United States of America, Appellee, v. Pedro Saade, Appellant.united States of America, Appellee, v. Carlos Zenon Rodriguez, Appellant, 652 F.2d 1126 (1st Cir. 1981)

Following a bench trial, Pedro Saade and Carlos Zenon Rodriguez were convicted of unauthorized entry into a military danger zone located off the southeastern coast of the island of Vieques during a naval gunnery practice session, in violation of 33 C.F.R. § 204.234¹  and 33 U.S.C. § 1.²  The district court sentenced both of the appellants to the maximum term of six months imprisonment. Of the numerous grounds for reversal advanced by the appellants, the most telling is their challenge to the validity of 33 C.F.R. § 204.234. Before addressing this issue, we briefly describe the central events leading up to their convictions.

Early on the morning of January 19, 1980, three Navy destroyers began to conduct ship-to-shore gunnery target practice within the southeastern Vieques danger zone. Thus, in accordance with 33 C.F.R. § 204.234, the zone was closed to nonmilitary navigation. Sometime in the week prior to January 19th the Navy had announced the practice session in a notice which it customarily published to alert fishermen and sailors of when the zone would be closed for target practice. According to a Government witness, the Navy distributes these notices "to the various agencies." Notice of a target practice is also transmitted daily by radio by the Hydrographic-Topographic Center of the Defense Mapping Agency. And, as was customary, the Navy flew a red warning flag from the top of a pole about thirty feet high located on the crest of Cerro Matias, the highest hill in the eastern half of Vieques.

Nonetheless, at around 9:30 a. m. a flotilla of eleven small boats carrying approximately thirty-five people approached the zone from the west. When the Navy officer responsible for coordinating the target practice learned of the flotilla's approach, he directed a patrol boat to "intercept" the lead boat in the flotilla and advise the occupants that the zone was closed. The patrol boat intercepted the lead boat but the flotilla continued on into the zone. At this point, the Navy suspended the gunnery practice.

After entering the zone the flotilla congregated in the waters of the Bahia Salina del Sur near a ship-to-shore land target. For the next three to four hours they remained just off shore of this target. Soon after the flotilla arrived in the Bahia Salina del Sur, a second patrol boat approached to within hailing distance. A civilian employee of the Navy aboard the patrol boat, with the flotilla now circling around him, informed them by megaphone, in English and Spanish, that they were violating 33 C.F.R. § 204.234 and warned that if they did not depart the zone at once they were subject to criminal prosecution. None of the boats left the area. A contingent of United States deputy marshals stationed on the beach of the Bahia boarded small boats and approached the flotilla in a vain effort to arrest the intruders. As the marshals came near, the members of the flotilla drove them off with lead pellets fired from slingshots; one of the boats of the flotilla also rammed one of the marshals' boats. After this unsuccessful enforcement effort, it appears there were no further clashes and in a few hours the flotilla headed off into the west.³ 

Although the marshals were unable to arrest any of the intruders at the scene, they were able to positively identify through eyewitnesses two of the people aboard boats in the flotilla Pedro Saade and Carlos Zenon Rodriguez. As a result, Saade and Zenon were subsequently charged by information with violating 33 C.F.R. § 204.234 and 33 U.S.C. § 1.

Challenge to the Validity of 33 C.F.R. § 204.234

In one of his several pretrial motions, Saade contended that the information failed to state an offense because, inter alia, the danger zone regulation, 33 C.F.R. § 204.234, is invalid. According to Saade, the Secretary of the Army should have promulgated § 204.234 pursuant to 33 U.S.C. § 3,⁴  but instead erroneously invoked 33 U.S.C. § 1 as the appropriate statutory authority. The Government responded by relying on the district court's opinion in Barcelo v. Brown, 478 F. Supp. 646 (D.P.R. 1979), in which the court held that the regulation was "properly issued and fall(s) within the purview of 33 U.S.C. §§ 1 and 3." Id. at 700. Denying Saade's motion to dismiss the information, the trial court treated the challenge as a technical quibble of no consequence, see Fed. R. Crim. P. 7(c) (3), and left unaddressed the validity of the regulation. On appeal, the appellants argue that the district court's failure to recognize that § 3, but not § 1, authorizes danger zone regulations effectively foreclosed them from pursuing what would have been a successful defense based upon the requirements of § 3.

