U.S. v. Lopez Andino, s. 86-1583

Decision Date30 July 1987
Docket Number86-1584,Nos. 86-1583,s. 86-1583
Citation831 F.2d 1164
PartiesUNITED STATES of America, Appellee, v. Hector Luis LOPEZ ANDINO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Israel MENDEZ SANTIAGO, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Francisco M. Dolz Sanchez, San Juan, P.R., for defendant, appellant Hector Luis Lopez Andino.

John T. Burns, by Appointment of the Court, for defendant, appellant Israel Mendez Santiago.

Frank D. Allen, Jr., Civil Rights Div., Dept. of Justice, with whom Jessica Dunsay Silver, Civil Rights Div., Dept. of Justice, Wm. Bradford Reynolds, Asst. Atty. Gen., Washington, D.C., and Jose A. Quiles, Acting U.S. Atty., Hato Rey, P.R., were on brief, for appellee.

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

BOWNES, Circuit Judge.

Defendants-appellants Hector Luis Lopez Andino and Israel Mendez Santiago, formerly members of the Puerto Rico Police, were convicted in district court of civil rights violations for assaulting and beating three men, one of whom died. Appellants make five arguments in challenging their convictions: (1) that the United States statutes under which they were convicted are inapplicable to Puerto Rico; (2) that their convictions violated the constitutional bar on double jeopardy because appellants previously had been convicted in Puerto Rico Superior Court for their acts; (3) that their sixth amendment right to counsel was violated by their having been jointly represented; (4) that the jury was not properly instructed on the elements of the charged offenses; and (5) that the trial court erred by not instructing the jury on lesser offenses included in the offenses charged. We are not persuaded by any of appellants' arguments, and, therefore, we affirm their convictions.

I. SUMMARY OF THE EVIDENCE

The government's evidence described an incident in which officers of the law brutalized three citizens. Two eyewitnesses, as well as the victims of the assault, testified to the following. At about 4:00 P.M. on December 19, 1982, Angel Carmona Ortiz and Juan Ramon Figueroa Serrano met with Ruben Padilla Rios in a field near a housing project in Bayamon, Puerto Rico. Padilla Rios had come there to buy drugs. As the meeting broke up, two police officers--appellant Lopez Andino, who was a sergeant, and Luis Ernesto Ortiz Maldonado--approached with revolvers in hand. The three men were forced to lie face down in tall grass, and Lopez Andino instructed Ortiz Maldonado to go and bring a third officer, appellant Mendez Santiago. When he returned with Mendez Santiago, Ortiz Maldonado was carrying a nightstick.

The officers then subjected the men to an ordeal of physical abuse lasting about thirty minutes. Lopez Andino and Mendez Santiago interrogated them, asking about whether they had drugs, and repeatedly beat them with the nightstick. The men also were forced to beat each other with the stick. Lopez Andino and Mendez Santiago kicked the men as they lay on the ground, and, at one point, these two officers jumped on Figueroa Serrano's back. Finally, the victims were told to walk deeper into the brush, and the officers left by another route.

Figueroa Serrano died the evening of the assault. According to the autopsy report, the cause of his death was severe thoracic abdominal trauma resulting from blows received to his thoracic and abdominal cavities.

The indictment charging the defendants had four counts. Count I was for violating 18 U.S.C. Sec. 241 (1982) 1 by conspiring to injure, oppress, threaten, and intimidate the three victims of the assault in the exercise and enjoyment of their rights not to be deprived of liberty without due process, not to be subjected to summary punishment, and not to be compelled to be witnesses against themselves. It was alleged that the conspiracy resulted in the death of Figueroa Serrano. Count II was for acting under color of the law to deprive Figueroa Serrano of his rights, resulting in his death, in violation of 18 U.S.C. Sec. 242. 2 Counts III and IV also were for violations of section 242 in respect to Carmona Ortiz and Padilla Rios. The trial lasted from April 21 through April 24, 1986. All three defendants were convicted on all charges. On Count I, Lopez Andino was sentenced to ninety-nine years imprisonment and Mendez Santiago to thirty years. Ortiz Maldonado was given a suspended sentence of twenty-five years on the same count. Each defendant was given concurrent sentences on the other counts.

