UNITED STATES OF AMERICA, Appellee, v. JOSÉ PÉREZ-GONZÁLEZ, Defendant, Appellant.
No. 04-1104
United States Court of Appeals For the First Circuit
April 14, 2006
Before Lynch and Howard, Circuit Judges, and Restani, Judge.*
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge]
Sonia Torres, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Senior Appellate Attorney, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.
*Chief Judge of the U.S. Court of International Trade, sitting by designation.
I.
We present the facts in the light most favorable to the verdict, see United States v. Boulerice, 325 F.3d 75, 79 (1st Cir. 2003), reserving a discussion of some facts for our analysis.
The U.S. Navy intended to end its presence in Vieques by transferring the lands making up its base to the U.S. Fish and Wildlife Service (“USFWS“) on May 1, 2003. Just prior to the transfer, the Navy provided the USFWS with several vehicles and other equipment previously used on the base. Most of the vehicles and equipment were enclosed in a fenced motor pool area within a thirty-five acre compound known as “Camp Garcia.” Camp Garcia was approximately one and a half miles from the base‘s main entrance.
On the night of April 30, 2003, a large crowd gathered outside the base‘s main gate to celebrate. The crowd included political figures, members of the media, and law enforcement officials on hand to keep the peace. But what began as a peaceful rally quickly turned into a riot.
Shortly before midnight, a large group armed with wire cutters and sledgehammers broke down a section of fencing and entered the base. Nearly simultaneously, others entered (or
Law enforcement officials reviewed photographs and videotapes of the incident and managed to isolate twelve significant participants, eleven of whom they could identify by name. A grand jury returned a six-count indictment against the twelve individuals (including the unidentified “John Doe” defendant who later proved to be Pérez-González) for conspiracy, damaging government property, and damaging government property by fire or explosive. Four counts named the John Doe defendant: a count charging conspiracy to damage government property and to damage government property by fire or explosive, see
Shortly before the scheduled trial, all of Pérez-González‘s co-defendants pled guilty. After Pérez-González unsuccessfully moved for a continuance or a change of venue, he was tried alone. At the voir dire, the district court questioned the potential jurors about their exposure to news stories about the riot and whether they could be impartial. While most had seen or read about the incident, only ten of the seventy-five potential jury candidates were excused because they could not be impartial.
At trial, the government called law enforcement officers who were at the demonstration or involved in the investigation, government officials involved in the transfer of property between the Navy and the USFWS, and FBI Agent Amado Vega, the primary investigator. The government also introduced videotapes of the demonstration, photographs of the demonstration (some derived from the videotapes) and aftermath, and various other documentary
II.
Pérez-González first argues1 that his arrest warrant was illegal because it was a constitutionally inadequate “John Doe” warrant. See United States v. John Doe, 703 F.2d 745 (3d Cir. 1983) (warrant describing subject only as “John Doe” was constitutionally insufficient). He also argues that, because of the inadequate warrant and the further failure to provide him with Miranda warnings after he turned himself in, his post-arrest statements identifying himself as the man in the photo should have been suppressed.
Pérez-González first raised these issues in the district court by means of a motion to suppress filed on the first day of trial. The district court denied the motion as to the arrest
By waiting until the first day of trial to challenge the warrant and statements, Pérez-González has forfeited these issues. See
“The question whether an appellate court may review for plain error despite a [Rule 12(e)] waiver, provided that the record enables review, is open in this circuit.” Id. at 10 n.4. But even if we assume the power to correct a plain error in circumstances such as these, we would not do so here. The challenged warrant was never formally executed, as Pérez-González voluntarily surrendered to authorities. Further, Agent Vega testified that the warrant was accompanied by a photo, a significant factor in assessing its adequacy. See
And Pérez-González has presented us with no reason to question the
Pérez-González next argues that his convictions under Counts III and VI violate the Double Jeopardy Clause. He maintains that he is being improperly punished twice for the same offense because
The Double Jeopardy Clause protects against multiple punishments for the same offense unless the legislature clearly intended to impose multiple punishments for the offense. United States v. Patel, 370 F.3d 108, 114 (1st Cir. 2004). Thus, to determine whether multiple punishments are authorized, we must first seek to determine the legislature‘s intent. Id. If the legislature‘s intent is unclear, we apply the Blockburger test, see Blockburger v. United States, 284 U.S. 299 (1932), as a “default rule of statutory construction.” Patel, 370 F.3d at 114. “Under Blockburger, . . . the test . . . is whether each [statute] requires proof of an additional fact which the other does not.” Id. (internal citation and quotation omitted).
