United States Court of Appeals
For the First Circuit
No. 99-1902
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL ALGARIN DE JESUS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Lydia Lizarribar-Masini for appellant.
Jeanette Mercado Rios, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, and Jorge E.
Vega-Pacheco, Assistant United States Attorney, Chief, Criminal
Division, were on brief for appellee.
May 2, 2000
COFFIN, Senior Circuit Judge. Defendant appellant, a
correctional officer employed by the Federal Bureau of Prisons
at the Metropolitan Detention Center in Guaynabo, Puerto Rico,
was convicted after a jury trial of engaging in a sexual act
with an inmate, in violation of 18 U.S.C. § 2243(b). The trial
centered on testimony of the female inmate that, while she was
in segregated custody in the Center’s Special Housing Unit,
defendant on several occasions had her submit to oral
copulation. She had managed to save some of the sperm in a pill
bottle, which was ultimately given to the FBI for DNA testing.
The major issue in this appeal is whether the district
court abused its discretion in denying defendant’s motion, filed
on the first day of trial, for funds under the Criminal Justice
Act, 18 U.S.C. § 3006A(e)(1), to hire a DNA expert to assist the
defense. Other issues involve evidentiary and sentencing
rulings. After close scrutiny of the motion history, we affirm.
We note that the specific motion for funds that
triggered the ruling at issue was the last event in a history of
motions and responses which does credit to neither side. We
find the government’s record of less than forthcoming response
to defendant’s repeated requests to be unintentional, however,
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and conclude that defendant bears responsibility for lack of
focused assertion of rights at critical times.
On October 13, 1998, defendant filed a motion under
Fed. R. Crim. P. 16, asking for any statements of defendant,
reports of tests, and, specifically referencing Rule
16(a)(1)(E), a written summary of any expert opinion with bases
and reasons therefor.1 The motion was granted on October 16.
On October 20, defendant received from the government
a four page report. The first page was entitled “Re: Receipt of
DNA Analysis Results.” It reported that FBI Examiner Baechtel
had examined two semen samples and blood samples of a number of
correctional officers and inmates; that one semen sample lacked
enough DNA to show a DNA profile; that the other sample revealed
DNA contributed by more than one person, and that the blood
samples of defendant and another officer did not exclude them as
potential contributors to the second DNA sample. It also noted
that Baechtel explained that these results “were not as detail
1 Since 1993, Fed. R. Crim. P. 16(a)(1)(E) has read in
part:
(E) Expert Witnesses. At the defendant’s request,
the government shall disclose to the defendant a
written summary of testimony that the government
intends to use under Rules 702, 703, or 705 of the
Federal Rules of Evidence during its case-in-chief
at trial.
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[sic] as would be his court testimony on the results of his
findings."
There was added a brief discussion of two tests
performed on the second sample showing that defendant’s DNA
pattern, though less detectible than his fellow officer’s,
“could be picked up slightly in the sample.” Other pages listed
the items examined, gave instructions for storing returned
processed DNA samples, and reported Baechtel’s findings
concerning the extremely low probability of finding someone in
the general Black, Caucasian, or Hispanic populations who could
have been a contributor to the examined sample.
Not content with this, defendant filed, on October 28,
a request for complete reports and any expert testimony to be
presented by the government. The motion was granted on October
30. On November 2, the government filed responses to a number
of discovery motions. Its response to the two requests noted
above was simply, “The requested information has been made
available in the discovery previously provided on October 20,
1998.”
On December 22, defendant filed a “motion in limine,”
referring in part to the Rule 16 motions, asserting that they
had not been complied with, and requesting that any evidence of
tests and expert testimony be excluded from the trial. On
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January 8, 1999, the government responded, saying only that
defendant was in error in asserting that it had not complied
with the early requests.
This response, predictably, led to a motion filed
February 11, 1999, entitled, “Urgent Motion Requesting Remedy.”
It rehearsed the familiar history, specifying the failure to
supply a written summary of any expert opinion as well as test
results, and requested that the government comply with the
court’s orders within five days or be barred from using DNA
evidence and testimony.
Nothing happened for almost three weeks. Then, on
February 22, defendant’s counsel drafted the motion for funds
that was filed, fifteen days later, on the first day of trial.
A pre-trial conference was held on February 23. We do not know
what, if any, mention was made of the motion for funds for a DNA
expert for the defense. What we do know is that on the same day
the court gave “further consideration” to defendant’s “urgent
motion” and ordered the government to provide defendant with a
written summary of FBI Examiner Baechtel’s testimony
“forthwith.”
In the face of this deliberate command, and against
this background, one would have thought that the government
would have complied without delay or at least recorded its
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serious efforts. One would also have thought that, armed with
this weapon, defendant would have wasted no time in invoking
sanctions for delay. Instead, we face only silence on this
issue for the next two weeks ending with the first day of trial.
On that day, March 9, 1999, defendant no longer sought to
suppress evidence and testimony as sanctions for failure of
compliance, but rather, in a reversal of approach, requested his
own expert. If the request had been granted, the recruitment
of an expert, familiarizing such expert with the record,
enabling new tests to be conducted and the resulting
consultations with defendant’s attorney would necessarily have
involved substantial delay.
