U.S. v. Marcano-Garcia, MARCANO-GARCIA

• Decision Date: 29 May 1980
• Docket Number: No. 78-1499,MARCANO-GARCIA,78-1499
• Citation: 622 F.2d 12
• Parties: UNITED STATES of America, Appellee, v. Pablo, and Nydia Cuevas-Rivera, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 12

622 F.2d 12

UNITED STATES of America, Appellee, v. Pablo MARCANO-GARCIA, and Nydia Cuevas-Rivera, Appellants.

No. 78-1499.

United States Court of Appeals, First Circuit.

Argued Feb. 5, 1980.

Decided May 29, 1980.

Pedro J. Varela, Hato Rey, P. R., for appellants.

William C. Bryson, Atty., Dept. of Justice, Washington, D. C., with whom Jose A. Quiles, U. S. Atty., Old San Juan, P. R., and Daniel Lopez Romo, Asst. U. S. Atty., San Juan, P. R., were on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, WISDOM, Senior Circuit Judge. ^*

COFFIN, Chief Judge.

Appellants in this case, Pablo Marcano-Garcia and Nydia Cuevas-Rivera, claiming infringement on the full spectrum of rights guaranteed by the Bill of Rights, seek reversal of their convictions in the district court for the District of Puerto Rico for kidnapping and assaulting a foreign official and making extortionate demands in connection with those acts.

On the afternoon of June 3, 1978, appellants entered the Chilean Consulate in San Juan, Puerto Rico, and presented themselves to the Honorary Consul, Ramon Gonzalez Ruiz, as interested in business possibilities in Chile. After the Honorary Consul had escorted them into his private office, Marcano produced a revolver and ordered the Consul to lie on the floor. Cuevas then also drew a revolver, which she pointed at the Consul while Marcano tied his hands and feet with rope. Shortly thereafter, one Sergio Cavada, a Chilean national who was seeking renewal of his passport, entered the office. Marcano and Cuevas ordered him at gunpoint to lie on the floor and bound his hands and feet as they had done with the Consul.

Appellants identified themselves as members of a group advocating Puerto Rico's independence and explained that they sought certain concessions from the United States government. Specifically, Marcano said they wanted to obtain the release of Puerto Rican prisoners being held in the United States and to force cancellation of the Fourth of July celebration in Puerto Rico. Marcano also stated that he wanted the Consul to read a statement to the news media favoring Puerto Rican independence and characterizing the government of Chile as "an assassin".

On the evening of July 3, the Consul was permitted to place a phone call to a friend of his, Bruno Harring. Immediately after the conversation began, however, Marcano interrupted and said that he had abducted the Consul and wanted his demands announced over the media and to officials of the United States government. Harring notified the FBI, who established telephone contact with Marcano. During that evening and the following morning, the FBI recorded several conversations with Marcano in which he recited his demands regarding the release of Puerto Rican prisoners and cancellation of the Fourth of July celebration. On the morning of July 4, two attorneys who knew appellants entered the consulate and convinced appellants to release their hostages and surrender.

Appellants were indicted on July 11, 1978, one week after their arrest. Their attorneys, Ricardo Rechani and Steve Segal, who had arranged for their surrender, were granted five days to obtain discovery from the government and an additional ten days to file pretrial motions. During this period, appellants' attorneys filed two motions: one for suppression of evidence pursuant to rule 41 of the Federal Rules of Criminal Procedure and another seeking reduction in the amount of appellants' bail. Then, on August 8, 1978, Rechani and Segal filed a "Motion Requesting Withdrawal as Court Appointed Attorneys", which recited "ideological differences" as the basis for the motion and noted that both of the appellants had requested new counsel. On August 10, appellants' new counsel filed eighteen motions addressing such issues as prejudicial pretrial publicity, government misconduct, and the procedures for selection of the jury panel, the majority of which were denied by the district court. Appellants' trial commenced on August 24, 1978.

The jury found both Marcano and Cuevas guilty of violating 18 U.S.C. § 1201(a), which provides for punishment of up to life imprisonment for any person who "unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise" any person who is a "foreign official, an internationally protected person, or an official guest as those terms are defined in (18 U.S.C. § 1116(b))." Both were sentenced to twelve years imprisonment for this crime. Marcano was also convicted of assaulting a "foreign official" or "internationally protected person" in violation of 18 U.S.C. § 112(a) and making extortionate demands in violation of 18 U.S.C. § 878(b). He was sentenced to five years imprisonment for each of these two counts, to run concurrently with his sentence for kidnapping.

Appellants' first argument is that the district court "lacked jurisdiction" under 18 U.S.C. § 1201 because the Honorary Consul does not come within the scope of the terms "foreign official", "official guest", or "internationally protected person". Similarly, they assert that the evidence adduced at trial was insufficient to establish that the Honorary Consul fell within the class of persons protected under section 1201. Specifically, appellants contend that the Honorary Consul was not a "foreign official" because he testified that he was not paid a salary by the Chilean government, and that he was not an "internationally protected person" because honorary consuls are accorded less protected status than full consuls under the Vienna Convention on Consular Relations.

We find no merit in either of these arguments. Under 18 U.S.C. § 1116(b), incorporated by sections 1201 and 112, a "foreign official" is defined as "any person of foreign nationality who is duly notified to the United States as an officer or employee of a foreign government . . . and who is in the United States on official business." The evidence at trial established that the Honorary Consul was a Chilean national and that he had been notified to the United States Department of State as a consular representative of the Chilean government. Most significantly, the Honorary Consul testified that he worked almost full-time performing such official duties as renewing passports and processing other official papers, for which he received a subsidy from the Chilean government. His activities thus brought him within the intended ambit of the statute. See S.Rep. No. 92-1105, 92d Cong., 2d Sess. 1, reprinted in (1972) U.S.Code Cong. & Admin.News, p. 4316. Even if the Honorary Consul is not a "foreign official", we think it is clear that he is an "internationally protected person". Although under the terms of the Vienna Convention such officials are granted less extensive rights and protections than career consular officials, we can discern no basis in the statute for distinguishing honorary from career consuls on the basis of the quantum of protection they are given under international law.

The second ground for reversal urged by appellants is that each of the statutes under which one or both were convicted, 18 U.S.C. §§ 1201, 112 and 878, are unconstitutionally vague and overbroad. Their vagueness claims attack specifically the terms "kidnap" and "holds for ransom or reward or otherwise" in section 1201(a), "assaults" and "offers violence" in section 112(a), and "extortionate demand" in section 878(b). In essence, appellants argue that these provisions do not "provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal." Buckley v. Valeo, 424 U.S. 1, 46, 96 S.Ct. 612, 647, 46 L.Ed.2d 659 (1976). We disagree.

First, the indictment charges that appellants "did willfully and unlawfully seize and confine" the Honorary Consul. This language is clear both on its face and in its applicability to appellants' act in this case. And the term "holds for ransom . . . or otherwise", while perhaps not clear on its face, has been construed by the Supreme Court as contemplating nonpecuniary motives such as those in this case. See United States v. Healy, 376 U.S. 75, 81-82, 84 S.Ct. 553, 557, 11 L.Ed.2d 527 (1964). Second, we have construed the term "assault" as including conduct "intended to put a victim in fear". See United States v. Frizzi, 491 F.2d 1231 (1st Cir. 1974); United States v. Maynard, 452 F.2d 1087 (1st Cir. 1971). The well-settled meaning of this term, combined with its more literal companion term "offer violence", left little need for appellant Marcano to "speculate" whether his use of a loaded gun to keep the Consul in custody would constitute conduct proscribed by section 112(a). Finally, the term "extortionate demand" imports into section 878(b) the term "extortion", which has a well-settled meaning under federal law, see, e. g., United States v. Hathaway, 534 F.2d 386, 395-96 (1st Cir. 1976), and has on numerous occasions been found not to be unconstitutionally vague, see, e. g., United States v. Rosa, 560 F.2d 149, 154 n. 5 (3d Cir. 1977), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 135 (1978).

Nor do we find any merit in appellants' contention that these statutory provisions are overbroad in their restriction of protected political speech. While these acts may have been performed for reasons of political protest, such violent acts are not entitled to First Amendment protection. In short, the statutes' "plainly legitimate sweep" makes no substantial encroachment on political communication. See Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973).

We next address appellants' argument that the district court committed reversible error in refusing to dismiss their indictments or continue their trial to a later date due to excessive pretrial publicity. They assert that "sensationalist" stories appearing in the newspapers so poisoned the atmosphere surrounding their case that an...