Pérez-González asserts that the legislative intent with regard to the joint application of the two statutes is ambiguous and proceeds to a Blockburger analysis. We accept arguendo that Blockburger applies, but a review of the relevant statutes dooms his argument. While both provisions clearly pertain to the damaging of government property,4 Section 844(f) includes the additional element of the use of fire or explosives and Section 1361 includes the additional element of a minimum monetary damage
Pérez-González next maintains that he was entitled to a continuance of the trial or a change of venue due to pretrial publicity. He asserts that media coverage was so intense, biased, and inflammatory -- the media mentioned him by name and directly commented on the evidence against him -- that it was difficult to draw an impartial jury. He also argues that the district court committed reversible error in failing to voir dire each prospective juror outside the presence of the others.
Motions for continuances are reviewed for manifest abuse of discretion, see United States v. Orlando-Figueroa, 229 F.3d 33, 39 (1st Cir. 2000), and motions for a change of venue are reviewed for abuse of discretion, see United States v. Rodriguez-Cardona, 924 F.2d 1148, 1158 (1st Cir. 1991). In assessing the need for a change of venue or a continuance based on pretrial publicity, “the court must determine if prejudice exists from the publicity.” Orlando-Figueroa, 229 F.3d at 42. “The test for prejudice
There is nothing in the record -- no statements by jurors indicating animus, no examples of inflammatory newspaper articles or prejudicial news reports,7 and no evidence whatsoever of the pervasiveness or tone of the media coverage -- to substantiate Pérez-González‘s argument. And with regard to the voir dire, only
Pérez-González also maintains that the district court erred in questioning potential jurors about bias as a group rather than individually out of the presence of the others. However, he failed to raise this argument in the district court. But even if he had, the court‘s procedure would not constitute reversible error. While we have endorsed the concept of individual questioning in high profile cases, see Medina, 761 F.2d at 20, we have approved “group” questioning of potential jurors about bias as within the district court‘s broad discretion in conducting voir dire, see Orlando-Figueroa, 229 F.3d at 43.8 Pérez-González has
Pérez-González next asserts that the videotapes should not have been admitted because they were improperly authenticated, misleadingly edited, misleadingly presented, and unduly prejudicial within the meaning of
The district court‘s admission of the videotapes was within its broad discretion. The news photographers were called as witnesses and authenticated the videotapes, and Pérez-González
Pérez-González next argues that certain photographs admitted into evidence did not accurately depict the objects photographed at the relevant time, included “visual elements” that were irrelevant and prejudicial, and should have been excluded under
Pérez-González first challenges the admission of exhibit 57a -- which shows a masked individual in front of a damaged Humvee with its front seat on fire -- on the ground that there is no indication when the photograph was taken or that any of the perpetrators wore masks. But the photograph is clearly relevant to Count III (which involved the initial burning of the Humvee) and
Pérez-González also challenges exhibit 16 (four news photos on one page) on the ground of “blurriness,” and exhibits 56-60 (news photos) on the ground that they include commentary and opinion. The former characterization is inaccurate, as the pictures are sufficiently clear, and the latter is specious, as the photos do not have captions or any accompanying text.
Finally, Pérez-González makes a generalized “global” challenge to exhibits 17-51. Again here, his argument is baseless. All the photos were relevant, properly authenticated, accurately depicted the damage done, and corroborated the testimony of the government witnesses.9
Pérez-González next posits that his in-court identification by various law enforcement officials, who lacked an adequate opportunity to observe him during the riot, should have been disallowed because the procedure employed was improperly suggestive and likely to yield a misidentification. He also argues that the trial court should have permitted him to sit in the gallery and ordered an in-court line-up.
