United States v. Maldonado-Burgos

                United States Court of Appeals
                                 For the First Circuit
                                     _____________________

No. 15-2145
                                UNITED STATES OF AMERICA,

                                             Appellant,

                                                  v.

                               EDWIN MALDONADO-BURGOS,

                                       Defendant, Appellee.
                                       __________________

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

                                       ORDER OF COURT
                                       Entered: July 7, 2017

                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.

                                                 I.

               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



                                                -2-
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




       1
               

18 U.S.C. § 2421

(a) provides:

       Whoever knowingly transports any individual in interstate or foreign commerce, or
       in any Territory or Possession of the United States, with intent that such individual
       engage in prostitution, or in any sexual activity for which any person can be charged
       with a criminal offense, or attempts to do so, shall be fined under this title or
       imprisoned not more than 10 years, or both.

        Federal law does not outlaw prostitution itself: it is addressed rather to the transportation
of persons for the described sexual activities. No state, except for Nevada (that is, certain counties
within the state) has legalized prostitution. See 

Nev. Rev. Stat. § 244.345

; Michael Martinez,
What to Know About Nevada's Legal Brothels, CNN (Oct. 19, 2016),
http://www.cnn.com/2015/10/14/us/lamar-odom-nevada-brothels/ ("Sex workers do business in
every state, but only in Nevada is prostitution legalized, specifically in brothels."). Puerto Rico
has not legalized prostitution.
                                                -3-
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




        2
                It is true that Cordova's holding was based on an interpretation of the different
treatment of states and territories for the purposes of a federal statute, and not the Constitution.
But Cordova's reading of the Sherman Act was buttressed by constitutional reasoning, which has
been changed by Sánchez Valle, and there is no need for Congress to later state the term "Territory"
in order to continue the application of a statute to Puerto Rico.
                                                 -4-
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



                                                -5-
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



       3
               The Ninth Circuit has used similar reasoning and assumptions in examining the
application of federal prohibitions on sex trafficking to the Commonwealth of the Northern
Mariana Islands. See United States v. Chang Da Liu, 

538 F.3d 1078

, 1081–84 (9th Cir. 2008).
                                                 -6-
§ 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 evidence and sound policy dictate that the provisions in § 2421(a) of the Mann Act

are meant exactly to reach sex trafficking of adults within Puerto Rico, even after 1952.

                   Why is that so? First, Congress has not said otherwise, and for good reason. Puerto

Rico is an island, and most instances of sex trafficking of adult victims surely occur within Puerto

Rico. There is also the simple fact that, for over 70 years preceding the panel's decision, this court

had held that § 2421(a), the provision at issue in this case, has so applied. See Crespo, 

151 F.2d 44

. Congress never took issue with that interpretation, showing its likely agreement with the

interpretation.4



        4
               Cordova also did not purport to overturn First Circuit precedent, on which Congress
may have relied, unlike Maldonado-Burgos. The test articulated in Cordova, and applied by the
panel here, failed to account for congressional reliance on settled First Circuit precedent. The
Supreme Court in 1937 had applied the provision of the Sherman Act at issue in Cordova to Puerto
Rico, see Puerto Rico v. Shell Co., 

302 U.S. 253

 (1937), but Cordova held that that decision had
                                                  -7-
               For decades, Congress has allowed this court's interpretation of § 2421(a) in Crespo

to remain in place. It also confirmed its acquiescence to that interpretation when it amended a

different provision of the Mann Act. It is not Congress that has now changed the conclusion that

§ 2421(a) applies to conduct solely within Puerto Rico; it is a panel of this court. And the panel

has done so some 71 years after Crespo and some 64 years after the Commonwealth's constitution

was ratified. This is a late-breaking change in the law, of which Congress has had no prior notice.

