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United States v. Maldonado-Burgos

United States Court of Appeals, First Circuit

July 7, 2017

EDWIN MALDONADO-BURGOS, Defendant, Appellee.

          Howard, Chief Judge, Torruella, Lynch, Dyk, Thompson, Kayatta, and Barron, Circuit Judges.

          ORDER OF COURT

         Appellant United States of America filed a petition for rehearing en banc, and, pursuant to First Circuit Internal Operating Procedure X(C), the appellant's petition for rehearing en banc has also been treated as a petition for rehearing before the original panel. The petition for rehearing has been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petitions for rehearing and rehearing en banc be denied.

          HOWARD, Chief Judge, and LYNCH, Circuit Judge, dissenting from the denial of rehearing en banc.

         A panel of this court has held that the Mann Act's federal protections against sex trafficking of adults, see 18 U.S.C. § 2421(a), do not apply to conduct occurring solely within Puerto Rico. United States v. Maldonado-Burgos, 844 F.3d 339, 340 (1st Cir. 2016). In doing so, the panel has overruled our longstanding precedent in Crespo v. United States, 151 F.2d 44 (1st Cir. 1945), which squarely held that this provision of the Mann Act does apply to activity occurring solely within Puerto Rico. The United States rightly petitions for en banc review on the basis that the panel erroneously resolved a question of exceptional importance. The petition of the United States fails. In our view, the Supreme Court may wish to grant review of this decision, given its significance for the issues here, as well as for those beyond the particular question presented here, including for federal criminal law enforcement in Puerto Rico, for the use of proper rules of statutory construction, and for adherence to Supreme Court precedent.

         We respectfully dissent from the denial of the petition for rehearing en banc. This question is about how courts determine Congress' intent as to the applicability of federal criminal statutes to Puerto Rico. The panel's decision here, in our view, both departs from binding Supreme Court precedent and abandons this court's settled method for addressing the application of federal statutes to Puerto Rico. The panel's decision is exceptionally important: it will not only eviscerate the protection of adult sex-trafficking victims whom the Mann Act expressly aims to protect but also adversely affect the federal government's ability to enforce other federal criminal statutes in Puerto Rico. It also results in the unlikely conclusion that Congress intended for the Mann Act to apply to child victims of intra-Puerto Rico sex trafficking, but not to victims of intra-Puerto Rico sex trafficking over 18 years of age.


         Respectfully, in our view, the panel's decision gets congressional intent exactly backwards, and that has harmful consequences for the law and in practice. The decision's inconsistency with congressional intent is evident when we look at the Supreme Court's decision in Puerto Rico v. Sánchez Valle, 136 S.Ct. 1863 (2016). The result is also inconsistent with recent congressional legislation using the term "territory" to include Puerto Rico. See Puerto Rico Oversight, Management, and Economic Stability Act ("PROMESA"), Pub. L. No. 114-187, § 5(20), 130 Stat. 549, 552 (2016) (defining "territory" as including Puerto Rico). The panel's opinion also conflicts with even more longstanding precedent from the Supreme Court, see Examining Bd. of Eng'rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572 (1976), and from the First Circuit, see, e.g., Moreno Rios v. United States, 256 F.2d 68 (1st Cir. 1958), as to the application of federal statutory law to Puerto Rico. In the process, the panel has created a presumption, purportedly based on Cordova & Simonpietri Insurance Agency Inc. v. Chase Manhattan Bank N.A., 649 F.2d 36 (1st Cir. 1981), that Cordova itself never meant to create, and has used it to reach a conclusion Cordova does not sanction.

         A. The Panel's Decision Ignores Recent Supreme Court Law and Congressional Legislation on Puerto Rico

         The panel analyzes § 2421(a)[1] of the Mann Act by adopting a strong presumption that Congress would not want to treat Puerto Rico as a "Territory" for purposes of the Mann Act. Maldonado-Burgos, 844 F.3d at 347. But both Supreme Court and statutory law make it entirely reasonable to believe that Congress intends the opposite presumption. The Supreme Court has decided, in a criminal case, that Puerto Rico's adoption of a constitution in 1952 and its transition to commonwealth status did not transform Puerto Rico into a state for the purposes of the Double Jeopardy Clause's dual-sovereignty doctrine. Sánchez Valle, 136 S.Ct. at 1875-76. This is because Puerto Rico's sovereignty still derives ultimately from Congress. Id. For the purposes of this constitutional analysis, the Court rejected the same arguments that informed the majority decision in Cordova. Compare id. at 1870 & n.2 (majority opinion), and id. at 1877-85 (Breyer, J., dissenting), with Cordova, 649 F.2d at 39-41.[2] Congress, we must assume, is well aware of Sánchez Valle. Sánchez Valle shows that it is entirely reasonable to believe that Congress would operate with the presumption that § 2421(a) would apply to Puerto Rico when it uses the term "Territory, " unless it explicitly says to the contrary.

         Indeed, in recent legislation, Congress has explicitly designated Puerto Rico as a "Territory." See PROMESA, § 5(20), 130 Stat. at 552 (defining "territory" to mean "Puerto Rico, "

         "Guam, " "American Samoa, " "the Commonwealth of the Northern Mariana Islands, " or "the United States Virgin Islands"). In light of the contrary result reached by the panel here, the question of Congress' intent with respect to the application of the Mann Act and other federal criminal statutes to Puerto Rico, is a question worthy of Supreme Court review.

