U.S. v. Villarin Gerena, 76-1468

Decision Date29 April 1977
Docket NumberNo. 76-1468,76-1468
Citation553 F.2d 723
PartiesUNITED STATES of America, Appellee, v. Tomas VILLARIN GERENA, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

John L.A. de Passalacqua, Isla Verde, P. R., with whom Victor Miguel Casal and Santos P. Amadeo, Santurce, P. R., were on brief for defendant, appellant.

Marie E. Klimesz, Atty., Dept. of Justice, Washington, D. C., with whom Julio Morales Sanchez, U. S. Atty., San Juan, P. R J. Stanley Pottinger, Asst. Atty. Gen., and Walter W. Barnett, Atty., Dept. of Justice, Washington, D. C., were on brief for appellee.

Before COFFIN, Chief Judge, INGRAHAM *, Senior Circuit Judge, and CAMPBELL, Circuit Judge.

INGRAHAM, Circuit Judge.

Tomas Villarin Gerena of the Puerto Rico Police Force struck a private citizen numerous times and arrested him without probable cause. He was convicted by a jury for violation of 18 U.S.C. § 242. 1 The trial court sentenced him to two years probation conditioned upon his resignation from the police force. 2 On appeal Villarin contests (1) the applicability of § 242 in the Commonwealth of Puerto Rico, and (2) the requirement that he leave the police force. We affirm.

Appellant moved to dismiss the indictment for lack of jurisdiction under § 242. His claim that the statute does not apply touches upon the relationship of the Commonwealth and our national government. Because many questions about this relationship are unresolved, we approach the jurisdictional issue with a scalpel rather than a bludgeon.

We resolve a threshold question by holding that appellant's victim, Jorge Osvaldo Zambrana Roche, was deprived of the exercise of "rights, privileges, or immunities secured or protected by the Constitution or laws of the United States," which is a prerequisite to a § 242 violation. Freedom from arrest without probable cause and from police violence are fundamental constitutional rights. They apply in Puerto Rico as forcefully as elsewhere. Cf. Examining Board of Engineers, Architects and Surveyors v. Flores de Otero,426 U.S. 572, 599-600, 96 S.Ct. 2264, 49 L.Ed.2d 65 n. 30 (1976). Acevedo Montalvo v. Colon, 377 F.Supp. 1332, 1335-43 (D.P.R. 1974). Like the Supreme Court, we have no need to decide whether the Fourth Amendment's protection against unreasonable arrest and the Fifth Amendment's due process clause apply directly or are funneled through the Fourteenth Amendment. Id. 426 U.S. at 601, 96 S.Ct. 2264. Because this is so, we do not consider whether a broad reading of 48 U.S.C. § 737 might also give Villarin's victim a federal remedy.

We now proceed to the jurisdictional claim briefed by the parties. In 1866, when the Thirty-ninth Congress enacted the predecessor statute to § 242, 3 and in 1870, when the Forty-first Congress extended it to "any inhabitant of any State or Territory," 4 Puerto Rico was a Spanish possession. However, "pre-acquisition" statutes are presumed to apply to United States territories. Puerto Rico v. Shell Oil Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 (1937). In that case the Supreme Court held:

". . . When the Sherman Act was passed (1890), we had no insular dependencies . . . . Certainly, Congress at that time did not have Puerto Rico in mind. But that is not enough. It is necessary to go further and to say that if the acquisition of that insular dependency had been foreseen, Congress would have so varied its comprehensive language as to exclude it from the operation of the act."

Shell Oil Co., supra, at 257, 58 S.Ct. at 169. We cannot believe that Congress intended to except the Territory of Puerto Rico from the operation of § 242. Appellant offers no reason why Congress would have withheld from Puerto Rico the protection of a statute designed to deter the misuse of official authority.