               The panel points out that when Congress in 1998 wanted to create new protections

for children from sexual predators, it used the term "commonwealth" rather than the term

"territory." Maldonado-Burgos, 

844 F.3d at 350

 n.10 (citing Protection of Children from Sexual

Predators Act of 1998, 

Pub. L. No. 105-314,

Title I, § 103, 

112 Stat. 2974

, 2976 (1998)). Of course

it did. And the use of the term may well be evidence of Congress clarifying its intent that the

original Act continued to apply to Puerto Rico. The failure by Congress to go back and amend its

earlier Mann Act coverage of adult victims does not mean its intentions as to the scope of coverage

of adult victims in Puerto Rico had changed.5 In light of Crespo, Congress had no reason in 1998

to make such an amendment. Nothing in the case law required it to do so, nor did Cordova so

require.

               The fact that Congress added in 1998 the term "commonwealth" to § 2423(a) of the

Mann Act, see Protection of Children from Sexual Predators Act of 1998, § 103, 112 Stat. at 2976,



been undercut by subsequent Supreme Court cases, as well as later legislation, a situation not true
in Maldonado-Burgos. Cordova, 

649 F.2d at 42

.
        5
                We have twice rejected similar arguments that the applicability of a federal criminal
statute was changed by a textual amendment to a federal criminal law after the creation of the
Commonwealth, which did not mention "Puerto Rico." See Villarin Gerena, 

553 F.2d at 726

(rejecting argument that post-Commonwealth amendment to 

18 U.S.C. § 242

 affected application
of the statute to Puerto Rico); Moreno Rios, 256 F.2d at 71–72 (rejecting argument that post-
Commonwealth amendment to the Narcotic Drugs Import and Export Act affected application of
the statute to Puerto Rico).
                                                -8-
to cover a gap as to the transporting of children left by Crespo, which concerned trafficking of

adult victims, is evidence Crespo correctly captured congressional intent.6 Congress not only let

our interpretation of § 2421(a) as to adults in Crespo stand, but also, because Crespo did not

address the statute's coverage as to children, Congress clarified that § 2423(a) indeed covers sex

trafficking of children within Puerto Rico.         This clarification was part of a larger and

"comprehensive response to the horrifying menace of sex crimes against children," H.R. Rep. No.

105-557, at 10 (1998), and nothing in the legislative history of the amendment suggests that the

provisions of the Mann Act regarding adults did not apply to conduct occurring solely within

Puerto Rico.

               We also see no reason to think Congress would want § 2421(a)'s general prohibition

against sex trafficking of adults to have a different, more limited jurisdictional scope in Puerto

Rico than § 2423(a)'s more specific prohibition against sex trafficking of minors. See United

States v. Washington, 

743 F.3d 938, 941

 (4th Cir. 2014) (explaining that § 2421 is "§ 2423(a)'s

more general counterpart"). Such a result would be surprising. The absence of an express

congressional statement to that end, in light of Crespo, does not convince us otherwise. See SCA

Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 

137 S. Ct. 954

, 963–64 (2017) ("If

Congress examined the relevant legal landscape when it adopted 

35 U.S.C. § 282

, it could not have

missed our cases endorsing this general rule."); Shapiro v. United States, 

335 U.S. 1, 16

 (1948)

(Congress, in reenacting a statute, is presumed to adopt prior judicial constructions of the statute).




       6
               Congress is presumed to operate with a knowledge of settled judicial precedent. In
re Rivera Torres, 

432 F.3d 20, 25

 (1st Cir. 2005) ("Congress is presumed to know the content of
background law."). This principle also applies when Congress decides to amend a statute.
Hernández-Miranda v. Empresas Díaz Massó, Inc., 

651 F.3d 167, 175

 (1st Cir. 2011) ("Congress
is presumed to know judicial interpretations of statutory terms as of the time it amends statutes.").
                                                -9-
               Other settled rules of statutory interpretation also weigh against the panel's reading

of congressional intent.    Congressional silence should not be read as repudiation; instead,

precedent instructs that in analogous contexts congressional silence suggests the continued validity

of a judicial rule. See Succar v. Ashcroft, 

394 F.3d 8

, 35 n.35 (1st Cir. 2005) ("When Congress

has amended a statute in other ways, but not addressed the specific issue in question, [a] court can

consider congressional silence in the appropriate historical context and use it as evidence of

congressional intent not to abrogate well-established doctrine." (citing Monessen Sw. Ry. Co. v.

