815 F.2d 725 (1st Cir. 1987), 85-1433, United States v. Moreno Morales

Docket Nº:85-1433, 85-1461 to 85-1465 and 85-1493 to 85-1495.
Citation:815 F.2d 725
Party Name:UNITED STATES of America, Appellee, v. Rafael MORENO MORALES, Defendant, Appellant. UNITED STATES of America, Appellee, v. Angel PEREZ CASILLAS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Jaime QUILES HERNANDEZ, Defendant, Appellant. UNITED STATES of America, Appellee, v. Rafael TORRES MARRERO, Defendant, Appellant. UNITED STATES
Case Date:March 19, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 725

815 F.2d 725 (1st Cir. 1987)

UNITED STATES of America, Appellee,

v.

Rafael MORENO MORALES, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Angel PEREZ CASILLAS, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Jaime QUILES HERNANDEZ, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Rafael TORRES MARRERO, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Juan BRUNO GONZALEZ, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Nelson GONZALEZ PEREZ, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

William COLON BERRIOS, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Jose RIOS POLANCO, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Nazario MATEO ESPADA, Defendant, Appellant.

Nos. 85-1433, 85-1461 to 85-1465 and 85-1493 to 85-1495.

United States Court of Appeals, First Circuit

March 19, 1987

Argued March 7, 1986.

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William Arias, by appointment of the Court, for appellant Rafael Moreno Morales.

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Francisco M. Dolz Sanchez, San Juan, P.R., for appellants Angel Perez Casillas, Jaime Quiles Hernandez, Rafael Torres Marrero, Juan Bruno Gonzalez, Nelson Gonzalez Perez, Jose Rios Polanco and Nazario Mateo Espada.

David W. Roman, First Asst. Federal Public Defender, with whom Gerardo Ortiz del Rivero, Federal Public Defender, San Juan, P.R., was on brief, for appellant William Colon Berrios.

Dennis J. Dimsey, with whom Walter W. Barnett, Dept. of Justice, Wm. Bradford Reynolds, Asst. Atty. Gen., Washington, D.C., and Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., were on brief, for appellee.

Before LEVIN H. CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and PETTINE, [*] Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

On July 25, 1978, Arnaldo Dario Rosado and Carlos Soto Arrivi were shot and killed by police on a mountain site in Puerto Rico known as Cerro Maravilla. The two men, both of whom were members of the Puerto Rico independence movement (independentistas), had gone to Cerro Maravilla apparently intending to blow up or otherwise sabotage a television tower located on the mountain. The police reported after the event that Rosado and Soto Arrivi met their death in a shootout while resisting arrest.

In part because of its political overtones, the Cerro Maravilla incident drew immediate and intensive scrutiny from politicians, the media, and the public. 1 This scrutiny escalated as details emerged suggesting that the two independentistas may have been murdered, their deaths occurring after they had surrendered to the police. Although the attention given the shootings took many forms, the most visible were the hearings conducted by the Senate of Puerto Rico throughout much of 1983. The hearings, televised and widely followed throughout the island, reached their climax with the testimony of Jose Montanez Ortiz, Carmelo Cruz Arroyo, and Miguel Cartagena Flores. These men, members of the police force who were involved in the Cerro Maravilla operation, testified in substance that Rosado and Soto Arrivi were captured and fully subdued, only then to be beaten and ultimately killed by a shotgun blast fired at close range. Their testimony also indicated that the police went to Cerro Maravilla with orders to kill Rosado and Soto Arrivi, and that the officers agreed upon a false version of the events to present to the public. The media reported in great detail every revelation made at the hearings. 2

As part of the examination of the shootings, two federal grand juries launched investigations into whether the police conduct had violated any federal statutes. From December 14, 1979 to November 18, 1983, appellants in this case, all of whom were members of the intelligence division of the Police of Puerto Rico and allegedly present at Cerro Maravilla when the shootings occurred, testified before the grand juries. During an overlapping period, October 18, 1979 through April 2, 1980, at least seven of the nine appellants were deposed in a civil action brought by the survivors of Rosado and Soto Arrivi in the United States District Court for the District

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of Puerto Rico alleging violations of the decedents' federally-protected rights.

