DocketNumber： 95-1240
Filed Date： 5/7/1996
Status： Precedential
Modified Date： 9/21/2015
May 7, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1240
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN CRUZ,
Defendant, Appellant.
____________________
No. 95-1650
UNITED STATES OF AMERICA,
Appellee,
v.
HUMBERT CARRERAS,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
____________________
Frank D. Inserni for appellant Cruz. ________________
Joseph A. Bondy, with whom Richard A. Canton and Canton & Jasper _______________ _________________ _______________
were on brief for appellant Carreras.
Warren V zquez, Assistant United States Attorney, with whom ______________
Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, Senior _____________ _______________________
Litigation Counsel, Antonio R. Bazan, Assistant United States ________________
Attorney, and Miguel A. Pereira, Assistant United States Attorney, _________________
were on brief for appellee.
____________________
____________________
2
Per curiam. Appellants Humbert Carreras and John Cruz Per curiam. __________
challenge the district court judgments of conviction and sentence
entered against them following their joint jury trial for pos-
sessing cocaine with intent to distribute, and for conspiracy.
See 21 U.S.C. 841(a)(1), 846 (1994). We affirm. ___
I I
BACKGROUND BACKGROUND __________
Just before noon on September 19, 1993, United States
Customs Service Officer Wilfredo Cruz-Col n ("Officer Cruz") and
"Jo-Jo," a certified narcotics detection dog, were working the
American Airlines "baggage pit" at Luis Mu oz Mar n International
Airport ("Airport") in Carolina, Puerto Rico, when Jo-Jo "alert-
ed" to the presence of narcotics in a suitcase on a conveyor belt
carrying luggage ultimately bound for foreign and domestic
airports. Jo-Jo alerted to nine other suitcases within a short
time thereafter. All ten bags were bound for New York City
aboard American Airlines Flight 678. Several bags bore Carreras'
name and address. Other luggage tags designated either Nereida
R os-Sol , Mar a Ort z, or Mar a Due o-Ort z, who were traveling
with Carreras. Although appellant John Cruz was booked aboard
Flight 678 as well, his name did not appear on any baggage tag.
With assistance from American Airlines personnel,
Customs agents located Carreras and the three women on Flight 678
as it was preparing to depart for New York. After the four
passengers had deplaned, Customs agents examined their boarding
passes and quickly looked through Carreras' briefcase. Although
3
all four were detained, and interrogated intermittently over
several hours, they did not consent to a search of their suitcas-
es or acknowledge possession of any contraband. Nor were they
formally placed under arrest. Finally, at around 8:30 p.m.,
after obtaining a search warrant, government agents discovered
approximately 20 kilograms of cocaine in each suitcase. At that
point, Carreras was given Miranda warnings and placed under _______
arrest.
In due course, Carreras moved to suppress admissions
made during his extended detention, as well as the physical
evidence seized by Customs. Following a three-day hearing, a
magistrate judge recommended suppression of all the challenged
evidence except the cocaine seized from the suitcases. The
district court later ordered the Carreras admissions suppressed,
but declined to suppress the cocaine and the items seized from
the Carreras briefcase. United States v. Carreras, 851 F.Supp. _____________ ________
502, 505-06 (D.P.R. 1994).
On September 20, 1994, the district court issued a
final scheduling order, setting October 24, 1994, as the trial
date and directing that all "[d]ispositive motions, including _________
motions to suppress, . . . be filed not later than October 5, _______ __ ________ _____ _______ _
1994. There-after they shall not be entertained. See Fed. R. ____ ___________ ____ _____ ___ __ ___________ ___
Cr. P. 12(b)." (emphasis added). On October 5, Carreras' present
counsel mailed a second motion to suppress from New York to San ______
Juan, which was not filed with the district court until October _____ _______
11. The belated motion challenged the legality of the "dog __
4
sniff" and the practice of commingling domestic and international
luggage at the Airport. In accordance with its final scheduling
order, the district court declined to consider the second motion
to suppress, deeming its claims waived. Trial commenced on
October 24, 1994, as scheduled.
