U.S. v. Colon Osorio, 02-2722.

• Decision Date: 03 March 2004
• Docket Number: No. 02-2722.,02-2722.
• Citation: 360 F.3d 48
• Parties: UNITED STATES of America, Appellee, v. Luis COLÓN OSORIO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

360 F.3d 48

UNITED STATES of America, Appellee, v. Luis COLÓN OSORIO, Defendant, Appellant.

No. 02-2722.

United States Court of Appeals, First Circuit.

Heard November 3, 2003.

Decided March 3, 2004.

Linda Backiel, for appellant.

Guillermo Villarmarzo, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabón, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, LYNCH and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

On June 28, 2000, defendant-appellant Luis Colón Osorio was arrested after Puerto Rico police officers investigating a drug purchase by a passenger in Colón's vehicle discovered that Colón was armed and carrying, inter alia, an explosive device. In due course, a jury convicted Colón of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), with an obliterated serial number, see 18 U.S.C. § 922(k), and carrying an explosive during his felonious possession offenses, see 18 U.S.C. §§ 844(h)(2), (j), and 232(5). The convictions resulted in concurrent 24-month sentences on the two possession counts and a consecutive 120-month sentence on the carrying charge.

Colón presents six arguments in favor of reversal or, alternatively, vacatur of his convictions. Colón first contends that the district court abused its discretion, see United States v. DeJesus, 211 F.3d 153, 155-56 (1st Cir.2000), in denying as "untimely" his motion for funds (Colón is indigent) to secure an expert's assistance in investigating whether he was carrying an "explosive." The relevant facts are as follows.

A federal grand jury indicted Colón on the charges of which he was convicted on August 23, 2001. Between the date of the indictment and April 1, 2002, the only issues actively litigated were Colón's competency and entitlement to bail, although the government did file the curriculum vitae of explosives expert Richard J. Campbell on October 24, 2001. Ultimately, Colón was ordered detained and found, by order dated April 1, competent to stand trial. On April 3, Colón moved to continue the trial, which was then scheduled to begin on April 11. The district court granted the motion, setting a new trial date of May 16.

On April 24, Colón filed his motion for funds to hire an expert. Two days later, before the government responded, the district court denied it as "untimely" by margin order. The record reveals no pretrial order or rule specifically requiring that the motion be filed prior to April 24. When the matter was raised at trial, the court clarified that it had denied the motion because it "would obviously [have been] followed by a request for a continuance" to obtain an expert report. The court might have added, but did not, that the government's intention of relying on an expert to prove that the device was an explosive should have been known no later than October 24, 2001, when the government made its submission regarding its explosives expert.

While Colón's motion was filed later than it might have been, we are troubled that it was denied solely on the ground that a contrary ruling would necessitate a second continuance of the trial. After all, a 10-year mandatory prison sentence was at stake, see 18 U.S.C. § 844(h)(2); Colón was in prison awaiting trial and thus posed no threat to the public; the motion was filed more than three weeks prior to the day trial was scheduled to begin; and the record contains no evidence from which to infer that the government would have been prejudiced by any continuance that would have followed the granting of the motion. Under the circumstances, the rationale provided for the denial of the motion strikes us as being close to, if not beyond, the limits of the court's discretion.

Nonetheless, despite our misgivings about the slender rationale for denying the motion, we will not vacate the judgment of conviction on the carrying charge because our independent review of the record convinces us that any error was harmless. See Fed.R.Crim.P. 52(a) ("Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."); United States v. Meserve, 271 F.3d 314, 327 (1st Cir.2001) (noting appellate court's power to affirm challenged judgments on any ground apparent in the record). Colón's defense theory was that law enforcement agents planted the firearm and the explosive device that led to the charges against him because they were out to get him for ulterior motives. He did not make any effort to contradict the evidence about the contents of the device. And the uncontradicted evidence about those contents compels the conclusion that the device constituted an "explosive" within the meaning of 18 U.S.C. § 844(h)(2).

The device consisted of two cylinders containing 5.95 and 5.7 grams of a gray powder. The cylinders were bound together, encrusted with ¾-inch metal nails, and fitted with an ignitable fuse. Laboratory tests showed the gray powder to be a mixture of potassium perchlorate (an oxidizing agent) and aluminum (a fuel). This mixture is commonly known as "flash powder." Flash powder is an "explosive" subject to commercial regulation by the Bureau of Alcohol, Tobacco, and Firearms. See 27 C.F.R. § 555.11 (2003) (defining "flash powder" as "[a]n explosive material intended to produce an audible report and a flash of light when ignited which includes but is not limited to oxidizers such as potassium chlorate or potassium perchlorate, and fuels such as sulfur or aluminum powder").

The trial evidence thus established that the device Colón was carrying contained both an "explosive" powder and the means for igniting it. Colón did not seek expert assistance (from a chemist, for example) to attack these foundational facts; he sought assistance so that his attorney might better understand whether and how the device might operate. But the government was not required to prove the device's operational capacity to a certainty; some possibility of explosion is sufficient under the statute. See 18 U.S.C. § 844(j) ("For the purposes of subsection[] ... (h), ... `explosive' means ... any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.") (emphasis supplied). We therefore see no likelihood that Colón was harmed by the denial of his motion.

Colón next argues that there was insufficient evidence for the jury to have made the elemental determination that he was a convicted felon on the day he was arrested with the firearm and explosive device. Colón derives this argument from the fact that, at trial, the government only introduced evidence (in the form of a certified judgment) that he had been convicted in 1993 in the District of Connecticut for failing to appear for a criminal trial, in violation of 18 U.S.C. § 3146(a)(1). Colón points out, correctly, that § 3146(a)(1) contains both felony and misdemeanor provisions, and argues that one cannot tell from the face of the judgment whether his prior conviction was a felony or misdemeanor. The government responds that one can tell that Colón's prior conviction was a felony because the judgment shows that Colón was sentenced to three years of supervised release, a term that may be imposed only in connection with a felony conviction. See 18 U.S.C. § 3583(b).

The government is surely correct when it says that the certified judgment was sufficient to support an inference that Colón was a convicted...