argument, but it does not completely refute that

argument. The Parrilla Bonilla opinion emphasized that when a
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prosecution proceeds on the theory that a defendant purposes to

enter a restricted military reservation without authorization,

the government must show that the defendant had knowledge or

notice, actual or constructive, that such entry was prohibited.

Parrilla Bonilla, 648 F.2d at 1377. Absent such knowledge or

notice, the showing of purpose is incomplete.

This requirement, too, has been satisfied. The

Department of the Navy now has promulgated regulations, 32

C.F.R. §§ 770.35-770.40, closing all naval installations in

Puerto Rico to the public, id. § 770.37. These regulations make

pellucid that "entry upon any U.S. Navy installation or property

in Puerto Rico at anytime, by any person for any purpose

whatsoever without the advance consent of the Commanding Officer

. . . is prohibited." Id. at § 770.38. In Sharpton, ___ F.3d

at ___ n.2 [slip op. at 4 n.2], we left open the question of

whether the Navy, by adopting these regulations and publishing

them in the Federal Register, 46 Fed. Reg. 22,756 (Apr. 21,

1981), satisfied the "knowledge or notice" requirement as to

naval installations in Puerto Rico. Today, we answer that

question affirmatively.

The filing of a document with the Office of the Federal

Register is (with an exception not relevant here) "sufficient to

give notice of the contents of the document to a person subject
1If more were needed — and we do not think that it is — the

evidence (such as Maxwell's earlier entry and arrest on June 1

and his self-identification as a protester when he confronted

the guard on June 13) seemingly supports an inference that

Maxwell entered the base with actual knowledge that his entrance

was prohibited.

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to or affected by it." 44 U.S.C. § 1507. It follows inexorably

that section 1382's "knowledge or notice" requirement may be

satisfied by the publication of a regulation specifically

forbidding unauthorized entry. See Mowat, 582 F.2d at 1199-

1203. Because the regulations cited above give explicit notice

that any unauthorized entry onto the grounds of a naval

installation situated in Puerto Rico is forbidden, all that is

presently needed to satisfy section 1382's "purpose" requirement

is proof that Maxwell's entry was deliberate.

The government unquestionably carried that modest

burden in this case. The trial judge specifically found that

Maxwell intentionally entered Camp García, and the record fully

supports that finding. Accordingly, Maxwell's contention that

the government failed to prove each element of a section 1382

offense lacks merit.1

Maxwell also presents a variation on this theme. He

asserts that the district court should have allowed him to

introduce the proffered expert testimony because of its
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relevance to section 1382's "purpose" requirement. This

argument is jejune.

The appropriate standard for reviewing the admission

or exclusion of expert testimony is abuse of discretion. United

States v. Hernandez-Vega, 235 F.3d 705, 710 (1st Cir. 2000).

Maxwell's expert was prepared to testify, inter alia, that

nuclear-armed Trident submarines (which Maxwell speculates were

taking part in the Navy's exercises at Vieques) are illegal

under international law and that individuals have a right to

take steps that otherwise might transgress domestic law in order

to prevent their deployment. In Maxwell's view, this testimony

would have shown that his purpose in entering Camp García —

preventing a violation of international law — was lawful (and,

therefore, could not constitute the prohibited purpose that the

statute requires).

As is evident from what we already have said, this

argument misconstrues the level of purpose that need be shown

under section 1382. Where, as here, unauthorized entry is

prohibited by duly promulgated regulations, the only state of

mind that section 1382 requires is a purpose to enter. See

Parrilla Bonilla, 648 F.2d at 1377; Mowat, 582 F.2d at 1203-04;

Floyd, 477 F.2d at 225. Since Maxwell does not dispute that he

had such a purpose — nor could he, on this record — his specific
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reason for trespassing is irrelevant. See Parrilla Bonilla, 648

F.2d at 1377 (explaining that no specific intent to violate the

law need be shown to satisfy section 1382); Mowat, 582 F.2d at

1203-04 (similar). Thus, the expert testimony — which Maxwell

offered to furnish support for the legitimacy of his specific

reason for entering the base — was irrelevant, and the district

court acted appropriately in excluding it.

B. The Necessity Defense.

Recall that Maxwell moved, in advance of trial, for

leave to present a necessity defense. The district court

determined that the defense was unavailable and ordered that

Maxwell forgo it at trial. See Maxwell-Anthony, 129 F. Supp. 2d

at 104-07. Maxwell protests both that ruling and the court's

exclusion of expert testimony related to his proposed necessity

defense.

