ORDER ON PENDING MOTIONS
On the afternoon of April 12, 2002, several miles outside the Port ofMiami, various members of Greenpeace, Inc., a world-wide environmentalorganization, boarded the M/V APL Jade, a cargo vessel which was believedto be bringing illegally logged mahogany from Brazil into the UnitedStates. The Greenpeace members, once on board, intended to unfurl abanner which urged President Bush to stop illegal logging, but they weretaken into custody before they could do so.
In May of 2002, the government charged several Greenpeace members byinformation with the commission of a misdemeanor in violation of18 U.S.C. § 2279.1 Those individuals pled guilty or no contest, andI sentenced them to time served plus fines ranging from $100 to $500.See United States v. Dombowsky et. al., No. 02-20470-Cr-Jordan.In July of 2003, the government obtained a grand jury indictment chargingGreenpeace with violating § 2279, and subsequently obtained asuperseding indictment adding a charge of conspiracy to violate §2279, in violation of 18 U.S.C. § 371.
This order addresses Greenpeace's motion to dismiss the indictment,Greenpeace's motion for a jury trial, and the government's motion for anon-jury trial. I held a hearing on these and other motions on December12, 2003. I. THE MOTION TO DISMISS
Greenpeace has moved to dismiss the superseding indictment, arguingthat § 2279 does not apply to the conduct alleged in the indictmentand that § 2279 is impermissibly vague. For the reasons which follow,the motion to dismiss is denied in part and deferred in part.
In analyzing Greenpeace's motion, I am limited to the allegationscontained within the four corners of the indictment, and must read thoseallegations in the light most favorable to the government. See, e.g.,United States v. Plummer, 221 F.3d 1298, 1302 (11th Cir. 2000);United States v. Devegter, 198 F.3d 1324, 1327 (11th Cir. 1999).To the extent that Greenpeace is challenging the allegations of theindictment, any contested evidentiary matters which form the basis of themotion are not amenable to pretrial disposition. See United States v.Knox, 396 U.S. 77, 83 n.7 (1969); United States v. Critzer,951 F.2d 306, 307 (11th Cir. 1992). There is, however, one exception. Atthe hearing on the pending motions, the government stipulated that Icould consider, or take judicial notice of, one fact not alleged in theindictment. That fact is that the boarding of the APL Jade took place3.24 miles off the coast of Miami Beach.2
A. THE SCOPE OF § 2279
Congress enacted the predecessor to § 2279 in 1872. SeeAct of June 7, 1872, § 6, Rev. Stat. § 4606 (then codified at46 U.S.C. § 708). Since then, there have only been two reported casesdiscussing § 2279 or its predecessor. Those cases are over 100 yearsold, and do not address the issues raised here by Greenpeace. SeeUnited States v. Sullivan, 43 F. 602, 602-05 (C.C.D.Or. 1890)(statute applies to foreign vessels); United States v. Anderson,24 F.Cas. 812, 812 (C.C. S.D.N.Y. 1872) (government need not prove thatthe defendant was not in the United States service or was not authorizedby law to go onboard). Sullivan does, however, discuss theintended purpose of § 2279: The evil which this section is intended to prevent and remedy is apparent, and in this district notorious. For instance, lawless persons, in the interest or employ of what may be called sailor-mongers,' get on board vessels bound for Portland as soon as they get in the Columbia river, and by the help of intoxicants, and the use of other means, often savoring of violence, get the crews ashore, and leave the vessel without help to manage or care for her. The sailor thereby loses the wages of the voyage, and is dependent on the boarding-house for the necessaries of life, where he is kept, until sold by his captors to an outgoing vessel, at an enormous price.43 F. at 604-05.
