United States v. Perez-Gonzalez

United States Court of Appeals
For the First Circuit

No. 04-1104

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ PÉREZ-GONZÁLEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lynch and Howard, Circuit Judges,
and Restani,* Judge.

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.

April 14, 2006

*Chief Judge of the U.S. Court of International Trade, sitting by
designation.
 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

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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

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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

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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

1
The government questions whether Pérez-González preserved all
issues for plenary appellate review, but opines that they fail on
the merits in any event. Except where we note otherwise, we will
presume that Pérez-González's contentions were preserved.

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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

2
Rule 12(f) prior to the 2002 amendments.
3
Indeed, Pérez-González identified himself from the photo.

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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 (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).

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 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

4
Section 1361 provides, in relevant portion:

Whoever willfully injures or commits any depredation
against any property of the United States, or of any
department or agency thereof, . . ., or attempts to
commit any of the foregoing offenses, shall be punished
as follows:
If the damage or attempted damage to such property
exceeds the sum of $1,000, by fine under this title or
imprisonment for not more than ten years, or both; if the
damage or attempted damage to such property does not
exceed the sum of $1,000, by a fine under this title or
by imprisonment for not more than one year, or both.

Section 844(f)(1) states:

Whoever maliciously damages or destroys, or attempts to
damage or destroy, by means of fire or an explosive, any
building, vehicle, or other personal or real property in
whole or in part owned or possessed by, or leased to, the
United States, or any department or agency thereof, or
any institution or organization receiving Federal
financial assistance, shall be imprisoned for not less
than five years and not more than 20 years, fined under
this title, or both.

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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 each prospective

juror outside the presence of the others.

Motions for continuances are reviewed for manifest abuse

of discretion, see United States v. Orlando-Figueroa, 229 F.3d 33,

39 (1st Cir. 2000), and motions for a change of venue are reviewed

for abuse of discretion, see United States v. Rodriguez-Cardona,

924 F.2d 1148, 1158 (1st Cir. 1991). In assessing the need for a

change of venue or a continuance based on pretrial publicity, "the

court must determine if prejudice exists from the publicity."

Orlando-Figueroa, 229 F.3d at 42. "The test for prejudice

5
We do not address whether a conviction for a misdemeanor Section
1361 violation would raise double jeopardy concerns if paired with
a conviction under Section 844(f)(1).
6
As noted by the government, the two counts are also directed to
different conduct: Count III was directed to the burning of the
vehicle, while Count VI was directed to the initial damage
inflicted on the vehicle with sledgehammers and wire cutters.

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sufficient to justify a change of venue is whether (a) the facts

show that jury prejudice should be presumed, and (b) if prejudice

should not be presumed, whether the jury was actually prejudiced

against the defendant." Rodriguez-Cardona, 924 F.2d at 1158.

"Prejudice may be presumed where inflammatory publicity has so

saturated a community as to render it difficult to draw an

impartial jury or where enough jurors admit to prejudice to cause

concern as to any avowals of impartiality by the other jurors."

Orlando-Figueroa, 229 F.3d at 43. But mere exposure of the

potential jury pool to news reports regarding the crime does not,

in and of itself, result in an inability to select an impartial

jury. See generally United States v. Medina, 761 F.2d 12, 19 (1st

Cir. 1985); United States v. Drougas, 748 F.2d 8, 29 (1st Cir.

1984) ("Extensive knowledge in the community of either the crimes

or the defendants is not sufficient, by itself, to render a trial

constitutionally unfair.").

There is nothing in the record -- no statements by jurors

indicating animus, no examples of inflammatory newspaper articles

or prejudicial news reports,7 and no evidence whatsoever of the

pervasiveness or tone of the media coverage -- to substantiate

Pérez-González's argument. And with regard to the voir dire, only

7
The government contends that the three articles that Pérez-
González attached to his motion to continue did not mention him and
were objective rather than inflammatory. We concur as to the one
article in English, but cannot tell as to the other two because
Pérez-González has failed to provide us with translations.

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ten of seventy-five potential jurors (less than 14%) stated that

they could not be impartial, and the district court promptly

excluded them. This is far too few potential jurors indicating

bias to warrant any presumption of prejudice. See United States v.

Moreno Morales, 815 F.2d 725, 734-36 (1st Cir. 1987) (that 25% of

potential jurors believed defendant guilty not sufficient).

Moreover, the district court repeatedly reminded the jurors to keep

an open mind and to avoid media reports or other sources of

information about the case.

Pérez-González also maintains that the district court

erred in questioning potential jurors about bias as a group rather

than individually out of the presence of the others. However, he

failed to raise this argument in the district court. But even if

he had, the court's procedure would not constitute reversible

error. While we have endorsed the concept of individual

questioning in high profile cases, see Medina, 761 F.2d at 20, we

have approved "group" questioning of potential jurors about bias as

within the district court's broad discretion in conducting voir

dire, see Orlando-Figueroa, 229 F.3d at 43.8 Pérez-González has

8
We note as well that this is not a case where juror partiality
would have inevitably worked against Pérez-González. The Vieques
issue is a complicated one, fostering much civil disobedience, see,
e.g., United States v. Ayala, 289 F.3d 16 (1st Cir. 2002); United
States v. Ventura-Melendez, 275 F.3d 9 (1st Cir. 2001), and there
might well have been potential jurors predisposed to be sympathetic
to Pérez-González.