What the district court faced on March 9, after
attempting to give defendant maximum timely assistance, was the
ex parte motion drafted two weeks earlier. It recited that
defendant had retained counsel for $6,000, had no further
resources, was indigent, and that a financial statement was
being prepared. It also stated that “due to special
circumstances of the [DNA] evidence, it has become necessary to
dispute the same.” It then cited the Criminal Justice Act and
requested an unspecified amount “for an investigator and an
expert witness in DNA.”
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In reviewing the court’s denial of the motion, we are
mindful of the fact that the burden is on the movant to
demonstrate the necessity of the expert services for an adequate
defense, see United States v. Mateos-Sanchez, 864 F.2d 232, 240
(lst Cir. 1989), and that we may reverse only for abuse of
discretion, see United States v. Manning, 79 F.3d 212, 218 (lst
Cir. 1996). Moreover, a request must be made in a timely
manner. See Moore v. Kemp, 809 F.2d 702, 710 (llth Cir. 1987)(en
banc). In this case, it is clear that the court was well within
the bounds of its discretion. The very first hurdle,
eligibility for Criminal Justice Act funds, was not even
approached. Although the motion had been prepared days before,
and had referred to the preparation of an eligibility document,
no financial analysis of defendant’s economic circumstances was
ever, so far as we know, presented. Substantive justifications
were similarly lacking. There was no indication of the
availability or identification of an appropriate expert or any
estimate of the expert’s fee and expenses. There was no
enlightenment as to why an investigator was needed in addition
to an expert witness. Not least, there was no explanation of
where and why the assistance of an expert was needed.
In oral argument, counsel stated that only on the
opening day of trial did she receive a complete summary and
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only then did she realize the complexity of the DNA issues. But
there is nothing in the filed motion to reflect this fact. And
this is somewhat inconsistent with defendant’s brief, where he
charges that “the prosecution never provided complete
disclosure” and that certain DNA testing results were only
“shown to counsel by Mr. Baechtel during trial recess” — which
would have been the third day of trial, March 15. Both sides
agree that further materials were made available to defendant
but disagree as to the time. All of this becomes academic,
however, since nothing is of record.
We wind down on this issue, unhappily concluding that
(1) the defendant early on was assiduous in pursuing materials,
particularly a written summary of expert testimony, to which he
was entitled; (2) the government blindly, blandly, wrongly, and
repeatedly claimed to have been in full compliance; (3) the
court, when it realized the fact of noncompliance, did its best
to empower defendant to get what he wanted; (4) defendant, after
issuance of the court’s order to the government to comply
“forthwith,” rested on his oars; and (5) after adopting a last
minute change of strategy from suppression to obtaining his own
expert, defendant confronted the court with a deeply flawed
motion for funds. In sum, we find no abuse of discretion in the
court’s decision.
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The remaining issues merit only brief discussion. The
first is a claim that the court committed error in allowing a
corrections officer to testify that a policy contained in a
publication, Standards of Employee Conduct, prohibited
corrections officers from "personal communications, sharing
one’s personal life" with inmates. Counsel had objected on the
grounds that appellant was not on trial for misconduct and that
proof of any such misconduct would have required notice of
"other crimes, wrongs, or acts" in advance of trial under Rule
404(b) of the Rules of Evidence.
We fail to see any basis for the argument. In the
first place, both the Standards and the fact that appellant had
acknowledged them had already been admitted into evidence
without objection. This was the only evidence alluded to in the
closing argument of the prosecutor. In the second place, one of
the standards read into evidence without objection was a
prohibition of engagement in sexual conduct with an inmate, the
very conduct stimulating this prosecution. Objecting to this
would be much the same as a reckless driving defendant’s
objecting to evidence that, while driving recklessly, he had
also exceeded a speed limit. To the extent the reference
concerned the bar against personal communications, such
preliminary interaction between appellant and an inmate was
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clearly, as the court ruled, part and parcel of the entire
transaction, necessary both to place conduct in context and to
shed light on appellant’s state of mind.
Appellant’s remaining argument is that the court erred
in refusing to depart downward in recognition of aberrant
behavior, since he was a first offender and his course of
conduct constituted only one crime. See United States v.
Grandmaison, 77 F.3d 555, 560-61 (lst Cir. 1996). If the
court’s refusal was in the exercise of its discretion, we have
no jurisdiction. See United States v. Aker, 181 F.3d 167, 173
(lst Cir. 1999).
In this case the court said it was not "inclined to
depart," reflecting that appellant’s conduct was "planned, was
done for a certain amount of time," and constituted an abuse of
authority over a person in a vulnerable position. It also noted
the absence of any sign of remorse or repentance.
Appellant’s argument rests on the proposition that the
court’s decision was based on an erroneous view of the law. It
was not. Although we have taken the position in Grandmaison
that aberrant behavior is not limited to spontaneous or
thoughtless acts, see 77 F.3d at 563, we noted that spontaneity
and thoughtlessness are among the factors to be considered in
assessing the totality of circumstances. So, we add, are their
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absence. The court properly considered the deliberateness and
duration of appellant’s conduct, particularly in a position of
grossly unbalanced power as between a corrections officer and an
inmate.
The court’s decision being an exercise of discretion
within its authority, we are powerless to review.
The judgment is therefore AFFIRMED.
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