Morgan, 

486 U.S. 330

 (1988))); see also Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 

137 S. Ct. 988

, 1001 (2017).7

               Given these background rules of interpretation, the legislative history of the Mann

Act, and the practical consequences, "[i]f Congress had wanted to exclude" sex trafficking within

Puerto Rico from § 2421(a), "it would have done so [explicitly] without relying on the creativity

of parties arguing before the courts." Franklin Cal. Tax-Free Tr. v. Puerto Rico, 

805 F.3d 322, 338

 (1st Cir. 2015), aff'd, 

136 S. Ct. 1938

 (2016).




       7
               The Supreme Court has recently reaffirmed these principles:

       Accordingly, the only question we must answer is whether Congress changed the
       meaning of § 1400(b) when it amended § 1391. When Congress intends to effect a
       change of that kind, it ordinarily provides a relatively clear indication of its intent
       in the text of the amended provision. See United States v. Madigan, 

300 U.S. 500, 506

 (1937) ("[T]he modification by implication of the settled construction of an
       earlier and different section is not favored[.]"); A. Scalia & B. Garner, Reading Law
       331 (2012) ("A clear, authoritative judicial holding on the meaning of a particular
       provision should not be cast in doubt and subjected to challenge whenever a related
       though not utterly inconsistent provision is adopted in the same statute or even in
       an affiliated statute[.]").

TC Heartland LLC v. Kraft Food Grp. Brands LLC, No. 16-341, slip op. at 8 (May 22,
2017).
                                               - 10 -
               Indeed, as the United States has pointed out, the panel's contrary reading would

produce an absurd result, and one that is in fact squarely before us. See Am. Tobacco Co. v.

Patterson, 

456 U.S. 63, 71

 (1982) ("Statutes should be interpreted to avoid untenable distinctions

and unreasonable results whenever possible.").          The panel's interpretation means that "sex

trafficking of a minor wholly within Puerto Rico could be prosecuted under the Mann Act, but sex

trafficking of an adult who has the cognitive abilities of a minor . . . would be beyond the Act's

reach." It is especially hard to imagine that Congress intended to curtail federal enforcement of

the Mann Act here, where an adult male school bus driver raped and impregnated his mentally

disabled 18-year-old charge. Had the girl been a few months shy of 18, the Mann Act would have

plainly applied. The panel's distinction between § 2421(a) and § 2423(a) as "specify[ing] separate

crimes against separate classes of victims," Maldonado-Burgos, 

844 F.3d at 351

 n.11, then, is a

hollow one.

                                                II.

               The government's petition explains persuasively not just that the panel's decision is

wrong, but also that the case presents a question of exceptional importance: this misinterpretation

of congressional intent deprives Puerto Rico of federal prosecutorial resources -- at a time when it

can ill afford to lose them -- and threatens the enforcement of other federal statutes as to conduct

wholly within Puerto Rico.

               The panel's cursory inquiry into "clear policy reasons," see Cordova, 

649 F.2d at 42

, may have been appropriate given the context of prior cases, see, e.g., Jusino Mercado v. Puerto

Rico, 

214 F.3d 34, 44

 (1st Cir. 2000); Antilles Cement Corp. v. Fortuño, 

670 F.3d 310, 322

 (1st

Cir. 2012), but not so here. Puerto Rico is in the midst of a serious economic crisis, and it will

sorely miss the federal law enforcement and prosecutorial resources this decision eliminates.



                                               - 11 -
                  The United States has also offered evidence that sex trafficking in Puerto Rico is a

very serious problem, that its usual scope is wholly within the island, and that local authorities

have been hard pressed to address it. See César A. Rey Hernández & Luisa Hernández Angueira,

Human Trafficking in Puerto Rico: An Invisible Challenge 16 (2010), http://protectionproject.org

/wpcontent/uploads/2010/09/RMF-Eng.pdf (noting that, as of 2010, local authorities paid "little

attention" to "[intra-island sex] trafficking in Puerto Rico, which is the predominant form of

trafficking on the Island"). The mere fact that the legislative history lacks specific references to

