Full opinion text
Opinion by Judge FISHER; Concurrence by Chief Judge SCHROEDER; Dissent by Judge KOZINSKI OPINION FISHER, Circuit Judge: Appellants James, Richard and Roy Cabaccang appeal their convictions on a variety of charges relating to their involvement in a drug trafficking ring that transported large quantities of methamphetamine from California to Guam in the early and mid-1990s. The Cabaccangs’ primary contention on appeal is that the transport of drugs on a nonstop flight from one location within the United States to another does not constitute importation within the meaning of 21 U.S.C. § 952(a), even though the flight traveled through international airspace. We agree, and therefore we reverse the appellants’ convictions on all importation-related counts. Factual and Procedural Background In the early 1990s, Roy Cabaccang began selling methamphetamine out of his house in Long Beach, California, to customers introduced to him by his younger brothers Richard and James. The Cabac-cangs eventually expanded their operation to include large-scale shipments of methamphetamine to Guam for local distribution. To transport the drugs to Guam, Roy recruited various people to fly from Los Angeles to Guam with packages of methamphetamine concealed under their clothing. Richard helped the couriers tape the packages of methamphetamine to their bodies. The Cabaecangs also sent packages of methamphetamine from California to Guam through the United States mail. After Roy’s associates sold the methamphetamine in Guam, they sent the proceeds back to California via courier and wire transfer. Each of the Cabaccang brothers received wire transfers of profits from the drug sales. After a long investigation, the Cabac-cangs were indicted in 1997 on numerous charges relating to their involvement in the methamphetamine ring. A jury convicted all three brothers of conspiracy to import methamphetamine, in violation of 21 U.S.C. §§ 952(a), 960 and 963; conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956. The district court sentenced all three brothers to concurrent terms of life in prison on at least one of the importation counts and at least one of the non-importation counts (with concurrent shorter terms on other counts). The Cabaecangs appealed their convictions to this court, claiming that the transport of drugs from California to Guam does not constitute importation merely because the drugs traveled through international airspace en route to Guam. Relying on our decisions in Guam v. Sugiyama, 846 F.2d 570 (9th Cir.1988) (per curiam), and United States v. Perez, 776 F.2d 797 (9th Cir.1985), a three-judge panel affirmed the convictions in an unpublished disposition, stating that “we have clearly declared that transporting drugs from one point in the United States to another through or over international waters constitutes importation.” United States v. Cabaccang, 16 Fed. Appx. 566, 568, 2001 WL 760553 (9th Cir.2001) (“Cabaccang I”). We granted rehearing en banc to reexamine the importation statute and determine whether it does prohibit the transport of drugs through international airspace on a nonstop flight from one point within the United States to another. Standard of Review The construction or interpretation of a statute is a question of law that we review de novo. United States v. Carranza, 289 F.3d 634, 642 (9th Cir.), cert. denied, — U.S. -, 123 S.Ct. 572, 154 L.Ed.2d 458 (2002). Discussion I. “We interpret a federal statute by ascertaining the intent of Congress and by giving effect to its legislative will.” Bedroc Ltd. v. United States, 314 F.3d 1080, 1083 (9th Cir.2002) (internal quotation marks omitted). The starting point of this inquiry is the language of the statute itself. United States v. Hackett, 311 F.3d 989, 991 (9th Cir.2002). Section 952(a) states that “[i]t shall be unlawful[l] to import into the customs territory of the United States from any place outside thereof (but within the United States), or [2] to import into the United States from any place outside thereof, any controlled substance.” 21 U.S.C. § 952 (emphasis added). Section 951(a), which furnishes the relevant definitions for the terms used in § 952, defines “import” broadly as “any bringing in or introduction of such article into any area (whether or not such bringing in or introduction constitutes an importation within the meaning of the tariff laws of the United States).” Id. § 951(a)(1). It is the second clause of § 952(a) that is at issue here, as it is undisputed that the Cabac-cangs did not bring drugs into the customs territory of the United States. The Cabaccangs argue that they are not guilty of importation because they did not bring drugs into the United States from a “place outside thereof.” They contend that the transit of drugs through international airspace en route from one location in the United States (California) to another (Guam) is insufficient to support a charge of importation under § 952. The government counters that international airspace is itself a “place outside” the United States within the meaning of the statute. Pointing to § 951’s definition of “import” as “any bringing in,” the government argues that the entry of contraband into the United States from international airspace is all that the statute requires. That the flight carrying the contraband departed from a domestic location is irrelevant, the government maintains, because § 952(a) is unconcerned with the origin of a shipment of drugs that enters the United States from international airspace. The problem with the government’s argument is that despite § 951’s broad definition of importation as “any bringing in,” section 952(a) itself specifies that the bringing in be “from any place outside” the United States. (Emphasis added.) This requirement was not an element of § 952(a)’s predecessor statute, 21 U.S.C. § 174, which provided criminal penalties for “fraudulently or knowingly import[ing] or bringing] any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law.” (Emphasis added.) In 1970, Congress replaced § 174 with § 952, inserting the phrase “from any place outside thereof’ after the words “into the United States” without explanation. If, as the government urges, Congress was concerned only with the destination of the drugs, it would have been sufficient to retain the original language of the importation statute, simply prohibiting the import of drugs “into the United States” without reference to the point of origin. The addition of the phrase “from any place outside the United States” undercuts the government’s contention that Congress intended the origin of a drug shipment to be irrelevant to a finding of importation under § 952(a). See Webster’s Third New International Dictionary 913 (1981) (defining “from” as “used as a function word to indicate a starting point: as (1) a point or place where an actual physical movement ... has its beginning ...”); The American Heritage Dictionary of the English Language 729 (3rd ed.1996) (defining “from” as “[u]sed to indicate a specified place or time as a starting point: walked home from the station ... ”). The question, then, is whether drugs that pass through international airspace on a nonstop flight en route from one U.S. location to another, without touching down on either land or water, are “from” a “place outside” the United States for the purposes of § 952(a). When Congress has not provided special definitions, we must construe words in a statute “according to their ordinary, contemporary, common meaning[s].” Hackett, 311 F.3d at 992 (alteration in original) (internal quotation marks and citation omitted). Turning to the word “place,” we acknowledge that it can have many meanings, some of which, when viewed in isolation, might seem to apply to international airspace. The critical question, however, is what the term reasonably can be understood to encompass as it is used, not in isolation, but in the phrase “from any place outside [the United States],” and in the larger context of § 952, which is concerned with the importation of drugs into the United States. In the ordinary sense of the term, drugs do not come from international airspace, although they certainly can move through that space. Unlike, for example, a foreign nation — which is unquestionably a “place outside” the United States — international airspace is neither a point of origin nor a destination of a drug shipment; it is merely something through which an aircraft must pass on its way from one location to another. We do not treat passengers who travel through international airspace on a nonstop flight between two U.S. locations as having crossed our borders (i.e., as having entered the United States from a place outside thereof), and thereby subject to immigration inspections or border searches — as they would be if the flight had originated in a foreign country. Cf. United States v. Garcia, 672 F.2d 1349, 1357-58 (11th Cir.1982) (doubting the validity of a border search of an airplane that traveled through international airspace en route between known points of origin and destination within the United States, because “there is no more justification for searching the aircraft or passengers who make such flights than there would be for searching those whose domestic flights do not happen to take them over the ocean on the way”). Moreover, were we to ask anyone familiar with the facts of this case from what place the Cabaccangs brought drugs into Guam, the answer surely would be “California” — not “international airspace.” See United States v. Ramirez-Ferrer, 82 F.3d 1131, 1137 (1st Cir.1996) (en banc) (using the same reasoning in concluding that the term “place,” as it is used in § 952(a), does not include in-transit international waters). The dissent rejects this analysis of the plain meaning of the statutory language, arguing that an item in transit is from all of the places through which it passes en route from its starting point to its destination. We recognize that, like the word “place,” the word “from” can have different meanings, depending on the context of the inquiry. We think it is clear, however, that a defendant who has brought drugs on a non-stop flight that lands in the United States can most reasonably be said to have brought drugs from the point of the flight’s departure — and not the airspace through which the plane traveled on the way. Although we conclude that a commonsense reading of the plain language of the statute forecloses its application here, we are also persuaded that our reading is consistent with the statute’s structure. “[W]e must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir.1991). Under the government’s interpretation of the statute, however, any conduct proscribed by the first clause of § 952(a) also would have been covered by the statute’s broader second clause when § 952 was enacted in 1970, rendering the first clause of the statute superfluous. The first clause of § 952(a) prohibits the importation of drugs “into the customs territory of the United States from any place outside thereof (but within the United States).” 21 U.S.C. § 952(a). The customs territory of the United States consists of “the States, the District of Columbia and Puerto Rico.” See HTSUS at General Note 2. At the time of § 952’s enactment, when the territorial sea of the United States extended only three miles out from the coast, all of the U.S. territories that were outside the customs territory, e.g., the U.S. Virgin Islands, Guam and American Samoa, were not contiguous with the customs territory. It therefore would have been impossible to bring drugs from the noncustoms territory into the customs territory without passing through international airspace (or waters). Under the government’s reading of the statute, however, the entry of drugs into the United States from international airspace already would have been prohibited by the second clause of the statute. Therefore, any importation proscribed by the first clause also would have been proscribed by the second clause, rendering the first clause superfluous. We cannot conclude that Congress intended the opening clause of the statute to have no independent force. See Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1098 (9th Cir.2002) (“It is a well-established principle of statutory construction that legislative enactments should not be construed to render their provisions mere surplusage.” (internal quotation marks omitted)). In an attempt to save its interpretation of § 952(a) from superfluousness at the time of the statute’s enactment, the dissent argues that Congress did not intend the three-mile limit of the territorial sea to be the relevant boundary. According to the dissent, when Congress defined the “United States” for the purposes of § 952 as “all places and waters, continental or insular, subject to the jurisdiction of the United States,” see 21 U.S.C. § 802(28), incorporated by § 951(b), it could have meant “waters ... subject to the jurisdiction of the United States” to refer to the limited 12-mile customs interdiction jurisdiction codified at 19 U.S.C. §§ 1401(j), 1581(a)-(b), rather than the three-mile limit of plenary sovereign jurisdiction within the territorial sea. It is not enough, however, that Congress “reasonably could have believed” that § 952 invoked this 12 mile limited interdiction jurisdiction, rather than the three-mile sovereign jurisdiction. Our role is to determine Congress’ actual intent, not its possible intent, and the Supreme Court has instructed that in the absence of a clear statement, we should not assume that Congress intended to include the waters beyond the territorial sea when defining the United States. See Argentine Republic, 488 U.S. at 440, 109 S.Ct. 683. In Argentine Republic, the respondents argued that under the Foreign Sovereign Immunities Act — which defined the “United States” as all “territory and waters, continental and insular, subject to the jurisdiction of the United States” — the term “waters ... subject to the jurisdiction of the United States” included the high seas, which are within the admiralty jurisdiction of the United States. Id. (citing 28 U.S.C. § 1603(c)). The Supreme Court rejected this attempt to broaden the statute’s definition of the United States, holding that the term “waters” in § 1603(c) cannot reasonably be read to cover all waters over which the United States courts might exercise jurisdiction. When it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute. We thus apply “[t]he canon of construction which teaches that legislation of Congress, unless contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” Id. (emphasis added) (footnote omitted) (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949)). Because there was no evidence of congressional intent to include the high seas within the definition of the United States, the Court held that the incident at issue did not occur within the United States, because it occurred “outside the 3 mile limit then in effect for the territorial waters of the United States.” Id. at 441, 109 S.Ct. 683. Evidence of congressional intent to incorporate the limited jurisdiction of the contiguous zone, rather than the plenary sovereign jurisdiction of the territorial sea, is similarly lacking here. The dissent points to nothing in the statutory language or the legislative history of § 952 to indicate that Congress intended to include the contiguous zone in its definition of the United States. Instead, it relies on the decisions of three circuits that have assumed that § 952 incorporated the 12 mile limit of the contiguous zone. See United States v. Nueva, 979 F.2d 880, 884 (1st Cir.1992); United States v. Goggin, 853 F.2d 843, 845 (11th Cir.1988); United States v. Lueck, 678 F.2d 895, 905 (11th Cir.1982); United States v. Seni, 662 F.2d 277, 286 (4th Cir.1981). But none of these decisions addressed whether that interpretation properly construed Congress’ intent to invoke a definition different from the three-mile territorial limit in effect when the statute was enacted. In the absence of some indication that Congress actually intended to include the contiguous zone within its definition of the United States for purposes of § 952, we follow the Supreme Court’s interpretive mandate in Argentine Republic and conclude instead that Congress intended the operative boundary of the United States to be the three-mile limit that defined the U.S. territorial sea in 1970, until it was extended in 1988. Under this limit, it would have been impossible to travel from the noncustoms territory of the United States to the customs territory without passing through international airspace. Clause 1 of § 952(a) thus would have been superfluous if, as the government contends, clause 2 prohibited the transport of drugs through international airspace on a domestic flight. We decline, as we must, to attribute to Congress an intent to create such a redundancy. Moreover, even if we were to accept the dissent’s contention that Congress intended to invoke the 12 mile limit, and thus that it would have been possible in 1970, as it is today, to violate clause 1 (and not clause 2) by transporting drugs from St. Thomas to Puerto Rico, we still would be hard pressed to find a plausible legislative purpose for clause 1. Under the government’s interpretation of the second clause of § 952(a), the only conduct that clause 1 would prohibit that would not be prohibited by clause 2, even under the broader 12 mile limit, is the drug trade from the Virgin Islands to Puerto Rico. This lone point of contiguity between the customs territory and the noncustoms territory exists only by virtue of the location of tiny islands that are so obscure that even the First Circuit — the very Court of Appeals that has jurisdiction over Puerto Rico — is seemingly unaware of them. See Ramirez-Ferrer, 82 F.3d at 1138 (stating that “there is no ‘place’ just outside of the jurisdictional limits of the customs territory of the United States, that is also within the United States. Any place that is just outside the customs territory ... is international waters”). So too, apparently, is the government, which has not thought to invoke the Culebra St. Thomas aberration in support of its construction of the statute. That the government still has not managed to appreciate the relevant geographic nuances only serves to underscore the improbability that Congress was aware of them, let alone motivated by them, as the dissent would have us believe. Perhaps recognizing the unlikelihood of this scenario, the dissent offers an alternative explanation for the inclusion of clause 1: Congress was aware that the boundaries of the customs territory and the noncustoms territory might change over time, so it “drafted a generic statute that would cover future contingencies.” We are unwilling to speculate, however, that Congress included a statutory provision that was inoperative or nearly so at the time of its enactment just in case there might one day be a need for it. Although we recognize that Congress may legislate with an eye towards the future, we hesitate to make the unsupported inference that Congress intended clause 1 to have little, if any, current application at the time of its enactment, and only speculative future application, as would be the case if the second clause of § 952(a) prohibited the domestic transport of drugs through international airspace. Instead, we consider it far more likely that Congress elected to use the first clause of § 952(a) specifically to target the transport of drugs from the noncustoms territory into the customs territory precisely because it believed that such transport was not proscribed by the statute’s second clause. Indeed, Congress’ use of the more specific, limited language of clause 1 presents yet another hurdle for the government’s interpretation of § 952(a): clause 1 prohibits only the transport of drugs from the noncustoms territory to the customs territory — it does not address the drug trade in the reverse direction. Thus in 1970 when Congress crafted § 952(a), it made a deliberate choice not to make the first clause reciprocal-banning the importation of drugs from, for example, Guam to California but not from California to Guam. (That one-way ban remains true whether the territorial limit is three or 12 miles.) Under the interpretive maxim of expressio unius est exclusio alterius, we “read the enumeration of one case to exclude another [if] it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it.” Barnhart v. Peabody Coal Co., 537 U.S. 149, -, 123 S.Ct. 748, 760, 154 L.Ed.2d 653 (2003). That Congress chose to single out only the transport of drugs from the noncustoms territory to the customs territory rather than the transport between the two territories is a strong indication that Congress did not intend § 952(a) to address “importation” in the opposite (i.e., “outbound”) direction. We are thus justified in inferring that “items not mentioned were excluded by deliberate choice, not inadvertence.” Barnhart, 537 U.S. 149, 123 S.Ct. at 760. It is no answer to suggest that Congress considered it unnecessary to address the drug trade from the customs territory to the noncustoms territory (e.g., California to Guam) because it intended clause 2 to cover such conduct through the concept of “coming from” international airspace. Under that theory, once again clause 1 would be redundant because clause 2 would have sufficed to reach the very conduct clause 1 was carefully drafted to proscribe. If it is necessary for a drug shipment to travel through international airspace to get from a customs territory to a noncustoms territory, then it is also necessary for that shipment to travel through international airspace to go in the reverse direction, and clause 2 would apply to both trips. Moreover, even if we indulge the dissent’s assumption that Congress was legislating to cover drug shipments between St. Thomas and Puerto Rico, under any interpretation of the statute the transport of drugs from Puerto Rico to St. Thomas is not punishable as importation. This reinforces our conclusion that in drafting and structuring § 952(a), Congress was not extending its concept of importation into the United States to drug shipments from customs territories to noncustoms territories. Finally, we reject the government’s interpretation of § 952(a) because it would sweep within the ambit of the statute a wide range of conduct that cannot reasonably be characterized as importation. Whenever possible, “we interpret statutes so as to preclude absurd results.” Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir.2001) (en banc) (citing United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992)). Under the government’s broad reading of § 952(a), the transport of drugs on a flight from any U.S. city to another would be punishable as importation so long as the flight passed through international airspace, no matter how briefly. A quick glance at a map of the United States reveals the large number of routes that would be implicated by this reading of the statute. In addition to the obvious example of flights between the 48 contiguous states and Alaska or Hawaii, planes routinely fly through international airspace when they travel from Miami to Baltimore, Tampa to Houston and New York to Detroit, to list only a few examples. The transport of drugs on these indisputably domestic flights cari only be characterized as domestic conduct — for which rather steep penalties are already available — rather than importation. Here in the Ninth Circuit we may encounter even more absurd results under the government’s interpretation of § 952(a). For example, dozens of commercial flights (to say nothing of noncommercial flights) travel daily up and down the California coast between San Francisco and Los Angeles, and between Los Angeles and San Diego. Given the configuration of the coastline, any one of these flights may travel through international airspace off the coast, perhaps entering and reentering United States airspace several times. Yet nothing on the face of § 952(a) even suggests that Congress intended the transport of drugs on one of these 45 minute intrastate flights to constitute importation within the meaning of the statute. Moreover, we are unable to conceive of an articulable legislative purpose for punishing the transport of drugs on a domestic flight that passes through international airspace more-severely than the identical conduct on a flight that travels entirely within United States airspace. Consider the following example: Under the government’s interpretation of § 952(a), a passenger who carries a bag of marijuana on a flight from Portland to Anchorage has committed the crime of importation, while a drug-carrying traveler who departs from the same terminal at the Portland airport is guilty only of mere possession (or perhaps possession with intent to distribute) if his flight lands in Phoenix rather than Anchorage. But what, exactly, is the additional evil committed by the Alaska-bound traveler? The government does not tell us, and we cannot imagine, why Congress would have wanted to penalize the first traveler more heavily. Our inability to identify a purpose for differentiating between these two cases of domestic transport leads us to conclude that § 952(a) was not intended to draw such distinctions. Indeed, with the specific exception of the conduct proscribed by the first clause of the statute, it was not intended to reach domestic conduct at all. II. We find support for our interpretation of § 952(a) in the First Circuit’s decision in Ramirez-Ferrer, the only Court of Appeals opinion to analyze the statute’s text and history with respect to the question at issue here. United States v. Ramirez-Ferrer, 82 F.3d 1131, 1137 (1st Cir.1996) (en banc). The defendants in Ramirez-Ferrer were convicted of importation under § 952(a) for transporting cocaine from Mona Island, Puerto Rico to the main island of Puerto Rico. In a decision whose reasoning is similar to our own in this case, the First Circuit reversed the convictions, holding that “transport from one part of the United States to another does not rise to the level of importation simply by involving travel through international waters.” Id. at 1136. Looking first to the statutory text, the First Circuit reached the same conclusions as we do regarding the plain meaning of the phrase “from any place [outside the United States],” including the redundancy between the two clauses that would result from the government’s construction of the statute. Id. at 1137-38. The court also was influenced by the historical application of the statute, noting that § 952(a) had not been used at all in the manner advocated by the government. Id. at 1143. The court interpreted this inaction as a “tacit recognition that such acts [of domestic transport of drugs cannot] reasonably be considered ‘importation’ within § 952(a).” Id. at 1141. Finally, the First Circuit considered the future implications of the government’s interpretation of the statute. The court reasoned, for example,.that under the government’s reading of the statute, a sailboat tacking up the coast would commit a separate act of importation every time it entered international waters and then reentered domestic territory. Id. at 1142. The court further observed that under a logical extension of the government’s reading of the importation statute, the act of leaving domestic territory and entering international waters would have to be considered an illegal exportation under § 952(a)’s companion statute, 21 U.S.C. § 953(a), “even though there was no intention or act of visiting a foreign territory or off-loading the exported contraband onto a vessel in international waters.” Id. Finding these scenarios unreasonable, the First Circuit emphatically rejected the government’s effort to transform the domestic transport of drugs into importation under § 952(a). Id. at 1143. In an effort to discredit the Ramirez opinion, the government treats it as an outlier that conflicts with the great weight of authority on the reach of § 952(a). As the First Circuit recognized, however, the cases on which the government now relies are inapposite, as they do not directly address the factual scenario presented here: a case where the government’s own evidence shows that the drugs at issue were transported from one point within the United States to another. Nor do these decisions carefully analyze the language of § 952 or the implications of their broad reading of the statute. The government directs our attention to United States v. Peabody, 626 F.2d 1300, 1301 (5th Cir.1980), in which the Fifth Circuit affirmed the importation convictions of defendants who were apprehended with narcotics 35 miles off the coast of Florida. With no reference to the language of § 952(a), the court rejected the defendants’ claim of insufficient evidence of intent to import. The court noted that the defendants were arrested outside the United States, on their way into the country, and simply stated that “[h]ad their cargo of contraband originated in, say, Texas, that would not alter the fact that it was meant to re-enter the United States from international waters. That is enough.” Id. In stark contrast to this case, however, there was no evidence that the boat on which the Peabody defendants were arrested was heading into the United States from another domestic location. The court’s statement about the hypothetical origin of the cargo is therefore dictum at best. Moreover, the court did not even cite § 952(a), let alone analyze it. As the First Circuit aptly remarked, “Peabody and its progeny constitute flimsy precedent upon which to hang one’s hat.” Ramirez-Ferrer, 82 F.3d at 1140. The government also cites United States v. Phillips, 664 F.2d 971, 1033 (5th Cir.1981), in which the Fifth Circuit held that proof of importation from a place outside the United States may be established by circumstantial evidence, including “evidence that a boat from which marijuana was unloaded went outside United States territorial waters or met with any other vessel that had — for example, a ‘mother ship.’ ” As was the case in Peabody, however, there was no evidence that the drugs in question originated in the United States. The facts of Phillips involved drugs that were brought into the United States from Colombia from motherships off the coast of Florida. Id. at 987. Phillips therefore does not provide support for the contention that § 952(a) prohibits the domestic transport of drugs through international airspace. The Eleventh Circuit cases cited by the government are similarly inapt. In United States v. Lueck, 678 F.2d 895, 904-05 (11th Cir.1982), the court relied on the dictum from Peabody in holding that “[a]ny point outside[the] twelve mile limit of airspace and waters constitutes ‘a place outside the United States’ for purposes of proving importation under § 952(a).... The fact of crossing the boundary of the United States with contraband suffices to establish importation.” The Eleventh Circuit reiterated this point in United States v. Goggin, 853 F.2d 843 (11th Cir.1988), holding that “[t]he government may prove that a defendant imported cocaine into the United States ‘from any place outside thereof by showing that the defendant brought cocaine into the country from international waters or from airspace in excess of twelve geographical miles outward from the coastline.” Id. at 845 (citing Lueck, 678 F.2d at 905). In both Lueck and Goggin, however, the evidence suggested that the flights in question had originated in the Bahamas — not in the United States. Lueck, 678 F.2d at 896-97; Goggin, 853 F.2d at 843, 844. The domestic transport of narcotics was not demonstrated in either case. In fact, the only cases to adopt the government’s proposed interpretation of § 952(a) under factual circumstances similar to those presented here are our decisions in Perez, 776 F.2d at 801, and Sugiyama, 846 F.2d at 572. As an en banc court we are not bound by these panel opinions. Upon analysis, given the factual circumstances here, we no longer consider them to have correctly construed the statute. In Perez, the defendant was convicted under § 952(a) of importing drugs on a boat that sailed from Rota, an island in the Commonwealth of the Northern Mariana Islands (a United States territory), to Guam. We affirmed the convictions, holding that all that the government must show for a finding of importation under § 952(a) is that the drugs entered the United States from international waters or airspace. Perez, 776 F.2d at 801 (citing Lueck, 678 F.2d 895). In reaching this conclusion, the opinion did not analyze the statute or the implications of its interpretation. Instead, it rested its holding on the dicta in Peabody and Lueck, which themselves failed to address the statutory language. Id. Sugiyama likewise adds nothing to our understanding of the scope of § 952(a), as it relied solely on Perez in affirming the conviction of a defendant under § 952(a) for importing drugs on a flight from the island of Palau (which at the time was part of the United States Trust Territory of the Pacific Islands) to Guam. Sugiyama, 846 F.2d at 572. Neither Sugiyama nor Perez spoke to the concerns we confront today regarding the plain meaning of the statutory language, the statutory structure or the implications of a finding that § 952(a) reaches domestic conduct. To the extent that Sugiyama and Perez address the transport of drugs through international airspace on a nonstop domestic flight, they are overruled. III. Our analysis leaves little doubt that the second clause of § 952(a) does not proscribe the transport of drugs on a nonstop flight from one domestic location to another, but to the extent that any doubt remains, the scope of the statute is sufficiently ambiguous to invoke the rule of lenity. “In these circumstances- — -where text, structure, and history fail to establish that the Government’s position is unambiguously correct — we ... resolve the ambiguity in [the defendantj’s favor.” United States v. Granderson, 511 U.S. 39, 54, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994) (emphasis added). See also United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (“[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.”) (internal quotation marks omitted); People v. Materne, 72 F.3d 103, 106 (9th Cir.1995) (“[T]he rule of lenity applies where a criminal statute is vague enough to deem both the defendant’s and the government’s interpretations of it as reasonable.”). In light of the statutory language and structure and the disagreement among the circuit courts about the reach of the statute, it is evident that the government’s position is far from unambiguously correct. Accordingly, we hold that the transport of drugs through international airspace on a nonstop flight from one United States location to another does not constitute importation within the meaning of § 952(a). IV. We are not persuaded by warnings of the government and the dissent that our decision today will cripple the government’s efforts — any more than did the First Circuit’s 1996 decision in Ramirez-Ferrer — to fight the ongoing war on drugs. Our holding addresses those cases in which the undisputed evidence .shows that the nonstop flight on which the defendant transported drugs departed and landed in the United States. Our interpretation of § 952(a) thus does not preclude the government from proving importation when a drug-laden plane of unknown origin is discovered in international air-space before it has crossed into U.S. territory. In such a situation, the government has found the plane outside the United States and therefore has circumstantial evidence that the aircraft originated from a place outside the United States. We need not decide today whether such evidence alone would be sufficient to support a conviction under § 952, because the government here does not dispute the defendants’ contention that the flights in question departed from the United States. Our holding also leaves undisturbed our well-settled case law establishing that importation occurs when a person reenters the United States from a foreign country carrying drugs that were in her possession when she left the United States. See, e.g., United States v. Friedman, 501 F.2d 1352, 1353-54 (9th Cir.1974) (affirming the conviction of a defendant who reentered the United States from Mexico carrying drugs that were with him when he left the United States). A