Greenpeace's first argument is that § 2279 does not apply to itsalleged conduct because a vessel 3 miles offshore is not "about to arriveat the place of her destination." Words in a statute are to be giventheir "ordinary, contemporary, common meaning, absent an indicationCongress intended them to bear some different import," Williams v.Taylor, 529 U.S. 420, 431 (2000) (internal quotation marks omitted),and it is an accepted practice for courts to look to dictionaries fordefinitions, as in National R.R. Passenger Corp. v. Morgan,536U.S. 101, 109 n.5 (2002). According to Greenpeace, the phrase "aboutto" means "on the point or verge of," see WEBSTER'S THIRD NEWINTERNATIONAL DICTIONARY 5 (1976), and connotes imminence and immediacy.I agree with Greenpeace's reading, which is supported by dictionarydefinitions and the few cases interpreting the phrase. See, e.g.,E.E. O. C. v. Swift Transport Co., 120 F. Supp.2d 982, 992 (D. Kan.2000) (interpreting phrase "about to" in 29 U.S.C. § 215(a)(3) tomean "on the point or verge of or "ready or prepared to do something");United States v. 200 Watches, 66 F. Supp. 228, 231 (S.D.N.Y. 1946)(same ruling with respect to phrase "about to" in former 22 U.S.C. § 401).I also think Greenpeace is right in arguing that the phrase "beforeshe has been completely moored" suggests some measure of physicalproximity to land for the statute to be applicable. But I do not concurwith Greenpeace that this means, as a matter of law, that § 2279 isinapplicable when the subject vessel is 3.24 miles from shore. SeeAnderson, 24 F.Cas. at 812 (statute was violated by boarding ofinbound vessel which was temporarily anchored in the Bay of New York andwhich had not yet arrived at pier of destination in New York City).3
There may be a case where the distance from shore or port is so removedfrom the act of arrival that the statute will not apply, but I cannotsay, on this limited record, that this is one of them The reason is that there are many unknown facts which might bear onthe question of whether the APL Jade was "about to arrive at the place ofher destination" when she was boarded by the Greenpeace members. What wasthe APL Jade doing at the time of the boarding? What are the boundariesof the Port of Miami and of the channel leading into it? Where exactly inthe Port of Miami was the APL Jade supposed to dock? How far away fromthe final docking place was the APL Jade when it was boarded? At whatdistance are pilots generally sent to guide vessels of this size into thePort of Miami? At what distance was the APL Jade when the pilot actuallyarrived? Were tugboats going to be used, and if so, when? How far was theAPL Jade from the channel of the Port of Miami at the time of boarding?These questions can only be answered at trial.
B. THE VAGUENESS CHALLENGE TO § 2279
Greenpeace's second challenge to the indictment is that § 2279 isunconstitutionally vague. Specifically, Greenpeace contends that thestatute is subject to facial attack because it "fail[s] to provide thekind of notice that will enable ordinary people to understand whatconduct it prohibits[.]" City of Chicago v. Morales, 527 U.S. 41,56 (1999) (plurality opinion concluding that ordinance which definedloitering as "remain[ing] in any one place with no apparent purpose" wasunconstitutionally vague and therefore facially invalid). Seegenerally Horton v. City of St. Augustine, 272 F.3d 1318, 1329-30(11th Cir. 2001) (applying Morales to street performanceordinance).
That § 2279 reaches conduct other than so-called "sailor-mongering"— the type of conduct at which the statute was apparently directed— does not, by itself, create a constitutional infirmity. "[T]hefact that a statute can be applied in situations not expresslyanticipated by Congress does not demonstrate ambiguity. It demonstratesbreadth." Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206,212 (1998) (internal quotation marks and citations omitted). Neitherdoes the executive branch's failure to use or enforce the statute forover a century:
The failure of the executive branch to enforce the law does not result in its modification or repeal. . . . Cases of hardship are put where criminal laws so long in disuse as to be no longer known to exist are enforced against innocent parties. But that condition does not bear on the continuing validity of the law; it is only an ameliorating factor in enforcement. District of Columbia v. John R. Thompson Co., 346U.S.100, 113-14 (1953) (upholding use of 1872 law, which prohibited therefusal of service on the basis of a person's color, in 1952 criminalprosecution despite lack of enforcement over the years). Cf.Corey Chivers, Desuetude, Due Process, and the Scarlet LetterRevisited, 1992 UTAH L. REV. 449, 451 (1992) (proposing that when astatute has fallen into disuse or desuetude, courts "could refuse toenforce [it] in those particular cases where enforcement would createidentifiable failures of due process").
Turning to Greenpeace's argument, "[v]oid for vagueness simply meansthat criminal responsibility should not attach where one could notreasonably understand that his contemplated conduct is proscribed. Indetermining the sufficiency of the notice a statute must of necessity beexamined in light of the conduct with which a defendant is charged."United States v. National Dairy Products Corp., 372 U.S. 29, 33(1963) (citations omitted). Where, as here, a statute does not targetspeech or implicate First Amendment concerns, a vagueness challenge mayonly be made as applied to the alleged conduct. See, e.g., UnitedStates v. Hasner, 340 F.3d 1261, 1269 (11th Cir. 2003). Cf.Virginia v. Hicks, 123 S.Ct. 2191, 2199 (2003) ("Rarely, if ever,will an overbreadth challenge succeed against a law or regulation that isnot specifically addressed to speech or to conduct necessarily associatedwith speech (such as picketing or demonstrating).").