Puerto Rico speaks more to the fact that the problem is one that may be "invisible" to raw statistics,

see id. at 1, 34, but nonetheless one of which Congress should be acutely aware, especially given

its appearances in other contexts. See U.S. Dep't of State, Trafficking in Persons Report 393

(2016) (noting that in 2015, the HHS-funded National Human Trafficking Resource Center

received "47 calls from U.S. territories, with most calls coming from Puerto Rico"); Posture

Statement of Gen. John F. Kelly, U.S. Marine Corps Commander, Before S. Armed Services

Comm., 113th Cong. 7-8 (2014), https://www.armed-services.senate.gov/imo/media/doc/

Kelly_03-13-14.pdf (pointing out that Puerto Rico and the U.S. Virgin Islands are especially

vulnerable to sex and labor trafficking, as both are destinations for migrant smuggling

organizations).

                  The United States also contends that the panel's decision will have much greater

consequences for enforcement of federal criminal statutes in Puerto Rico. It argues, to give a few

examples, that the decision may adversely affect the government's ability to exercise prosecutorial

authority under other federal statutes, including the Hobbs Act, see 

18 U.S.C. § 1951

(b)(3)

(defining "commerce" for the Hobbs Act as, inter alia, "commerce within the District of Columbia,

or any Territory or Possession of the United States"); see also 

id.

 § 1591(a)(1) (punishing sex



                                                 - 12 -
trafficking of children "in or affecting interstate or foreign commerce, or within the special

maritime and territorial jurisdiction of the United States"); id. § 2251(a) (punishing sexual

exploitation of children "in or affecting interstate or foreign commerce, or in any Territory or

Possession of the United States"), and under other provisions of the Mann Act, see id. § 2422(a)

(punishing "[w]hoever knowingly persuades, induces, entices, or coerces any individual to travel

in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage

in prostitution, or in any [criminal] sexual activity"). It is likely that defense counsel in federal

prosecutions in Puerto Rico will soon try to expand that list, which the government does not

suggest is exhaustive.

               We would not conclude that Congress wanted at any time to withhold the protection

afforded to adult victims in Puerto Rico in the Mann Act, to curtail the full measure of federal

resources to prosecute intra-island sex trafficking, and to endanger the application of other federal

criminal statutes to conduct occurring wholly within Puerto Rico in the name of Puerto Rico's

sovereignty as a commonwealth.

                                                 III.

               The question here, in our view, warrants review by the Supreme Court. Congress

may wish to address the panel's misinterpretation of its intent, understanding that the model used

goes beyond the applicability of the Mann Act.8

               We respectfully dissent.



       8
                Twenty years ago, Congress acted within a few months to amend a federal criminal
statute to overrule a decision of this court, which had held that rape resulting from carjacking could
not result in "serious bodily injury" to the victim. Congress viewed that ruling as contrary to its
intent. United States v. Rivera, No. 95-2186, 

1996 WL 338379

, at *6 (Aug. 1, 1996) (Lynch, J.,
dissenting from denial of rehearing en banc) (unpublished opinion) ("[A] statute should not be
applied so narrowly or rigidly that it produces results that are wholly at odds with larger
considerations of congressional [] policy and intent."). Congress promptly enacted the Carjacking
                                                - 13 -
                 TORRUELLA, Circuit Judge, statement concerning denial of rehearing en

banc. I vote in favor of rehearing en banc because this case raises issues of exceptional importance

and complexity that clearly meet the requirement of Rule 35(a)(2) of the Federal Rules of

Appellate Procedure and thus warrants to be carefully considered by the full court. My vote as to

granting the rehearing en banc, however, should not be construed as an indication of my position

on the merits.

                 THOMPSON, Circuit Judge, statement concerning denial of rehearing en

banc. After careful consideration of the contrary views of some of my colleagues, I remain

convinced that this court's decision in Cordova & Simonpietri Insurance Agency, Inc. v. Chase

Manhattan Bank N.A., 

649 F.2d 36

 (1st Cir. 1981), sets forth the framework that governs this

appeal, the framework has not been eroded by any subsequent decision of this court or the Supreme

Court, and the panel opinion, United States v. Maldonado-Burgos, 

844 F.3d 339

 (1st Cir. 2016),

correctly applied the Cordova framework to the statutory-interpretation question presented in this

case.