In 1894 Congress enacted the original predecessor to the current § 1 of title 33. That provision authorized

the Secretary of War to prescribe such rules and regulations for the use, administration, and navigation of any or all canals and similar works of navigation ... owned, operated, or maintained by the United States as in his judgment the public necessity may require.

Act of August 18, 1894, c. 299, § 4, 28 Stat. 362. Congress amended the statute in 1902 by expanding the Secretary's power to also include the regulation of

the speed and movement of vessels and other water craft in any public navigable channel which has been improved under authority of Congress, whenever, in his judgment, such regulations are necessary to protect such improved channels from injury, or to prevent interference with the operations of the United States in improving navigable waters or injury to any plant that may be employed in such operations.

Act of June 13, 1902, c. 1079, § 11, 32 Stat. 374. Finally, in 1917 Congress substantially altered the provision, bestowing on the Secretary the apparently more comprehensive authority currently provided for in § 1. Section 7 of the Act of August 18, 1917 made it

the duty of the Secretary of War to prescribe such regulations for the use, administration, and navigation of the navigable waters of the United States as in his judgment the public necessity may require for the protection of life and property ... covering all matters not specifically delegated by law to some other executive department.

C. 49, § 7, 40 Stat. 266. According to the Government, the danger zone regulation unquestionably falls within the responsibility imposed by § 1 on the Secretary to regulate the use and navigation of the navigable waters "for the protection of life and property." Id.

If we were to consider § 1 in isolation, we would be inclined to adopt the Government's position, given the sweep of the statutory language. Yet in the same Act of 1917 that created the extant § 1, Congress also enacted a separate provision that specifically authorized the Secretary,

in the interest of the national defense and for the better protection of life and property (,) ... to prescribe such regulations as he may deem best for the use and navigation of any portion of (sic) areas of the navigable waters of the United States ... endangered or likely to be endangered by Coast Artillery fire in target practice or otherwise ....

Act of August 18, 1917, c. 49, § 8, 40 Stat. 266. Although the Government acknowledges that this section specifically provides the authority for target practice, i. e. danger zone, regulations, it maintains that § 1 remains an independent source of authority for such regulations.⁵ 

Two factors lead us to disagree. First, the contemporaneous enactment of §§ 1 and 3 in a single act strongly evidences that Congress intended that § 3, not § 1, would govern the promulgation of regulations such as 33 C.F.R. § 204.234. To conclude otherwise would render § 3 superfluous, a result we find difficult to accept in the absence of clear evidence that in the one Act Congress intended to enact a redundancy. The unlikelihood of such an irrational design becomes even more apparent in light of the second factor.

In the year after § 3 and the final form of § 1 were adopted, Congress amended § 3, expressly restricting the Secretary's power to prescribe target practice regulations by requiring that the Secretary ensure such regulations do "not unreasonably ... interfere with or restrict the food fishing industry." Army Appropriation Act for 1919, subc. 19, 40 Stat. 892 (1918). If the Secretary were permitted to proceed under § 1, he could ignore the effect of a regulation on the food fishing industry, circumventing the limited protection of food fishing mandated by the 1918 amendment. Unsurprisingly, the Government offers no evidence from which we can infer that in amending § 3 within one year of the 1917 Act, Congress nonetheless intended that § 1 permit the Secretary to evade the restriction imposed by this amendment.⁶  See United States v. United Continental Tuna Corp., 425 U.S. 164, 168-169, 96 S. Ct. 1319, 1322-1323, 47 L. Ed. 2d 653 (1976). Thus, the existence of this proviso reinforces our conclusion that § 3 alone authorizes danger zone regulations.⁷  This conclusion accords with an elementary principle of statutory construction; a court confronted with competing statutory provisions ordinarily should follow the dictates of the provision more specifically applicable to the problem at hand, see Busic v. United States, 446 U.S. 398, 406, 100 S. Ct. 1747, 1753, 64 L. Ed. 2d 381 (1980); Morton v. Mancari, 417 U.S. 535, 550-51, 94 S. Ct. 2474, 2482-83, 41 L. Ed. 2d 290 (1974), which, in this case, is § 3.