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presented no basis for questioning the appropriateness of the

district court's voir dire procedure in this case.

Pérez-González next asserts that the videotapes should

not have been admitted because they were improperly authenticated,

misleadingly edited, misleadingly presented, and unduly prejudicial

within the meaning of Fed. R. Evid. 403. We review a district

court's decision to admit or exclude evidence for abuse of

discretion. See United States v. Perez-Ruiz, 353 F.3d 1, 10 (1st

Cir. 2003). As to prejudice, "[t]rial judges enjoy wide latitude

in making Rule 403 rulings and are only overturned after a showing

of egregious error." United States v. Kornegay, 410 F.3d 89, 96

(1st Cir. 2005). As to authentication, "Federal Rule of Evidence

901(a) requires the trial court to determine if there is a

reasonable probability that the evidence is what it is purported to

be." United States v. Carlos Cruz, 352 F.3d 499, 506 (1st Cir.

2003) (internal citation and quotation omitted); see also United

States v. Alicea-Cardoza, 132 F.3d 1, 4 (1st Cir. 1997)("[I]f the

district court is satisfied that the evidence is sufficient to

allow a reasonable person to believe the evidence is what it

purports to be, Rule 901(a) is satisfied and the jury may decide

what weight it will give the evidence.").

The district court's admission of the videotapes was

within its broad discretion. The news photographers were called as

witnesses and authenticated the videotapes, and Pérez-González

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cross-examined them about their editing procedures. He provides no

inkling why this was inadequate. Pérez-González's claims about

misleading and prejudicial presentation -- an alleged "slowing up"

of the tape and the inclusion of inflammatory audio commentary --

are simply not supported by the record (and would not constitute

reversible error if they were). The videotapes were also highly

relevant, as they showed the offense as it occurred and

corroborated many aspects of the government witnesses' testimony.

Finally, they were prejudicial only in the sense that they were

damaging. This is not "prejudice" within the meaning of Rule 403.

See, e.g., United States v. O'Shea, 426 F.3d 475, 485 (1st Cir.

2005); see also United States v. Curtis, 344 F.3d 1057, 1067-68

(10th Cir. 2003).

Pérez-González next argues that certain photographs

admitted into evidence did not accurately depict the objects

photographed at the relevant time, included "visual elements" that

were irrelevant and prejudicial, and should have been excluded

under Fed. R. Evid. 401, 402, and 403.

Pérez-González first challenges the admission of exhibit

57a -- which shows a masked individual in front of a damaged Humvee

with its front seat on fire -- on the ground that there is no

indication when the photograph was taken or that any of the

perpetrators wore masks. But the photograph is clearly relevant to

Count III (which involved the initial burning of the Humvee) and

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corroborates the testimony of government witnesses that several

rioters wore masks.

Pérez-González also challenges exhibit 16 (four news

photos on one page) on the ground of "blurriness," and exhibits 56-

60 (news photos) on the ground that they include commentary and

opinion. The former characterization is inaccurate, as the

pictures are sufficiently clear, and the latter is specious, as the

photos do not have captions or any accompanying text.

Finally, Pérez-González makes a generalized "global"

challenge to exhibits 17-51. Again here, his argument is baseless.

All the photos were relevant, properly authenticated, accurately

depicted the damage done, and corroborated the testimony of the

government witnesses.9

Pérez-González next posits that his in-court

identification by various law enforcement officials, who lacked an

adequate opportunity to observe him during the riot, should have

been disallowed because the procedure employed was improperly

suggestive and likely to yield a misidentification. He also argues

that the trial court should have permitted him to sit in the

gallery and ordered an in-court line-up.

In evaluating an identification, the court looks first to

whether an inappropriately suggestive procedure was employed. See

9
To the extent Pérez-González seeks to challenge other photographic
evidence, he has done so too casually to merit further discussion.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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United States v. Henderson, 320 F.3d 92, 100 (1st Cir. 2003). If

so, the court must "decide whether the identification itself was

reliable under the totality of the circumstances, notwithstanding

the suggestive procedure." Id. (internal citation and quotation

omitted). Exclusion of (or prohibition of) an identification is

only appropriate if the court believes there is a very substantial

likelihood of irreparable misidentification. Id.; see also United

States v. Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993) ("[I]t is

only in extraordinary cases that identification evidence should be

withheld from the jury.")(internal quotation and citation omitted).

The district court acted well within its discretion in

permitting the jury to consider the identification evidence. All

the identifying officers saw videotapes and photographs of Pérez-

González before trial. Indeed, because law enforcement officials

were intently reviewing those materials in an attempt to identify

the perpetrators, a careful review of the visual evidence was an

essential step in the investigation. This is not a situation

involving a dubious photo array or a one-person show-up. See,

e.g., Jesus-Rios, 990 F.2d at 677-78. Further, there is no

entitlement to an in-court line-up or other particular procedure.