         B. The Panel's Decision Conflicts with Longstanding Supreme Court and First Circuit Precedent on the Application of Federal Statutory Law to Puerto Rico

         The panel's decision further conflicts with Supreme Court precedent, namely the Court's Examining Board decision on the application of federal statutes to Puerto Rico after it achieved Commonwealth status. In Examining Board, the Supreme Court addressed the question of whether Puerto Rico's change of status to a Commonwealth in 1952 stripped the United States District Court in Puerto Rico of jurisdiction under 28 U.S.C. § 1343. See 426 U.S. at 594. Looking to language, context, and purpose, id. at 580, the Court asked "whether Congress, by entering into the compact [with Puerto Rico], intended to repeal by implication the jurisdiction of the Federal District Court of Puerto Rico to enforce 42 U.S.C. § 1983, " id. at 594. The Court found no reason "to attribute to Congress an inclination to leave the protection of federal rights exclusively to the local Puerto Rico courts." Id. at 595. The question here should be similarly framed: Does anything about the change in Puerto Rico's political status in 1952 show that Congress intended to deprive Puerto Rico of the full extent of the federal protections against sex trafficking provided in § 2421(a)?

         Cordova, by contrast to the panel decision in Maldonado-Burgos, in no way purported to depart from Examining Board. Indeed, the Cordova decision took pains to emphasize that the analysis it undertook should be conducted statute-by-statute, see 649 F.2d at 38, and that its conclusion that section 3 of the Sherman Act no longer applied to Puerto Rico did not conflict with decisions holding that the application of other statutory provisions, such as 12 U.S.C. § 632, was not affected by the change in Puerto Rico's political status, see id. at 42 n.32 (finding no conflict with First Federal Sav. & Loan Ass'n of P.R. v. Ruiz de Jesus, 644 F.2d 910 (1st Cir. 1981), and noting that "[p]ost-Commonwealth Banking Act amendments did not reflect any congressional intent to narrow th[e] grant of jurisdiction [in 12 U.S.C. § 632]"). Yet the panel here used a contrary standard and reached an erroneous conclusion.

         The Cordova panel was concerned with enforcement of antitrust laws and apparently concerned with possible preemption of local Puerto Rican antitrust statutes if the Sherman Act applied. See id. at 41-42. No such problem of possible conflict between Puerto Rican anti-sex trafficking laws and enforcement of the Mann Act exists here.

         This court's precedents, which the panel held inapposite, have used an analysis following that used in Examining Board. See United States v. Villarin Gerena, 553 F.2d 723 (1st Cir. 1977); Moreno Rios, 256 F.2d 68. Those cases stand for three relevant principles. First, if a federal statute applied in full to Puerto Rico before Puerto Rico's shift to commonwealth status, the statute also applies in full after the shift, and Congress does not need to rewrite it. See Villarin Gerena, 553 F.2d at 724-26; Moreno Rios, 256 F.2d at 71-72. Second, it is unlikely that the change in Puerto Rico's political status meant that Congress wanted to deprive Puerto Rico of the full protections of any given federal statute. See Villarin Gerena, 553 F.2d at 725-26. Third, post-commonwealth amendments to a given statute that fail to address Puerto Rico's shift to commonwealth status do not show that Congress intended to change the statute's previous application to Puerto Rico. See id. at 726; Moreno Rios, 256 F.2d at 71-72. All three principles strongly argue for the full application of § 2421(a) of the Mann Act to Puerto Rico as a "Territory."[3]See United States v. Acosta-Martinez, 252 F.3d 13, 17-20 (1st Cir. 2001) (employing a similar inquiry and holding that the Federal Death Penalty Act applies to Puerto Rico). Cordova did not overrule the model of analysis used in those decisions.

         C. The Panel's Decision Misapplies Cordova and Misreads Congressional Intent

         While the larger question is which model of analysis to use for application of federal criminal statutes to Puerto Rico, even the Cordova framework itself does not dictate the outcome that the panel reached here, that is, forbidding federal prosecutors from enforcing § 2421(a) against sex traffickers of adults who operate wholly within Puerto Rico. Even applying Cordova, it is not "fair to assume that the framers of the [Mann] Act, had they been aware [that Puerto Rico achieved Commonwealth status], would have intended" for § 2421(a) to not apply to Puerto Rico as a territory. 649 F.2d at 42. No one has argued to this court that Puerto Rico does not want the benefit of the full federal prosecutorial resources afforded by § 2421(a).

         The panel adopts a presumption that, for statutory interpretation purposes, Puerto Rico must be said to be a state and not a territory unless there exists "specific evidence or clear policy reasons" evidencing an intent to treat Puerto Rico as a territory. Maldonado-Burgos, 844 F.3d at 342 (quoting Cordova, 649 F.2d at 42). But Cordova did not mention our earlier default rule, nor did Cordova purport to overrule it. Rather, Cordova addressed a question about the Sherman Act while making the point that the question of congressional intent must be resolved statute-by-statute and doing so for distinctly different policy reasons. See 649 F.2d at 38. By contrast, both ...

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