The question, then, is whether § 2279 is vague as applied to theconduct alleged in the indictment. On this record, which, as notedearlier, is devoid of many relevant facts, I cannot answer this question.Accordingly, Greenpeace's void-for-vagueness challenge will be determinedat trial, keeping in mind the rule of lenity, which "ensures fair warningby . . . resolving ambiguity in a criminal statute as to apply it onlyto conduct clearly covered." United States v. Lanier,520 U.S. 259, 266 (1997).
I would be remiss, however, if I did not tell the government that Ihave concerns about § 2279, even in an as-applied setting. First,"[t]he purpose of the fair notice requirement is to enable the ordinarycitizen to conform his or her conduct to the law," Morales, 527U.S. at 58, and it is not at all apparent that this requirement issatisfied by § 2279, as the statute does not define the criticalphrase "about to arrive at the place of her destination." Thegovernment's contention that the phrase simply "means what it says" is ofno help at all, and may buttress Greenpeace's argument that fair noticeis lacking. It is not a good sign when the government resorts to defininga phrase by repeating the phrase itself. Second, there is apparently no mens reaelement in § 2279, and that is an important factor in theconstitutional void-for-vagueness calculus. See Hasner, 340 F.3dat 1269.4 Third, as the government has noted in one of its memoranda,there is no longer a consent exception (or affirmative defense) under§ 2279. This potentially means that if a vessel's master allows afriend of the owner — who is not in the "United States service" oris not or "duly authorized by law" to board when the vessel is "about toarrive at the place of her destination" — that person — nomatter what his purpose for being on the vessel or the lack of disruptioncaused by his presence — has violated the statute. This is notdispositive, of course, because this is an as-applied vaguenesschallenge, but it not insignificant either. Fourth, although a federalcourt has the power, and duty, to narrowly construe a federal statute toavoid constitutional problems, it can do so only if such a constructionis "fairly possible." Boos v. Barry, 485 U.S. 312, 331 (1988).At the last hearing, the government had, it is fair to say, a difficulttime articulating definitions for the "about to arrive" language. When itwas forced to define the phrase, it came up with various alternatives:(1) within the customs waters (i.e., within 12 miles of shore) and withinthe shipping channel; (2) within the customs waters on course to enterthe shipping channel which terminates at the port; or (3) an inbound shipwithin a "reasonable" distance of the port it is destined for. The merefact that these are all possible constructions of the statutory language— with no indication to a reasonable person as to which of themgoverns — gives credence to the vagueness claim. Fifth, thegovernment hurts its position on the vagueness issue by citingapprovingly in one of its memoranda to Sullivan, 43 F. at602-04, a case which upheld an information charging a violation of §2279's predecessor when the vessel was about 50 miles from its intendeddestination.5 If, as the government posits, § 2279 is so broad asto allow a prosecution under such facts, then the statute has no realmeaning, and Greenpeace's vagueness claim looks like a winner.
The government also suggests that the "about to arrive" language beinterpreted by reference to a Florida statute requiring vessels to usepilots when entering or leaving ports. See Fla. Stat. §310.141. That suggestion, however, is wholly unpersuasive.
It is generally true that a federal statute is not renderedunconstitutionally vague merely because it incorporates state law byreference for the purpose of defining illegal conduct. See, e.g.,United States v. Iverson, 162 F.3d 1015, 1021 (9th Cir. 1998);United States v. Tripp, 782 F.2d 38, 42 (6th Cir. 1986). Theproblem here is that § 2279 does not reference state law in any way,and "federal criminal statutes should not, in the absence of expresslegislative authorization, be interpreted according to diverse statelaws." United States v. McLain, 545 F.2d 988, 1001-02 n. 30 (5thCir. 1977). One of the purposes of this rule of construction is toprevent federal laws from having different meanings or applications indifferent states, unless Congress expressly says otherwise. SeeMississippi Band of Choctaw Indians v. Holifield, 490 U.S. 30, 43(1989) ("the "general assumption" is that, "in the absence of a plainindication to the contrary, . . . Congress when it enacts a statute isnot making the application of the federal act dependent on state law")(internal quotation marks and citation omitted); Jerome v. UnitedStates, 318 U.S. 101, 104 (1943) (same). In sum, it would beimproper to define the boundaries of § 2279 by incorporating aFlorida law which is not mentioned in the statute's text.
Even if § 310.41 could be considered as a point of reference, it isnot directly on point. The statute says only that pilots must be on boardto direct the movements of a vessel "when it is entering or leaving portsof this state." The phrase "about to arrive" is not the same as thephrase "entering or leaving ports," and is in fact less precise. In otherwords, resort to § 310.41 does not alleviate the potential vaguenessproblem.