The elevation of Puerto Rico to Commonwealth status did not render § 242 inapplicable. Section 9 of the Puerto Rican Federal Relations Act, 48 U.S.C. § 734, is a general savings clause which states that United States statutes "not locally inapplicable" have equal force and effect in Puerto Rico. In Examining Board, supra, the Supreme Court held that 28 U.S.C. § 1343(3) 5 is operative in Puerto Rico. The United States District Court for the District of Puerto Rico may therefore entertain civil suits for violations of 42 U.S.C. § 1983. 6 Section 1983 is the civil counterpart of 18 U.S.C. § 242. See Monroe v. Pape, 365 U.S. 167, 184-85, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). It would be anomalous to allow § 1983 suits but prohibit § 242 prosecutions. Both statutes vindicate federal rights and give governmental officials concrete reasons for respecting those rights. We think § 242 weathered the creation of the Commonwealth as sturdily as did §§ 1983 and 1343(3).

Moreover, in Examining Board, supra, 426 U.S. at 594, n. 26, 96 S.Ct. at 2277, the Supreme Court concluded that the federal district court in Puerto Rico "possesses the same jurisdiction as that conferred on the federal district courts in the several states." Further, the Court determined that this jurisdiction was "left undisturbed" by the creation of Puerto Rico's Commonwealth status. Examining Board, supra, at 594, 96 S.Ct. 2264. In order to adopt appellant's position, we would have to hold that the district court in Puerto Rico had its jurisdiction bifurcated in regard to protecting a victim of police illegality, dependent upon whether the action is instituted civilly or criminally. There is no support in Examining Board for such jurisdictional erosion.

Appellant has offered a few closely reasoned arguments which are intriguing but unpersuasive. First, he analogizes to District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), arguing that the Commonwealth, like the District of Columbia, is sui generis. Carter exempted the District of Columbia from the operation of § 1983, but Examining Board disposed of the contention that the Commonwealth should receive similar treatment:

". . . We readily concede that Puerto Rico occupies a relationship to the United States that has no parallel in our history, but we think that it does not follow that Congress intended to relinquish federal enforcement of § 1983 by restricting the jurisdiction of the Federal District Court in Puerto Rico. It was observed in Carter, 409 U.S., at 427, (93 S.Ct., at 607) that Congress, in enacting the civil rights legislation with which we are concerned, recognized that it 'had neither the means nor the authority to exert any direct control, on a day-to-day basis, over the actions of state officials,' and that the 'solution chosen was to involve the federal judiciary.' Congress similarly lacked effective control over actions taken by territorial officials, although its authority to govern was plenary.28 The same practical limitations on Congress' effectiveness to protect the federally guaranteed rights of the inhabitants of Puerto Rico existed from the time of its cession and, after 1952, when Congress relinquished its control over the organization of the local affairs of the island and granted Puerto Rico a measure of autonomy comparable to that possessed by the States, the need for federal protection of federal rights was not thereby lessened. Finally, § 1983, by its terms, applies to Territories; Puerto Rico, but not the District of Columbia, obviously was one of these. Whether Puerto Rico is now considered a Territory or a State, for purposes of the specific question before us, makes little difference because each is included within § 1983 and, therefore, 28 U.S.C. § 1343(3).

Examining Board, supra, 426 U.S. at 596-97 and n. 28, 96 S.Ct. at 2278. Appellant's argument is similarly ineffective with respect to § 242.

Appellant next argues that § 242 has undergone textual amendment since the creation of the Commonwealth, but that the statute has not been amended to include Puerto Rico. He reasons that this omission, coupled with the direct reference to the Commonwealth in 18 U.S.C. § 245, 7 indicates that Congress intended to exclude Puerto Rico from the effect of § 242. Judge Magruder's observations are particular appropriate here:

". . . (W)hen Congress uses the term 'territory', this may be meant to be synonymous only with 'place' or 'area', and not necessarily to indicate that Congress has in mind the niceties of language of a political scientist who might say that Puerto Rico under its commonwealth status has ceased to be an unincorporated 'territory' of the United States.