The Government argues that to treat § 3 as the sole legislative authorization for danger zone regulations works an implicit repeal of one facet of § 1, unjustifiably constricting its scope without the clear evidence of congressional approval required to find an implicit repeal. See, e. g., United States v. United Continental Tuna Corp., 425 U.S. at 168-69, 96 S. Ct. at 1322-23; Morton v. Mancari, 417 U.S. at 550-51, 94 S. Ct. at 2482-83; United States v. Borden Co., 308 U.S. 188, 198, 60 S. Ct. 182, 188, 84 L. Ed. 181 (1939). But this assumes that § 1 delegates the power to issue danger zone regulations, an assumption we do not accept. Moreover, the Government's argument cuts both ways. If we were to recognize § 1 as an alternative delegation of power to prescribe danger zone regulations, we would nullify § 3, including the limited protection for food fishing. Faced with a choice between merely narrowing the purported purview of § 1 and effectively repealing § 3, we follow the less severe course, thus leaving intact the more exact congressional definition of the Secretary's power.

It remains then to consider how this conclusion affects the appellants' convictions. The district court's dismissal of Saade's attack on § 204.234's validity, according to the appellants, short-circuited their defense that the regulation unreasonably interferes with the Viequen food fishing industry and is therefore invalid.⁸  The Government advances several reasons for rejecting the appellants' position. First, it contends, without any supporting authority or evidence, that Congress intended that this question be decided only in a civil action. Section 3 is not, however, one part of a unique legislative scheme such as that at issue in Yakus v. United States, 321 U.S. 414, 64 S. Ct. 660, 88 L. Ed. 834 (1944). The statute underlying the controversy in Yakus created a comprehensive regulatory administration to control prices during World War II. As part of that scheme, Congress provided an exclusive procedure, including review by an emergency court of appeals, by which an aggrieved party could challenge the validity of a price regulation and expressly prohibited recognition of such a challenge as a defense to a criminal charge for violation of the regulation.⁹  Id. at 427-29, 64 S. Ct. at 668-70. In the absence of a similarly preclusive legislative scheme applicable to regulations issued pursuant to § 3, we will not foreclose the appellants' efforts to show that their convictions were premised on a regulation that, because invalid, has no legal effect.

Second, the Government apparently suggests that because the appellants failed, until appeal, to pursue their claim that the regulation unreasonably restricts fishing, they have waived this defense. Although Saade did not question the reasonableness of the regulation in his pretrial motion, focusing on the Government's erroneous invocation of § 1 as the proper statutory authority, his silence below does not necessarily preclude a fully explored challenge on appeal. Federal Rule of Criminal Procedure 12(b) (2) mandates that a claim that an information fails to state an offense "shall be noticed by the court at any time during the pendency of the proceedings." This language has been interpreted to encompass such defenses even if first raised by a defendant on appeal or by a court of appeals sua sponte. See, e. g., United States v. Meacham, 626 F.2d 503, 509 (5th Cir. 1980); Government of Virgin Islands v. Greenidge, 600 F.2d 437, 439 n.2 (3d Cir. 1979); United States v. Seuss, 474 F.2d 385, 387 n.2 (1st Cir.), cert. denied, 412 U.S. 928, 93 S. Ct. 2751, 37 L. Ed. 2d 155 (1973). So interpreted, the rule appears to require that we entertain the appellants' claim that the regulation unreasonably interferes with the food fishing industry.

But the Government's final line of defense underscores an important difference between the appellants' challenge and those typically protected by that part of Rule 12(b) (2) cited above. In most cases where a defendant attacks the validity of a statute he allegedly violated, the challenge stands or falls on the analysis of questions of law, often of constitutional dimension. When a criminal defendant questions the validity of a regulation, however, the issue more often is not amenable to resolution without the benefit of fact-findings, as is the case here. The Government argues that target practice conducted in accordance with § 204.234 does not unreasonably interfere with the food fishing industry of Vieques. But neither party adduced evidence at trial on this question and thus the district court did not provide us with any pertinent findings. Without knowing how in fact the Navy's target practice hinders fishing in the Viequen waters, if at all, we cannot decide whether that practice is reasonable under § 3.¹⁰  Thus, if we recognize the appellants' belated challenge, we have no choice but to remand the case to the district court, a prospect that causes us to hesitate. What concerns us is that Rule 12(b) (2), so applied, opens the way for defendants in this situation to remain silent until appeal, knowing they can gain at least some delay and further burden the Government through a remand to the trial court for the fact-findings necessary to determine a regulation's validity. Having expressed our concern, we nevertheless conclude that under the facts of this case the appellants' challenge should be recognized.

