United States v. Sued-Jimenez ( 2001 )

United States Court of Appeals
For the First Circuit
No. 00-2146
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JALIL GAZIR SUED-JIMÉNEZ,
Defendant, Appellant.
No. 01-1254
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ELGA MARI CASTRO-RAMOS,
Defendant, Appellant.
No. 01-1256
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ELLIOT VICENTE CASTRO-TIRADO,
Defendant, Appellant.
No. 01-1469
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JOSÉ LUIS ROMERO-BURGOS,
Defendant, Appellant.
No. 01-1471
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
CARLOS TAÍNO DÁVILA-REVERÓN,
Defendant, Appellant.
No. 01-1472
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JUAN OSVALDO BUDET-MELÉNDEZ,
Defendant, Appellant.
-2-
No. 01-1473
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
EDWIN RIVERA,
Defendant, Appellant.
No. 01-1474
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JOSÉ PÉREZ-GONZÁLEZ,
Defendant, Appellant.
No. 01-1475
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
NORMA RODRÍGUEZ-FERRÁN,
Defendant, Appellant.
No. 01-1476
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
MIGUEL A. RIVERA-GONZÁLEZ,
Defendant, Appellant.
No. 01-1477
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
TUBAL PADILLA-GALEANO,
Defendant, Appellant.
No. 01-1478
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
RUFINO ECHEVARRÍA-RIVERA,
Defendant, Appellant.
No. 01-1479
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
-3-
v.
EFRAÍN FIGUEROA-BÁEZ,
Defendant, Appellant.
No. 01-1480
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ALFREDO J. COLÓN-MELÉNDEZ,
Defendant, Appellant.
No. 01-1522
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
LILIANA GARCÍA-ARROYO,
Defendant, Appellant.
No. 01-1523
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ALICE AGOSTO-HERNÁNDEZ,
Defendant, Appellant.
No. 01-1524
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ROBERTO BARRETO-VALENTÍN,
Defendant, Appellant.
No. 01-1525
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ERIKA FONTÁNEZ-TORRES,
Defendant, Appellant.
No. 01-1526
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
-4-
MARITZA GARCÍA-ARROYO,
Defendant, Appellant.
No. 01-1527
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
NÉSTOR CRUZ-CRESPO,
Defendant, Appellant.
-5-
No. 01-1528
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JOSÉ MAYOL-SEPÚLVEDA,
Defendant, Appellant.
No. 01-1529
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ROBERTO A. GÁNDARA-BARNETT,
Defendant, Appellant.
No. 01-1530
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
OMAR GÓMEZ-COUVERTIER,
Defendant, Appellant.
No. 01-1531
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JOSÉ E. FLORES-ARRIAGA,
Defendant, Appellant.
No. 01-1532
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
RAMÓN DÍAZ-RIVERA,
Defendant, Appellant.
No. 01-1533
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
UBALDO ROSARIO-NIEVES,
Defendant, Appellant.
No. 01-1534
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
-6-
v.
ISRAEL TORRES-LLAURADOR,
Defendant, Appellant.
-7-
No. 01-1535
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
NORMA LUGO-MALDONADO,
Defendant, Appellant.
No. 01-1954
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
BLANCA GARI-PÉREZ,
Defendant, Appellant.
No. 01-1955
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
PEDRO JOSÉ MUÑIZ-GARCÍA,
Defendant, Appellant.
No. 01-1956
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
NÉSTOR NAZARIO-TRABAL,
Defendant, Appellant.
No. 01-1957
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JULIO ORTEGA-MIRANDA,
Defendant, Appellant.
No. 01-1958
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
REINAND ORTIZ-FELICIANO,
Defendant, Appellant.
No. 01-1959
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
-8-
v.
ZORAIDA SANTIAGO-FELICIANO,
Defendant, Appellant.
-9-
No. 01-1960
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JOSÉ RIVERA-SANTANA,
Defendant, Appellant.
No. 01-1961
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ASUNCIÓN RODRÍGUEZ-CRESPO,
Defendant, Appellant.
No. 01-1962
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ERNESTO PEÑA-CARAMBOT,
Defendant, Appellant.