. . . "If, then, the Congress originally intended to apply the Act to Puerto Rico, it would seem clear, in view of the general provision of the Federal Relations Act to the effect that the statutory laws of the United States not locally inapplicable shall have the same force and effect in Puerto Rico as in the United States, that it was not necessary for the Congress to alter specifically all outstanding statutes thereto previously applicable in order to continue their effectiveness in Puerto Rico after it became a commonwealth in 1952."

Moreno Rios v. United States, 256 F.2d 68, 71-72 (1st Cir. 1958). Moreno Rios is settled law and sensible doctrine.

We conclude that the district court had jurisdiction to try appellant.

The district court required Villarin to resign from the Puerto Rico Police Force during his probation. Appellant claims that this sentence constitutes an abuse of discretion, is cruel and unusual punishment and imposes unnecessary economic hardship upon his family since his only skills are in law enforcement. Because the district judge undoubtedly considered the facts which led to this prosecution, we think they deserve examination in our review of his sentencing decision.

Appellant was in uniform while on duty at the San Juan International Airport. He ordered fish at a mobile canteen. The victim Zambrana was buying a carton of milk. When appellant complained that he had not received the fish he had ordered,...

To continue reading

Request your trial
28 cases
  • Schiller v. Strangis
    • United States
    • U.S. District Court — District of Massachusetts
    • June 4, 1982
    ...cause as defined by federal and state law); United States v. Stokes, 506 F.2d 771 (5th Cir.1975). See also United States v. Villarin Gerena, 553 F.2d 723 (1st Cir. 1977). One may argue that the "willfulness" element of the criminal statute is itself a "something more" requirement of the kin......
  • Fernandez v. Leonard, 85-1403
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 6, 1986
    ...the victim's constitutional rights. Landrigan v. City of Warwick, 628 F.2d 736, 741-42 (1st Cir.1980). Accord United States v. Villarin Gerena, 553 F.2d 723, 724 (1st Cir.1977); Luce v. Hayden, 598 F.Supp. 1101, 1104 (D.Me.1984); Ramos v. Gallo, 596 F.Supp. 833, 837 (D.Mass.1984); Schiller ......
  • Landrigan v. City of Warwick, 80-1053
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 27, 1980
    ...use of excessive force or violence by law enforcement personnel violates the victim's constitutional rights. United States v. Villarin Gerena, 553 F.2d 723, 724 (1st Cir. 1977); Clark v. Ziedonis, 513 F.2d 79, 80 n.1 (7th Cir. 1975); Jenkins v. Averett, 424 F.2d 1228, 1231-32 (4th Cir. 1970......
  • United States v. Maldonado-Burgos
    • United States
    • U.S. District Court — District of Puerto Rico
    • September 8, 2015
    ...renders § 2421(a)inapplicable to Puerto Rico. The First Circuit was confronted with an analogous controversy in United States v. Villarin Gerena, 553 F.2d 723 (1st Cir.1977). Although the challenged statute in Villarin is not § 2421(a), this Court finds the analysis therein to either be con......
  • Request a trial to view additional results
2 books & journal articles
  • A change of heart or a change of law? Withdrawing a guilty plea under Federal Rule of Criminal Procedure 32(e).
    • United States
    • Journal of Criminal Law and Criminology No. 2001, September 2001
    • September 22, 2001
    ...Gonzalez, 202 F.3d 20, 25 (1st Cir. 2000); United States v. Chavez-Huerto, 972 F.2d 1087, 1089 (9th Cir. 1992); Cordero v. United States, 553 F.2d 723, 726 (1st Cir. 1965); Guerra v. United States, No. 96 Civ. 8425, 1997 U.S. Dist. LEXIS 92, at * 3 (S.D.N.Y. Jan. 9, 1997) (memorandum (73) S......
  • Sentencing
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...in the proceedings leading to conviction. See Ala. v. Shelton, 535 U.S. 654, 667 (2002). 2371. See, e.g. , U.S. v. Villarin Gerena, 553 F.2d 723, 726-27 (1st Cir. 1977) (probationer-police off‌icer convicted of beating and arresting citizen without probable cause lawfully prohibited from em......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT