United States v. James Cabaccang, United States of America v. Richard T. Cabaccang, United States of America v. Roy Toves Cabaccang

with whom O’SCANNLAIN, GRABER, McKEOWN and TALLMAN, Circuit Judges, join, dissenting:

Our job as judges is to apply laws adopted by the political branches of government. As the Supreme Court has told us time and time again, see, e.g., HUD v. Rucker, 535 U.S. 125, 130-31 , 122 S.Ct. 1230 , 152 L.Ed.2d 258 (2002); United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 490-93 , 121 S.Ct. 1711 , 149 L.Ed.2d 722 (2001), where the statutory text is clear and speaks to the issue before us, we must faithfully enforce it, even if we firmly believe we could rewrite the statute to make it better.

And rewrite the statute is precisely what the majority does. 1 There is no conceivable interpretation of its simple words that could yield one result where drugs are brought into the United States by air and a different one where they are brought in by sea. Instead, the majority has taken a blue pencil and inserted the words “except when the drugs are brought in on a nonstop flight originating in the United States.” If this is a sensible exception, it’s not one Congress has adopted, and no amount of massaging the word “from” can possibly yield such a specific and finely tuned result. The…

Opinion by Judge FISHER; Concurrence by Chief Judge SCHROEDER; Dissent by Judge KOZINSKI

OPINION

Appellants James, Richard and Roy Cabaccang appeal their convictions on a variety of charges relating to their involvement in a drug trafficking ring that transported large quantities of methamphetamine from California to Guam in the early and mid-1990s. The Cabaccangs’ primary contention on appeal is that the transport of drugs on a nonstop flight from one location within the United States to another does not constitute importation within the meaning of 21 U.S.C. § 952 (a), even though the flight traveled through international airspace. We agree, and therefore we reverse the appellants’ convictions on all importation-related counts.

Factual and Procedural Background

In the early 1990s, Roy Cabaccang began selling methamphetamine out of his house in Long Beach, California, to customers introduced to him by his younger brothers Richard and James. The Cabac-cangs eventually expanded their operation to include large-scale shipments of methamphetamine to Guam for local distribution. To transport the drugs to Guam, Roy recruited various people to fly from Los Angeles to Guam with…

concurring:

I agree with the result. All three defendants were convicted under 21 U.S.C. § 952 (a), importation of controlled substances. The crime was transporting illicit drugs from California to Guam. This was transportation from the continental United States to a territory of the United States that has its own customs authority.

The language of the statute provides:

21 U.S.C. § 952 (a).

The first clause states that it is illegal to take drugs from non-customs territory of the United States to customs territory of the United States. The defendants did not do this.

The second clause bars the taking of drugs from foreign territory into the United States. The defendants did not do this either. Therefore, the statute was not violated.

The concerns reflected in both the dissent and the majority opinion about crossing international waters are not relevant to the interpretation of the plain language of the statute as I read it. Nevertheless, I do concur wholeheartedly in the result reached by the majority.

332 F.3d 622 UNITED STATES of America, Plaintiff-Appellee, v. James CABACCANG, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Richard T. Cabaccang, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Roy Toves Cabaccang, Defendant-Appellant. No. 98-10159. No. 98-10195. No. 98-10203. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc December 9, 2002. Filed June 6, 2003. Rory K. Little, San Francisco, California, for the defendants-appellants Cabaccang. Elizabeth A. Fisher, Honolulu, Hawaii, for the defendant-appellant James Cabaccang. Arthur E. Ross, Honolulu, Hawaii, for the defendant-appellant Richard T. Cabaccang. Sarah Courageous, Honolulu, Hawaii, for the defendant-appellant Roy Toves Cabaccang. Kathleen A. Felton, Assistant United States Attorney, Washington, D.C., for the plaintiff-appellee. Appeal from the United States District Court for the District of Guam; John S. Unpingco, District Judge, Presiding. D.C. Nos. CR-97-00095-3-JSU, CR-97-00095-2-JSU, CR-97-00095-1-JSU. Before SCHROEDER, Chief Judge, KOZINSKI, O'SCANNLAIN, KLEINFELD, HAWKINS, GRABER, McKEOWN, W. FLETCHER, FISHER, PAEZ and TALLMAN, Circuit…