III. THE JURY TRIAL ISSUE
Greenpeace seeks a jury trial under the Constitution as a matter ofright. Alternatively, it requests a jury trial as a matter of judicialdiscretion. The government, on the other hand, wants a bench trial, andargues that I have no discretion to empanel a jury. A. THE CONSTITUTIONAL GUARANTEES TO A JURY TRIAL
The Constitution mentions the right to a jury trial in criminal casesin Art. III, § 2, cl. 3: "The Trial of all Crimes, except in Cases ofImpeachment; shall be by Jury[.]" The Bill of Rights addresses the rightto trial by jury in criminal cases in the Sixth Amendment: "In allcriminal prosecutions, the accused shall enjoy the right to a speedy andpublic trial, by an impartial jury[.]" The Supreme Court has held that,under these constitutional provisions, "petty offenses triable at commonlaw without a jury may be tried without a jury in federal court[.]"Ex Parte Quirin, 317 U.S. 1, 39 (1942).
There are two charges in this case — an alleged conspiracy under18 U.S.C. § 371 to violate 18 U.S.C. § 2279, and an allegedviolation of § 2279. When the object of a § 371 conspiracy is amisdemeanor violation, § 371 provides that the "punishment for suchconspiracy shall not exceed the maximum punishment provided for suchmisdemeanor." Thus, § 2279 determines the punishment available forboth of the charges pending against Greenpeace.
The punishment for an individual under § 2279 is imprisonment forup to six months and a fine, thereby making the statute a Class Bmisdemeanor. See 18 U.S.C. § 3559(a)(8). For a Class Bmisdemeanor, an organization like Greenpeace can be given up to fiveyears' probation (with various possible conditions), and can be fined upto $10,000. See 18 U.S.C. § 3561(a), (c)(2);18 U.S.C. § 3571(c)(6). The Sentencing Guidelines do not apply to Class Bmisdemeanors. See United States v. Chavez, 204 F.3d 1305, 1310(11th Cir. 2000).
A corporation is not entitled to "purely personal guarantees" of theConstitution whose "historic function . . . has been limited to theprotection of individuals." First National Bank of Boston v.Bellotti, 435 U.S. 765, 779 n.14 (1978) (internal quotation marksand citations omitted). The Supreme Court has not definitively addressedwhether the right to a jury trial in criminal cases protects corporationsas well as individuals, preferring to leave the question open inMuniz v. Hoffman, 422 U.S. 454, 477 (1975), and neither has theEleventh Circuit. Like the parties, and consistent with those courtswhich have addressed the issue — albeit without much analysis— I will assume that Greenpeace, like an individual, is entitled tothe jury trial protections of the Constitution and the Bill of Rights.See United States v. Twentieth Century Fox Film Corp.,882 F.2d 656, 663-65 (2nd Cir. 1989); United States v. Troxler HosieryCo., 681 F.2d 934, 935n.1 (4th Cir. 1982); United States v. R.L.Polk and Co., 438 F.2d 377, 379 (6th Cir. 1971). But seeAlan Adlestein, A Corporation's Right to a Jury Trial Under the SixthAmendment, 27 U.C. DAVIS L. REV. 375, 449-58 (1994) (noting problemsin articulating a "seriousness" test for corporations or other entities,and arguing that a corporation, which is subject to fines and probation,but not imprisonment, is not entitled to a criminal jury trial unless thelegislature so provides).
In this case, borrowing the standard articulated by the Supreme Courtfor deciding when an individual has a constitutional right to a jurytrial — as the parties have done — I conclude that Greenpeaceis not entitled to a jury trial under Article III, § 2, cl. 3, or theSixth Amendment. A criminal offense providing for a maximum prison termof six months or less is presumptively petty, and in such cases adefendant is not entitled to a jury trial unless additional statutorypenalties, viewed in conjunction with the authorized prison term, are sosevere that they reflect a legislative determination that the offense is"serious." See, e.g., Blanton v. City of North Las Vegas,489 U.S. 538, 543 (1989). The fact that the two charges against Greenpeace,if lodged against an individual, would have an aggregate prison termexceeding six months, does not trigger a right to a jury trial. SeeLewis v. United States, 518 U.S. 322, 327 (1996) ("The fact that thepetitioner was charged with two counts of a petty offense does not revisethe legislative judgment as to the gravity of that particular offense,nor does it transform the petty offense into a serious one, to which thejury trial right would apply").