Although Saade did not question the regulation's compliance with the fishing proviso before the district court, he did draw the court's attention to a potentially substantial defect in the promulgation of the regulation, the Secretary's misplaced reliance on 33 U.S.C. § 1. Given the Secretary's error, and that a facially apparent major distinction between § 1 and § 3 is the latter's proviso for the food fishing industry, the district court had an obligation to ascertain whether the Secretary had complied with the proviso when issuing the regulation.¹¹  This obligation arises from the fact that a federal court has jurisdiction to try criminal cases only when the information or indictment alleges a violation of a valid federal law; and it is ultimately the court's responsibility to ensure that jurisdiction exists. Confronted with a potentially significant anomaly in the promulgation of the regulation, the validity of which is essential to its jurisdiction, the district court should have inquired further, regardless of the inadequacy of the defendant's motion.

Thus, we remand the case for further proceedings to determine whether 33 C.F.R. § 204.234 unreasonably interferes with the food fishing industry.¹²  If the district court rules that the danger zone regulation complies with the fishing proviso, the convictions shall stand. If the court rules to the contrary, it shall dismiss the informations.

Although we remand the case, we consider it appropriate to review the other grounds raised by the appellants so that any subsequent appellate review of these convictions, if necessary, will be limited to the question upon which we now remand.¹³ Invidious Selective Prosecution

Before trial, Saade moved to dismiss the information because the Government supposedly had singled out Zenon and Saade for prosecution in order to deter their exercise of rights protected by the first amendment. In the alternative, Saade requested an evidentiary hearing to explore his claim. The Government of course opposed the motion and the district court refused to conduct a hearing and denied the motion to dismiss. The appellants challenge that ruling.

When considering an attack on the Government's exercise of its broad discretion in the decision whether to prosecute a particular case, we presume that that choice has been made in good faith for reasons of sound governmental policy. See United States v. Lichenstein, 610 F.2d 1272, 1281 & n.4 (5th Cir.), cert. denied, 447 U.S. 907, 100 S. Ct. 2991, 64 L. Ed. 2d 856 (1980); United States v. Union Nacional de Trabajadores, 576 F.2d 388, 395 (1st Cir. 1978). To overcome this presumption, defendants bear a heavy burden. Only if a defendant can establish prima facie

(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i. e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights(,)

does the burden shift to the government to demonstrate that the prosecution was not premised on an invidious objective. United States v. Union Nacional de Trabajadores, 576 F.2d at 395, quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974). A defendant need not, however, present a prima facie case in order to justify an evidentiary hearing. So long as the defendant alleges some facts a) tending to show that he has been selectively prosecuted, and b) raising a reasonable doubt about the propriety of the prosecution's purpose, see United States v. Larson, 612 F.2d 1301, 1304-05 (8th Cir.), cert. denied, 446 U.S. 936, 100 S. Ct. 2154, 64 L. Ed. 2d 789 (1980); United States v. Berrios, 501 F.2d at 1211-12 & n.4; United States v. Falk, 479 F.2d 616, 620 (7th Cir. 1973) (in banc), a district court, in the absence of countervailing reasons, should grant a request for a hearing.

Saade's claim of invidious selective prosecution drew essentially upon two factual allegations contained in his motion. First, he asserted that of the "numerous persons" who participated in the January 19th protest action and similar earlier protests, only two, Saade and Zenon, were arrested for violation of 33 C.F.R. § 204.234. Second, he alleged a) that Zenon is the prominent president of the Vieques Fishermen's Association and active in the movement opposed to the use of Vieques as a Navy training area, and b) that Saade is the attorney for both Zenon and the Association and also actively participates in the opposition to the Navy's activities on Vieques. According to Saade, these two allegations conclusively show that the Government prosecuted the appellants to halt future political action against Navy training operations and to punish the appellants for past political activities, contrary to the first amendment. In response, the government submitted a memorandum stating, inter alia, that Saade and Zenon were the only ones charged with violating 33 C.F.R. § 204.234 because, out of the approximately thirty-five persons who took part in the January 19th protest, only appellants could be identified without the Government undertaking an extensive investigation. According to the Government, if at the time of the protest the United States marshals could have safely arrested the others, they too would have been charged with violating the danger zone regulation. On the basis of these unsworn allegations from both parties, the district court refused to grant a hearing or dismiss the information.

