United States v. Cuzman Vega

United States Court of Appeals
For the First Circuit

No. 01-2027

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN CARLOS GUZMAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.

Juan R. Acevedo-Cruz on brief for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney (Chief, Criminal
Division), and Stella J. Song, Special Assistant United States
Attorney, on brief for appellee.

March 8, 2002
 SELYA, Circuit Judge. On April 28, 2001, United States

Navy personnel arrested defendant-appellant Juan Carlos Guzman

for trespassing on the premises of Camp Garcia, a military

installation located on the island of Vieques, Puerto Rico.1 The

government thereafter filed an information charging the

appellant, inter alia, with two Class B misdemeanors: count 1

— knowingly entering upon a naval installation for a purpose

prohibited by law without first having obtained permission from

the commanding officer, in violation of 18 U.S.C. § 1382; and

count 2 — assault on a naval officer, in violation of 18 U.S.C.

§ 111(a)(1). A third count, which accused the appellant of

assaulting a United States Deputy Marshal, was abandoned

midstream and need not concern us.

The appellant moved to dismiss the charges due to

outrageous government misconduct. The district court decided to

take evidence on this motion and withheld an immediate ruling.

On June 13, 2001, the court conducted a bench trial that doubled

in brass as an evidentiary hearing on the motion to dismiss.

The court denied the motion, found the appellant guilty on both

remaining counts, and imposed concurrent sentences of forty-five

1There is some confusion in the record as to the correct
spelling of the appellant's surname (which appears variously as
"Guzman" or "Cuzman"). We employ the spelling that appears in
both the indictment and the district court docket.

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days' imprisonment on count 1 and ninety days' imprisonment on

count 2. This timely appeal followed.

The appellant assigns error only to the district

court's denial of his motion to dismiss. The facts touching

upon this motion are largely undisputed. On April 27, 2001, the

Navy, consistent with a previous announcement, commenced battle-

preparedness exercises, including simulated bombing, near the

island of Vieques. A swarm of protesters appeared. About fifty

of them, including the appellant, tore down a portion of the

fence that marked the perimeter of Camp Garcia and entered the

base without permission. Once inside, they engaged in various

forms of disruptive conduct. For his part, the appellant hurled

rocks that hit and injured at least one petty officer.

The next day, the appellant again entered the base

illegally. This time, naval security personnel apprehended him

(along with approximately twenty other protesters). Pursuant to

routine procedure, they handcuffed all the detainees and

transported them by truck to a holding area. Processing

proceeded along standard lines. The regimen included searching

each detainee, completing necessary paperwork, and taking

photographs.

At the holding area, two officers recognized the

appellant as a rock-thrower from the previous day. They

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promptly classified him as a security risk and segregated him

from the other detainees. Naval personnel placed him on his

knees with his cuffed hands against a wall and guarded him until

he was called for processing. The appellant was kept in this

position for, at most, seventy minutes.

The appellant was barefoot and clad in shorts when

arrested. The floor of the yard in which he was held was of

cement construction, and the venue was exposed to the elements

(including the midday tropical sun). At one point, the

appellant asked to be taken inside the detention center, but his

request was denied.

The appellant was one of the last persons processed.

The government asserts, without contradiction, that this was

because security personnel were awaiting the arrival of a

special agent of the Naval Criminal Investigative Service to

conduct an investigation of the assault that had occurred on the

previous day. After all the detainees (including the appellant)

had been processed, they were transported to Roosevelt Roads

Naval Station (about a two-hour boat ride) and arraigned there

by a magistrate judge.

The appellant premises his claim of outrageous

government misconduct on these events. In his counsel's words,

the pat-down search of his clothing and body "can only be

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characterized a[s] offensive, unnecessary and brutal."

Appellant's Br. at 12. Forcing him to kneel, barefooted, on a

cement floor, with his handcuffed hands over his head, for more

than one hour, amounted to "torture." Id. at 13. This inhumane

treatment was all the worse because he received no food or

water,2 and was afforded no rest. Based on this view of the

record, the appellant argued below — as he does before us — that

the charges against him should be dismissed to sanction the

government and deter it from inflicting such indignities upon

prisoners in the future.