No. 01-1963
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ROSALINDA SOTO-TOLEDO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
[Hon. José Antonio Fusté, U.S. District Judge]
[Hon. Salvador E. Casellas, U.S. District Judge]
[Hon. Daniel R. Domínguez, U.S. District Judge]
[Hon. Jesús A. Castellanos, U.S. Magistrate Judge]
[Hon. Justo Arenas, U.S. Magistrate Judge]
[Hon. Aida M. Delgado-Colón, U.S. Magistrate Judge]
Before
Torruella, Circuit Judge,
-10-
Kravitch,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Fermín L. Arraiza-Navas, with whom Pedro J. Varela, was on brief,
for appellants.
Guillermo J. Ramos-Luiña, with whom Rivera, Tulla & Ferrer, was
on brief, for appellant Alice Agosto-Hernández.
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, Anthony Chávez and Aaron W.
Reiman, Special Assistant U.S. Attorneys, were on briefs, for appellee.
December 19, 2001
* Of the Eleventh Circuit, sitting by designation.
-11-
TORRUELLA, Circuit Judge. Appellants raise various
challenges to their convictions for trespassing that arose out of
protests at a United States Naval installation in Vieques, Puerto Rico.
Because we find these challenges unpersuasive, we affirm.
Background
Appellants, whose cases have been consolidated for purposes
of appeal, were arrested at various times between April and June of
2000 for trespassing onto Camp García, a United States Naval
installation located on the island of Vieques, Puerto Rico. Pursuant
to regulations promulgated by the Department of the Navy, Camp García
is a "closed" base, meaning that the public may not enter without
permission from the commanding officer. 32 C.F.R. §§ 770.35-770.40(2001). Appellants entered Camp García, without authorization, to
protest and interfere with the military exercises occurring there.
Appellants alleged that the Navy's activities, including live-fire
artillery and bombardment exercises, were causing civilian deaths,
serious health threats to Vieques' residents, and environmental damage.
Either before or during their trials in the district court,
appellants made offers of proof or attempted to assert the defense of
necessity. In each case, the district court ruled that the necessity
defense was irrelevant and excluded the presentation of this defense.
Following bench trials, appellants were all convicted of
violating 18 U.S.C. § 1382 (1994), which prohibits entry onto a
-12-
military base "for any purpose prohibited by law or lawful regulation,"
including entry onto a U.S. Naval installation in Puerto Rico without
advance permission. See 32 C.F.R. §§ 770.38, 770.40. Appellants
received various sentences for this Class B misdemeanor. They now
appeal their convictions.
Analysis
Appellants raise four separate challenges to their
convictions. We address each in turn.
A. Failure to Prove the Unlawful Purpose Element of Statute
The trespassing statute under which appellants were convicted
forbids the entry onto any military installation "for any purpose
prohibited by law or lawful regulation." 18 U.S.C. § 1382. Appellant
Sued-Jiménez argues that the government failed to prove this unlawful
purpose element because the government did not introduce any evidence
at trial, such as warning signs, to demonstrate that appellant knew he
was illegally entering Camp García. Without any evidence to show that
appellant knew his entry was illegal, appellant asserts that his entry
could not have been for an illegal purpose.
This is not the first time this argument has been raised in
appeals from convictions under § 1382. See, e.g., United States v.
Maxwell, 254 F.3d 21, 24-25 (1st Cir. 2001). We have previously held
that a showing of illegal purpose for entry onto a restricted military
base requires two elements: deliberate entry onto the base and
-13-
knowledge or notice that such entry was prohibited. See id. at 24. In
Maxwell, another appeal from a section 1382 conviction for protesting
in Vieques, we held that the Department of the Navy's regulations,
promulgated at 32 C.F.R. §§ 770.35-770.40, are sufficient to satisfy
the knowledge or notice requirement that military installations in
Puerto Rico are off limits to the public. See Maxwell, 254 F.3d at 24-
25. Thus, all the government has to prove at trial to satisfy the
illegal purpose element is that the defendant deliberately entered the
naval base. See id. at 25.
In this case, appellant admitted at trial that he entered
onto the naval base without authorization. Moreover, appellant's
intended purpose was to enter onto the Navy's land to protest the
military activities occurring there. Therefore, the government has
undeniably satisfied its burden of proving deliberate entry. As a
result, appellant's argument that the illegal purpose element was not
satisfied lacks merit.
