United States v. Torres Marrero ( 1993 )

March 29, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2101
UNITED STATES,
Appellee,
v.
RAFAEL TORRES MARRERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Rafael Torres-Marrero on brief pro se.
Daniel F. Lopez Romo, United States Attorney, Jose A.
Quiles-Espinosa, Senior Litigation Counsel, and Ivan Dominguez,
Assistant United States Attorney, on brief for appellee.
Per Curiam. In 1985, in connection with his involvement
in the Cerro Maravilla incident, defendant Rafael Torres-
Marrero was convicted of four federal offenses: one count of
conspiring to obstruct justice, give false testimony and
suborn perjury, in violation of 18 U.S.C. 371, and three
substantive counts of perjury, in violation of 18 U.S.C.
1623. He was sentenced to five years in prison on each count
to be served consecutively, for a total of twenty years. In
1987, his convictions and sentence were affirmed on appeal.
United States v. Moreno Morales, 815 F.2d 725 (1st Cir.),
cert. denied, 484 U.S. 966 (1987). In July 1992, defendant
filed a motion under former Fed. R. Crim. P. 35(a) to correct
what he asserted was an illegal sentence. He there argued
that the imposition of consecutive prison terms with respect
to his three 1623 convictions violated both the statute and
the constitution. The district court denied the motion, and
defendant now appeals. We affirm.
The three perjury convictions under 1623 each involved
false testimony that defendant gave to a federal grand jury
on March 6, 1980. He first argues that, under the terms of
the statute, the maximum permissible prison term for all
false declarations given on the same day before the same
grand jury was five years, regardless of the number of such
declarations. We rejected a similar, if not identical,
contention in the direct appeal. See Moreno Morales, 815
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F.2d at 752 ("The sentences did not exceed the limits
permitted under the relevant federal perjury statutes, 18
U.S.C. 371, 1621-23.") Even if not procedurally barred,
this argument is nonetheless meritless. The statute permits
the imposition of a five-year prison term for "any false
material declaration."1 Defendant relies on 1623(c)'s
reference to "two or more declarations" as evidence that
Congress intended to proscribe consecutive punishment in this
context.2 Yet that provision is irrelevant, as it pertains
1. Section 1623(a) provides in pertinent part:
Whoever under oath ... in any proceeding
before or ancillary to any court or grand jury of
the United States knowingly makes any false
material declaration ... shall be fined not more
than $10,000 or imprisoned not more than five
years, or both.
2. Section 1623(c) reads in pertinent part:
An indictment or information for violation of
this section alleging that, in any proceedings
before or ancillary to any court or grand jury of
the United States, the defendant under oath has
knowingly made two or more declarations, which are
inconsistent to the degree that one of them is
necessarily false, need not specify which
declaration is false if--
(1) each declaration was material to the
point in question, and
(2) each declaration was made within the
period of the statute of limitations for the
offense charged under this section.
In any prosecution under this section, the falsity
of a declaration set forth in the indictment or
information shall be established sufficient for
conviction by proof that the defendant while under
oath made irreconcilably contradictory declarations
material to the point in question in any proceeding
before or ancillary to any court or grand jury.
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only to "irreconcilably contradictory declarations." As
discussed below, the declarations giving rise to the three
1623 convictions here were not of this nature. We see no
statutory bar to the imposition of consecutive sentences.
Defendant also contends that the three 1623 counts
charged the same offense and were therefore multiplicitous,
with the consequence that the imposition of consecutive
sentences violated the double jeopardy clause. In two
unpublished decisions, we have rejected similar arguments
advanced by two of defendant's codefendants. See Moreno
Morales v. United States, No. 92-1157, slip op. at 2-3 (1st
Cir. 1992) (per curiam); Quiles-Hernandez v. United States,
No. 90-1804, slip op. at 4-8 (1st Cir. 1991) (per curiam).
As we there noted, claims of multiplicity constitute
"objections based on defects in the indictment" which "must
be raised prior to trial." Fed. R. Crim. P. 12(b)(2). As
defendant failed to raise this contention at that time, it
must be deemed waived. See, e.g., United States v.
Rodriguez, 858 F.2d 809, 816-17 (1st Cir. 1988); United
States v. Serino, 835 F.2d 924, 930-31 (1st Cir. 1987).
Defendant's arguments prove meritless in any event. As
we explained in Quiles-Hernandez, "[t]he fact that [the]
statements [were] uttered in the same proceeding is
irrelevant." Slip op. at 6 (citing United States v.
Molinares, 700 F.2d 647, 652-53 (11th Cir. 1983)). So long
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as separate false declarations "require different factual
proof of falsity," they "may properly be charged in separate
counts even though they are all related and arise out of the
same transaction." United States v. Scott, 682 F.2d 695, 698
(8th Cir. 1982); accord, e.g., United States v. De La Torre,
634 F.2d 792, 795 (5th Cir. Unit A Jan. 1981). A comparison
of the three 1623 counts confirms that they satisfied this
standard. Count 21 involved the factual issue of whether the
two victims were physically assaulted by the police.3 Count
22 involved defendant's awareness of a second volley of
gunshots.4 And count 23 involved the removal of the body of
one of the victims.5 Each of the defendant's false
3. The questions and answers involved in Count 21 were as
follows (the perjured testimony is underlined):
Q. With respect to the man who was taken to the
hospital who had been shooting at the police, did
you see anyone strike or hit that person at any
time?
A. No.
Q. Referring to the one who was just wounded?
A. No. Nobody was hit.
4. Count 22 involved the following testimony:
Q. After the initial shooting did you hear any
shots fired later?
A. No, no fires--nothing was shot.
5. Count 23 involved the following exchanges:
Q. You testified about two wounded persons being
taken from the scene.
A. Yes.
Q. One was the Undercover Agent and the other was
one of the persons who had been shooting at you.
A. That's correct. [continued next page]
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declarations plainly required different factual proof of
falsity. Accordingly, they each comprised distinct
violations of law and were properly charged as separate
counts.
Affirmed.
Q. Which of the two was taken from the scene
first?
A. I would say the Undercover Agent because by the
time that they removed the other person from the
embankment, must have taken one minute, a few
seconds. All I know that when the Undercover Agent
was leaving, when the car was already leaving, they
were putting the other injured man inside the car.
Q. And how soon in fact did the second car with
the other injured man leave after the vehicle with
the Agent had left?
A. Another vehicle was in the tower, arrived
quickly. It must have taken about two or three
minutes. Was a matter of minutes. As soon as the
other vehicle arrived, I saw the man, I saw the
corpse being removed and they took him away.
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