U.S. v. Ayala, 01-2148.

• Decision Date: 29 April 2002
• Docket Number: No. 01-2151.,No. 01-2150.,No. 01-2148.,No. 01-2152.,01-2148.,01-2150.,01-2151.,01-2152.
• Citation: 289 F.3d 16
• Parties: UNITED STATES, Appellee, v. Rafael Ayala AYALA, Robert F. Kennedy, Jr., Dennis Hickey Rivera, and Armando Torres Ortíz, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

289 F.3d 16

UNITED STATES, Appellee, v. Rafael Ayala AYALA, Robert F. Kennedy, Jr., Dennis Hickey Rivera, and Armando Torres Ortíz, Defendants, Appellants.

No. 01-2148.

No. 01-2150.

No. 01-2151.

No. 01-2152.

United States Court of Appeals, First Circuit.

Heard March 4, 2002.

Decided April 29, 2002.

COPYRIGHT MATERIAL OMITTED

Harry Anduze Montaño for appellants Kennedy and Rivera.

Linda Backiel for appellants Ayala and Ortíz.

Stella Song, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, and Frank J. Bustamonte, Special Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, SELYA, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Rafael Ayala Ayala, Robert F. Kennedy, Jr., Dennis Hickey Rivera, and Armando Torres Ortíz were convicted of entering onto the Camp García Naval Installation on the island of Vieques, in violation of 18 U.S.C. § 1382. Unpersuaded by their arguments on appeal, we affirm their convictions.

I. Background

On April 28, 2001, appellants participated in a campaign of civil disobedience aimed at disrupting live-fire artillery and bombardment exercises which the Navy periodically conducts in and around Vieques. Each was charged with violating 18 U.S.C. § 1382 (barring entry "upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation"). The four cases (along with four others) were consolidated for trial in the district court on July 6, 2001. Appellants were convicted and sentenced to thirty days' imprisonment.

On appeal, Ayala and Ortíz argue that the informations against them should have been dismissed because the government failed to take them before a magistrate within 48 hours of their arrest; that the government did not prove that they had entered onto a naval installation in violation of 18 U.S.C. § 1382; and that the evidence at trial was insufficient to establish that they were among the individuals detained on Vieques on April 28, 2001. Kennedy and Rivera argue that the district court judge erred in refusing to permit them to put on a defense of necessity, and in not recusing himself from the case. We address these issues in turn.

II. The 48-Hour Rule

Federal Rule of Criminal Procedure 5(a) states, in pertinent part, that "any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate judge." Although Rule 5(a) does not specify what would constitute an "unnecessary delay," courts have construed the Fourth Amendment as imposing a presumptive 48-hour time limit on detentions in the absence of a probable cause determination.¹ "Where an arrested individual does not receive a probable cause determination within 48 hours," the burden is on the government "to demonstrate the existence of a bona fide emergency or other extraordinary circumstance." County of Riverside v. McLaughlin, 500 U.S. 44, 57, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). Having been brought before a magistrate approximately 51 hours after their initial detention, Ayala and Ortíz argue that the district court erred in denying their motion to dismiss the informations against them on that ground. We review the district court's construction of Rule 5(a) and the Fourth Amendment de novo, and its factual determinations for clear error. United States v. Encarnacíon, 239 F.3d 395, 397 (1st Cir.2001).

Ayala and Ortíz's motion to dismiss asserted the following facts, which the government has not disputed. Appellants were detained by military personnel at approximately 11:20 a.m. on April 28 and transported to a detention/processing center at Camp García (on Vieques), where they were searched, questioned, and photographed. The next morning appellants were transported by boat to Roosevelt Roads, a naval installation on the main island of Puerto Rico, where they were again searched, questioned, and photographed. "Late on Sunday night," April 29, appellants were moved to the Metropolitan Detention Center in Guaynabo. Some time after 2:00 p.m. on April 30, Ayala and Ortíz were taken before a magistrate.

The government filed a cursory response: "The motion is without merit. It has been rejected by the sections of this Court considering this issue. See e.g. Memorandum Order by Judge José Antonio Fusté, dated June 1, 2001, in the case of United States v. Cecilio Lebron, #01-330. Based upon the extraordinary demands fixed by the large number of arrestees brought over from Vieques Island, the time elapsed was not unreasonable."

