United States of America, Appellee, v. Jose Rivera, Defendant, Appellant. UNITED STATES of America, Appellee, v. Alfred SHARPTON, Defendant, Appellant. United States of America, Appellee, v. Adolfo Carrion, Defendant, Appellant. United States of America, Appellee, v. Roberto Ramirez, Defendant, Appellant.
Nos. 01-1780 to 01-1783
United States Court of Appeals, First Circuit
Heard June 6, 2001. Decided June 14, 2001.
252 F.3d 536
We need go no further. Although the charges that the plaintiffs levy against the INS are serious, mootness goes to the federal courts’ jurisdiction. Iron Arrow Honor Soc‘y v. Heckler, 464 U.S. 67, 70 (1983) (per curiam); CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 622 (1st Cir. 1995). Its existence here effectively prevented the trial court from digging into the veracity of the plaintiffs’ allegations (which, we emphasize, are at this point unproved). Accordingly, we affirm the order for dismissal.
Affirmed.
Peter Strasser, Special Assistant United States Attorney, for appellee.
Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, and James L. Cott on brief for NAACP Legal Defense & Educational Fund, Inc., amicus curiae.
Before SELYA, BOUDIN, and LYNCH, Circuit Judges.
PER CURIAM.
Alfred Sharpton, Adolfo Carrion, Roberto Ramirez, and Jose Rivera appeal their convictions and sentences for violating
Appellants advance a series of arguments. They argue that: the evidence was insufficient to sustain their convictions; their sentences were plainly unreasonable; they were rushed to trial and the trial court abused its discretion in denying a continuance; the sentencing proceeding was flawed; they were denied counsel of their choice; and their retained counsel was ineffective.
We set the context. An area of Camp Garcia in Vieques is used for live-fire artillery and bombardment exercises by the U.S. Navy. This, in turn, has led to protests and political controversy. Some of the protesters have staged demonstrations
Between April 27 and May 2 of 2001, over 180 arrests were made, including the arrests on May 1 of the four appellants here; during this time period, Camp Garcia was totally closed because the live ordnance impact area was “hot” and demonstrations were going on at the gate. The district court has attempted to expedite the handling of these 180-plus cases, trying ten or so defendants a day in consolidated proceedings. The four defendants in these appeals were arraigned on May 2, 2001, and tried on May 23, 2001, along with eight others who had been arrested contemporaneously.
We address the appellants’ substantive claims first and their procedural claims second.
I.
Sufficiency of the Evidence
Appellants argue that there was insufficient evidence that they had actual notice that they were trespassing on U.S. Navy property. See United States v. Bonilla, 648 F.2d 1373, 1377-78 (1st Cir. 1981) (holding that, where
The appellants attempt a comparison of their case to Bonilla. The defendants in Bonilla were arrested after approaching Camp Garcia by boat, landing on Blue Beach-a beach on the south side of the island lacking any fences or signs warning that entry onto the area was prohibited. 648 F.2d at 1379-80 & n. 14. Without such means of notice, the Bonilla court held, the defendants could not be presumed to have known that they were trespassing on military property. Id. at 1383. The appellants here claim on appeal that they could have entered the base in the same fashion as the Bonilla defendants; the evidence was insufficient, they say, to prove that they did not, and so it was insufficient to prove that they had actual notice they were trespassing.
The comparison is simply not apt. The circumstances surrounding the appellants’ arrests differ dramatically from those in
Sentences
The appellants next challenge the length of their prison terms. The sentences imposed were within the statutory limits. See
That extremely high bar is not met here. The district court had valid reasons for imposing the sentences it did. On this point, we take judicial notice of the district court‘s remarks during sentencing proceedings in another consolidated Camp Garcia trespassing case, held the previous day. There, the court explained that the primary factors motivating its sentencing decisions in these cases were those listed in
We reject the appellants’ contention that the district court‘s employment of these categories was in and of itself “plainly unreasonable,” reflecting a “one-size-fits-all” approach to sentencing that ignored material differences between defendants. The record makes clear that the court drew individual distinctions among the various defendants. Not only did the court distinguish between first- and second-time offenders, but the court also took into account more individualized factors that it considered to be mitigating; specifically, the court gave lighter sentences to those defendants with serious medical conditions.
Perhaps, as the appellants contend, the district court could have drawn more subtle distinctions among the defendants and adjusted the precise length of their individual sentences accordingly. But there is nothing “plainly unreasonable” about the district court‘s choice to limit its drawing of distinctions at the point that it did—
In short, these matters firmly rest within the broad discretion of the district court. We find nothing “plainly unreasonable” in the manner in which the court exercised that discretion. The appellants’ sentences stand.
II.
Denial of Continuance
Appellants argue that they lacked sufficient time to prepare for trial and that the district court abused its discretion in denying their motion for a continuance.
The record shows that the court issued a notice on May 10, 2001, alerting the parties to the trial date, May 23, 2001. Counsel did not move for a continuance until the commencement of trial. In denying a continuance, the trial court referenced the fact that the May 10 notice of the trial date provided adequate time for preparation and on that basis ordered the trial to proceed.
That decision withstands scrutiny. The trial transcript reveals that Jorge Manuel Carmona Rodriguez was appellants’ counsel of record from the date of arraignment. In requesting a continuance at trial, Carmona‘s only stated reason for not being
To be sure, exactly when counsel received the notice of the trial date is unclear from the record. The docket indicates that the order setting the trial date was signed on May 10. It is possible that it was mailed later, and the defendants now assert that their counsel did not receive it until May 18. Even assuming, however, that counsel was not notified of the trial date until May 18 and did not receive discovery until May 22, the appellants must still show they were prejudiced by a May 18 notice. See United States v. Brand, 80 F.3d 560, 564 (1st Cir. 1996).