                           I.      The Cordova Framework Governs

                 Although my dissenting colleagues attempt to limit Cordova to the Sherman Act

context, Cordova itself belies any such confinement; it sets forth a broadly applicable test for

determining whether federal statutes that treat territories differently than states continue to treat

Puerto Rico as a territory after it became a commonwealth. See Cordova, 

649 F.2d at 38, 42

. Nor

has our subsequent case law limited Cordova in the manner advocated by the dissent. See, e.g.,




Correction Act of 1996, which effectively overruled the panel decision. See 

Pub. L. No. 104-217, § 2

, 110 Stat 3020, 3020 (1996).
                                               - 14 -
Antilles Cement Corp. v. Fortuño, 

670 F.3d 310

, 321-23 & n.3 (1st Cir. 2012); Jusino Mercado v.

Puerto Rico, 

214 F.3d 34, 41-44

 (1st Cir. 2000).

               Similarly, the dissent's efforts to sidestep Cordova on the basis that the pre-1952

on-point decision in that case — Puerto Rico v. Shell Co., 

302 U.S. 253

 (1937) — had been

undercut by subsequent Supreme Court cases and legislation in a way that is not also true for the

relevant pre-1952 decision in this case — Crespo v. United States, 

151 F.2d 44

 (1st Cir. 1945) —

is unavailing. The subsequent cases and legislation discussed in Cordova also postdate our

decision in Crespo, and they do not impact Shell Co. any differently than they do Crespo. See

Cordova, 

649 F.2d at 38, 40

.

               Finally, I simply disagree with the dissent's position that the framework that should

govern this case is set forth in Examining Board of Engineers, Architects & Surveyors v. Flores

de Otero, 

426 U.S. 572

 (1976), and that the panel decision conflicts with Examining Board. The

question presented in this case is whether 

18 U.S.C. § 2421

 continues to treat Puerto Rico as a

territory after the island became a commonwealth. The question in Examining Board, by contrast,

was whether a federal statute that had applied to Puerto Rico before it attained commonwealth

status ceased to apply to it at all once it became a commonwealth. See Examining Bd., 

426 U.S. at 592, 594, 597

.9 Unlike Examining Board, Cordova involved the same type of question with

which we are faced in this case: whether Congress, in enacting a statute that gives states but not

territories autonomy over purely local matters, would have intended for Puerto Rico to enjoy the




       9
         The same is true for the other cases relied upon by the dissent. See United States v.
Acosta-Martinez, 

252 F.3d 13, 18, 20

 (1st Cir. 2001); United States v. Villarin Gerena, 

553 F.2d 723, 724-25

 (1st Cir. 1977); Moreno Rios v. United States, 

256 F.2d 68, 71-72

 (1st Cir. 1958); see
also United States v. Chang Da Liu, 

538 F.3d 1078, 1080-82, 1084

 (9th Cir. 2008).
                                              - 15 -
same local autonomy that it intended for states to enjoy had it known of the "state-like autonomy"

that Congress granted Puerto Rico in 1952. Cordova, 

649 F.2d at 42

.

                              II.    Cordova Has Not Been Eroded

                The dissent suggests that Cordova now rests on shaky ground after the Supreme

Court's decision in Puerto Rico v. Sánchez Valle, 

136 S. Ct. 1863

 (2016). The panel opinion

explained why this assertion is incorrect, see Maldonado-Burgos, 

844 F.3d at 344-45

, and I need

not parrot that explanation here. It suffices to say that the Court in Sánchez Valle was faced with

a very different question of constitutional dimension — not a statutory-interpretation question like

the one presented in this case — that necessitated its own unique analysis. See id.; see also Jusino

Mercado, 

214 F.3d at 44

 (explaining difference between question of "constitutional capacity" —

"Congress's power under the Territorial Clause" — and one of "statutory construction"). Nor have

this court's decisions since Cordova questioned its continued validity. See, e.g., Antilles Cement,

670 F.3d at 321

-23 & n.3; Jusino Mercado, 

214 F.3d at 41-44

. After thirty-six years without any

hint from Congress, the Supreme Court, or this court that Cordova is not still good law, I'm

unwilling to cast it aside.