Moving on to the other sanctions faced by Greenpeace, the maximum$10,000 fine on each charge does not make the offenses severe. SeeUnited States v. Unterburger, 97 F.3d 1413, 1415 (11th Cir. 1996)(maximum penalty of six months' imprisonment and fine of $10,000 are not"sufficiently severe" to entitle defendants accused of physicalobstruction of abortion clinic to a jury trial). See also TwentiethCentury Fox, 882 F.2d at 663-65 (holding that corporation isconstitutionally entitled to a jury trial if it faces a fine of $100,000or above, and that if the maximum fine is less a court must look at theimpact the fine will have on the corporation).6 Similarly, theprobation alternative for an organization like Greenpeace does not renderthe § 2279 offenses "serious." See United States v.Nachtigal, 507 U.S. 1, 3-5 (1993) (probation alternative of six-year maximum term with discretionary attendant conditions (includingrestitution and house arrest with telephonic or electronic monitoring) isnot sufficiently severe to overcome the Blanton presumption);Chavez, 204 F.3d at 1311-14 (conditions of probation (i.e.,restitution and supervised release) and collateral consequence ofconviction (i.e., defendant's loss of right to bear arms) did not rendera presumptively petty crime sufficiently serious to entitle defendant tojury trial).
Insofar as Greenpeace argues that the conditions of probation in thiscase could threaten the organization's very existence and unlawfullylimit its exercise of free speech, thereby rendering the crime "serious"for Sixth Amendment purposes, I disagree. Greenpeace is a tax-exemptnon-profit advocacy corporation under the Internal Revenue Code. See26 U.S.C. § 501(c)(4). This means that Greenpeace does not haveto pay taxes, but any donations to it are not tax-deductible. SeeFederal Election Commission v. Beaumont, 123 S.Ct. 2200, 2204 n.1(2003) (donations to § 501(c)(4) entities are not tax-deductible).Should there be a guilty verdict in this case, the IRS could decide topenalize Greenpeace by revoking its tax-exempt status, see IRSRev. Rul. 75-384 (1975), but such possible adverse administrative actionis legally no different than an individual's potential loss of theability to carry a firearm, a collateral consequence which does nottransform an otherwise petty offense into a "serious" one. SeeChavez, 304 F.3d at 1311-14. Moreover, Greenpeace's argument, ifaccepted, would mean that any non-profit tax-exempt corporation facingcriminal charges, no matter how petty the offenses charged, would beconstitutionally entitled to a jury trial because of the possible adversetax consequences. I have found no authority to support such a result.
Greenpeace further points to the possibility that if it is convicted itthe government may have access to its membership lists or otherconfidential information. This fear is, I think, unfounded. Should therebe a conviction, and should a term of probation be imposed, see18 U.S.C. § 3551(c) (organization found guilty of an offense shallbe sentenced to a term of probation "or" a fine), the government will notbe automatically entitled to such information. First, government accessto a corporation's books, records, and membership lists is not one of themandatory or discretionary conditions of probation under18 U.S.C. § 3563. Second, even if I were to consider the Sentencing Guidelines— which are inapplicable to Class B misdemeanors — persuasiveto frame appropriate conditions of probation for Greenpeace, access tobusiness records is not required as a condition of probation under USSG§ 8D1.3 (conditions of probation for organizations), and anexamination of books and records is permitted, but not required, under USSG §8D1.4(c)(4) (policy statement). Third, even if I were to conclude thatsome examination of Greenpeace's records is warranted, I would certainlyimpose limitations on any disclosure requirements consistent withN.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 464-466(1958) (advocacy organization does not have to turn over membership liststo the government where such disclosure would have a deterrent effect onthe right of the organization's members to associate).
B. JUDICIAL DISCRETION TO PROVIDE A JURY TRIAL
Greenpeace alternatively asks for a jury trial as a matter of judicialdiscretion. There is some authority for this request. See UnitedStates v. Beard, 313 F. Supp. 844, 845 (D. Minn. 1970) (granting jurytrial with various conditions, as discretionary matter, to large group ofVietnam war protestors charged with "petty" offenses). Significantly,Justice Stewart, dissenting in Ross v. Bernhard,396 U.S. 531, 550 (1970), a case involving the Seventh Amendment right to jurytrial, said that "[n]othing in the Constitution . . . precludes [a]judge from granting a jury trial as a matter of discretion." Thegovernment believes that I do not have any discretion to grant a jurytrial if one is not constitutionally mandated, but it has not cited anyauthority whatsoever to support its position. To the extent that thegovernment says that any cases decided before Blanton are nolonger persuasive on the issue of judicial discretion, that argument doesnot carry the day. Blanton is a Sixth Amendment case, and saysnothing about whether a court has discretion to provide a defendant witha jury trial when the Constitution does not so require.