From this record, the appellants have shown no cognizable prejudice. Appellants were arrested on May 1 and arraigned on May 2. They had three weeks to prepare for trial. The case was simple and straightforward; the evidence and witnesses were readily available to appellants’ counsel. Appellants fail to explain specifically how, under these circumstances, counsel was nonetheless prevented from developing their case. They merely offer generalities—a need to assess the discovery, marshal witnesses, develop a theory of the case, and so on.
At most, appellants suggest that, had they had enough time, they would have been able to review and put into evidence a videotape of their arrests taken by a videographer hired to accompany them on the protest. Appellants argue that the tape was probative both as to guilt on the issue of notice and as to sentencing. Again, though, appellants offer no specific description of the tape‘s contents that might illustrate how it would have been exculpatory or mitigating. Moreover, the tape was made on the day of the arrests—May 1—roughly three weeks before trial. It is thus not apparent why Carmona could not have reviewed the tape ahead of time or why he was unable to proffer it at trial.
Sentencing Proceedings
The appellants also complain that the court sentenced them without a presentence report (PSR) and without giving them any meaningful opportunity to present mitigating evidence. They contend that the court denied what they characterize as trial counsel‘s motion to join previous defense motions—made in a separate case the preceding day—for presentence reports and for additional time to prepare for sentencing.
However, the record reveals that counsel never made such a motion. At the conclusion of the presentation of evidence, counsel said simply that he wished to “join the defense‘s motions that have been filed.” Context makes it perfectly clear that the motions referred to were not sentencing motions made in a separate case the preceding day. They were Rule 29 motions for a judgment of acquittal, which
As to whether the court permissibly proceeded to sentencing without the preparation of a PSR, Rule 32(b)(1) states that a PSR must be prepared unless “(A) the court finds that the information in the record enables it to exercise its sentencing authority meaningfully under
The court‘s decision was not plainly erroneous. Moreover, even were we to assume arguendo that the district court failed to comply with
Appellants similarly reiterate their claim that they lacked adequate time to prepare for the case, and so lacked adequate time to prepare for their allocutions. They claim to have been taken completely by surprise by the court‘s sentencing decision. This claim is unpersuasive.
First, at their May 2 arraignment, appellants were forewarned that the offense with which they were being charged carried with it the prospect of a prison term. Appellants thus cannot claim surprise that terms of imprisonment were imposed in their cases.8
Second, as to whether the appellants had a sufficient opportunity for allocution, we again find no error, plain or otherwise, in the proceedings conducted by the district court. Appellants each gave lengthy allocutions in which they described various facts that they thought should mitigate their sentences—e.g., that their offenses were motivated by reasons of conscience, that they held positions of political responsibility and were participating in pending election campaigns, and that they had important personal plans for the near future. They made no request to provide further information before the court passed sentence.
On appeal, appellants articulate no other potentially mitigating facts that they would have included in their allocutions had they had more time to prepare. The only significant suggestion made is that one of the appellants, Rivera, did not have the fair opportunity to inform the court that he suffered from a medical condition, specifically, hypertension. But that suggestion is untenable. Much of the sentencing proceedings focused on the issue of medical conditions. The court had, before hearing from the appellants, heard extensively from other defendants as to their medical conditions; and before passing sentence on any of the defendants, the court made clear that those defendants with medical conditions would receive lighter sentences. Appellant Rivera heard and observed these aspects of the proceedings, yet chose to remain silent as to his own medical condition. He was not denied the fair opportunity to raise the issue.
Assistance of Counsel
The appellants argue that they were denied the right to retain counsel of their own choosing. But attorney Carmona, in fact, was retained counsel and had appeared for the appellants at their May 2 arraignment. No motion by Carmona to withdraw as counsel was made at any time from May 2 until after the commencement of the trial. It was only after appellants’ motion for a continuance was denied that they asked Carmona to move to withdraw. Carmona did so, and the motion was denied. The trial court reasonably could have thought that the stated desire to obtain substitute counsel—notably, first raised in the immediate aftermath of the denial of a continuance and not until after trial had commenced—was merely another attempt to obtain a delay of the trial, a request already denied.
More importantly, defendants were not denied their choice of counsel. Carmona informed the court that appellant Sharpton wanted another attorney. None of the other three defendants made such a request. The court responded that it would allow Sharpton to have additional representation, but the case was going forward in any event. Attorney Sanford Rubenstein was present in the courtroom, accompanying Sharpton. It is unclear from the record whether Rubenstein, who says he is a civil lawyer, was the lawyer Sharpton wanted. If Rubenstein were wanted, Sharpton could easily have had Rubenstein join in his defense. Sharpton‘s discourse at sentencing suggests that he did want
Finally, the appellants contend that they suffered from ineffective assistance of counsel, in that their trial counsel chose not to put on a defense or cross-examine government witnesses. They request a new trial. The rule is firm, however, that an ineffective assistance claim will not be entertained on direct appeal “absent a sufficiently developed evidentiary record.” United States v. Ademaj, 170 F.3d 58, 64 (1st Cir.), cert. denied, 528 U.S. 887 (1999). Appellants insist that the relevant facts are established and the matter should be resolved now. But, as evidenced from the discussion above, a number of relevant facts are far from established. For example, it is unclear when appellants’ counsel received notice of trial, or what preparations counsel took in anticipation of trial.9 Thus, if an ineffective assistance claim is to be brought at all in this case, it must be brought under
III.
The judgment of the district court is affirmed.