                       III.   Cordova was Properly Applied in This Case

                I respectfully disagree with the dissent's assertion that the panel opinion misapplied

the Cordova framework. To the contrary, the panel opinion faithfully applied Cordova and

correctly found no "specific evidence or clear policy reasons embedded in § 2421(a)" of the type

Cordova requires. Maldonado-Burgos, 

844 F.3d at 350

; see also Cordova, 

649 F.2d at 42

 ("[T]here

would have to be specific evidence or clear policy reasons embedded in a particular statute to




                                                - 16 -
demonstrate a statutory intent to intervene more extensively into the local affairs of post-

Constitutional Puerto Rico than into the local affairs of a state.").

               The dissent's contrary assessment is mistaken. First, the dissent asserts that "[n]o

one has argued to this court that Puerto Rico does not want the benefit of the full federal

prosecutorial resources afforded by § 2421(a)" and that "Puerto Rico is in the midst of a serious

economic crisis, and it will sorely miss the federal law enforcement and prosecutorial resources

this decision eliminates." But these assertions are entirely irrelevant to the Cordova analysis, and

the dissent does not attempt to show otherwise. Second, the dissent emphasizes congressional

silence in the face of Crespo, but the same was true in Cordova. Third, the dissent identifies

documents discussing the seriousness of the sex-trafficking problem in Puerto Rico, but it makes

no effort to explain how those documents are responsive to the critical question of congressional

intent that the Cordova framework examines. See Maldonado-Burgos, 

844 F.3d at 350

. Fourth,

the dissent's concern that the panel opinion might lead to similar Cordova based challenges to other

federal statutes that treat Puerto Rico differently than the states overlooks that Cordova, not the

panel opinion, is the root of that concern; moreover, the dissent provides no basis that any Cordova

based challenge to the other federal statutes it identifies will ultimately be resolved in the same

way as in this case.

               Finally, the dissent relies on the amendment to a separate provision of the Mann

Act, 

18 U.S.C. § 2423

(a), to support its interpretation of the scope of § 2421(a).10 In my view, the

dissent's reliance on this amendment is overly speculative, especially considering the sparse

legislative history that surrounds it. In any event, the insertion of the word "commonwealth" in



       10
          In a somewhat related effort, the dissent appears to criticize the panel opinion for relying
on this same amendment. But, of course, the panel opinion did no such thing; in fact, the panel
opinion expressly disclaimed any such reliance. See Maldonado-Burgos, 

844 F.3d at 350

 n.10.
                                                - 17 -
§ 2423(a) cuts both ways. If Congress intended the amendment to clarify that it wanted the Mann

Act to treat Puerto Rico differently than a state, its decision to amend only § 2423(a) and to not

take the simple expedient of inserting "commonwealth" into § 2421(a) was curious. Given the

lack of clarity in the legislative record, I remain comfortable with the panel opinion's application

of the Cordova framework to § 2421(a) — the only provision of the Mann Act at issue in this case

— and its conclusion that any potential dissonance between §§ 2421(a) and 2423(a) is not absurd.

See Maldonado-Burgos, 

844 F.3d at 351

 n.11.

                                         CONCLUSION

               I remain convinced that the panel opinion correctly applied the Cordova framework

and that, consequently, rehearing en banc is not warranted in this case.

                                                        By the Court:

                                                        /s/ Margaret Carter, Clerk


cc:
Hon. Daniel R. Dominguez
Frances Rios de Moran, Clerk, United States District Court for the District of Puerto Rico
Victor J. Gonzalez-Bothwell
Vivianne Marie Marrero-Torres
Eric A. Vos
Liza Lorraine Rosado-Rodriguez
Eleonora Concepcion Marranzini
Marshal David Morgan
Nelson Jose Perez-Sosa
Juan Carlos Reyes-Ramos
John Patrick Taddei




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