There is an old Fifth Circuit case which appears to hold that, even forpetty offenses where the Sixth Amendment does not mandate trial by jury,a court may empanel a jury as long as Congress has not decreed that suchoffenses can be tried without a jury. See Smith v. UnitedStates, 128 F.2d 990, 991-92 (5th Cir. 1942). Congress has enactedlegislation which makes a Class B misdemeanor like § 2279 a pettyoffense, and which allows (but does not require) magistrate judges to trypetty offenses. See 18 U.S.C. § 19 (Class B misdemeanor is apetty offense); 18 U.S.C. § 3401(b) (magistrate judges may try pettyoffenses). Similarly, in this district magistrate judges may (but are notrequired to) try misdemeanor cases, and may try them with a jury if (1)the defendant requests a jury and (2) the defendant is entitled to a jurytrial under the Constitution or laws of the United States. SeeLocal Rules, Magistrate Rule l(b)(3). As far as I can tell, there is nostatute, rule, or precedent which prohibits a jury trial absent a constitutionalrequirement. I therefore conclude, consistent with Beard andSmith, and Justice Stewart's statement in Ross, that Ihave discretion to empanel a jury even where the Constitution does notrequire it.
Exercising my discretion, I choose to grant Greenpeace a jury trial.From the early days of our republic, the jury has been seen as a criticalsafeguard in the criminal process. See, e.g., ALEXANDERHAMILTON, THE FEDERALIST 83, at 602 (Franklin Library Edition 1977) ("Thefriends and adversaries of the plan of the convention, if they agree uponnothing else, concur at least in the value they set upon the trial byjury: Or if there is any difference between them, it consists of this;the former regard it as valuable safeguard to liberty, the latterrepresent it as the very palladium of free government."); BRUCE FROHEN,THE ANTI-FEDERALISTS: SELECTED WRITINGS AND SPEECHES xviii (RegneryPublishing 1999) (foreword by Joseph Sobran: "The common law dictatedadherence to set, customary procedures, one of the most prominent beingtrials in the hands of juries of `the vicinage' or immediate surroundingarea. Americans considered these juries vital to free government[.]");JOSEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITEDSTATES § 385, at 278 (Regnery Gateway Edition 1986 [originallypublished in 1859]) ("The great object of a trial by jury, in criminalcases, is to guard against a spirit of oppression and tyranny, on thepart of rulers, and against a spirit of violence and vindictiveness, onthe part of the people."). Juries are not perfect, but neither are judges— even those with life tenure — and juries, because of theirnature, better embody and represent the judgment of the community. In thewords of the Supreme court, "trial by jury in criminal cases isfundamental to the American scheme of justice." Duncan v.Louisiana M 391 U.S. 145, 149 (1968).
This case is, to put it mildly, unusual, and would benefit from ajury's collective decision-making. First, it involves a statute which— aside from the charges against the individual Greenpeace membersfor boarding or attempting to board the APL Jade — has beengathering dust for over a century. Though § 2279's lack of use doesnot prevent the government from going forward against Greenpeace, it doespoint to how uncommon such a prosecution is. Second, the indictment is arare — and maybe unprecedented — prosecution of an advocacyorganization for conduct having to do with the exposition of theorganization's message. As late as 1998, a high-level Department ofJustice official told Congress that the DOJ does not "go after [advocacy]groups," and instead prosecutes "people who commit criminal conduct." SeeTestimony of Frank Marine, Acting Chief of the Organized Crime andRacketeering Section of the Criminal Division of the Department ofJustice, Hearing Before the Subcommittee on Crime of the Committee on theJudiciary, House of Representatives, 105th Cong., 2d Sess. (1998), at 36.This case may, therefore, signal a change in DOJ policy. Third, theprosecution has generated charges that the indictment of Greenpeace ispolitically motivated due to the organization's criticism of PresidentBush's environmental policies. See, e.g., Catherine Wilson,Opponents See Greenpeace Indictment as a Threat to Dissent,Associated Press, Jan. 4, 2004, at 1-2; Ann O'Neill, Greenpeace CaseCalled Test for Right to Dissent, South Florida Sun-Sentinel,Dec.21, 2003, at B1; Nicholas Horrock, Ashocroft v. Greenpeace,United Press International, Nov. 27, 2003, at 2-3; Andrew Liptak,Typical Greenpeace Protest Leads to an Unusual Prosecution,N.Y. Times, Oct. 11, 2003, at A9.I do not mean to pass upon, much lessendorse, any such claims, but note them only to highlight that this isnot a run-of-the-mill misdemeanor case. Fourth, the government apparentlydoes not view this case as atypical either. As noted above, § 2279carries a maximum term of imprisonment of six months. Generally, a crimepunishable by less than a year in prison, unless hard labor isauthorized, is not an "infamous crime" requiring a grand jury indictmentunder the Fifth Amendment. See, e.g., Green v. United States,356 U.S. 165, 183 (1958) (an "infamous crime" is one punishable by morethan a year in prison); United States v. Moreland,258 U.S. 433, (1922) (offense punishable by imprisonment at hard labor, evenif for less than a year, is an "infamous crime" requiring indictment by agrand jury); United States v. Linares, 921 F.2d 841, 844 (9thCir. 