II II
DISCUSSION DISCUSSION __________
A. The Carreras Appeal A. The Carreras Appeal ___________________
Carreras attempts to resuscitate the claims raised in
the second motion to suppress, despite the undisputed fact that
he failed to comply with the bar date. See McIntosh v. Antonio, ___ ________ _______
71 F.3d 29, 35-37 (1st Cir. 1995) ("filing" occurs upon receipt
by clerk, not upon mailing, per Fed. R. Civ. P. 5(e)); Fed. R.
Crim. P. 49(d) (incorporating civil case filing rule). Nor did
Carreras either request an extension of the bar date or invoke
Criminal Rule 12(f), which explicitly authorizes the district
court to grant relief from waiver for cause shown. See Fed. R. ___
Crim. P. 12(f); see also United States v. Nu ez, 19 F.3d 719, ___ ____ ______________ _____
722-23 (1st Cir. 1994) (noting importance of deciding motions to
suppress before trial).
Given the failure to present the district court with
any reason for the waiver, Carreras' claim that the district ___ ______
court abused its discretion, see United States v. Gomez-Benabe, ___ ______________ ____________
985 F.2d 607, 611 (1st Cir. 1993), by enforcing its scheduling
order and imposing waiver, is utterly frivolous, see id. Accord- ___ ___
ingly, we do not reach the lame arguments first broached on
5
appeal for his "abuse of discretion" claim. Appeal of Sun ______________
Pipe Line Co., 831 F.2d 22, 25 (1st Cir. 1987) (refusing to find ______________
abuse of discretion based on matters never presented to district
court), cert. denied, 486 U.S. 1055 (1988).1 1 _____ ______
Carreras also attempts to broach on appeal a Fifth and
Sixth Amendment challenge to the jury selection procedures
employed below, by arguing that higher income professionals, non-
voters, and non-English speaking persons are systematically
exempted or excluded from petit jury service in the United States
District Court for the District of Puerto Rico. We hold this
claim to have been forfeited for failure to interpose a proper
____________________
1Moreover, the claims raised in the second suppression
motion were frivolous. Cf. United States v. Olano, 507 U.S. 725, ___ _____________ _____
732-33 (1993) (Criminal Rule 52 contemplates, at threshold, that
appellant establish "error"); see also Fed. R. Crim. P. 52(a). ___ ____
First, as Carreras concedes, a "dog sniff" is not a Fourth
Amendment "search." See, e.g., United States v. De Los Santos ___ ____ _____________ _____________
Ferrer, 999 F.2d 7, 10 (1st Cir.), cert. denied, 114 S. Ct. 562 ______ _____ ______
(1993). Thus, the government did not need to demonstrate a
particularized suspicion to justify Jo-Jo's use in detecting the
cocaine inside the Carreras luggage. United States v. Maldonado- _____________ __________
Espinosa, 968 F.2d 101, 103 (1st Cir. 1992), cert. denied, 507 ________ _____ ______
U.S. 984 (1993). Furthermore, Jo-Jo's "alert" to the ten suit-
cases bound for New York City provided probable cause for the
warrant which authorized the search that disclosed the cocaine.
Id. Similarly, the challenge to the second briefcase search ___
fails, since Carreras neither points to any evidence introduced
against him as a result of the first cursory search of the
briefcase, nor suggests a plausible legal basis for finding that
the subsequent seizure of the briefcase and its contents, immedi-
ately after he was placed under arrest, was not entirely reason-
able under any of several exceptions to the Fourth Amendment
warrant requirement. See, e.g., Illinois v. Lafayette, 462 U.S. ___ ____ ________ _________
640, 645-46 (1983) (inventory search); Chimel v. California, 395 ______ __________
U.S. 752 (1969) (search incident to arrest); Maldonado-Espinosa, __________________
968 F.2d at 104 (inevitable discovery); see also Wong Sun v. ___ ____ _________
United States, 371 U.S. 471, 487-91 (1963) (declining to suppress _____________
evidence, since attenuated connection between lawless conduct and
discovery of evidence dissipated taint).
