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USCA1 Opinion
August 28, 1992 [NOT FOR PUBLICATION]
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No. 92-1654
UNITED STATES OF AMERICA
Plaintiff, Appellee,,
v.
NELSON MANTECON ZAYAS,
Defendant, Appellant.
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No. 92-1879
IN RE: NELSON MANTECON ZAYAS,
Petitioner.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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J.C. Codias on brief for appellant.
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Robert S. Mueller, III, Assistant Attorney General, Mary Lee
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Warren, Chief, Hope P. McGowan and William H. Kenety, Attorneys,
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Narcotic and Dangerous Drug Section, Criminal Division, on brief
for appellee.
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Per curiam. These matters concern (though, as we will
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explain, they do not directly challenge) the district court's
denial of Nelson Mantecon Zayas' motion to dismiss his
indictment. In September 1991 Mantecon was indicted, along
with thirty-eight co-defendants, in the District of Puerto
Rico. The superseding Puerto Rico indictment charged him
with one count of conspiracy to possess, with intent to
distribute, large quantities of marijuana and cocaine, and
with seventeen substantive drug offenses involving the
importation and possession of those drugs. Trial on these
charges is scheduled to begin in September 1992.
Previously, in 1990, Mantecon had been indicted with
eleven co-defendants on drug charges in the Southern District
of Florida. The second superseding Florida indictment
charged him with one count of conspiracy to import marijuana
and cocaine, and two counts of attempting to import cocaine.
Mantecon was recently tried on these charges.
On September 27, 1991, Mantecon filed a motion to
dismiss the Puerto Rico indictment. His contention was that
the indictment violated the Double Jeopardy Clause of the
Fifth Amendment by charging him with the "same offenses" for
which he had already been indicted in Florida. On October
21, the government opposed the motion. On November 21, the
district court denied the motion. On December 3, Mantecon
filed a "reply" to the government's opposition. On December
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9, he filed a motion to reconsider the denial of his motion
to dismiss. In the motion, Mantecon's attorney stated that
he had not received a copy of the government's opposition
until November 15, and that he had filed the reply memo
"promptly" on November 21. The latter statement was untrue,
and it created the false impression that the reply memo and
the order had crossed paths through no fault of Mantecon.
The motion asked the court to reconsider its denial of the
motion to dismiss in light of the arguments made in the reply
memo.
At length, the district court discovered that Mantecon's
attorney had in fact not filed the reply memo until almost
two weeks after the November 21 order issued. In an order
dated February 11, 1992, the court therefore denied the
motion to reconsider on the grounds that the reply memo (a)
was untimely, and (b) had been filed without the court's
permission, as required by Local Rule 311.7.1 Mantecon
appealed the denial of the motion to reconsider (No. 92-
1654),2 and later filed a petition for a writ of "mandamus"
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1. The court also observed that, even if it were to consider
the reply memo, it would still deny the motion because the
Florida and Puerto Rico indictments were factually distinct,
and because the issue of double jeopardy was not ripe for
disposition when both cases were still in their pre-trial
stages.
2. Mantecon did not file a notice of appeal until May 8,
1992, well past the ten-day deadline for filing appeals in
criminal cases, see Fed. R. App. P. 4(b), and beyond even the
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additional thirty-day "bubble" in which extensions for
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(No. 92-1879) ordering the district court not to try him on
the Puerto Rico charges during the pendency of the appeal.
We now affirm the denial of the motion to reconsider, and
deny Mantecon's petition for a writ.
I
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The scope of our review is narrow. We have no occasion
to consider the denial of the underlying motion to dismiss
the indictment because Mantecon never filed a notice of
appeal from that decision. In criminal cases, as in civil
cases, it is true that the timely filing of a motion to
reconsider will render the underlying order "nonfinal for
purposes of appeal for as long as the [motion] is pending."
United States v. Dieter, 429 U.S. 6, 8 (1976) (per curiam).