Standing alone, Saade's allegations suggest a striking coincidence that arguably casts a reasonable doubt on the propriety of the Government's design in pursuing the prosecution of the appellants only, thus warranting an evidentiary hearing. But the Government parried these allegations with concrete, legitimate reasons that were subsequently supported in full by evidence adduced at the trial. The district court also may have considered that the Government, in an effort to husband its limited prosecutorial resources, chose to prosecute only those who could be easily apprehended in the hope that prosecution of the appellants would deter future illegal disruptions of Navy training practice.¹⁴  Unlike the situation in United States v. Steele, 461 F.2d 1148 (9th Cir. 1972), where the Government defended its selective prosecution with nothing more than a bland invocation of "prosecutorial discretion," id. at 1152; cf. United States v. Falk, 479 F.2d at 623 (defendant's extensive factual allegations "unrebutted" by the Government),¹⁵  here the Government came forth with a specific explanation for its decision to prosecute only Saade and Zenon that is well within the wide range of factors the Government may permissibly consider in deciding whether to prosecute. Thus, under these facts the district court did not abuse its discretion in denying Saade's motion in its entirety.

Allegation of Unlawful Electronic Surveillance

In a comprehensive pretrial motion, Saade requested that the trial court order the Government to disclose whether the Government had conducted any form of electronic surveillance of Saade's telephone conversations. Saade supported the motion with an affidavit in which he briefly described his frequent use of three telephones in the course of his work as a lawyer for Puerto Rico Legal Services. He asserted that since March 1979 his telephone conversations with clients and other lawyers were disturbed by "irregularities", specifically, "unusual sounds, voices of other people not related with the telephone I am calling." Finally, he expressed his belief that the irregularities evidenced electronic surveillance. Initially, the district court granted Saade's motion. But upon reconsideration at the request of the Government the court vacated its first order and denied the motion.¹⁶ 

Saade's claim on appeal is two-fold. First, he contends that his fourth amendment rights may have been violated by the use of evidence obtained through illegal wiretapping. Second, he questions whether his and his clients' sixth amendment rights to effective assistance of attorney-client conversations may have been impaired by illegal surveillance of attorney-client conversations. We consider these issues separately.¹⁷ 

Under 18 U.S.C. § 3504(a) (1), when a "party aggrieved" claims that evidence that may be used against him is tainted by illegal wiretapping, the Government must "affirm or deny the occurrence of the alleged unlawful act." Id.¹⁸  Saade maintains that his affidavit stated a claim which triggered the Government's duty under § 3504(a) (1). But whether or not the district court should have recognized Saade's allegations as a claim,¹⁹  no harm befell the appellants from the denial of the motion. Our review of the record convinces us that none "of the evidence used to convict appellants could have been the fruit of wiretapping." United States v. Union Nacional de Trabajadores, 576 F.2d at 393. As was the case in Union Nacional, the conduct for which the appellants were convicted "was out in the open for all to see," id.; the Government's case consisted of eye-witness testimony by military officers and government agents and undisputed documentary evidence. We find completely unpersuasive the appellants' attempt to explain how this evidence could have been tainted by illegal wiretapping.

The sixth amendment facet of Saade's claim fails for a different reason. In his affidavit accompanying his motion, Saade expressed his belief that the alleged wiretapping was "in connection with" his "representation of the Viequens and my arrest on January 19, 1980," and alleged that he had "engaged in conversations of confidential nature with my clients in Vieques and with other lawyers and people that are working in Vieques too." Assuming that a defendant may draw from the sixth amendment a right analogous to that created by § 3504(a) (1),²⁰  see Union Nacional, 576 F.2d at 394, these allegations fail to raise a sixth amendment claim related to the criminal prosecution at issue here.²¹  Rather, the allegations appear to seek a wholesale disclosure of possible electronic surveillance of Saade with respect to his work generally on behalf of the Vieques Fishermen's Association and other Viequen clients, including Zenon.²²  Although that work may be ideologically related to the immediate events that led to the appellants' convictions, that connection alone does not suffice to raise a viable sixth amendment-based claim in the context of a criminal case.

