U.S. v. Reveron Martinez, s. 85-1467

• Citation: 836 F.2d 684
• Decision Date: 09 October 1987
• Docket Number: 86-1968,Nos. 85-1467,s. 85-1467
• Parties: 24 Fed. R. Evid. Serv. 547 UNITED STATES of America, Appellee, v. Luis REVERON MARTINEZ, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 684

836 F.2d 684

24 Fed. R. Evid. Serv. 547

UNITED STATES of America, Appellee, v. Luis REVERON MARTINEZ, Defendant, Appellant.

Nos. 85-1467, 86-1968.

United States Court of Appeals First Circuit.

Heard Oct. 9, 1987.

Decided Jan. 6, 1988.

As Amended Jan. 13, 1988.

Arthur Kass, New York City, for defendant, appellant.

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

Before CAMPBELL, Chief Judge, and TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

The matter before us is in a sense an eschatocol to an earlier, more complex piece of work. See United States v. Moreno Morales, 815 F.2d 725 (1st Cir.1987). In Moreno Morales, a divided panel of this court affirmed the convictions of eight defendants who had been charged with violating 18 U.S.C. Sec. 371 by conspiring to (i) obstruct justice, (ii) give false testimony, and (iii) suborn perjury. E.g., 815 F.2d at 730; id. at 752. We likewise affirmed the convictions of the same octet on an assortment of discrete charges of perjury and kindred misconduct in violation of 18 U.S.C. Secs. 1621-23. See, e.g., 815 F.2d at 730; id. at 752. The convictions of yet a ninth defendant, William Colon Berrios, were reversed because the evidence was too weak to support them. Id. at 742-44, 751. The case at bar comprises the appeal of Luis Reveron Martinez, ¹ a codefendant of the nine persons with whom we dealt in Moreno Morales. Reveron Martinez was tried jointly with the other nine but, for reasons which need not concern us today, his appeal was not in order to be heard when we took up the consolidated appeals of his codefendants.

The prosecution of all ten men arose out of what came to be known as the affair at Cerro Maravilla. The facts of the incident and of its aftermath have been recounted in exegetic detail in both the majority and minority opinions in Moreno Morales, and we see no need to plow that tired ground again. We do, however, borrow heavily from the introductory portion of Chief Judge Campbell's opinion in Moreno Morales, id. at 729-30, to put appellant's points into perspective.

Arnaldo Dario Rosado and Carlos Soto Arrivi were both members of the Puerto Rico independence movement. They journeyed to Cerro Maravilla on July 25, 1978 with sabotage in mind. As matters turned out, they walked into a trap. Both of them were shot and killed by the police. The latter claimed originally that the two independentistas had died in a shootout while resisting arrest. Yet after prolonged investigation, legislative hearings, and the like, another story was told: the gendarmes, it was said, went to Cerro Maravilla for the avowed purpose of murdering the two saboteurs; they were captured and thereafter killed in cold blood; and the conspirators then embarked on a massive cover-up.

In the course of the ensuing investigation, testimony was given in a variety of fora: before federal grand juries, in Senate hearings, and in discovery depositions in a civil action brought by the heirs of the slain men. On February 6, 1984, a grand jury empanelled in the United States District Court for the District of Puerto Rico returned a forty-four count indictment against ten men (the nine involved in the Moreno Morales appeal and the present appellant), all of whom were members of the police force allegedly in attendance at the murder scene. After a month-long trial, guilty verdicts were returned on the vast majority of the accusations. Appellant was convicted of all five of the counts against him--a conspiracy charge, 18 U.S.C. Sec. 371, three charges of making material false statements before a federal grand jury, 18 U.S.C. Sec. 1621, and a charge of testifying falsely in a sworn deposition, 18 U.S.C. Sec. 1623.

The appellant has spared no effort in his assault on the judgment below. We treat initially with a trio of assertions which question the fairness of his trial generally. We then deal with appellant's sufficiency challenges to each of three separate charges on which he stands convicted. (Reveron Martinez has not contested on appeal, and apparently concedes the adequacy of the proof anent, two of the perjury charges, viz., Counts 24 and 25.) We complete our peregrination by scrutinizing the validity of the sentences imposed by the district court.

I. PRETRIAL PUBLICITY

Reveron Martinez first contends that because the pervasive pretrial publicity associated with the affair at Cerro Maravilla was so "prejudicial and inflammatory," Moreno Morales, 815 F.2d at 775 (Torruella, J., dissenting), the district court had an obligation, sua sponte, to explore the possibility of changing venue. We disagree.

