United States v. Ventura-Melendez ( 2001 )

United States Court of Appeals
For the First Circuit
No. 01-1400
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
MARÍA DEL CARMEN VENTURA-MELÉNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
[Hon. Aida M. Delgado-Colón, U.S. Magistrate Judge]
Before
Torruella, Circuit Judge,
Kravitch,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Linda Backiel, for appellant.
Francis J. Bustamante, Special Assistant U.S. Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant
U.S. Attorney, Chief, Criminal Division, and Anthony Chávez, Special
Assistant U.S. Attorney, were on brief, for appellee.
December 19, 2001
* Of the Eleventh Circuit, sitting by designation.
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TORRUELLA, Circuit Judge. Defendant María del Carmen
Ventura-Meléndez ("Ventura" or "defendant") appeals her conviction for
trespassing on a United States military installation. She asserts
numerous grounds for appeal, all of which we find unavailing. We
therefore affirm her conviction.
I. BACKGROUND
Ventura, a native of Vieques, Puerto Rico, was arrested on
June 1, 2000 on a beach in Vieques during a peaceful protest against
the Navy's continuing use of portions of the island for military
maneuvers. The beach is part of the Naval installation at Camp García
and sits approximately 200 yards from the live impact area designated
for live-fire artillery and bombardment exercises. Approximately
thirty-one people, all of whom were engaged in acts of civil
disobedience, were arrested at the same time and place.
Ventura was charged, in a single-count information filed on
July 17, 2000, with violation of 18 U.S.C. § 1382. The district court
conducted a one-day bench trial and found Ventura, along with her two
co-defendants, guilty of the one count charged. The district court
then sentenced the defendant to one year of unsupervised probation,
with a special condition that she not enter any part of the Navy's
closed base at Camp García without permission, and assessed a fine in
the amount of ten dollars.
II. ANALYSIS
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The federal trespassing statute under which Ventura was
convicted provides, in relevant part:
Whoever, within the jurisdiction of the United
States, goes upon any military, naval, or Coast
Guard reservation, post, fort, arsenal, yard,
station, or installation, for any purpose
prohibited by law or lawful regulation;
. . .
Shall be fined under this title or imprisoned not
more than six months, or both.
18 U.S.C. § 1382 (1994). The statute, in essence, prohibits persons
from "enter[ing] military reservations that are closed to them,
provided they have notice or knowledge that their entry is prohibited."
United States v. Parrilla-Bonilla, 648 F.2d 1373, 1378 (1st Cir. 1981).
Ventura argues three basic grounds for appeal. First, she
contends that the district court improperly admitted a "Certificate of
Non-Existence of Record" that purported to show that she was not among
those with permission to enter Camp García on the day of her arrest.
Second, she argues that the evidence was insufficient as a matter of
law to show that her presence on the beach constituted entry upon lands
reserved by the Navy. Lastly, she argues that the district court
erroneously failed to disqualify Navy personnel from acting as Special
Assistant United States Attorneys. We address each of her appeal
arguments in turn.
A. Admission of the Certificate of Non-Existence of Record
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Shortly before trial, Ventura filed a motion in limine to
exclude from evidence a Certificate of Non-Existence of Record ("CNER")
signed by Lieutenant Commander Neftalí Pagán ("LC Pagán"). The CNER
stated that a diligent search of the records containing the names of
those with permission to enter Camp García on the day in question had
been conducted, and that the search revealed no record or entry
identifying Ventura. The document was introduced to show that Ventura
was not authorized to be on the property controlled by the Navy when
she was arrested. LC Pagán did not testify at trial. Ventura's motion
to exclude the CNER was denied from the bench on the date of trial,
without opinion. Her objection was renewed and overruled during trial.
1. Application of Rule 803(10)
Ventura first disputes whether the district court correctly
admitted the CNER in accordance with Federal Rule of Evidence 803(10).
"[A] trial court enjoys considerable discretion in connection with the
admission or exclusion of evidence." Udemba v. Nicoli, 237 F.3d 8, 15
(1st Cir. 2001). Consequently, we review the district court's
application of Rule 803(10) for an abuse of discretion. Id.Subject to the limitations of Rule 803(10), an out-of-court
statement is admissible to prove the absence of a public record or
entry, even where the declarant is available as a witness. Evidence
admitted pursuant to Rule 803(10) must meet the following criteria:
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To prove the absence of a record, report,
statement, or data compilation, in any form, or
the nonoccurrence or nonexistence of a matter of
which a record, report, statement, or data
compilation, in any form, was regularly made and
preserved by a public office or agency, evidence
in the form of a certification in accordance with
rule 902, or testimony, that diligent search
failed to disclose the record, report, statement,
or data compilation, or entry.