As applied to a criminal defendant's "claim," § 3504(a) (1) works within the limits of a criminal prosecution, offering some protection to a defendant from a conviction secured through tainted evidence. So too a sixth amendment analogue to this statutory right should be confined to protecting an individual's right to the effective assistance of counsel in defending against a criminal charge. Thus, for such a claim to survive, the affidavit must allege facts tending to show that conversations between a defendant and the attorney defending him against the criminal charge, or conversations of the defendant or his attorney with third persons pertaining to that defense, have been wiretapped. Where the allegedly overheard conversations were between the attorney or the defendant and third parties, the allegations should set forth the dates of the pertinent conversations, the identities of the third persons and the connection between those conversations and the defense of the criminal charge. See, e. g., United States v. Vielguth, 502 F.2d 1257, 1259-60 (9th Cir. 1974); United States v. Alter, 482 F.2d 1016, 1026 (9th Cir. 1973). Saade failed to allege facts sufficient to support even a colorable claim that the Government tapped either conversations between him and the attorney who represented him in this case or conversations between him or that attorney and third persons that were directly related to Saade's defense of this charge.

The district court properly denied Saade's motion to compel disclosure of electronic surveillance.

The remaining issues raised by Saade and Zenon require only brief discussion. The appellants contend that in sentencing them both to the maximum term of six months imprisonment, the district court acted without regard to them as individuals and relied on "impermissible" factors. As we have previously emphasized, "a court of appeals may not reverse or tamper with a sentence that is within legal limits," United States v. Foss, 501 F.2d 522, 527 (1st Cir. 1974), unless the record shows that the trial court relied on an "improper" assumption, United States v. Wardlaw, 576 F.2d 932, 937 (1st Cir. 1978), or followed a " 'mechanistic' concept of what a particular type of crime invariably deserves," blind to any "mitigating factors" applicable to the individual defendant's case. United States v. Foss, 501 F.2d at 527; see Dorszynski v. United States, 418 U.S. 424, 443, 94 S. Ct. 3042, 3052, 41 L. Ed. 2d 855 (1974); United States v. Wardlaw, 576 F.2d at 938; United States v. Hartford, 489 F.2d 652, 655 (5th Cir. 1974). Neither the appellants' argument on appeal, nor our review of the record, discloses any evidence that the district court acted mechanistically in determining their sentences. The record shows only that the court offered the appellants an opportunity to inform it of potentially ameliorative factors: both of the appellants accepted this invitation with a brief account of the political impetus for the January 19th incident. Finally, the appellants cannot be heard for the first time on appeal to complain because the court reasonably decided to forego preparation of presentence reports. See Fed. R. Crim. P. 32(c).

The appellants also claim that in determining the sentences the court impermissibly relied on a Government witness' testimony as to newspaper reports of Zenon's public statements related to the planning of the January 19th protest action. Not only, in light of the record, is this conjecture, but the appellants fail to recognize that in deciding upon the appropriate sentence a trial court properly may consider "responsible unsworn or 'out-of-court' information relative to the circumstances of the crime ...." Williams v. Oklahoma, 358 U.S. 576, 584, 79 S. Ct. 421, 426, 3 L. Ed. 2d 516 (1959).²³  If the trial court did consider this specific information in sentencing the appellants, it acted within its discretion.