On February 6, 1984, a federal grand jury for the District of Puerto Rico returned a 44 count indictment against appellants and Luis Reveron Martinez, a member of the police force whose appeal is not before us. Count 1 of the indictment charged appellants with violating 18 U.S.C. Sec. 371 by conspiring (1) to obstruct justice and a criminal investigation; (2) to give false testimony in depositions and before federal grand juries; and (3) to suborn perjury. The count alleged that appellants engaged in the conspiracy to "prevent the citizens of Puerto Rico and law enforcement authorities of Puerto Rico and the United States from learning that Arnaldo Dario Rosado and Carlos Soto Arrivi had been unlawfully brutalized and killed by officers of the Police of Puerto Rico...." The remaining counts of the indictment charged each appellant with two or more substantive counts of perjury, or suborning perjury, for testimony given before the federal grand juries or in depositions taken in the federal civil rights action, in violation of 18 U.S.C. Secs. 1621-1623.

In August of 1984, the district court granted appellants' motion for continuance, citing the extensive and prejudicial publicity that had surrounded the case. The court was concerned that in the ensuing months the Cerro Maravilla shootings would receive heightened attention because of the gubernatorial election scheduled for November of that year. Relying on evidence produced at the legislative hearings, some members of the Puerto Rico Senate, a body controlled by a political party hostile to incumbent governor Romero Barcelo, claimed that the government had participated in the cover-up of the shootings--a charge that propelled the Cerro Maravilla incident into the center of the 1984 gubernatorial campaign. The district court feared that until the elections were over, the degree of publicity would make it impossible for appellants to receive the fair and impartial trial guaranteed by the United States Constitution. The court set forth its reasons for these concerns in a comprehensive opinion. United States v. Perez-Casillas, 593 F.Supp. 794 (D.P.R.1984). Two months after the election, which resulted in the defeat of the incumbent governor, appellants moved for a second continuance, arguing that the prejudicial publicity had not abated, making a fair trial still impossible. The same judge who had granted the previous continuance denied, without opinion, any further one.

After an extensive voir dire beginning on February 5, 1985 and concluding on February 28, 1985, the trial began. On March 28, 1985, the jury returned verdicts of guilty on 36 of the 44 counts. 3 Following sentencing, appellants filed a timely notice of appeal and now assign various errors. For the reasons hereinafter stated, we reverse each of Colon Berrios' convictions (Counts 1, 37, and 38), while we affirm as to the remainder.

I. PRETRIAL PUBLICITY

All appellants contend that their due process rights were violated by the district court's refusal in January 1985 to continue the trial one more time. They argue that the Puerto Rico media had given so much attention to the investigation of the Cerro Maravilla shooting, and appellants' alleged cover-up, as to make it impossible for appellants to receive an impartial trial as guaranteed by the United States Constitution. We do not find reversible error.

We begin by agreeing with appellants and with our dissenting brother that public exposure in Puerto Rico to the details and personalities of the Cerro Maravilla affair was almost universal. When the district judge granted an initial continuance of the trial on August 22, 1984, she called "Cerro Maravilla the media event of the years 1983-1984." 593 F.Supp. 794, 798. The court went on to declare that the shootings were one of the most heavily debated issues of the local electoral campaign in 1980; that in 1983 the Senate of Puerto Rico had held widely followed, televised

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public hearings on the shootings in which a version of the facts emerged that contradicted the position adopted by the police officers; and, most importantly, that the press, radio, and television coverage of the story, including the senate investigation, was so extensive that "defendants, in effect, stood trial before an entire community and guilt was adjudicated without the constitutional protections afforded a criminal defendant in a court of law...." Id. at 805. Recognizing that the intensive publicity was unlikely to abate prior to the November 1984 gubernatorial election, the court declined to proceed with the trial in the summer of 1984, ordering a continuance until February 1985.

In January 1985, appellants moved for a second continuance, contending that because of the election, the public attention given the shootings had actually escalated. Not only had Cerro Maravilla been the central issue of the recently concluded campaign, the new governor, Hernandez Colon, who had charged his opponent with abetting the coverup allegedly carried on by defendants, was said in his inaugural address to have "proclaimed the 'entrapment and summary execution of two young independence supporters by police at Cerro Maravilla.' " Among the documents appellants presented to show that press coverage had not diminished significantly was a 17-page appendix listing by title and date the newspaper articles and...

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