1990) (misdemeanor narcotics offense punishable by up to a year inprison could be charged by information); United States v.Russell, 585 F.2d 368, 370 (8th Cir. 1978) (same a to misdemeanor taxoffense). The government could easily have filed an information againstGreenpeace, as it did against the individual Greenpeace members.See Fed.R.Crim.P. 7(a)(2) & 58(b)(1). That it chose toproceed by indictment suggests the unique nature of the case. Fifth,although not sufficient to transform this case into a "serious" one forSixth Amendment purposes, the possible effects of a conviction onGreenpeace point in favor of providing it with the jury trial itrequests. Sixth, there is something to be said for viewing the jury asa function (or consequence) of the right to self-governance, and Icannot see anything wrong with having members of the communitydetermine whether the government can prove the charges againstGreenpeace beyond a reasonable doubt. See, e.g., ALEXIS DETOCQUEVILLE, DEMOCRACY IN AMERICA 260 (University of Chicago Press 2000)("The genuine sanction of political laws is . . . found in the penallaws, and if the sanction is lacking, the law sooner or later loses itsforce. Therefore, the man who judges the criminal is really themaster of society. Now, the institution of the jury places the peoplethemselves, or at least one class of citizens, on the judge's bench. Theinstitution of the jury, therefore, really puts the direction of societyinto the hands of the people or of this class."); AKHIL REED AMAR, THEBILL OF RIGHTS 97 (Yale University Press 1998) ("The jury summed up— indeed embodied — the ideals of populism, federalism, andcivic virtue that were the essence of the original Bill of Rights.").
The government's real fear is that if a jury is empaneled, Greenpeacewill try to divert attention from whether it violated § 2279 and willendeavor to obtain a not guilty verdict through nullification. Greenpeacehas, in fact, submitted a proposed jury instruction on the defense ofjustification (Greennpeace calls it necessity) which focuses, in part, onthe alleged failure of the Bush administration to enforce lawsprohibiting the importation of illegally logged mahogany from Brazil. Asexplained below, I think the government's fear is unfounded, and does notcall for exercising discretion against a jury trial.
The Supreme Court has left open whether a justification defense(sometimes referred to as a necessity defense) should be allowed wherenot specifically recognized by statute. See United States v. OaklandCannabis Buyers Project, 532 U.S. 483, 490-91 (2001). Not havingheard a proffer of the evidence Greenpeace intends to introduce, I am notprepared at this juncture to preclude a justification defense. Such adefense, however, will likely be very difficult to establish on thesefacts. Greenpeace must, among other things, show that there was "noreasonable alternative to violating the law, a chance both to refuse todo the criminal act and also to avoid the threatened harm," UnitedStates v. Montgomery, 772 F.2d 733, 736(11th Cir. 1985), and thefederal courts have uniformly rejected justification claims in civildisobedience cases where the defendants contend that their illegalactivity is justified because the normal political processes areineffective. See, e.g., United States v. Ayala, 289 F.3d 16, 26(1st Cir. 2002) (protesters of bombing exercises on Vieques who illegallyentered naval installation); Montogomery, 772 F.2d at 736(anti-nuclear protesters who entered government defense plant, hammeredand poured blood on conventional and nuclear missile launchers, hung banners, and distributed pictures); UnitedStates v. Quilty, 741 F.2d 1031, 1033-34 (7th Cir. 1984)(anti-nuclear demonstrators who entered military property withoutpermission after issuance of bar order); United States v.Seward, 687 F.2d 1270, 1275-76 (10th Cir. 1982) (en banc)(demonstrators who trespassed on nuclear plant site); United Statesv. Berrigan, 417 F.2d 1002, 1008-09 (4th Cir. 1973) (Vietnam warprotesters who destroyed government property and mutilated selectiveservice documents). The Ninth Circuit has gone so far as to hold that ajustification defense — which it believes to be utilitarian innature — is unavailable as a matter of law in cases of indirectcivil disobedience — i.e., in cases where the defendant violates a"law that is not, itself, the object of the protest." United Statesv. Schoon, 971 F.2d 193, 195-96 (9th Cir. 1989) (denying defense todefendants who, in protest of United States involvement in El Salvador,entered IRS office, splashed simulated blood, and failed to disperse whenordered to do so).