Fed R. Evid. 803(10). Thus, any certificate declaring that a diligent
search of public records failed to disclose a record or entry must
comport with Rule 902, which governs the self-authentication of certain
documents. Rule 902 provides, in relevant part, for the self-
authentication of:
A document bearing a seal purporting to be that
of the United States, or of any State, district,
Commonwealth, territory, or insular possession
thereof, or the Panama Canal Zone, or the Trust
Territory of the Pacific Islands, or of a
political subdivision, department, officer, or
agency thereof, and a signature purporting to be
an attestation or execution.
Fed. R. Evid. 902(1).
Ventura challenges the district court's admission of the CNER
under Rule 803(10) on several grounds. She claims: 1) that the
underlying records of those with permission to enter Camp García are
not "regularly made and preserved by a public office or agency"; 2)
that the CNER does not bear the proper seal; and 3) that there is no
proper "attestation" to the contents of the document. We find each of
these arguments unpersuasive.
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First, Ventura argues that, in order for the underlying
records to be "regularly made and preserved by a public office or
agency," their creation and maintenance must be legally mandated by
statute or regulation. As such, defendant argues, the Navy's mere
practice of making and retaining records of those with permission to
enter Camp García does not satisfy the rule. However, we are unable to
find such a limitation in the text of the rule. Had the drafters of
the Rules of Evidence intended such a requirement, they were well aware
of how it could be imposed. Cf. Fed. R. Evid. 803(6)(B) (providing for
admission of records and reports of public offices or agencies setting
forth "matters observed pursuant to duty imposed by law") (emphasis
added). The plain text of the rule mandates only that the underlying
records "be regularly made and preserved by a public office or agency";
we discern no error in the district court's conclusion that this
limitation was satisfied by a proffer of evidence that logs of those
with permission to enter the base are made and gathered on a daily
basis.
Second, with regard to the adequacy of the seal, the CNER
admitted by the district court clearly bears the raised seal of the
Department of the Navy, a political subdivision of United States. We
believe this satisfies the rule since, "[u]nder the approach of Rule
902(1), the seal of any executing officer or custodian will generally
suffice." 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's
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Federal Evidence § 902.03[1], at 902-11 (3d ed. 1997) (footnote
omitted).
Third, although LC Pagán did not use the precise term
"attest," he stated that he "certifies and swears" that the contents of
the CNER are accurate. The word "certify" means to " attest to being
true," Black's Law Dictionary 124 (7th ed. 1998) (emphasis added), and
thus easily supports the requirement of Rule 902(1) that the signature
"purport[] to be an attestation." See United States v. Mateo-Méndez,
215 F.3d 1039, 1043-44 (9th Cir.), cert. denied, 531 U.S. 983 (2000);
see also 5 Weinstein's Federal Evidence § 902.03[1], at 902-12 ("Rule
902(1) does not specify any particular form of attestation or
execution."). We therefore conclude that the district court was well
within its discretion in determining that the CNER met each of the
requirements for admission under Rule 803(10).1
2. Confrontation Clause
Ventura also challenges the admission of the CNER on
constitutional grounds, claiming that she was deprived of rights
secured by the Confrontation Clause. We review the district court's
ruling on this constitutional question de novo. United States v.
Rosario-Díaz, 202 F.3d 54, 70 (1st Cir. 2000).
1 Because we agree that the CNER was properly admitted as self-
authenticating under Rule 902(1), we need not address defendant's
contention that the certification is not a self-authenticating domestic
public document not under seal within the meaning of Rule 902(2).
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The Sixth Amendment provides, in relevant part, that "the
accused shall enjoy the right . . . to be confronted with the witnesses
against him." U.S. Const. amend. VI. "The central concern of the
Confrontation Clause is to ensure the reliability of the evidence
against a criminal defendant by subjecting it to rigorous testing in
the context of an adversary proceeding before the trier of fact."
Maryland v. Craig, 497 U.S. 836, 845 (1990). When the government seeks
to use an out-of-court statement against the accused, "courts must
decide whether the [Confrontation] Clause permits the government to
deny the accused his usual right to force the declarant 'to submit to
cross-examination, the greatest legal engine ever invented for the
discovery of truth.'" Lilly v. Virginia, 527 U.S. 116, 124 (1999)
(plurality opinion) (quoting California v. Green, 399 U.S. 149, 158
(1970) (footnote and citation omitted)).
The hearsay exception and Confrontation Clause inquiries are
not coterminous, "and evidence that is admissible under the former may
still be inadmissible under the latter." United States v. Barone, 114
F.3d 1284, 1299 (1st Cir. 1997). Nonetheless, the Confrontation Clause
and the hearsay rules are both "generally designed to protect similar
values . . . ." Bourjaily v. United States, 483 U.S. 171, 182-83
(1987) (citations and quotations omitted). Thus, an otherwise
admissible out-of-court statement also satisfies the requirements of
the Sixth Amendment "if it bears adequate indicia of reliability."
