United States Court of Appeals

For the First Circuit

No. 00-2372

UNITED STATES OF AMERICA,

Appellee,

v.

ALBERTO DE LEÓN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

 Boudin, Chief Judge,

Torruella and Selya, Circuit Judges.

Irma R. Valldejuli, by appointment of the court, for

appellant.

Nelson Pérez-Sosa, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, and Jorge E. VegaPacheco, Assistant United States Attorney, Chief, Criminal

Division, were on brief for the United States.

November 2, 2001

1The contiguous zone is an area in which the United States

claims certain rights short of sovereignty. In August 1999, the

President signed a proclamation to extend the contiguous zone to

24 miles from shore, but this occurred after the events

important to this case. Presidential Proclamation No. 7219, 64

Fed. Reg. 48,701 (Aug. 2, 1999).

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BOUDIN, Chief Judge. In this case, Alberto De León

appeals from his conviction for attempting to reenter the United

States after deportation. The facts are undisputed. De León,

a citizen of the Dominican Republic, first entered the United

States in 1980. In 1995, he was convicted in state court of

possession of heroin with intent to distribute and was sentenced

to prison. Following his release in July 1997, he was deported

based upon his conviction for drug dealing.

On May 16, 1999, a U.S. Coast Guard cutter intercepted

a small yawl about 15 nautical miles off the northwest coast of

Puerto Rico (all references are to nautical miles). The yawl

was in international waters, since U.S. territorial waters

extend only 12 miles from shore and, at the time, the U.S.

contiguous zone also extended only 12 miles from shore.1 The

yawl flew no flag and had no lights, registration number or

other markings. De León was one of the passengers on the yawl.

When approached by the cutter, the yawl turned away

sharply but then halted and began to sink. The yawl turned out

to be carrying 72 Dominican nationals, and various passengers
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admitted that the yawl was attempting to transport them to

Puerto Rico. The passengers were taken by the Coast Guard to

Puerto Rico. There, an investigation revealed that De León had

been previously deported as an aggravated felon and had not

received permission from the Attorney General to enter the

United States.

A grand jury indicted De León on one count under 8

U.S.C. § 1326 (1994). That provision makes it a crime for an

alien who has previously been deported to enter, attempt to

enter, or be found in the United States unless certain

conditions are met (such as receiving express consent from the

Attorney General to apply for admission). Id. § 1326(a). The

government also invoked the more severe penalties that the

statute provides where the previous deportation occurred

subsequent to commission of an aggravated felony. Id. §

1326(b)(2). De León moved to dismiss the indictment, arguing

inter alia that he could not be convicted for an attempt to

enter based on acts that occurred entirely outside the United

States.

The district court denied the motion, and De León then

pled guilty to attempting to enter the United States in

violation of the statute and was sentenced to 70 months in

prison. However, in his plea agreement De León reserved the
2Although De León also briefed a claim that his prior

deportation was invalid, he did not present that issue in the

district court or preserve it in the face of his guilty plea.

In oral argument, defense counsel in this court withdrew this

claim of error.

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right to appeal on his claim that the statute did not apply to

conduct that occurred wholly outside the United States. That is

the only issue presented to us on this appeal.2

Apart from his claim as to territorial reach, there is

no dispute that De León violated the statute. "Attempt," here

as elsewhere, is a specific intent crime in the sense that an

"attempt to enter" requires a subjective intent on the part of

the defendant to achieve entry into the United States as well as

a substantial step toward completing that entry. United States

v. Gracidas-Ulibarry, 231 F.3d 1188, 1195-96 (9th Cir. 2000) (en

banc). However, as with most federal criminal statutes, there

is no requirement that the defendant additionally know that what

he proposes to do--i.e., attempt to enter the United States--is

for him criminal conduct. 1 LaFave & Scott, Substantive

Criminal Law § 5.1(d) (1986). 

The adequacy of the factual basis for De León's plea

is not disputed, and any such dispute would be foreclosed,

absent extraordinary circumstances, by the guilty plea itself.

Acevedo-Ramos v. United States, 961 F.2d 305, 307 (1st Cir.),

cert. denied, 506 U.S. 905 (1992). As it happens, the evidence
3See Blackmer v. United States, 284 U.S. 421, 436-38 (1932);

see also Restatement(Third) of the Foreign Relations Law of the

United States § 403(3) (1987); Hartford Fire Ins. Co. v.

California, 509 U.S. 764, 795-96 (1993); Nippon Paper Indus.

Co., 109 F.3d 1, 4 (1st Cir. 1997); United States v. Plummer,

221 F.3d 1298, 1305-07 (11th Cir. 2000).

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was ample to show that De León was on a vessel seeking to make

a surreptitious entry into the United States, and--given the

state and behavior of the vessel and the statements of other

passengers--it is easy to infer that De León knew full well

where he was headed and was on board for that purpose.

De León does not argue, nor could he, that Congress

lacks constitutional authority to make criminal the conduct to

which he pled guilty. Although all of the alleged acts occurred

outside of the United States, its territorial waters and its

then-defined contiguous zone, the acts were deliberately

directed to producing an effect within the United States. The

constitutional power of Congress to criminalize such conduct is

not in doubt.3 Instead, De León argues Congress is presumed not

to intend an extraterritorial application of its general

criminal statutes. Alternatively, he says that to do so here

would violate a treaty whose provisions are set forth below.