defendant who drives from San Diego to Mexico with a package of cocaine in her trunk and returns to San Diego still in possession of that package has committed an act of importation, even though the drugs themselves originated in this country, because the defendant thereafter brought them back into the United States from Mexico— from a “place outside thereof’ within the commonsense meaning of § 952(a). Moreover, we are not leaving the government without recourse to punish the Cabaccangs and others who bring drugs from one United States location to another through international airspace. As the dissent itself acknowledges, “[p]os-session of illegal narcotics is already a serious offense,” and any conduct that would have been chargeable as importation under the government’s reading of § 952(a) may be charged under 21 U.S.C. § 841 as possession with intent to distribute. Section 841 carries steep mandatory minimum penalties that closely track those available for violations of § 952(a). Indeed, this very case amply demonstrates that our decision will not deplete the government’s antidrug arsenal: Notwithstanding our reversal of their importation-related convictions, each of the Cabaccang brothers will still serve a life sentence for his involvement in the methamphetamine ring. Today’s decision does nothing more than prevent the government from charging as importation conduct that can only be characterized as the domestic transport of drugs. In sum, our analysis of the statutory text and structure leads us to conclude that the second clause of 21 U.S.C. § 952(a) does not proscribe — and was not intended to proscribe — the transport of drugs on a nonstop flight between two locations within the United States. A de-cisión to the contrary would contravene the plain meaning of the statute and produce absurd and unreasonable results. Accordingly, we reverse the defendants’ convictions for conspiracy to import methamphetamine, importation of methamphetamine and attempted importation of methamphetamine. V. The effect of our decision on Roy Ca-baccang’s conviction for conducting a continuing criminal enterprise (Count I) is not so clear. Count I incorporated the importation charges as predicate offenses, and the jury was instructed that to convict on that count it had to find that “the Defendant committed any one or more of the following federal narcotics trafficking offenses: conspiracy to distribute methamphetamine; conspiracy to distribute methamphetamine; or, conspiracy to import methamphetamine; or, importation of methamphetamine; or, possession of methamphetamine with intent to distribute; or, attempted importation of methamphetamine.” The jury was also instructed that it must find that the offenses were part of a series of three or more offenses committed by the defendant, and that the defendant committed the offenses together with five or more persons. Finally, the jury was instructed that all members of the jury must unanimously agree on which three narcotics offenses the defendant committed and on which five or more persons committed the offenses together with the defendant. The jury’s guilty verdict on Count I did not specify which narcotics offenses formed the basis of the jury’s finding. It is not for us to determine whether the jury relied on the importation offenses in reaching a verdict on Count I or whether, if the jury did so rely, there was sufficient additional evidence of a continuing criminal enterprise to support the conviction. These questions are more appropriately considered by the district court. We therefore remand Count I to the district court for a determination of whether Roy’s conviction on that count can stand in light of our holding. Conclusion Because the transport of drugs on a nonstop flight from California to Guam does not constitute importation within the meaning of 21 U.S.C. § 952(a), we reverse all three defendants’ convictions for conspiracy to import methamphetamine (Count III), Richard and Roy’s convictions for importation of methamphetamine (Count V) and Roy’s convictions for attempted importation of methamphetamine (Counts IX, X and XI). We remand to the district court for a determination of whether Roy’s conviction for a continuing criminal enterprise (Count I) can stand in light of our reversal on the importation counts. As to the Cabaceangs’ challenges to their convictions and sentences on the counts that are not importation-related, we adopt the panel decisions as our own and therefore affirm the judgment of the district court as to those counts. AFFIRMED in part, REVERSED in part, REMANDED in part. . Richard and Roy were also convicted of importation of methamphetamine, and Roy was convicted of conducting a continuing criminal enterprise, possession of methamphetamine with intent to distribute, attempted importation of methamphetamine and possession and receipt of a firearm by a convicted felon. . Roy received concurrent life sentences on all of the drug counts. James received concurrent life sentences on the counts of conspiracy to import and conspiracy to distribute. Richard received concurrent life sentences on the counts of conspiracy to import, conspiracy to distribute and conspiracy to launder money. . The Cabaecangs asserted numerous other grounds for reversal of their convictions, including insufficient evidence, constructive amendment of the indictment, multiplicitous counts, ineffective assistance of counsel, erroneous jury instructions and erroneous denial of Roy's motion to suppress evidence. The brothers also claimed that their sentences violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because drug quantity was not charged in the indictment or submitted to the jury. .The panel also rejected the Cabaecangs’ other challenges to their convictions, see United States v. Cabaccang, 16 Fed. Appx. 566, 568-70, 2001 WL 760553 (9th Cir.2001), and it denied the Cabaecangs’ Apprendi-based challenges to their sentences in a subsequent memorandum disposition. See United States v. Cabaccang, 36 Fed. Appx. 234, 2002 WL 1192886 (9th Cir.2002) ("Cabaccang II ”). . The Cabaccangs brought drugs into Guam, which is not part of the customs territory of the United States. See Harmonized Tariff Schedule of the United States (“HTSUS”), General Note 2, 19 U.S.C. § 1202 (defining the customs territory of the United States as "the States, the District of Columbia and Puerto Rico”), available at http://dataw-eb.usitc.gov/SCRIPTS/ tarifl/toc.html. . The airspace of the United States currently includes that airspace overlying the waters within 12 nautical miles of the land borders of the United States. See Proclamation No. 5928, 54 Fed.Reg. 777 (Dec. 27, 1988) (extending the territorial sea of the United States to 12 nautical miles from the baselines of the United States, and defining the territorial sea of the United States as a "maritime zone extending beyond the land territory and internal waters of the United States over which the United States exercises sovereignty and jurisdiction, a sovereignty and jurisdiction that extend to the airspace over the territorial sea, as well as to its bed and subsoil.” (emphasis added)). . Section 174 traced its origins to 35 Stat. 614 (1909), which prohibited the importation of opium into the United States. The statute was amended in 1922 