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Idaho v. Wright, 497 U.S. 805, 815 (1990) (internal quotations
omitted).
Ventura argues that admission of the CNER fails the
reliability requirement of the Confrontation Clause because the
evidence neither falls within a "firmly rooted" hearsay exception, nor
contains the particularized indicia of trustworthiness that would
otherwise pass constitutional muster.2 Because we conclude that the
CNER demonstrates "particularized guarantees of trustworthiness"
sufficient to satisfy the Confrontation Clause, see Ohio v. Roberts,
448 U.S. 56, 66 (1980), we need not decide whether Rule 803(10)
embodies a "firmly rooted" hearsay exception.3
The requisite "'particularized guarantees of trustworthiness'
must be shown from the totality of the circumstances." Wright, 497
U.S. at 819. Though "courts have considerable leeway in their
consideration of appropriate factors," the relevant circumstances are
those "that surround the making of the statement and that render the
2 Ventura does not appear to challenge introduction of the CNER on the
basis that the government failed to demonstrate that LC Pagán was
unavailable to testify. Cf. Barone, 114 F.3d at 1302 (noting that
under certain circumstances the Confrontation Clause requires the
government to demonstrate the declarant's unavailability).
3 "Where the evidence is admitted under a 'firmly rooted' hearsay
exception, reliability may be inferred without more." Barone, 114 F.3d
at 1301 (citing Roberts, 448 U.S. at 66). "Admission under a firmly
rooted hearsay exception satisfies the constitutional requirement of
reliability because of the weight accorded longstanding judicial and
legislative experience in assessing the trustworthiness of certain
types of out-of-court statements . . . ." Wright, 497 U.S. at 817.
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declarant particularly worthy of belief," such that "the test of
cross-examination would be of marginal utility." Id. at 819-22. We
therefore eschew the endorsement of a single "mechanical test," id. at
822, and look to the factors that best assay the reliability of the
CNER. In this regard, the Supreme Court's plurality decision in Dutton
v. Evans, 400 U.S. 74 (1970), provides helpful guidance. In Dutton,
the Court articulated a four-prong analysis for testing the reliability
of out-of-court statements, inquiring whether: 1) the statement
contained no express assertions about past facts; 2) the declarant was
in a position to have personal knowledge of the matters in the
statement; 3) the possibility that the declarant's statement was
founded on faulty recollection is extremely remote; and 4) the
circumstances surrounding the making of the statement were such that
the possibility of misrepresentation was unlikely. Id. at 88-89.
Here, the CNER admitted into evidence by the district court
satisfies each of the Dutton factors. First, the document contains no
assertion of past facts; rather, it relates only to the LC Pagán's
contemporaneous search of existing records. Second, LC Pagán, whose
duties include "control of access to the area known as Camp García" and
the "authority to grant permission to particular individuals to enter
Camp García," was well positioned to have personal knowledge of the
matters in the CNER. Third, because a search of the records was
conducted shortly before the creation of the CNER, the resulting
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possibility of faulty recollection is minute. Lastly, the
circumstances surrounding the making of the CNER make misrepresentation
unlikely: the statement is sworn by an officer of the government in the
discharge of his official duties; and the underlying records are
created and maintained in a manner that bespeaks completeness and
reliability.
Based on the Dutton factors, we conclude that the CNER is
entitled to a dignity and trustworthiness on par with that recognized
for out-of-court statements that fall within "firmly rooted" hearsay
exceptions. See Wright, 497 U.S. at 821 ("[E]vidence possessing
'particularized guarantees of trustworthiness' must be at least as
reliable as evidence admitted under a firmly rooted hearsay exception
. . . .") (citation omitted). Our conclusion is further buttressed by
courts that have determined that other certificates of the absence of
a public record or entry have particularized guarantees of
trustworthiness sufficient to satisfy the Confrontation Clause. See,
e.g., United States v. Rith, 164 F.3d 1323, 1336-37 (10th Cir. 1999);
United States v. Hutchinson, 22 F.3d 846, 852 (9th Cir. 1993); United
States v. Metzger, 778 F.2d 1195, 1202-03 (6th Cir. 1985); United
States v. Herrera-Britto, 739 F.2d 551, 552 (11th Cir. 1984) (per
curiam). Thus, the admission of the CNER in the criminal trial did not
violate Ventura's Sixth Amendment rights.
