US v. Garcia-Arroyo, (1st Cir. 2001)

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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.

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,

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.

MARITZA GARCÍA-ARROYO,

Defendant, Appellant.

No. 01-1527

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

NÉSTOR CRUZ-CRESPO,

Defendant, Appellant.

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,

v.

ISRAEL TORRES-LLAURADOR,

Defendant, Appellant.

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,

v.

ZORAIDA SANTIAGO-FELICIANO,

Defendant, Appellant.

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,

Kravitch,(1) 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

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

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

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

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,(2) 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

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).

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,

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").

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.(3) 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.(4) 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.

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

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.

1. Of the Eleventh Circuit, sitting by designation.

2. 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.

3. The Live Impact Area is the section of Camp García where the live-fire artillery and bombardment exercises occur.

4. 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.


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