U.S. v. Perez-Gonzalez

• Decision Date: 14 April 2006
• Docket Number: No. 04-1104.,04-1104.
• Citation: 445 F.3d 39
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. José PÉREZ-GONZÁLEZ, Defendant, Appellant.

445 F.3d 39

UNITED STATES of America, Appellee, v. José PÉREZ-GONZÁLEZ, Defendant, Appellant.

No. 04-1104.

United States Court of Appeals, First Circuit.

Heard September 16, 2005.

Decided April 14, 2006.

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Jorge L. Armenteros Chervoni, with whom Pedro J. Varela, was on brief, for appellant.

Sonia Torres, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Senior Appellate Attorney, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH and HOWARD, Circuit Judges, and RESTANI,^* Judge.

HOWARD, Circuit Judge.

Defendant José Pérez-González appeals his convictions arising from his violent and destructive conduct at the former U.S. Naval base at Vieques, Puerto Rico. We affirm.

I.

We present the facts in the light most favorable to the verdict, see United States v. Boulerice, 325 F.3d 75, 79 (1st Cir.2003), reserving a discussion of some facts for our analysis. The U.S. Navy intended to end its presence in Vieques by transferring the lands making up its base to the U.S. Fish and Wildlife Service ("USFWS") on May 1, 2003. Just prior to the transfer, the Navy provided the USFWS with several vehicles and other equipment previously used on the base. Most of the vehicles and equipment were enclosed in a fenced motor pool area within a thirty-five acre compound known as "Camp Garcia." Camp Garcia was approximately one and a half miles from the base's main entrance.

On the night of April 30, 2003, a large crowd gathered outside the base's main gate to celebrate. The crowd included political figures, members of the media, and law enforcement officials on hand to keep the peace. But what began as a peaceful rally quickly turned into a riot.

Shortly before midnight, a large group armed with wire cutters and sledgehammers broke down a section of fencing and entered the base. Nearly simultaneously, others entered (or attempted to enter) the base at other points. Several of these intruders converged on Camp Garcia, broke down the fence, and commandeered and vandalized vehicles and equipment. With news cameras capturing the action, the rioters vandalized or destroyed a number of government vehicles, equipment and buildings. Most significantly for present purposes, they burned a Boston Whaler boat and a Humvee, and demolished the guard post at the main gate. Images and accounts of the riot were widely broadcast in Puerto Rico and formed the basis for public debate.

Law enforcement officials reviewed photographs and videotapes of the incident and managed to isolate twelve significant participants, eleven of whom they could identify by name. A grand jury returned a six-count indictment against the twelve individuals (including the unidentified "John Doe" defendant who later proved to be Pérez-González) for conspiracy, damaging government property, and damaging government property by fire or explosive. Four counts named the John Doe defendant: a count charging conspiracy to damage government property and to damage government property by fire or explosive, see 18 U.S.C. §§ 371, 1361, & 844(f)(1) (Count I); a count charging aiding and abetting the destruction of the Humvee by means of fire, see 18 U.S.C. § 844(f)(1)(Count III); a count charging the destruction of the concrete entrance gate with damages exceeding $1000, see 18 U.S.C. § 1361 (Count IV); and a count charging the destruction of the Humvee with damages exceeding $1000, see 18 U.S.C. § 1361 (Count VI). An arrest warrant issued for the John Doe defendant. The warrant included the description "Male, White Hispanic, Approximately 5 Feet 9 Inches and 210 Pounds" and was accompanied by a photograph of Pérez-González standing on a Humvee with a sledgehammer. The photo was provided to the news media and widely publicized. After seeing it, Pérez-González went to the FBI and identified himself as both the "John Doe" defendant named in the indictment and the person in the photo.

Shortly before the scheduled trial, all of Pérez-González's co-defendants pled guilty. After Pérez-González unsuccessfully moved for a continuance or a change of venue, he was tried alone. At the voir dire, the district court questioned the potential jurors about their exposure to news stories about the riot and whether they could be impartial. While most had seen or read about the incident, only ten of the seventy-five potential jury candidates were excused because they could not be impartial.