B. The Necessity Defense
Appellants collectively assert that the district court erred
by finding the defense of necessity irrelevant to their trespassing
convictions and therefore barring its presentation (and related expert
testimony) at trial.
To successfully assert the necessity defense, a defendant
must show that he (1) was faced with a choice of evils and chose the
-14-
lesser evil, (2) acted to prevent imminent harm, (3) reasonably
anticipated a direct causal relationship between his acts and the harm
to be averted, and (4) had no legal alternative. See Maxwell, 254 F.3d
at 27. However, if a defendant's proffer of evidence to support the
defense is insufficient as a matter of law, the court can bar
presentation of the defense. See id. at 26. Because the elements of
the necessity defense are conjunctive, the defense may be precluded
entirely if proof of any one of the four prongs is lacking. See United
States v. Schoon, 971 F.2d 193, 195 (9th Cir. 1992).
Appellants argue that their illegal entry into Camp García
was necessary to prevent the greater imminent harms of civilian deaths,
health threats, and environmental damages that they say are posed by
the military exercises being conducted there. Second, they assert that
their presence in Camp García will necessarily bring a halt to the
Navy's exercises and the concomitant risks that arise from those
activities. Finally, appellants contend that they have exhausted all
other legal alternatives, such as seeking temporary restraining orders
and the scheduled referendum,1 and that such alternatives have either
been fruitless or have failed to bring about a sufficiently prompt
resolution. The district court, determining that these allegations
1 At the time of appellants' protests, a referendum had been scheduled
to be held by February 2002 in which residents of Vieques would be
asked whether they want U.S. troops to leave by May 1, 2003 or to stay
indefinitely in exchange for $50 million in economic aid. In the
meantime, the Navy agreed to use dummy munitions.
-15-
were insufficient to support the necessity defense as a matter of law,
excluded the defense.
The district court's decision to preclude the necessity
defense can most easily be affirmed by examining appellants' proffered
evidence as to the last two components of the defense: reasonable
anticipation of averting the alleged harm and no legal alternatives.
Appellants offered no evidence to support their claim that their
trespassory protests will result in a change of U.S. Naval policy so
that the bombing and ammunition testing in Vieques will cease. See
Maxwell, 254 F.3d at 28 (noting that a "defendant must demonstrate
cause and effect between an act of protest and the achievement of the
goal of the protest by competent evidence"). In fact, the Navy has
experienced numerous protests in Camp García, yet none has effected
more than a temporary cessation of military activities there. See id.
at 23, 28 (discussing only temporary disruptions caused by past
protests); United States v. Sharpton, 252 F.3d 536, 538-39 (1st Cir.
2001) (per curiam) (same).
Appellants also failed to offer sufficient evidence to
demonstrate a lack of legal alternatives. Although appellants cite
unsuccessful attempts to obtain temporary restraining orders against
the U.S. Navy, they have not demonstrated an exhaustion of all legal
options. See Maxwell, 254 F.3d at 28 (exploring several legal avenues
without results does not demonstrate exhaustion of legal alternatives).
-16-
Moreover, appellants cannot claim they have no legal alternatives
merely because their law-abiding efforts are unlikely to effect a
change in policy as soon as they would like. See id. at 29 (stating
that a possibility of succeeding through legal alternatives, even if
unlikely, does not mean that those alternatives are "nonexistent").
This is true even for residents of Puerto Rico, who may have fewer
options for effecting political change since they are not directly
represented in Congress. See id. at 29 (rejecting argument that all
legal alternatives were foreclosed because defendant was a citizen of
Puerto Rico); Igartúa de la Rosa v. United States, 229 F.3d 80, 88 (1st
Cir. 2000) (Torruella, J., concurring) (stating that "Puerto Rico
remains a colony with little prospect of exerting effective political
pressure on the elected branches of government to take corrective
action"); Schoon, 971 F.2d at 198 (asserting that legal alternatives
can never be exhausted when the harm could be mitigated through
congressional action). See generally Trailer Marine Transp. Corp. v.
Rivera Vázquez, 977 F.2d 1, 6-7 (1st Cir. 1992) (discussing status of
Puerto Rico).