to extend the prohibition to the importation of "any narcotic drag.” 21 U.S.C. § 174 (1922). . The legislative history is silent as to why Congress made this change. . The dissent posits that "[a] person traveling from Place A to Place B to Place C arrives at C both from A and from B." (Italics added.) We find such a reading to be strained and implausible in the context of a nonstop flight. The flights at issue in this case, for example, undeniably flew from Los Angeles ("Place A") to Guam ("Place C"), but not “to” international airspace ("Place B,” per the dissent). . See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 441 n. 8, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) ("The United States has [until 1988] adhered to a territorial sea of 3 nautical miles.... ”). .As the dissent notes, this is not entirely the case today: given the current 12-mile limit of the territorial sea, it is possible to travel from St. Thomas (noncustoms territory) to Puerto Rico without leaving United States airspace or waters, as the tiny island of Culebra, Puer-to Rico (but not the main island of Puerto Rico) is within 24 miles of St. Thomas. . This limited customs jurisdiction is also referred to as the "contiguous zone.” See United States v. Rubies, 612 F.2d 397, 403 n. 2 (9th Cir.1979); see also Convention on the Territorial Sea and the Contiguous Zone, art. 24, 15 U.S.T. 1606 (1964). . The high seas are those waters that are seaward of the territorial sea, and they include the contiguous zone. Rubies, 612 F.2d at 403 n. 2. . Of course, such a need has not yet materialized. Despite the post 1970 changes in the composition of our noncustoms territory and the limits of our territorial sea that the dissent catalogues in bringing us up to date, there still remains only one point of contiguity between the customs territory and the noncus-toms territory: Puerto Rico and St. Thomas. . That the government has refrained, so far as we are aware, from charging the transport of drugs on one of these flights as importation does not affect our analysis. Unlike the dissent, we are unwilling to rely on prosecutorial discretion for assurance that indisputably domestic conduct will not be charged under § 952. . We recognize, as the dissent notes, that both of our hypothetical travelers have engaged in conduct that is not "otherwise innocent” and that may well be "incredibly stupid.” However, neither of these observations is relevant to the question of whether the conduct violated § 952(a). . Mona Island is located 39 miles off the coast of the main island of Puerto Rico. See id. at 1132-33. . The court also rejected the government’s reading because it concluded that it would make clause 1 impossible to violate. The First Circuit explained that under the government’s reading of the statute, "the phrase 'any place outside thereof essentially means the point at which the drugs were located immediately before passing into the United States (i.e., the international space just outside the jurisdictional limit of the United States).” Id. at 1138. The court reasoned that such a reading would make the statute impossible to violate because "there is no 'place' just outside of the jurisdictional limits of the customs territory of the United States, that is also within the United States. Any place that is just outside the customs territory ... is international waters.” Id. As we noted earlier, the First Circuit apparently was unaware of the proximity of Culebra, Puerto Rico to the U.S. Virgin Islands. . The error in the government's interpretation of § 952(a) is even more apparent in this case, which deals with the domestic transport of drugs through international airspace rather than international waters. Contrary to the dissent's assertion, the distinction between air and water transport of drugs is hardly arbitrary. It is possible for a ship to pick up foreign passengers or cargo while passing through international waters, whereas the same cannot be said of a nonstop flight between two domestic locations. When a nonstop domestic flight lands at its destination, we know for certain that any drugs on board were there when the plane departed and could not have been acquired from a foreign aircraft. Cf. Garcia, 672 F.2d at 1358 (noting that, unlike ships that travel in international waters, "planes that pass through international airspace do not present any possibility of foreign contacts other than that presented by their actual stopping in a foreign country”). Even the dissent in Ramirez-Ferrer conceded that "[i]t is far from clear whether carrying drugs aboard a scheduled nonstop airline flight between two U.S. points could ever be treated as importation under the [statute’s second] clause; a defendant would certainly argue that for all practical purposes, drugs on such a flight are never outside the country.” 82 F.3d at 1146 (Boudin, J., dissenting). . But cf. United States v. Cadena, 585 F.2d 1252, 1259 (5th Cir.1978) ("Because importation necessarily originates in an act in a foreign country, it is apparent that Congress intended that 21 U.S.C. § 952 and § 963 apply to persons who commit acts or a series of acts that at least commenced outside the territorial limits of the United States.”), overruled on other grounds by United States v. Michelena-Orovio, 719 F.2d 738 (5th Cir.1983). . Because we confine our holding to the transport of drugs on an aircraft that travels nonstop through international airspace en route between two United States locations, we express no opinion on the continuing vitality of Perez with respect to the maritime transport of drugs in international waters. That is an issue for another day. . The dissent contends that the rule of lenity is inapplicable here because the Cabaccangs were on notice from our decisions in Perez and Sugiyama that their conduct was unlawful. However, the purpose of the rule of lenity is not merely to ensure that defendants have notice of the criminality of their actions. The rule is also founded on the principle that "because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.” Bass, 404 U.S. at 348, 92 S.Ct. 515. If there is any doubt about whether Congress intended § 952 to prohibit the conduct in which the Cabaccangs engaged, then "we must choose the interpretation least likely to impose penalties unintended by Congress.” United States v. Arzate-Nunez, 18 F.3d 730, 736 (9th Cir.1994). .Our decision therefore is not inconsistent with the result — if not the reasoning' — reached by the Fifth Circuit in Peabody and Phillips. In those cases, there was no evidence of domestic origin to contradict the government’s circumstantial evidence that the vessels found entering the United States from international airspace or waters departed from a place outside the United States. See supra Part II. Nor is our decision at odds with the outcome in Goggin, 853 F.2d at 846, in which the jury rejected the defendant's testimony that his flight departed from Atlanta in favor of the government's evidence that the flight took off from the Bahamas, or with that in Lueck, in which the only evidence of domestic origin was the defendant's uncorroborated testimony that he had taken off from the Florida Keys. Lueck, 678 F.2d at 897. Because our holding is limited to cases in which the evidence shows beyond dispute that the drugs in question were transported on a nonstop flight between two domestic locations, it does not conflict with the cases applying § 952(a) to the transport of drugs into the United States from an offshore mothership or from an aircraft or vessel first discovered outside the United States. . Where the facts do not support a finding of intent to distribute, such as where the drug quantity at issue is too small, the government may charge the conduct as simple possession under 21 U.S.C. § 844. . See 21 U.S.C. § 960 (listing the penalties for violations of § 952(a)).