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Thus, if the defendant files a timely motion to reconsider,
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he need not immediately appeal the underlying order, and his
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excusable neglect can be made. Id. Mantecon says that his
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notice was timely nonetheless because (a) the district court
failed to notify him of the denial of his motion to
reconsider, and (b) after he finally learned of the denial,
in late April, the district court gave him "permission" to
file an appeal. It is not at all clear to us that the
district court actually granted the "permission" Mantecon
describes, and even less clear that the district court had
the power to do so. But, we need not answer these questions
because, as we will explain, the appeal is otherwise without
substance. Whether we dismiss for lack of jurisdiction, or
affirm on the merits, "the effect is the same. It follows
that there is no need to decide the theoretical question of
jurisdiction in this case." Norton v. Mathews, 427 U.S. 524,
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532 (1976).
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subsequent appeal from the denial of the motion to reconsider
will preserve his challenges to the initial decision. On the
other hand, if the motion to reconsider is untimely, then it
has no effect on the need to file or time for filing a notice
of appeal from the underlying order. See Browder v.
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Director, Dept. of Corrections of Illinois, 434 U.S. 257,
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264-65 (1978). The defendant must, if he intends to
challenge the initial decision, file a timely notice of
appeal directly from it.
A motion to reconsider in a criminal case is timely if
"filed within the original period for review." Id. at 268
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(quoting United States v. Healy, 376 U.S. 75, 78 (1964)).
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Because a criminal defendant has ten days in which to file a
notice of appeal, Fed. R. App. P. 4(b), his motion to
reconsider is timely only if filed within ten days. United
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States v. Lefler, 880 F.2d 233, 234-35 (9th Cir. 1989). Here,
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the motion to reconsider was untimely because the district
court entered its denial of the motion to dismiss on November
21, 1991, and Mantecon did not file the motion to reconsider
until December 9, 1991 -- eighteen days later. And, since
Mantecon did not file a notice of appeal within ten days of
the November 21 order denying his motion to dismiss, he has
forfeited his right to review of that order. On appeal we
can assess only the propriety of the district court's
decision to deny the motion to reconsider.
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Because the motion to reconsider asked the district
court to look at the reply memo, the issue on appeal is
whether the district court abused its discretion in refusing
to do so. Id. ("Denial of a motion for reconsideration is
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reviewed for abuse of discretion."). Here, the reply memo
was late (i.e., filed after the district court had issued its
decision to deny the underlying motion to dismiss), and it
was filed without the court's permission as required by local
rule. The motion to reconsider also was late, and it
contained a false averment (i.e., that Mantecon had submitted
his reply memo "promptly"). Any one of these facts would
have justified the district court's decision to deny the
motion to reconsider. In combination they make the denial
unassailable.
II
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Even if this appeal gave us an opportunity to review the
merits of the underlying motion to dismiss the indictment, we
could find no basis for disturbing the district court's
denial. The Double Jeopardy Clause provides that no person
shall be twice put in jeopardy for the "same offense."
Mantecon contends that the Florida and Puerto Rico conspiracy
charges reflect but a single criminal scheme which the
government has artificially sundered and successively
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prosecuted. See North Carolina v. Pearce, 395 U.S. 711, 717
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(1969) (Double Jeopardy Clause protects against, among other
things, successive prosecutions for one crime).
In order to determine "whether two charged conspiracies
constitute the same offense for purposes of double jeopardy,"
United States v. Hart, 933 F.2d 80, 85 (1st Cir. 1991), we
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have in the past examined "the relationship of the charged
(multiple) conspiracies to one another in terms of factors
such as the times when the relevant activities transpired;
the locations at which the activities occurred; the
identities of the persons involved; the co-conspirators'
ends; the means used to achieve those ends; and the
similarities (or differences) in the evidence used to prove
the two conspiracies." United States v. David, 940 F.2d 722,
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734 (1st Cir. 1991). See also United States v. Hart, 933
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F.2d at 85-86 (setting out five-factor test); United States
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v. Gomez-Pabon, 911 F.2d 847 (1st Cir. 1990)). We can
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consider "anything [in the record] that seems relevant" to
these factors. United States v. Thomas, 759 F.2d 659, 662
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n.4 (8th Cir. 1985).