We do not gainsay that a criminal defendant has a wideranging right to present a defense, In re Oliver, 333 U.S. 257,

273-74 & n.31 (1948), but this does not give him a right to

present irrelevant evidence. Thus, when the proffer in support

of an anticipated affirmative defense is insufficient as a

matter of law to create a triable issue, a district court may

preclude the presentation of that defense entirely. See United

States v. Bailey, 444 U.S. 394, 414-15 (1980) (finding it
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"essential" that defendant's proffered evidence on a defense

meet a minimum standard as to each element before that defense

may be submitted to jury); cf. United States v. Amparo, 961 F.2d

288, 291 (1st Cir. 1992) (describing defendant's "entry-level"

burden of producing enough evidence to support a finding of

duress); United States v. Rodriguez, 858 F.2d 809, 814 (1st Cir.

1988) (noting that before a defendant is entitled to a jury

instruction on a defense there must be record evidence to

support it). That rule obtains when a criminal defendant seeks

to present a necessity defense. See United States v. Schoon,

971 F.2d 193, 195 (9th Cir. 1991); United States v. Dorrell, 758

F.2d 427, 430 (9th Cir. 1985). We review the district court's

decision to bar presentation of a specific defense de novo. See

Schoon, 971 F.2d at 195.

Maxwell challenges the legitimacy of this framework in

the context of section 1382. His cardinal contention is that

such a ruling in limine unconstitutionally renders the statute

a "strict liability" offense. This contention mischaracterizes

the district court's ruling.

The district court did not hold that affirmative

defenses to section 1382 were categorically barred. To the

contrary, the court entertained the possibility that a necessity

defense could be interposed. It then made a case-specific
2Withal, we note that one court of appeals has categorically

rejected necessity as a defense to crimes, like this one,

committed as acts of indirect civil disobedience (meaning that

the law violated as part of the protest is not the law being

protested). See Schoon, 971 F.2d at 195-200. We need not

decide that question today. We assume instead, favorably to

Maxwell, that necessity, if proven, might constitute a defense

to a charge lodged under section 1382.

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judgment, examining Maxwell's offer of proof and concluding that

it was insufficient to permit him to carry his entry-level

burden of adducing competent proof of necessity (and, therefore,

that no useful purpose would be served by allowing the assertion

of that defense at trial). See Maxwell-Anthony, 129 F. Supp. 2d

at 104. So viewed, Maxwell's "strict liability" contention is

a red herring. The question before us is not whether necessity

ever can be a proper defense to a section 1382 charge in the

protest context,2 but, rather, whether Maxwell showed that he

could muster some evidence of a viable necessity defense. We

turn now to that question.

A necessity defense, like other justification defenses,

allows a defendant to escape responsibility despite proof that

his actions encompassed all the elements of a criminal offense.

See United States v. Duclos, 214 F.3d 27, 33 (1st Cir. 2000).

The necessity defense requires the defendant to show that he (1)

was faced with a choice of evils and chose the lesser evil, (2)

acted to prevent imminent harm, (3) reasonably anticipated a
3The district court allowed Maxwell to testify as to these

points at trial, even though it had precluded the proffered

necessity defense. In doing so, the court did not act

inconsistently, but, rather, recognized a defendant's right to

testify in his own behalf. See generally Rock v. Arkansas, 483

U.S. 44, 49-53 (1987) (delineating sources of right); United

States v. Peterson, 233 F.3d 101, 105-07 (1st Cir. 2000)

(exploring scope of right). In all events, Maxwell's testimony

on these points shed light on his state of mind and thus was

relevant to Maxwell's interpretation of the "purpose" element of

section 1382.

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direct causal relationship between his acts and the harm to be

averted, and (4) had no legal alternative but to violate the

law. See United States v. Turner, 44 F.3d 900, 902 (10th Cir.

1995); Schoon, 971 F.2d at 195.

Although Maxwell did not formally structure his proffer

around these four elements, his presentation is congruent with

them. It runs roughly as follows: the grave risks triggered by

the deployment of Trident nuclear submarines are a far greater

evil than the commission of a criminal trespass designed to stop

their deployment; harm was imminent in that Maxwell suspected

that at least one Trident submarine already was present in the

waters off Puerto Rico to participate in the training exercises;

he reasonably believed that his disruption of the exercises

would lead to dispersion of the Trident submarine(s); and,

having previously taken a wide variety of political actions to

no avail, he had no practical alternative but to break the law.3

The government maintains that Maxwell failed to provide
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sufficient evidence on each and all of the four components of

the defense. We assume, for argument's sake, that Maxwell

carried the entry-level burden of production on the first

component ("lesser of two evils"). We specifically address

Maxwell's proffer on the remaining three components.