SCHROEDER, Chief Judge, concurring: I agree with the result. All three defendants were convicted under 21 U.S.C. § 952(a), importation of controlled substances. The crime was transporting illicit drugs from California to Guam. This was transportation from the continental United States to a territory of the United States that has its own customs authority. The language of the statute provides: It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance ... or any narcotic drug.... 21 U.S.C. § 952(a). The first clause states that it is illegal to take drugs from non-customs territory of the United States to customs territory of the United States. The defendants did not do this. The second clause bars the taking of drugs from foreign territory into the United States. The defendants did not do this either. Therefore, the statute was not violated. The concerns reflected in both the dissent and the majority opinion about crossing international waters are not relevant to the interpretation of the plain language of the statute as I read it. Nevertheless, I do concur wholeheartedly in the result reached by the majority.
KOZINSKI, Circuit Judge, with whom O’SCANNLAIN, GRABER, McKEOWN and TALLMAN, Circuit Judges, join, dissenting: Our job as judges is to apply laws adopted by the political branches of government. As the Supreme Court has told us time and time again, see, e.g., HUD v. Rucker, 535 U.S. 125, 130-31, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002); United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 490-93, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001), where the statutory text is clear and speaks to the issue before us, we must faithfully enforce it, even if we firmly believe we could rewrite the statute to make it better. And rewrite the statute is precisely what the majority does. There is no conceivable interpretation of its simple words that could yield one result where drugs are brought into the United States by air and a different one where they are brought in by sea. Instead, the majority has taken a blue pencil and inserted the words “except when the drugs are brought in on a nonstop flight originating in the United States.” If this is a sensible exception, it’s not one Congress has adopted, and no amount of massaging the word “from” can possibly yield such a specific and finely tuned result. The majority’s statutory revisionism puts us in conflict with other circuits and will immensely complicate law enforcement efforts to protect our borders from the scourge of illegal drugs. It is the triumph of judicial will over innocent words that have no way to fight back. The Text 1. Section. 952(a) states: It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance .... 21 U.S.C. § 952(a). And section 951(a)(1) adds: The term “import” means, with respect to any article, any bringing in or introduction of such article into any area (whether or not such bringing in or introduction constitutes an importation within the meaning of the tariff laws of the United States). 21 U.S.C. § 951(a)(1). It’s difficult to imagine what more Congress could have said to keep us from going astray. Congress did not merely use the term “import” and leave it to the courts to flesh out its meaning. Rather, it went to the trouble of defining the term as “any bringing in or introduction of such article into any area.” Id. It even explicitly foreclosed the notion that tariff-law definitions of “import” are germane. Id. Thus, the majority’s observation that “[w]e do not treat passengers who travel through international airspace on a nonstop flight between two U.S. locations as ... subject to immigration inspections or border searches,” Maj. op. at 626, is utterly irrelevant. Nor does it matter that ships only going out to international waters do not clear customs on their return. See United States v. Ramirez-Ferrer, 82 F.3d 1131, 1136 n. 4 (1st Cir.1996) (en banc). Congress specifically rejected traditional notions of importation as a benchmark. The only pertinent question is whether defendants brought drugs into the United States from any place outside thereof. The Cabaccangs conspired to bring a large quantity of drugs into Guam, a U.S. island surrounded by roñes of ocean. It is impossible to get there without first passing through international waters or airspace. Defendants’ criminal scheme thus fits perfectly within the statutory definition: Their co-conspirators brought drugs into the United States (Guam) from “any place outside thereof’ (international airspace surrounding Guam). The majority does not seriously dispute that international airspace is a “place” in normal English usage. Maj. op. at 626. A “place,” after all, is only a “region; locality; [or] spot” —a “location,” “position” or “site.” Webster’s New International Dictionary of the English Language 1449, 1877, 1925, 2350 (William Allan Neilson et al. eds., 2d ed.1939). None of these definitions has anything to do with whether the “place” is occupied by air or terra firma, within a country’s borders or over the high seas. What the majority is really arguing is that international air-space, although a place, is not the place drugs come from when they cross back into the United States — even if the so-called “international” airspace is above another sovereign nation like Canada, Maj. op. at 631. The majority claims “it is clear ... that a defendant who has brought drugs on a non-stop flight that lands in the United States can most reasonably be said to have brought drugs from the point of the flight’s departure — and not the airspace through which the plane traveled on the way.” Maj. op. at 627. It thus reads “from” in section 952(a) to mean only “originally from.” But nothing in the statute compels or even suggests that limitation. “From” can imply origin, but it can also mean simply “forth out of,” “away out of contact with or proximity to,” or merely “out of.” Webster’s, supra, at 1012. One need look no further than Ramirez-Ferrer to find the word so used. See 82 F.3d at 1142 (discussing the sailboat that “tack[s] out to and from international waters” (emphasis added)). The airstrip where a defendant takes off is one place he comes from, but certainly not the only one. If I ship an antique Persian rug from Baltimore to Los Angeles, it comes from Baltimore, but also from Indianapolis, Amarillo and many other places along the way; when it enters California, it does so from Nevada or Arizona. And, of course, it originally comes from the Middle East. A person traveling from Place A to Place B to Place C arrives at C both from A and from B. He comes from A originally and from B immediately; B is both the place through which he passes on the way from A to C, and from whi