II. THE STATUTES' APPLICABILITY TO PUERTO RICO

Appellant Mendez Santiago contends that the United States statutes under which he was convicted, 18 U.S.C. Secs. 241, 242, do not apply to Puerto Rico. We disagree. This court has held that section 242 is applicable to Puerto Rico. United States v. Villarin Gerena, 553 F.2d 723, 724-26 (1st Cir.1977). The reasoning expressed in Villarin Gerena regarding section 242 applies to section 241 as well. See also United States v. Rivera Torres, 826 F.2d 151, 155 (1st Cir. Aug. 14, 1987).

Just as we saw no reason to withhold from the people of Puerto Rico the protection section 242 affords against the misuse of official authority at the expense of citizens' rights, we see no reason to exclude the complementary statutory prohibition on conspiracies against those rights. We hold that the district court had jurisdiction to try appellants for the charged offenses.

III. DOUBLE JEOPARDY

Appellant Mendez Santiago argues that the federal prosecution violated the constitutional proscription that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. According to the presentence investigation reports contained in the record, all three defendants had been convicted in Puerto Rico Superior Court on two counts of aggravated assault against Carmona Ortiz and Padilla Rios. The reports indicate that they also had been charged with first degree murder of Figueroa Serrano, but were found guilty on reduced charges of involuntary manslaughter. According to appellants, this was by way of guilty pleas. Appellants' sentences of imprisonment were suspended, and they were placed on probation by the superior court.

We note initially that "[s]uccessive prosecutions are barred by the Fifth Amendment only if the two offenses for which the defendant is prosecuted are the 'same' for double jeopardy purposes." Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985). Separate statutory offenses with different aims, each requiring proof of a fact not required by the other, are not the same offenses for purposes of double jeopardy. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Christensen, 732 F.2d 20, 23 (1st Cir.1984). Unlike the local law provisions regarding crimes against the person for which appellants previously had been convicted, a violation of section 241 occurs only if there was a specific intent to interfere with rights secured by the Constitution or laws of the United States, see Anderson v. United States, 417 U.S. 211, 223, 94 S.Ct. 2253, 2262, 41 L.Ed.2d 20 (1974), and section 242 has been violated only if there has been a willful deprivation of rights under color of law. Thus, it is not clear, although we do not decide, that the federal prosecutions were for the same offenses as were the Puerto Rico proceedings.

For the purposes of this appeal, however, it does not matter whether or not the local and federal prosecutions were for different offenses. According to the "dual sovereignty" doctrine, successive prosecutions are not prohibited by the fifth amendment if they are brought by separate sovereigns. As the Supreme Court recently described it, "[t]he dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the 'peace and dignity' of two sovereigns by breaking the laws of each, he has committed two distinct 'offences' " and is subject to prosecution and punishment for both. Heath v. Alabama, 106 S.Ct. at 437.

The question before us, therefore, is whether Puerto Rico and the United States are "dual sovereigns" for double jeopardy purposes. Prosecuting entities are considered to be separate for double jeopardy purposes when they derive their power from different sources. Heath v. Alabama, 106 S.Ct. at 437; United States v Wheeler, 435 U.S. 313, 319-22, 98 S.Ct. 1079, 1083-85, 55 L.Ed.2d 303 (1978). It is well settled that when states enact and enforce their own criminal laws, they are acting pursuant to their own sovereign power, not that of the national government. See United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922). Puerto Rico's status is not that of a state in the federal union, but, its criminal laws, like those of a state, emanate from a different source than the federal laws.

Although the legal relationship between Puerto Rico and the United States is far from clear and fraught with controversy, it is established that Puerto Rico is to be treated as a state for purposes of the double jeopardy clause. In 1950 Congress enacted legislation "so that the people of Puerto Rico may organize a government pursuant to a constitution of their own adoption." Puerto Rican Federal Relations Act, Pub.L. No. 600, 64 Stat. 319 (1950). The purpose of the Federal Relations Act "was to accord to Puerto Rico the degree of autonomy and independence normally associated with States of the Union." Examining Bd. of Eng'rs, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 594, 96 S.Ct. 2264, 2277, 49 L.Ed.2d 65 (1976). "Puerto Rico, like a state, is an autonomous political entity,...." Rodriguez v. Popular Democratic Party, 457 U.S. 1, 8, 102 S.Ct. 2194, 2199, ...

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