1. Imminent Harm. Assuming, favorably to Maxwell,

that the deployment of Trident submarines in waters near Puerto

Rico constitutes a harm, Maxwell had the burden of showing its

immediacy. After all, the term "imminent harm" connotes a real

emergency, a crisis involving immediate danger to oneself or to

a third party. See United States v. Newcomb, 6 F.3d 1129, 1135-

36 (6th Cir. 1993); United States v. Seward, 687 F.2d 1270, 1276

(10th Cir. 1982). The record contains no evidence to support

Maxwell's naked averment that the harm he feared was imminent.

Moreover, even if Maxwell could have shown that a nuclear

submarine was close at hand, it is doubtful that the mere

presence of such a vessel, without some kind of realistic threat

of detonation, would suffice to pose an imminent harm. E.g.,

United States v. May, 622 F.2d 1000, 1008-09 (9th Cir. 1980)

(finding that the existence of Trident missile system failed to

satisfy the imminent harm prong of the necessity defense).

The fact of the matter, however, is that Maxwell's case

is even weaker; he failed to show the presence of any Trident
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submarines off the coast of Vieques on June 13, 2000, or at any

reasonably proximate date. The best evidence that Maxwell could

muster was an image, taken from a Navy website, of a Trident

submarine in the waters off Puerto Rico sometime in 1996. This

evidence cannot, as a matter of law, give rise to an inference

that the submarine remained in place for the intervening three

years. Cf. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)

(explaining that, in drawing inferences, a court need not accept

"bald assertions, unsupportable conclusions, periphrastic

circumlocutions, and the like"). Accordingly, that evidence

cannot support an inference of imminent harm.

2. Reasonable Anticipation of Averting Harm. Maxwell

argues that he reasonably believed that his disruption of the

naval exercises at Camp García would effect the exodus of any

Trident submarines that were in the vicinity. A reasonable

anticipation of averting harm, however, requires more than

seeing ghosts under every bed. In this case, Maxwell's

anticipation is pure conjecture, not reasonable belief.

A defendant must demonstrate cause and effect between

an act of protest and the achievement of the goal of the protest

by competent evidence. He cannot will a causal relationship

into being simply by the fervor of his convictions (no matter

how sincerely held). E.g., United States v. Montgomery, 772
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F.2d 733, 736 (11th Cir. 1985) (holding that defendants could

not reasonably have believed that their entry into a defense

plant would bring about nuclear disarmament); Dorrell, 758 F.2d

at 433-34 (finding that defendant had failed to establish that

breaking into an air force base and vandalizing government

property could reasonably be expected to lead to the termination

of the MX missile program); United States v. Cassidy, 616 F.2d

101, 102 (4th Cir. 1979) (per curiam) (finding it unlikely that

splashing blood on Pentagon walls would impel the United States

to divest itself of nuclear weapons).

We have combed the record in this case and find nothing

to indicate any linkage between the Navy's exercises at Camp

García and the presence of Trident submarines in Puerto Rican

waters. Equally as important, we find nothing to indicate that

the movement of such vessels likely would be influenced by the

temporary disruption of the exercises. On this record, then,

Maxwell could not reasonably have anticipated that his act of

trespass would avert the harm that he professed to fear.

3. Legal Alternatives. To succeed on a necessity

defense, a defendant must show that he had no legal alternative

to violating the law. Turner, 44 F.3d at 902. This makes

perfect sense: the necessity defense does not arise from a

defendant's choice of a preferred course of action from among a
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universe of possible courses of action (some legal, some not),

but from an emergent crisis that, as a practical matter,

precludes all principled options but one. See Seward, 687 F.2d

at 1276. In other words, the defendant's act must be necessary,

not merely desirable.

In the case at hand, Maxwell testified at trial to the

many avenues he has explored to further nuclear disarmament

(e.g., participating in letter-writing campaigns, attending a

nonproliferation treaty conference, and taking part in

demonstrations). His level of commitment is laudable, but the

panoramic range of his activities clearly demonstrates that he

has many legal options for advancing his political goals. Cf.

United States v. Quilty, 741 F.2d 1031, 1033 (7th Cir. 1984)

(per curiam) ("There are thousands of opportunities for the

propagation of the anti-nuclear message: in the nation's

electoral process; by speech on public streets, in parks, in

auditoriums, in churches and lecture halls; and by the release

of information to the media, to name only a few."). The fact

that Maxwell is unlikely to effect the changes he desires

through legal alternatives does not mean, ipso facto, that those

alternatives are nonexistent. See Dorrell, 758 F.2d at 432.

Accepting such an argument would be tantamount to giving an

individual carte blanche to interpose a necessity defense
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whenever he becomes disaffected by the workings of the political

process.

