United States v. Florentino-Rosario

• Decision Date: 08 May 2020
• Docket Number: Criminal No. 19-659 (FAB)
• Parties: UNITED STATES of America, Plaintiff, v. Luis A. FLORENTINO-ROSARIO, Defendant.
• Court: U.S. District Court — District of Puerto Rico

459 F.Supp.3d 345

UNITED STATES of America, Plaintiff,

v.Luis A. FLORENTINO-ROSARIO, Defendant.

Criminal No. 19-659 (FAB)

United States District Court, D. Puerto Rico.

Signed May 8, 2020

Seth A. Tremble, United States Department of Justice, San Juan, PR, for Plaintiff.

Javier A. Morales-Ramos, Javier A. Morales Ramos Law Office, San Juan, PR, for Defendant.

OPINION AND ORDER

BESOSA, District Judge.

Before the Court is defendant Luis A. Florentino-Rosario ("Florentino")’s motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and, in the alternative, for a new trial pursuant to Federal Rule of Criminal Procedure 33. (Docket No. 55.) For the reasons set forth below, Florentino's motion, id., is DENIED .

I. Background

A. Factual Background

In this section, the Court recounts the evidence consistent with the standard applicable to a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29. Any differences pertinent to the Court's resolution of Florentino's alternative Rule 33 motion are discussed in the section dealing with that rule.

In reviewing a motion for judgment of acquittal, courts "consider[ ] the evidence in the light most favorable to the prosecution." United States v. Lara, 181 F.3d 183, 200 (1st Cir. 1999) (citations omitted). Rule 29 motions require a court to "take into account all evidence, both direct and circumstantial, and resolve evidentiary conflicts and credibility disputes in favor of the jury's verdict."

United States v. Valerio, 676 F.3d 237, 244 (1st Cir. 2012). At the same time, the court "must ‘reject those evidentiary interpretations and illations that are unreasonable, insupportable, or overly speculative.’ " United States v. Rodríguez-Martínez, 778 F.3d 367, 371 (1st Cir. 2015) (quoting United States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995) ).

In September 2019, Florentino was stopped at an airport in Puerto Rico. He had no documents or legal status to be in the United States. He had a passport from the Dominican Republic and told law enforcement authorities that he is a citizen of the Dominican Republic. Florentino admitted to law enforcement authorities that he entered the country illegally by sea. He had been in the United States for a couple months.

At the time, Florentino was given a document by United States law enforcement authorities stating that he is subject to expedited removal from the country because he did not have legal status in the United States and entered without permission. The document further advised Florentino that he was banned from entering the United States for five years. Florentino acknowledged at that time that he received the document.

Florentino was removed from the United States to the Dominican Republic on the same day he was arrested in September 2019.

Approximately one month later, in October 2019, United States law enforcement authorities stopped a boat off the west coast of Puerto Rico headed towards Puerto Rico. The boat was interdicted roughly nineteen nautical miles from Puerto Rico. The boat was covered with a blue tarp, a tactic often used by drug smugglers to hide from law enforcement.

Florentino and thirteen other people were on the boat. Law enforcement considered that to be an excessive number given the size of the boat and was concerned for the safety of the fourteen individuals. The people on the boat generally did not respond to the authorities’ questions, but one person on the boat said the group had come from the Dominican Republic.

Florentino was arrested. He confirmed to law enforcement authorities that he is a citizen of the Dominican Republic. He further noted that he had previously been removed from the United States, a fact the law enforcement authorities also discovered through investigation.

The law enforcement authorities investigated whether Florentino had a legal right to be in the United States. They learned that there were no pending petitions to enter or remain in the United States. Florentino confirmed that he had no such documents. Florentino acknowledged that he had previously applied for a visa but had been denied.

Florentino also discussed with law enforcement authorities his purpose for being on the boat. He said he was attempting to enter the United States. Florentino knew that Puerto Rico is part of the United States. He paid $2000 to get to the United States. He also explained that he was attempting to come to the United States to look for work so that he could build a house in the Dominican Republic. Florentino told law enforcement that he was going to Rio Piedras, Puerto Rico.

B. Procedural Background

In October 2019, a grand jury charged Florentino with attempted reentry into the United States in violation of 8 U.S.C. section 1326(a). (Docket No. 6.)