In evaluating an identification, the court looks first to whether an inappropriately suggestive procedure was employed. See
The district court acted well within its discretion in permitting the jury to consider the identification evidence. All the identifying officers saw videotapes and photographs of Pérez-González before trial. Indeed, because law enforcement officials were intently reviewing those materials in an attempt to identify the perpetrators, a careful review of the visual evidence was an essential step in the investigation. This is not a situation involving a dubious photo array or a one-person show-up. See, e.g., Jesus-Rios, 990 F.2d at 677-78. Further, there is no entitlement to an in-court line-up or other particular procedure. See Curtis, 344 F.3d at 1063. And in any event, the argument has a bit of a surreal quality to it because Pérez-González admitted that he was the individual in the photograph which accompanied the
Pérez-González next challenges the sufficiency of the evidence establishing the conspiracy and the value of the government property destroyed.10 “We will affirm the conviction if, after assaying all the evidence in the light most amiable to the government, and taking all reasonable inferences in its favor, a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime.” Boulerice, 325 F.3d at 79 (internal citation and quotation omitted). The government need not succeed in “eliminating every possible theory consistent with the defendant‘s innocence,” and “[w]e will affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal citation and quotation omitted).
In challenging his conspiracy conviction, Pérez-González emphasizes that mere presence or similar actions to other individuals is insufficient to show membership in a conspiracy. He points out that there was no evidence of communication by cell phone or walkie-talkies, and that the incident can only be
To prove the elements of the crime of conspiracy, the government must show the existence of a conspiracy, the defendant‘s knowledge of the conspiracy, and the defendant‘s voluntary participation in the conspiracy. More specifically, to establish that a defendant belonged to and participated in a conspiracy, the government must prove two kinds of intent: intent to agree [with his co-conspirators] and intent to commit the substantive offense. Such proof may consist of circumstantial evidence, such as acts committed by the defendant that furthered the conspiracy‘s purposes. United States v. Llinas, 373 F.3d 26, 30 (1st Cir. 2004) (internal citation and quotation omitted). The agreement “need not be express, but may consist of no more than a tacit understanding.” United States v. Echeverri, 982 F.2d 675, 679 (1st Cir. 1993) (internal citation and quotation omitted). “[E]ach coconspirator need not know of or have contact with all other members, nor must they know all of the details of the conspiracy or participate in every act in furtherance of it.” United States v. Martinez-Medina, 279 F.3d 105, 113 (1st Cir. 2002). However, mere presence at the scene or simple association with the conspirators will not suffice to establish guilt. Llinas, 373 F.3d at 32.
There was sufficient evidence to support the conspiracy conviction. Various co-defendants came to the event armed with sledgehammers and wire cutters -- odd things to bring to a celebration unless one was planning mischief. In addition, the
Pérez-González next argues that the government failed to prove that the destroyed Humvee and main gate were valued at over $1,000 each. He asserts that the government‘s own records establish that the Humvee was transferred from the Navy to the
These arguments are frivolous. The government called witnesses who testified that the Humvee was only valued at $0 for purposes of the transfer because two federal entities (as opposed to an outside purchaser) were involved. Moreover, the government presented evidence that the replacement cost and residual value of the Humvee far exceeded $1000. And, while the gate may have only cost $450 to construct, it was constructed over forty years ago. Its current value (or replacement cost) was supportably pegged at more than $40,000.
Finally, Pérez-González challenges the jury instructions regarding the conspiracy charge and the value of the government property destroyed. But he has not explained what was wrong with the conspiracy charge, and his attack on the instructions is both inadequately elaborated and, so far as we can tell, based upon the specious suggestion that the jury could have found the property destroyed to be worth less than $1000.
Affirmed.
HOWARD
UNITED STATES CIRCUIT JUDGE
Notes
Section 844(f)(1) states:Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, . . . , or attempts to commit any of the foregoing offenses, shall be punished as follows: If the damage or attempted damage to such property exceeds the sum of $1,000, by fine under this title or imprisonment for not more than ten years, or both; if the damage or attempted damage to such property does not exceed the sum of $1,000, by a fine under this title or by imprisonment for not more than one year, or both.
Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than five years and not more than 20 years, fined under this title, or both.