Our conclusion that Maxwell had legal alternatives to

violating the law finds ample support in the case law. Without

exception, the decided cases teach that a defendant's legal

alternatives will rarely, if ever, be deemed exhausted when the

harm of which he complains can be palliated by political action.

See, e.g., Turner, 44 F.3d at 902-03; Schoon, 971 F.2d at 198;

United States v. Kabat, 797 F.2d 580, 590-92 (8th Cir. 1986);

Montgomery, 772 F.2d at 736; Dorrell, 758 F.2d at 431-33;

Quilty, 741 F.2d at 1033-34; Cassidy, 616 F.2d at 102. The case

at hand falls well within this general rule.

In an effort to wiggle free of these precedents,

Maxwell suggests that all legal alternatives were foreclosed to

him because he is a resident of Puerto Rico, and the democratic

process "functions in one manner in the United States, and

another in Puerto Rico." Appellant's Br. at 36. While it is

true that Puerto Rico does not enjoy the same representation in

Congress as the fifty states, see generally Trailer Marine

Transp. Corp. v. Rivera Vazquez, 977 F.2d 1, 6-7 (1st Cir. 1992)

(discussing Puerto Rico's status), this surely does not mean

that all political avenues are closed to those who live in
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Puerto Rico. Indeed, Maxwell's own activities in support of the

cause of nuclear disarmament belie this suggestion.

We have said enough on this score. Based on our de

novo review of Maxwell's proffered evidence, we find as a matter

of law that he could not have satisfied his entry-level burden

of producing competent evidence on any of the last three

elements of the necessity defense. Consequently, we uphold the

district court's preclusion of that defense. A fortiori, the

court properly excluded the expert testimony offered in support

of that defense.

C. The International Law Defense.

Maxwell's final plaint concerns the district court's

rejection of his international law defense. This affirmative

defense hinges on Maxwell's claim that the deployment of Trident

submarines is a "war crime," giving him the privilege of

breaking domestic law to stop it. When asked to identify the

source of this privilege, he points to decisions by the

international tribunal that presided over the trials of Nazi war

criminals in Nuremberg after World War II.

The district court held that the decisions of the

Nuremberg tribunal did not shield Maxwell from the consequences

of his acts. See Maxwell-Anthony, 129 F. Supp. 2d at 106-07.
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This is a legal conclusion, and we review it de novo. CamposOrrego v. Rivera, 175 F.3d 89, 96 (1st Cir. 1999).

Maxwell is not the first to attempt to import the

Nuremberg defense into our criminal law. Confronted with such

an attempt, the Eighth Circuit explained that the Nuremberg

defendants undertook acts that were required by domestic law but

violated international law. Kabat, 797 F.2d at 590. The

Nuremberg tribunal held that the defendants could not escape

responsibility for these acts by pointing to their domestic law

obligations; they had a privilege under international law to

violate domestic law in order to prevent the ongoing crimes

against humanity that their country was perpetrating through

them. Id. We echo this explanation.

Because Maxwell was under no compulsion to violate

international law, his attempt to cloak himself in the Nuremberg

mantle fails. Under his formulation, an individual gains the

privilege to violate domestic law simply by being a citizen of

a nation that possesses nuclear weapons. This is a quantum leap

beyond the frontier of the classic Nuremberg defense — and one

that we refuse to undertake.

In our view, an individual cannot assert a privilege

to disregard domestic law in order to escape liability under

international law unless domestic law forces that person to
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violate international law. See id.; see also Montgomery, 772

F.2d at 737-38; United States v. Brodhead, 714 F. Supp. 593,

597-98 (D. Mass. 1989); cf. United States v. Allen, 760 F.2d

447, 453 (2d Cir. 1985) (rejecting international law defense on

standing grounds); May, 622 F.2d at 1009-10 (similar). Maxwell

does not argue that he was put in such a position by the

government, nor could he. For this reason, the district court

properly rejected his international law defense.

This holding also disposes of Maxwell's lament anent

the lower court's exclusion of the expert testimony that he

proffered on the illegality of nuclear weapons under

international law. Since the Nuremberg defense is unavailable

to him, the status of nuclear weapons under international law is

irrelevant in his case. The district court's evidentiary ruling

was, therefore, unimpugnable.

III. CONCLUSION

We need go no further. Maxwell was on notice of the

rules for entry onto Navy bases in Puerto Rico, yet deliberately

entered Camp García without authorization. His arguments that

the district court erred in rejecting his proffered affirmative

defenses and/or in its evidentiary rulings are forcefully

presented but, in the end, unpersuasive. His conviction for

violating 18 U.S.C. § 1382 must, therefore, be
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Affirmed.