Saade and Zenon assail their convictions on the ground that the Government failed to prove they knew the Navy was conducting target practice at the time they entered the danger zone.²⁴  Much of this argument is directed against the grounds articulated by the district court in its findings, in particular, its supposedly considerable reliance on inadmissible testimony that related statements of Zenon as reported by several newspapers. See note 23 supra. Although we think the appellants exaggerate the importance of this evidence to the court's findings, even if it were entirely disregarded the other evidence of the appellants' knowledge is substantial. Sometime in the week preceding January 19th the Navy had routinely distributed a notice of the practice schedule; the Defense Mapping Agency had transmitted the information as part of its daily radio broadcasts for the benefit of local sailors and fishermen; a red warning flag, routinely used to alert fishermen and sailors of a target practice, flew atop the highest point on the eastern half of the island; a patrol boat intercepted the flotilla before it entered the zone and, it may be inferred, warned the lead boat not to enter because of the gunnery practice; and another patrol boat warned them that they were in violation of the danger zone regulation after they had entered the zone they still did not leave for approximately three hours.²⁵  Considering this evidence, and all reasonable inferences, in the light most favorable to the Government, we conclude that the evidence as a whole sufficiently supports the trial court's finding that the appellants knew the zone was closed to nonmilitary navigation before they entered it.²⁶ 

For the reasons stated, we remand the case to the district court for further proceedings consistent with this opinion.

Remanded.

LEVIN H. CAMPBELL, Circuit Judge (concurring and dissenting).

The regulation should, I agree, have been promulgated under 33 U.S.C. § 3, not section 1. It does not follow, however, that defendants are entitled to a remand, for the purpose of an evidentiary hearing on a factual issue they never raised before the district court namely, whether the regulation constituted an unreasonable interference with the food fishing industry.

Defendants' pre-trial motion only claimed that the information failed to state an offense because the regulation they were charged with violating was invalid, having been expressly promulgated under section 1, not section 3, of Title 33. The district court properly denied the motion. As this court in effect holds, citation to an inapposite enabling statute is not a sufficient reason to invalidate an information where authority for the challenged regulation exists in another statute. See Johnson v. United States, 206 F.2d 806, 807, 14 Alaska 380 (9th Cir. 1953).

At no time below did defendants advance the further and distinct proposition that the information was invalid because the regulation did not comply with the proviso in section 3 that a regulation thereunder must not interfere unreasonably with the food fishing industry. Nothing on the face of the regulation gives rise to such a claim. There was nothing whatever to prevent defendants from making this claim in the district court had they wished to do so. To be sure, the judge might have overruled such a claim, had it been made, on one or another ground, including, possibly, the mistaken ground that section 1 applied, and that no such proviso existed in section 1. But the court might not have adopted this approach. We shall never know. In any event, litigants are not excused from presenting matters in the trial court simply because they believe the judge will deny their request. Surely if defendants here had any real belief that the regulation could be shown to interfere with food fishing, they would have made the point in their motion and extensive supporting brief filed in the district court. They did not. I am therefore at a loss to understand why we permit them to raise the matter at this juncture. The question was, indeed, not even raised in their appellate brief. It first surfaced during oral argument before this court.

Citation to Fed. R. Crim. P. 12(b) (2) is not, I think, an adequate explanation of the court's result. An indictment may be challenged for the first time on appeal under Rule 12(b) (2) where it omits a necessary element of the crime charged, see Walker v. United States, 342 F.2d 22 (5th Cir.), cert. denied, 382 U.S. 859, 86 S. Ct. 117, 15 L. Ed. 2d 97 (1965); where it charges a defendant with a crime that does not exist under the statute, see United States v. Meacham, 626 F.2d 503 (5th Cir. 1980); Government of Virgin Islands v. Greenidge, 600 F.2d 437 (3d Cir. 1979); or where the statute creating the offense is unconstitutional, see United States v. Seuss, 474 F.2d 385 (1st Cir.), cert. denied, 412 U.S. 928, 93 S. Ct. 2751, 37 L. Ed. 2d 155 (1973). It may even be the case that a challenge to the validity of a regulation may be raised for the first time on appeal if an adequate basis for decision is to be found in the appellate record. See Johnson, 206 F.2d 806. But I have found no case in which Rule 12(b) (2) has been invoked to allow a defendant to raise for the first time on appeal such factual and wholly undeveloped issues as are at stake here. Moreover, I have found no case in which the issue of an indictment's failure to state an offense has been remanded to the district court. This is but further illustration of the point that under Rule 12(b) (2) issues requiring extensive factual development may not be raised for the first time on appeal. If this sort of procedure is to be allowed, litigants will not only be encouraged to save up ammunition for de novo use in the appellate court, but already overburdened courts will end up holding double hearings at the expense of other litigants whose claims have yet to be heard at all.

I would affirm the judgment below.