Some commentators have criticized the federal courts for engaging in aformalistic analysis of the justification defense in civil disobediencecases, and have called for judicial examination of the policies andtheories underlying dissent in a democratic society. See, e.g.,Steven Bauer & Peter Eckerstrom, The State Made Me Do It: TheApplicability of the Necessity Defense to Civil Disobedience, 39STANFORD L. REV. 1173, 1178-88 (1987). I am, of course, bound to followthe Eleventh Circuit's decision in Montgomery on the contoursdefense of justification. But if I had to look more deeply into theconcept of civil disobedience, and decide as a matter of policy whether ajustification defense is appropriate, I would not make the justificationdefense easier to establish. I generally agree with social contracttheorists who posit that, in the long run, those who disobey the law toprotest a law or policy they deem to be unjust or unfair will riskundermining the legitimacy and clarity of their actions by pleading ajustification defense and evading liability. See, e.g., JOHNRAWLS, A THEORY OF JUSTICE 322 (Belknap Press Rev. Ed. 1999) ("Civildisobedience is nonviolent for another reason. It expresses disobedienceto law within the limits of fidelity to the law, although it is at theouter edge thereof. The law is broken, but fidelity to law is expressedby the public and nonviolent nature of the act, by the willingness toaccept the legal consequences of one's conduct."); Charles Fried,Moral Causation, 77 HARVARD L. REV. 1258, 1269 (1964) ("Thedemonstrator's willingness to pay the penalty shows that his protest doesnot arise from a mere calculation of advantages. Thus he can afford theimplication that others may disobey his laws if they like him are willing to pay, for it his part of his position that his opponents'position has less (or no) moral force behind it, so that his opponentswould be unwilling to support that position at the same cost that he, thedemonstrator, gladly pays. This is a gamble, to be sure, but civildisobedience is a risky, maybe a desperate course.").
Greenpeace is not entitled to dismissal of the indictment at this time,and its void-for-vagueness challenge will be determined at trial.Greenpeace is also not constitutionally entitled to a jury trial, butwill get a jury as a matter of judicial discretion.
DONE and ORDERED in chambers in Miami, Florida
1. In pertinent part, § 2279 provides as follows: Whoever, not being in the United States service, and not being duly authorized by law for the purpose, goes on board any vessel about to arrive at the place of her destination, before her actual arrival, and before she has been completely moored, shall be fined under this title or imprisoned not more than six months, or both.
2. Greenpeace asserts in its motion that the APL Jade was between 4and 5 miles offshore. The actual location of the vessel will, of course,be litigated and determined at trial, and I do not mean to engage in anyfact-finding in this order. For purposes of a motion to dismiss, however,I can take judicial notice of matters outside the indictment only to theextent that both parties allow me to.
3. To the extent that Sullivan, 43 F. at 604, holds thatthe statute covers the boarding of any vessel on "all the waters of theUnited States," regardless of where the vessel is located in relation toits destination, I disagree with that decision. Such a broad constructionof the statute would obliterate and render meaningless the critical andlimiting phrase "about to arrive at the place of her destination."
4. The government's position on whether § 2279 is a strictliability statute is unclear. The government has, for example, providednotice under Rule 404(b) that it will seek to introduce evidence ofGreenpeace's violation of a safety zone near Vandenberg Air Force Base onJuly 14, 2001, and the ensuing consent decree and judgment. Given thatevidence of other wrongs is used to show matters such as "proof ofmotive, opportunity, intent, preparation, plan, knowledge, identity, orabsence of mistake or accident," maybe the government believes that thereis a mens rea component to § 2279.
5. Sullivan does not say that the distance from Portland toAstoria is 50 miles, but I presume the government has determined thedistance, and I accept its representation.
6. No court has followed the Second Circuit's arbitrary setting of a$100,000 constitutional floor, see Adlestein, ACorporation's Right to a Jury Trial, 27 U.C. DAVIS L. REV. at 437,and I only cite the case here to demonstrate that a $10,000 statutoryfine is not enough to compel a jury trial.