622 F.2d 12 (1st Cir. 1980), 78-1499, United States v. Marcano-Garcia

Docket Nº:78-1499.
Citation:622 F.2d 12
Party Name:UNITED STATES of America, Appellee, v. Pablo MARCANO-GARCIA, and Nydia Cuevas-Rivera, Appellants.
Case Date:May 29, 1980
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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622 F.2d 12 (1st Cir. 1980)

UNITED STATES of America, Appellee,




Nydia Cuevas-Rivera, Appellants.

No. 78-1499.

United States Court of Appeals, First Circuit

May 29, 1980

Argued Feb. 5, 1980.

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[Copyrighted Material Omitted]

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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.

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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...

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