At trial, in denying the motion to dismiss, the district court said that 181 individuals had been arrested in the "wave" of trespassers which included Ayala and Ortíz, and that the large number of detainees, and the transportation required to get them before a magistrate, constituted "extraordinary circumstances" that warranted an exception to the 48-hour rule. The district court was entitled to take judicial notice of the 181 arrests, a circumstance readily ascertainable by the district court. See Fed.R.Evid. 201(b)(2) (authorizing judicial notice of facts "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"). Although the relevant facts in the record are regrettably sparse, the district court concluded correctly that over 100 civil disobedience arrests at a naval base on an island off the coast of Puerto Rico, executed in the midst of a military exercise, constitute an extraordinary circumstance sufficient to justify the slight delay beyond 48 hours in bringing Ayala and Ortíz before a magistrate.²

In Encarnacíon, we reserved the question "whether Rule 5(a) can ever be a basis for dismissal of an indictment absent evidence of unwarranted interrogation during the period of detention." 239 F.3d at 400 n. 5. Without now deciding that question, we also note the absence in this case of any claim of prejudice arising out of appellants' detention beyond 48 hours.

III. The Informations

The informations charged that Ayala and Ortíz had entered onto "lands reserved for the exclusive jurisdiction of the United States" in violation of 18 U.S.C. § 1382, which provides for punishment of "[w]hoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation." Ayala and Ortíz moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal at the close of the prosecution's case, arguing, inter alia, that the piece of land on which they were arrested, the South Salinas Finger, is not "reserved for the exclusive jurisdiction of the United States," as the informations allege. In their view, the South Salinas Finger is not part of a "military, naval, or Coast Guard reservation," but instead is "submerged land[]" which has been placed "under the control of the government of Puerto Rico" pursuant to 48 U.S.C. § 749. Our review of the district court's denial of a Rule 29 motion is de novo. United States v. Frigerio-Migiano, 254 F.3d 30, 33 (1st Cir.2001).

We agree with Ayala and Ortíz that the government failed to prove that the South Salinas Finger is encompassed within the boundaries of the Camp García naval reservation proper. Petty Officer Larry Werner Roberts II described the South Salinas Finger as "a little island on the south" side of Vieques. He testified that "[i]t has a little land that connects the beach to the island," a natural bridge of approximately 35 feet.³ However, a line on the map the prosecution offered into evidence depicting the ordinary high-tide line at Vieques — the boundary of the Navy's holdings — does not encompass the location of the South Salinas Finger. Instead, the portion of the map that corresponds to its location is blank.

As the line on the Navy's map marking the mean high-tide line around Camp García does not depict the South Salinas Finger, Ayala and Ortíz argue that it must therefore be among Puerto Rico's "submerged lands," which are "under the control of the government of Puerto Rico." 48 U.S.C. § 749.⁴ The statute defines "control" to include "all right, title and interest in and to and jurisdiction and authority over the submerged lands underlying the harbor areas and navigable streams and bodies of water in and around the island of Puerto Rico and the adjacent islands and waters." Id. § 749(3). Ayala and Ortíz assert that the South Salinas Finger "is a classic example of submerged coastal [lands] over which `all right, title and interest in and to and jurisdiction and authority' has been placed in the hands of Puerto Rico" (quoting 48 U.S.C. § 749(3)), and that their venture onto the South Salinas Finger thus could not have been an entrance onto lands "reserved for the exclusive jurisdiction of the United States," as the informations allege.

Again, Ayala and Ortíz have a point. Because the government failed to prove that the South Salinas Finger is above the mean high-tide line, we must accept the proposition in this case that it is indeed "submerged land[]" placed "under the control of the government of Puerto Rico" by 48 U.S.C. § 749. Such submerged lands are not "reserved for the exclusive jurisdiction of the United States," as the informations allege. However, "[c]onvictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment. A part of the indictment unnecessary to and independent of the allegations of the offense proved may normally be treated as a useless averment that may be ignored." United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985) (internal quotation marks omitted). In other words, "[s]urplusage in an indictment need...