In this case, the relevant material available to us
consists almost entirely of the indictments in the two
prosecutions, along with the government's statement that the
Florida prosecutors introduced no "evidence of criminal acts
in Puerto Rico." The indictments tell us that both of the
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charged conspiracies involved efforts to import cocaine from
South America to the United States during overlapping periods
of time (July 1988 to March 1991 in Florida, January 1987 to
September 1991 in Puerto Rico). The indictments also suggest
that at least some of the drugs imported by each conspiracy
ended up (or were intended to end up) in South Florida.
These are attributes, however, that might unfortunately be
given at any particular moment to any number of completely
distinct criminal operations, and they are hardly indicative
of an identity between the conspiracies charged here.
More telling are the differences between the alleged
schemes. The two indictments named a total of fifty
conspirators, but only Mantecon was charged in both cases.
Though they had similar goals -- the importation of illegal
drugs -- the organizations described in the indictments
appear to have employed different methods: the Florida
conspiracy obtaining shipments directly from foreign sources
by boat; the Puerto Rico conspiracy using a more elaborate
system that involved dropping loads of drugs into the ocean
from airplanes or "motherships," retrieving them in
speedboats, and finally transferring them to rubber life
rafts and bringing them to shore. Certainly, Mantecon's
alleged roles in the conspiracies differed significantly. In
Puerto Rico he is charged with having played a limited and
subordinate role, one of several men assigned to the job of
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recovering drugs from their drop-off points in the ocean.
The Florida indictment, on the other hand, identified him as
a ringleader who arranged for shipments, financed
preparations, provided boats, captains and crews, and was
responsible for distributing the imported drugs.
In sum, the only points of similarity between the
conspiracy prosecuted in Florida and the conspiracy charged
in Puerto Rico are (1) that Mantecon was involved in both,
(2) that both involved schemes to import drugs, and (3) that
both took place at about the same time. "[S]uch factors are
suggestive rather than dispositive," United States v. David,
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940 F.2d at 734, and when viewed here against the important
differences between the indictments they suggest that
Mantecon was in fact stirring two pots, not that the
government has conjured two conspiracies out of the "same
offense."
Mantecon's reliance on Grady v. Corbin, 495 U.S. 508
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(1990), does not avail him. Grady held that "the Double
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Jeopardy Clause bars a subsequent prosecution if, to
establish an essential element of an offense charged in that
prosecution, the government will prove conduct that
constitutes an offense for which the defendant has already
been prosecuted." Id. at 510. In United States v.
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Calderone, 917 F.2d 717 (2d Cir. 1990), a divided panel ruled
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that Grady will bar a conspiracy prosecution where, in the
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course of litigating a previous conspiracy charge, the
government has "proved conduct" (i.e., the commission of
overt acts) that it will also need to prove to establish the
existence of the second conspiracy.
Supposing without deciding that the Calderone majority
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properly applied Grady to cases involving successive
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conspiracy prosecutions, cf. United States v. Felix, 112
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S.Ct. 1377, 1383-85 (1992) (previous prosecution for
substantive crimes does not prevent government from
prosecuting conspiracy where conduct constituting substantive
crimes will be proved as overt acts to establish the
conspiracy); United States v. Rivera-Feliciano, 930 F.2d 951
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(1st Cir. 1991) (same), the rule it stated has no bearing on
this case. The Florida and Puerto Rico prosecutions are
independent in essence and in all particulars save for
Mantecon's presence as a defendant. According to the Puerto
Rico indictment, all of the overt acts which establish
Mantecon's involvement in the Puerto Rico conspiracy were
committed in Puerto Rico. On the other hand, the government
has told us (and Mantecon has not challenged the assertion)
that the Florida prosecutors introduced no evidence of
criminal acts in Puerto Rico. It therefore does not appear
that the Puerto Rico prosecutors will need even to introduce
any of the evidence used in the Florida case, see United
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States v. Felix, 112 S.Ct. at 1382 ("a mere overlap in proof
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between two prosecutions does not establish a double jeopardy
violation"), much less that they will have to "prove conduct
that constitutes an offense" for which Mantecon has already
been tried.
The district court's order denying the motion to
reconsider is summarily affirmed pursuant to Local Rule 27.1.
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The petition for a writ of mandamus is denied. Mandate shall
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issue forthwith.
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Document Info
Docket Number： 92-1654
Filed Date： 8/28/1992
Precedential Status： Precedential
Modified Date： 9/21/2015