6
objection below, United States v. Flores-Rivera, 56 F.3d 319, 326 _____________ _____________
(1st Cir. 1995) (refusing relief absent showing of "manifest" or
"clear" injustice); see also 28 U.S.C. 1867(a) (1994); United ___ ____ ______
States v. Pion, 25 F.3d 18 (1st Cir. 1994), and substantially ______ ____
foreclosed by our precedent as well. See, e.g., Flores-Rivera, ___ ____ _____________
56 F.3d at 326 (upholding English-language requirement); United ______
States v. Benmuhar, 658 F.2d 14, 19-20 (1st Cir. 1981) (finding ______ ________
no "systematic" exclusion of professionals), cert. denied, 447 _____ ______
U.S. 1117 (1982); see also United States v. Cecil, 836 F.2d 1431, ___ ____ _____________ _____
1448-49 (4th Cir.) (non-voters), cert. denied, 497 U.S. 1205 _____ ______
(1988).
Finally, we reject the request to vacate Carreras'
sentence and remand to the district court to consider an age-
based downward departure, since Carreras failed to request a
downward departure before the district court. See United States ___ _____________
v. Catucci, 55 F.3d 15, 18 (1st Cir. 1995).2 _______
B. The Cruz Appeal B. The Cruz Appeal _______________
Appellant Cruz contends that it was error for the
district court to deny a pretrial motion for severance under Fed.
R. Crim. P. 14, whereby he alerted the court that codefendant
Carreras would deny ownership of the suitcases containing cocaine
and "point the finger" at Cruz. On appeal, Cruz maintains that
his fears were realized because he was unfairly convicted as a
result of the antagonistic defenses presented at the joint trial.
We review only for manifest abuse of discretion. Flores-Rivera, _____________
____________________
2Carreras has withdrawn an "ineffective assistance" claim.
7
56 F.3d at 325.
As we have noted in countless cases, significant
benefits derive from joint trials in conspiracy cases involving
identical substantive offenses. See, e.g., United States v. ___ ____ _____________
DiMarzo, Nos. 95-1441 & 1442, 1996 WL 159365, at *2 (1st Cir. _______
Apr. 10, 1996). Cruz has not shown that the joint trial either
jeopardized a specific trial right or risked an unreliable
verdict. See Zafiro v. United States, 506 U.S. 534, 538-39 ___ ______ ______________
(1993) (discussing examples of prejudice). Neither the Carreras
closing argument nor the Carreras cross-examination of a govern-
ment witness generated a significant risk of unfair prejudice to
Cruz. See United States v. Yefsky, 994 F.2d 885, 896-97 (1st ___ ______________ ______
Cir. 1993).
The district court properly denied the motion for
judgment of acquittal as well. The jury, employing its common
sense in evaluating the circumstantial evidence, fairly could
conclude, beyond a reasonable doubt, that Cruz knew the suitcases
contained cocaine, see United States v. Ortiz, 966 F.2d 707, 711 ___ _____________ _____
(1st Cir. 1992) (equating direct and circumstantial evidence),
cert. denied, 506 U.S. 1063 (1993), and that all essential _____ ______
elements of the crimes charged had been duly established, see ___
DiMarzo, 1996 WL 159365, at *4-5 (rejecting "mere presence" _______
defense).
Viewed in the light most favorable to the government,
see id. at *4, the evidence showed that Carreras and Cruz were ___ __
close associates who had agreed to meet in Puerto Rico and to
8
transport a large quantity of cocaine to New York City for
distribution on the mainland. Cruz played an active role in
planning, financing, and carrying out the operation. Among other
things, he supplied the ten suitcases in which the cocaine was
carried and hired two women in Miami to travel with him to Puerto
Rico, assist in checking the ten suitcases at the Airport, and
fly on to New York. Cruz and these two female associates met
Carreras at the Airport upon their arrival from Miami the day
before their scheduled flight to New York City. Later that eve-
ning, Cruz guarded the fully-loaded suitcases in Carreras' hotel
room while Carreras went out to dinner. Immediately prior to the
scheduled flight to New York the next day, Carreras filled out
luggage tags and placed bogus agricultural inspection stickers on
the cocaine-laden suitcases to circumvent x-ray monitoring at the
Airport. Significantly, since his name did not appear on the
luggage tags, and he was traveling to New York under an assumed
name, Cruz was able to avoid detection at the Airport even though
the ten suitcases had been found to contain cocaine.