The district court, after hearing the evidence,

determined that the conduct of the arresting officers was not

outrageous, and refused to dismiss the charges. It observed

that the appellant "didn't get arrested for not praying in

church; [he] got arrested for rock throwing, hurting people, and

for trespassing." While the court indicated some disapproval of

the Navy's course of conduct and acknowledged that the

consequences to the appellant were not "pleasant," it concluded

that no valid basis existed for dismissal of the charges. The

court grounded this conclusion on its finding that the Navy's

2
The record contains no indication that the appellant
requested food or water during this period.

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handling of the matter did not "involv[e] extreme physical or

psychological abuse to the defendant."

The district court's ultimate conclusion that the

government was not guilty of misconduct sufficient to justify

dismissal of the charges engenders de novo review. United

States v. Nunez, 146 F.3d 36, 38 (1st Cir. 1998); United States

v. Diggs, 8 F.3d 1520, 1523 (10th Cir. 1993). The court's

factual findings, however, are reviewable only for clear error.

United States v. Mateo, 271 F.3d 11, 13 (1st Cir. 2001).

In rare and extreme circumstances, a federal court has

the authority to dismiss criminal charges as a sanction for

government misconduct. United States v. Russell, 411 U.S. 423,

431-32 (1973); United States v. Mosley, 965 F.2d 906, 911 (10th

Cir. 1992); see also Hampton v. United States, 425 U.S. 484,

491-95 (1976) (affirming the existence of the outrageous

governmental misconduct doctrine articulated by the Russell

Court) (dictum). But the law frowns on the exoneration of a

defendant for reasons unrelated to his guilt or innocence, and,

accordingly, the power to dismiss charges based solely on

government misconduct must be used sparingly. See United States

v. Santana, 6 F.3d 1, 10 (1st Cir. 1993) (warning that "[p]otent

elixirs should not be casually dispensed"). It follows that the

outrageous government misconduct doctrine is reserved for the

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most appalling and egregious situations. See United States v.

Barbosa, 271 F.3d 438, 469 (3d Cir. 2001). At the very least,

the defendant must show that the challenged conduct violates

commonly accepted norms of fundamental fairness and is shocking

to the universal sense of justice. Russell, 411 U.S. at 432;

Nunez, 146 F.3d at 38; United States v. Matiz, 14 F.3d 79, 82

(1st Cir. 1994).

Here, the challenged conduct does not cross the

extremely high threshold of the outrageous government misconduct

doctrine. The Navy was faced with large numbers of protesters,

in a tense atmosphere. The appellant had committed a crime of

violence — throwing rocks at naval personnel — and posed obvious

safety concerns. The surroundings were fairly primitive, and

circumstances forced the Navy to improvise. Such considerations

matter. See Santana, 6 F.3d at 6 ("What shocks the conscience

in a given situation may be acceptable, although perhaps grim or

unpleasant, under a different set of circumstances."). Finally,

the actions of which the appellant complains did not compromise

his defense or prejudice his case. This is a consideration of

some moment. See United States v. Voigt, 89 F.3d 1050, 1066 (3d

Cir. 1996); see also Santana, 6 F.3d at 11 (explaining that

federal courts ordinarily should "refrain from using the

supervisory power to conform executive conduct to judicially

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preferred norms by dismissing charges, absent cognizable

prejudice to a particular defendant").

We need go no further. In this instance, the trial

court's factual findings are solidly anchored in the record, and

its legal conclusion follows logically from those findings.

While the naval personnel involved in this incident certainly

could have been more considerate in their handling of detainees,

the measures that they took were roughly proportionate to the

context in which the detention occurred. In all events, nothing

about the officers' conduct was so clearly intolerable or so

offensive to the universal sense of justice as to warrant

jettisoning the charges. What transpired here was not pretty,

but to call it "brutal torture," Appellant's Br. at 7, is to

elevate hyperbole over common sense.

Affirmed.

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