At trial, the government called law enforcement officers who were at the demonstration or involved in the investigation, government officials involved in the transfer of property between the Navy and the USFWS, and FBI Agent Amado Vega, the primary investigator. The government also introduced videotapes of the demonstration, photographs of the demonstration (some derived from the videotapes) and aftermath, and various other documentary evidence. The videotapes were particularly striking, as they showed Pérez-González smashing a Humvee with a sledgehammer, scuffling with police, and repeatedly crashing a government water truck into the guard post until it collapsed. Pérez-González presented no evidence and did not take the stand. The jury convicted him on all counts, and the district court sentenced him to concurrent terms of sixty months on Count I and fifty-one months on Counts III, IV, and VI.

II.

Pérez-González first argues¹ that his arrest warrant was illegal because it was a constitutionally inadequate "John Doe" warrant. See United States v. John Doe, 703 F.2d 745 (3d Cir.1983) (warrant describing subject only as "John Doe" was constitutionally insufficient). He also argues that, because of the inadequate warrant and the further failure to provide him with Miranda warnings after he turned himself in, his post-arrest statements identifying himself as the man in the photo should have been suppressed.

Pérez-González first raised these issues in the district court by means of a motion to suppress filed on the first day of trial. The district court denied the motion as to the arrest warrant, but held a hearing mid-trial regarding the post-arrest statements. The court then concluded that the statements were voluntary.

By waiting until the first day of trial to challenge the warrant and statements, Pérez-González has forfeited these issues. See Fed.R.Crim.P. 12(e);² see also United States v. Lopez-Lopez, 282 F.3d 1, 9-10 (1st Cir.2002); United States v. Bashorun, 225 F.3d 9, 13-17 (1st Cir.2000). A court may grant relief from the forfeiture if a party establishes cause for its failure to file a timely motion to suppress, see Lopez-Lopez, 282 F.3d at 10, but Pérez-González does not even attempt to do so.

"The question whether an appellate court may review for plain error despite a [Rule 12(e)] waiver, provided that the record enables review, is open in this circuit." Id. at 10 n. 4. But even if we assume the power to correct a plain error in circumstances such as these, we would not do so here. The challenged warrant was never formally executed, as Pérez-González voluntarily surrendered to authorities. Further, Agent Vega testified that the warrant was accompanied by a photo, a significant factor in assessing its adequacy. See Fed. R.Crim.P. 4(b)(1)(A) (a warrant must "contain the defendant's name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty").³ And Pérez-González has presented us with no reason to question the district court's conclusion that the statements were voluntary. Cf. United States v. McLean, 409 F.3d 492, 498-99 (1st Cir.2005) (defendant's statements made in his offer to cooperate held voluntary).

Pérez-González next argues that his convictions under Counts III and VI violate the Double Jeopardy Clause. He maintains that he is being improperly punished twice for the same offense because 18 U.S.C. § 1361, the subject of Count VI, is a lesser included offense of 18 U.S.C. § 844(f)(1), the subject of Count III.

The Double Jeopardy Clause protects against multiple punishments for the same offense unless the legislature clearly intended to impose multiple punishments for the offense. United States v. Patel, 370 F.3d 108, 114 (1st Cir.2004). Thus, to determine whether multiple punishments are authorized, we must first seek to determine the legislature's intent. Id. If the legislature's intent is unclear, we apply the Blockburger test, see Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as a "default rule of statutory construction." Patel, 370 F.3d at 114. "Under Blockburger, . . . the test. . . is whether each [statute] requires proof of an additional fact which the other does not." Id. (internal citation and quotation omitted).

Pérez-González asserts that the legislative intent with regard to the joint application of the two statutes is ambiguous and proceeds to a Blockburger analysis. We accept arguendo that Blockburger applies, but a review of the relevant statutes dooms his argument. While both provisions clearly pertain to the damaging of government property,⁴ Section 844(f) includes the additional element of the use of fire or explosives and Section 1361 includes the additional element of a minimum monetary damage amount (to be charged as a felony⁵), distinctions that Pérez-Gonzalez's counsel conceded at oral argument. The offenses are distinct under Blockburger. See Patel, 370 F.3d at 114.⁶

Pérez-González next maintains that he was entitled to a continuance of the trial or a change of venue due to pretrial publicity. He asserts that media coverage was so intense, biased, and inflammatory — the media mentioned him by name and directly commented on the evidence against him — that it was difficult to draw an impartial jury. He also argues that the district court committed reversible error in failing to voir dire...