Finally, even though the trial record plainly discloses
that he was afforded effective assistance by able trial counsel
at sentencing, Cruz contends that the district court sentenced
him in an unconstitutional manner by denying his last-minute
request for a continuance of the sentencing hearing to permit new
counsel, who apparently was handling other criminal matters
against Cruz in Ohio, to represent him at sentencing in this
case. The district court did not abuse its discretion by denying
9
the late request for continuance. See United States v. Betan- ___ ______________ ______
court-Arretuche, 933 F.2d 89, 93 (1st Cir.), cert. denied, 502 _______________ _____ ______
U.S. 959 (1991).
The district court originally scheduled sentencing for
February 3, 1995, but reset it for February 8 after Cruz request-
ed a continuance on January 18. Despite this accommodation, for
no apparent reason Cruz' stateside counsel failed to appear on
February 8, nor did he ever enter an appearance in the case.
Instead, at the February 8 sentencing hearing Cruz requested yet
another continuance on the ground that his stateside counsel was
unavailable. The district court acted well within its discretion
in calling a halt to these "cat and mouse" tactics. See United ___ ______
States v. Torres, 793 F.2d 436, 440-41 (1st Cir.), cert. denied, ______ ______ _____ ______
479 U.S. 889 (1986).
The settled principle that the "right of an accused to
choose his own counsel cannot be insisted upon in a manner that
will obstruct reasonable and orderly court procedure" applies in
full force here. Betancourt-Arretuche, 933 F.2d at 93 (citation ____________________
omitted). "'Only an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay
violates the right to the assistance of counsel,' and would
amount to an abuse of [the district court's] discretion." United ______
States v. Brand, No. 94-1350, 1996 WL 121716, at *3 (1st Cir. ______ _____
Mar. 26, 1996) (quoting Morris v. Slappy, 461 U.S. 1, 11-12 ______ ______
(1983)). Cruz was given ample opportunity to secure stateside
counsel but failed to explain his failure to do so. Consequent-
10
ly, denial of the second request for continuance, made at the
rescheduled sentencing hearing and without any reasonable assur-
ance to the district court that further delay was either warrant-
ed since able trial counsel was available or likely to
ensure the appearance of stateside counsel, was eminently sound.
Affirmed. ________
11
United States v. Ruben Ortiz, A/K/A Ruben Ortiz De Jesus, ... , 966 F.2d 707 ( 1992 )
McIntosh v. Antonino , 71 F.3d 29 ( 1995 )
United States v. Nunez , 19 F.3d 719 ( 1994 )
United States v. Miguel Gomez-Benabe , 985 F.2d 607 ( 1993 )
United States v. Giacomo D. Catucci , 55 F.3d 15 ( 1995 )
United States v. Flores Rivera , 56 F.3d 319 ( 1995 )
application-for-issuance-of-order-requiring-the-united-states-environmental , 831 F.2d 22 ( 1987 )
United States v. Jose Maldonado-Espinosa and Carmen ... , 968 F.2d 101 ( 1992 )
United States v. Sheldon Arthur Yefsky , 994 F.2d 885 ( 1993 )
United States v. Maria E. De Los Santos Ferrer , 999 F.2d 7 ( 1993 )
United States v. Moises Benmuhar, United States of America ... , 658 F.2d 14 ( 1981 )
United States v. Rene M. Pion , 25 F.3d 18 ( 1994 )
Wong Sun v. United States , 83 S. Ct. 407 ( 1963 )
Zafiro v. United States , 113 S. Ct. 933 ( 1993 )
United States v. Olano , 113 S. Ct. 1770 ( 1993 )