See Curtis, 344 F.3d at 1063. And in any event, the argument has

a bit of a surreal quality to it because Pérez-González admitted

that he was the individual in the photograph which accompanied the

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indictment and which was generated from the videotape of the riot

that the officers reviewed.

Pérez-González next challenges the sufficiency of the

evidence establishing the conspiracy and the value of the

government property destroyed.10 "We will affirm the conviction if,

after assaying all the evidence in the light most amiable to the

government, and taking all reasonable inferences in its favor, a

rational factfinder could find, beyond a reasonable doubt, that the

prosecution successfully proved the essential elements of the

crime." Boulerice, 325 F.3d at 79 (internal citation and quotation

omitted). The government need not succeed in "eliminating every

possible theory consistent with the defendant's innocence," and

"[w]e will affirm if any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt."

Id. (internal citation and quotation omitted).

In challenging his conspiracy conviction, Pérez-González

emphasizes that mere presence or similar actions to other

individuals is insufficient to show membership in a conspiracy. He

points out that there was no evidence of communication by cell

phone or walkie-talkies, and that the incident can only be

10
In his brief, Pérez-González has not challenged his conviction
under 18 U.S.C. § 844(f)(1) for aiding and abetting the destruction
of the Humvee by fire. He has thus waived the claim.

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considered a riot and not the result of an organized criminal

endeavor.

To prove the elements of the crime of
conspiracy, the government must show the
existence of a conspiracy, the defendant's
knowledge of the conspiracy, and the
defendant's voluntary participation in the
conspiracy. More specifically, to establish
that a defendant belonged to and participated
in a conspiracy, the government must prove two
kinds of intent: intent to agree [with his co-
conspirators] and intent to commit the
substantive offense. Such proof may consist
of circumstantial evidence, such as acts
committed by the defendant that furthered the
conspiracy's purposes.

United States v. Llinas, 373 F.3d 26, 30 (1st Cir. 2004) (internal

citation and quotation omitted). The agreement "need not be

express, but may consist of no more than a tacit understanding."

United States v. Echeverri, 982 F.2d 675, 679 (1st Cir. 1993)

(internal citation and quotation omitted). "[E]ach coconspirator

need not know of or have contact with all other members, nor must

they know all of the details of the conspiracy or participate in

every act in furtherance of it." United States v. Martinez-Medina,

279 F.3d 105, 113 (1st Cir. 2002). However, mere presence at the

scene or simple association with the conspirators will not suffice

to establish guilt. Llinas, 373 F.3d at 32.

There was sufficient evidence to support the conspiracy

conviction. Various co-defendants came to the event armed with

sledgehammers and wire cutters -- odd things to bring to a

celebration unless one was planning mischief. In addition, the

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attack appeared coordinated, with participants spilling on to the

base at multiple entry points and nearly simultaneously. Moreover,

the perpetrators covered the mile and a half from the main gate to

Camp Garcia and the motor pool in about twenty minutes, which is

suggestive of a planned assault. And if the evidence of a

conspiracy is sufficient, there can be no doubt that the jury

reasonably found Pérez-González to be a conspirator. He is shown

on videotape smashing the Humvee with a sledgehammer, scuffling

with police, and driving a water truck into the main gate until it

collapsed.11 While the jury conceivably could have reached a

different conclusion, that does not suffice to undermine the

verdict. See Echeverri, 982 F.2d at 678("we require only that a

jury's verdict be supportable, not that it be inevitable"); United

States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991)("the

factfinder may decide among reasonable interpretations of the

evidence").

Pérez-González next argues that the government failed to

prove that the destroyed Humvee and main gate were valued at over

$1,000 each. He asserts that the government's own records

establish that the Humvee was transferred from the Navy to the

11
Significantly, several individuals rode along with Pérez-González
in the water truck and helped him escape arrest by grabbing the
would-be arresting officer around the neck. A rational jury could
conclude that confederates, rather than mere bystanders, were
involved with Pérez-González in these dangerous activities.

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USFWS at a value of $0, and that the main gate only cost $450 to

build.

These arguments are frivolous. The government called

witnesses who testified that the Humvee was only valued at $0 for

purposes of the transfer because two federal entities (as opposed

to an outside purchaser) were involved. Moreover, the government

presented evidence that the replacement cost and residual value of

the Humvee far exceeded $1000. And, while the gate may have only

cost $450 to construct, it was constructed over forty years ago.

Its current value (or replacement cost) was supportably pegged at

more than $40,000.

Finally, Pérez-González challenges the jury instructions

regarding the conspiracy charge and the value of the government

property destroyed. But he has not explained what was wrong with

the conspiracy charge, and his attack on the instructions is both

inadequately elaborated and, so far as we can tell, based upon the

specious suggestion that the jury could have found the property

destroyed to be worth less than $1000.

Affirmed.

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