In Moreno Morales, we ruled that the pretrial publicity surrounding these events, though extensive, did not deprive the persons accused of their right to a fair trial. Id. at 730-39. Given the imbrication between appellant's claim and those earlier advanced by his codefendants, the doctrine of stare decisis bars relitigation of that issue. The judgment of the majority of the Moreno Morales panel on this precise point has become precedent, binding in future cases before us. If order and fairness are to attend the legal process, that point can be resolved no differently for Reveron Martinez than for his identically situated codefendants. See EEOC v. Trabucco, 791 F.2d 1, 2 (1st Cir.1986); Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir.1973). ² And the changed composition of the panel matters not at all. See Lacy v. Gardino, 791 F.2d 980, 985 (1st Cir.) ("Uniformity of decisions within a multi-panel circuit can only be achieved by strict adherence to prior circuit precedent, with the error-correcting function reserved to the court sitting en banc."), cert. denied, --- U.S. ----, 107 S.Ct. 284, 93 L.Ed.2d 259 (1986).

Once we acknowledge that we are duty bound to accord preclusive effect to Moreno Morales on the pretrial publicity issue generally, then it becomes a given that neither the nature nor the extent of the notoriety warranted a presumption of prejudice. Likewise, it becomes a given that the glare of the limelight, though unfortunate, did not require the granting of a further adjournment of the trial date. See Moreno Morales, 815 F.2d at 739. All in all, we are left with but one fresh argument anent pretrial publicity: that the district court, on its own initiative, should have brought into sharper focus the possibility of a change of venue.

Boiled down to bare essence in this manner, the residue of the argument deserves little comment. The defendants had a constitutional right of vicinage--a right to be tried "by an impartial jury of the ... district wherein the crime shall have been committed, ...." U.S. Const., Art. VI. They could not have been compelled to accept an alternate venue, and they chose not to seek one. There is no question but that they were apprised of their rights. All of the defendants, not the least Reveron Martinez, were represented by qualified counsel. The government, in its objections to the defendants' motions for an additional continuance grounded on the intense publicity, pointed out explicitly that none of the defendants had moved for a change in venue. From aught that appears of record, the decision to forgo such a motion was a knowing one, akin to a deliberate tactical bypass.

Reveron Martinez offers no authority for the novel proposition that the district court erred by not acting sua sponte and directing the parties to focus on a change of venue. There is no such precedent, we suspect, because there is no such duty. We refuse needlessly to increase the heavy burdens already imposed upon trial judges in criminal cases. The district court, on these facts, did not commit reversible error in neglecting to raise the possibility of another venue on its own initiative. ³

II. EVIDENCE OF UNCHARGED CRIMES

Appellant claims that he was unfairly prejudiced by the admission into evidence of details concerning the brutal beatings administered to the two independentistas and the actual killings which followed. ⁴ The same point was raised--and rejected--in the earlier appeal. Moreno Morales, 815 F.2d at 739-40. We find that discussion to be dispositive of the issue. ⁵ We add only that, since Moreno Morales was decided, we have reaffirmed that "details of illegal acts, including murder, have been allowed, in the district court's discretion, to show the chain of events forming the context." Real v. Hogan, 828 F.2d 58, 61 (1st Cir.1987). What we said in Real is equally apropos here: "A trial is a search for truth and cannot sensibly take place in a vacuum." Id. at 62.

Given appellant's approach to this reason of appeal, stare decisis applies. The decision to allow the evidence was within the district court's discretion.

III. INEFFECTIVE ASSISTANCE

Appellant contends that the performance of his trial counsel was so spavined as to comprise ineffective assistance of counsel. The touchstone of the law in this area is, of course, the Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, the defendant must demonstrate both significant attorney error and the existence of some reasonable probability that, had those mistakes not been made, the outcome of the proceeding would have been different. Id. at 687-94, 104 S.Ct. at 2064-68.

In this case, Reveron Martinez posits error in the dainty cross-examination of certain prosecution witnesses. He concedes, however, that this identical claim was earlier advanced by his codefendant, Angel Perez Casillas, and rebuffed by us. See Moreno Morales, 815 F.2d at 751-52. We will not repeat what we said there, but will merely reiterate that it is sufficient unto the day.

In an effort to escape from the clutches of stare decisis, Reveron Martinez's appellate...