In December 2019, Florentino moved this Court for an order to the United States Citizenship and Immigration Services for production of Florentino's asylum petition. (Docket No. 15 at p. 1.) According to the motion, the asylum petition was received by the federal agency in November 2019. Id. The Court granted the motion. (Docket No. 16.) The government was unable to locate a copy of the petition. (Docket No. 27.) Florentino renewed his asylum petition in January or February 2020. See Docket No. 36.

The government requested jury instructions. (Docket No. 25.) The requested instructions included the indictment, a copy of the text of 8 U.S.C. section 1326, and pattern instructions associated with section 1326. Id.; see Nancy Torresen, 2019 Revisions to Pattern Criminal Jury Instructions for the District Courts of the First Circuit 78 (2019), available at http://www.med.uscourts.gov/pdf/crpjilinks.pdf (instruction 4.08.1326) [hereinafter "Pattern Instructions"].

Florentino also moved the Court for three jury instructions. (Docket No. 36.) One of these instructions provided that attempted reentry of the United States "is a specific intent crime in the sense that an ‘attempt to enter’ requires a subjective intent on the part of the defendant to achieve entry into the United States as well as a substantial step toward completing that entry." Id., Ex. 1 at p. 1. That language is taken directly from United States v. De León, 270 F.3d 90, 92 (1st Cir. 2001). According to Florentino, the De León court broke with past precedent in the First Circuit which, he says, had held that section 1326 does not require specific intent. Id. at pp. 1–2 (citing United States v. Cabral, 252 F.3d 520, 524 (1st Cir. 2001) ; United States v. Soto, 106 F.3d 1040, 1041 (1st Cir. 1997) ).

Florentino's second-requested instruction highlighted the mental states reflected in the Model Penal Code. See id., Ex. 1 at p. 2. Florentino asked the Court to instruct the jury that "[t]he definition of ‘intent’ has been replaced with a hierarchy of culpable states of mind," and that these four states of mind are purpose, knowledge, recklessness, and negligence. Id. Florentino believed the instruction is supported by United States v. Bailey, 444 U.S. 394, 404, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). Id. at p. 2. The instruction would have also distinguished and defined the mental states of "purpose" and "knowledge." Id., Ex. 1 at p. 2.

The third instruction requested by Florentino would have asked the jury to find whether Florentino was justified in attempting reentry because of duress. Id., Ex. 1 at p. 3. Florentino characterized the instruction as "Justification: Self-Defense, Duress, Necessity," see id., but the Court considers the request as seeking a duress instruction because the instruction tracks the elements of the duress defense, compare id., with United States v. Lebreault-Feliz, 807 F.3d 1, 3–4 (1st Cir. 2015) (stating elements of duress and necessity defenses).

The government moved to prevent Florentino from both introducing his asylum claim and presenting a duress defense at trial. (Docket No. 39.) According to the government, Florentino did not make a prima facie showing necessary for presentation of a duress defense. Id. at pp. 4–5. The government also raised the possibility of jury nullification should Florentino's asylum petition be entered into evidence. Id. at p. 5. Florentino opposed the motion, seeking to distinguish some of the caselaw on which the government relied and focusing on the meaning of the word "immediate." (Docket No. 44 at pp. 3–8.) Florentino asked the Court to not rule on the motion in limine until after he presented evidence at trial. Id. at p. 8. The Court granted the government's motion and precluded Florentino from introducing duress evidence at trial. (Docket No. 46.)

Florentino then objected to the Court's proposed jury instructions. (Docket No. 47.) According to Florentino's objection, the proposed instructions were deficient on the issue of mens rea. Id. at pp. 1–4. Unfortunately, however, the objection was inconsistent.

At certain points, Florentino's objection to the proposed jury instructions tracked his initial request for jury instructions. Florentino reiterated that the government should have to prove a subjective intent to enter the United States, stating,

In this case, the jury should be clearly instructed on the element of "specific intent" which is the correct degree of mens rea required by the crime of attempted re-entry. Note: "Attempt," here as elsewhere, is a specific intent crime in the sense that an "attempt to enter" requires a subjective intent on the part of the defendant to achieve entry into the United States as well as a substantial step toward completing that entry.

Id. at pp. 1–2. He further emphasized that the jury instructions should distinguish between purpose and knowledge. Id. at 2–3.

At other points, however, Florentino endorsed a different view of section 1326. Florentino pointed to a decision from the Ninth Circuit Court of Appeals holding that section 1326 requires the government to prove—not just an intent to enter the United States, as in De León—an intent to illegally enter the United States. Id. at p. 2 (ci...