B. Sufficiency of evidence challenge
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Ventura next assails the government's proof of entrance onto
property reserved by the Navy. Ventura made these challenges in a
motion for judgment of acquittal under Federal Rule of Criminal
Procedure 29. A Rule 29 motion will be denied "unless the evidence,
viewed in the light most favorable to the government, could not have
persuaded any trier of fact of the defendant's guilt beyond a
reasonable doubt." United States v. Hernández, 218 F.3d 58, 64 (1st
Cir. 2000) (quotation omitted), cert. denied, 531 U.S. 1103 (2001). We
review the district court's denial of the motion de novo. United
States v. Frigerio-Migiano, 254 F.3d 30, 33 (1st Cir. 2001).
Ventura argues that her unauthorized presence on the beach
near the live impact area does not violate 18 U.S.C. § 1382 because the
statute requires proof of both ownership and control of area in
question. Although defendant concedes that the Navy owned and
controlled the area up to the mean high-tide line of the beach, she
maintains that the area seaward of that line was essentially fair game
for her and the other protesters because Congress has recognized Puerto
Rico's jurisdiction over its beaches, see 48 U.S.C. §§ 747-49. She
argues further that, because the evidence at trial established only
that she was arrested on the beach -- but not specifically landward of
the mean high-tide line -- her conviction cannot be sustained.
As an initial matter, and despite the defendant's
protestations to the contrary, we conclude that "[g]overnment ownership
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of the property in question is not a requisite to violating Section
1382." United States v. Allen, 924 F.2d 29, 31 (2d Cir. 1991)
(emphasis added) (citing United States v. McCoy, 866 F.2d 826, 830-32
(6th Cir. 1989)).
In Allen, the Second Circuit addressed this issue in the
context of several defendants charged with violating § 1382 by swimming
alongside a docked Trident nuclear submarine. In that case, the
defendants argued that they could not have violated § 1382 because
"they never intended to, and in fact did not, penetrate the boundary of
the naval reservation . . . but rather only the 'security zone' of the
waters surrounding that reservation." Id. at 30. The Allen court held
that "entering the security zone is entering the naval reservation and
is a violation of Section 1382." Id. The waters' designation as part
of a security zone in accordance with federal regulations was
sufficient to invest the Navy with "exclusive rights to occupy [the]
area." Id.
The holding of the Second Circuit in Allen echoes that of the
Ninth Circuit in United States v. Mowat, 582 F.2d 1194 (9th Cir. 1978),
where the court stated that "even if the Navy did not possess a fee
simple absolute title to the Island of Kahoolawe, the maintenance of
the 'naval reservation' there suffices to support the convictions under
18 U.S.C. § 1382." Id. at 1208. In accord with these courts, we hold
that, when the government does not own the land, § 1382 requires only
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that the government demonstrate either a possessory interest in, or
occupation or control of, the area reserved by the military.
Here we apply the occupation-and-control test and conclude,
in agreement with the district court, that the government demonstrated
that the area beyond the mean high-tide lines is under the occupation
and control of the Navy for purposes of § 1382. Puerto Rico's
jurisdiction over the shoreline was established subject to the control
of the United States. Thus, a large swath of area extending beyond the
shoreline of the beach was permissibly designated as part of a "danger
zone" by federal regulation. See 33 C.F.R. §§ 334.2, 334.1480. These
regulations allow the Navy to "occupy and control" these areas, and
there was adequate testimony at trial demonstrating that the Navy has
in fact exercised this power. The Navy has continuously used the
adjacent area as a live impact zone for live-fire artillery and
bombardment exercises and has continuously patrolled the beach for
possible intruders. Furthermore, regulations establish that Camp
García is a "closed" base, meaning that the public may not enter
without permission of the commanding officer. See 32 C.F.R. §§ 770.35-
770.40. The evidence therefore permitted the district court, acting as
the fact-finder, to conclude beyond a reasonable doubt that Ventura had
violated § 1382.
C. Use of Special Assistant U.S. Attorneys General
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Finally, Ventura argues that the district court erred by not
disqualifying Navy officers from serving as the prosecuting attorneys.
Before trial, Ventura filed motions seeking to disqualify United States
Navy officers from prosecuting the case. She argued that the Navy
officers, appointed as Special Assistant United States Attorneys to
prosecute the case, had an institutional conflict. More specifically,
she avers that the ongoing controversy between the Navy and local
residents over the live bombing exercises at Camp García prevented Navy
personnel from serving as disinterested prosecutors. The district
court denied Ventura's motions, and the government was represented at
trial by Navy officers.
We addressed the identical argument in United States v.
Silva-Rosa, No. 01-1347, slip op. at 4-6 (1st Cir. Dec. __, 2001), and
need not recite the precise analysis set forth in that opinion.
Suffice it say, however, that the defendant's argument must be rejected
on the same rationale.
III. CONCLUSION
For the reasons stated above, we affirm.
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