It is true that "'legislation of Congress, unless a

contrary intent appears, is meant to apply only within the

territorial jurisdiction of the United States.'" Foley Bros.,
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Inc. v. Filardo, 336 U.S. 281, 285 (1949). The policy reasons

are obvious: one is "the common sense notion that Congress

generally legislates with domestic concerns in mind." Smith v.

United States, 507 U.S. 197, 204 n.5 (1993). And the

presumption also "serves to protect against intended clashes

between our laws and those of other nations . . . ." EEOC v.

Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).

Here, statutory language taken alone does not disclose

Congress' intent; although the statute makes criminal "attempts

to enter" without limitation as to where the attempts occur,

that would be true of many provisions in the Criminal Code,

e.g., 18 U.S.C. § 1028 (1994) (false ID documents), but few of

those provisions would be read automatically to apply to conduct

occurring solely in France or Norway. Nor does the government

point to any legislative history that might suggest a special

concern with attempts to enter the United States that occur on

the high seas or in foreign countries but which never reach U.S.

territory. At the same time, this seems to us a singularly easy

case to conclude that Congress did mean to reach De León's

conduct.

In the ordinary situation, Congress has little reason

to care whether citizens in other countries behave in ways that

would be forbidden in this country. But where the crime
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involves a prior deportee's effort to re-enter the United States

illegally, the federal interest is just about the same as that

which leads Congress to punish one who "enters . . . or is at

any time found in, the United States" after deportation. 8

U.S.C. § 1326(a)(2). Why would Congress want someone caught

several miles outside territorial waters, who is shown to be

attempting to enter illegally, to be freed and given a second

chance to make a more successful entry?

No challenge is made here to the lawfulness of the

seizure. Had the yawl not been classed as a stateless vessel,

this could have affected the authority of the Coast Guard to

arrest De León at sea--absent permission from the flag state.

See 46 U.S.C. app. § 1903(c)(1)(C) (Supp. II 1996). But such

limitations on place of arrest would not alter Congress'

interest in criminalizing De León's conduct or in prosecuting

him if the government could lawfully acquire custody. 

The more interesting question is whether the statute

would apply if the acts comprising the "attempt" took place

solely within the territory of a foreign state. In some cases,

the conduct--if distant and preliminary--might easily fail to

constitute an attempt, see United States v. Doyon, 194 F.3d 207,

211 (1st Cir. 1999); but one can imagine other cases where an

attempt would be made out (e.g., suppose De León had been caught
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in Canada a mile from the border and admitted that he was en

route to Detroit). Without suggesting any doubt about Congress'

power to punish such conduct, we need not decide now whether

there is any such limitation on the statute's reach.

This brings us to De León's argument based on the

Convention on the Territorial Sea and the Contiguous Zone. The

gist of the argument is that by ratifying the Convention--which

affirmatively authorizes the enforcement of national immigration

laws in its contiguous zone and territorial sea--the United

States has impliedly agreed that it will not apply its laws to

conduct occurring beyond the zone, at least as to "customs,

fiscal, immigration or sanitary regulations . . . ."

The Convention, ratified by the Senate in 1961 and

entered into force in 1964, pertinently reads as follows:

 (1) In a zone of the high seas contiguous

to its territorial sea, the coastal State

may exercise the control necessary to:

(a) Prevent infringement of

its customs, fiscal,

immigration or sanitary

regulations within its

territory or territorial sea;

(b) Punish infringement of the

above regulations committed

within its territory or

territorial sea.

 (2) The contiguous zone may not extend

beyond twelve miles from the baseline from
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which the breadth of the territorial sea is

measured [i.e., the shore].

Convention on the Territorial Sea and the Contiguous Zone, Apr.

29, 1958, art. 24, 15 U.S.T. 1606, 1612.

It is unclear how far the Convention is concerned with

authority to proscribe conduct as opposed to authority to

enforce. The introductory language--the coastal state "may

exercise the control necessary to"--suggests enforcement

measures, giving the coastal state (for example) the power to

halt and arrest vessels of other states engaged in infringing

the named categories of rules. Cf. Dean, The Geneva Conference

on the Law of the Sea: What Was Accomplished, 52 Am. J. Int'l L.

607, 624 (1958) ("Thus, hot pursuit of a vessel which has

committed an offense within the territorial sea may commence

even though the vessel is first sighted, not within the

territorial sea, but within the contiguous zone").

More important, assuming that the Convention also

provides or ratifies a power to regulate certain conduct within

the contiguous zone, the Convention nowhere purports to bar the

application of federal statutes to conduct, whether within or

beyond the contiguous zone, that has a substantial adverse

effect within the United States. That power was assumed to

exist well before the Convention, e.g., Logan Act, 18 U.S.C. §

954 (1994), and well after, Foreign Trade Antitrust Improvements
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Act of 1982, 18 U.S.C. § 6a (1994), and it is confirmed both by

case law and commentary. See note 3, above. At most,

prescriptions beyond the contiguous zone do not get the

diplomatic protection that the Convention may afford if and when

foreign states object.

Affirmed.