Because appellants have not proffered sufficient evidence to
support the third or fourth prongs of the necessity defense, the
district court properly precluded the defense, as well as any evidence
relevant to the defense. As such, we need not address whether the
alleged harm, if true, constitutes a "greater evil" than trespassing,
-17-
see Maxwell, 254 F.3d at 27 (assuming, but not deciding, that
defendant's trespassory protest was a "lesser evil" than the harm posed
by nuclear-armed submarines allegedly participating in Navy exercises
in Vieques), or whether the alleged risks to health, life, and the
environment, though cumulative over time, could qualify as "imminent"
harm, see id. at 27 (defining "imminent harm" as a "real emergency"
involving "immediate danger").
-18-
C. Discovery as to Use of Non-Conventional Weapons
All appellants, except Sued-Jiménez, collectively assert that
the district court erred in not permitting discovery on the
government's alleged use of non-conventional weapons in Vieques' Live
Impact Area.2 Appellants seek evidence, if it exists, on the use of
non-conventional weapons to support their allegation that the Navy's
activities present an imminent health threat to Vieques' residents and
are therefore a "greater evil" than trespassing. In other words,
appellants requested discovery because it was relevant to the first and
second elements of the necessity defense.
Given our affirmance of the district court's preclusion of
the necessity defense, any evidence relating to this defense that might
be obtained through discovery is irrelevant.3 Thus, government-held
evidence relating to the alleged use of non-conventional weapons is not
material to the case and need not be disclosed to defendants. See Fed.
R. Crim. P. 16(a)(1) (providing that government need only disclose
evidence that is material to the defendant's defense). As a result, it
was not error for the district court to refuse to order the requested
discovery.
2 The Live Impact Area is the section of Camp García where the live-
fire artillery and bombardment exercises occur.
3 This is all the more true because appellants only seek discovery of
evidence relevant to the first two prongs of the necessity defense, the
merits of which we have declined to address or rely upon in affirming
the district court's preclusion of the defense.
-19-
D. Speedy Trial Act Claim
Appellant Agosto-Hernández appeals her conviction on the
additional ground that it allegedly violates the Speedy Trial Act, 18
U.S.C. §§ 3161-3174 (1994). A criminal complaint was filed against
Agosto-Hernández on June 25, 2000, the same day she was arrested. An
information was filed against her on June 29, 2000, and she was
arraigned on August 28, 2000. Appellant pled not guilty, and the
government moved to dismiss the criminal complaint that had previously
been filed. At a status conference on December 13, 2000, appellant
announced that she would move for a dismissal based on the Speedy Trial
Act. On December 20, 2000, she filed her motion to dismiss, alleging
that more than 70 days had elapsed between her plea of not guilty and
trial. The district court denied the motion and appellant appeals.
The Speedy Trial Act provides that when a defendant pleads
not guilty to "the commission of an offense," the trial must occur
within seventy days from the date the information or indictment was
filed, or from the date the defendant appeared before the court where
the charge is pending, whichever is later. See 18 U.S.C. § 3161(c)(1).
If the Act is violated, the charges will be dismissed on defendant's
motion for failure to comply with this time table. See 18 U.S.C. §
3162(a)(2).
The Speedy Trial Act, however, only applies to defendants
charged with an "offense," which is defined as "any Federal criminal
-20-
offense which is in violation of any Act of Congress and is triable by
a court established by Act of Congress (other than a Class B or C
misdemeanor . . . )." 18 U.S.C. § 3172(2). Thus, Class B and C
misdemeanors are explicitly excluded from the Act's coverage. The
criminal trespassing statute at issue here, 18 U.S.C. § 1382, is
classified as a Class B misdemeanor. See 18 U.S.C. § 1382 (authorizing
up to six months' imprisonment); 18 U.S.C. § 3559(a)(7) (1994)
(classifying a criminal offense with a maximum sentence of six months
as a Class B misdemeanor); see also Sharpton, 252 F.3d at 540. As a
result, the Speedy Trial Act does not apply to the criminal charge
against appellant. See 18 U.S.C. § 3172(2) (excluding Class B
misdemeanors from Act's coverage); see also United States v. Boyd, 214
F.3d 1052, 1057 (9th Cir. 2000) (stating that Speedy Trial Act does not
apply to trespass onto a military base).
Thus, appellant's policy-based argument that the Speedy Trial
Act should apply to her case, despite the clear language of the Act,
must fail because it is directly contrary to the Act's provisions.
Conclusion
Because we find no error in the district court's rulings, we
affirm.
Affirmed.
-21-