United States Court of Appeals
For the First Circuit
Nos. 01-2148
01-2150
01-2151
01-2152
UNITED STATES,
Appellee,
v.
RAFAEL AYALA AYALA, ROBERT F. KENNEDY, JR., DENNIS HICKEY RIVERA,
and ARMANDO TORRES ORTÍZ,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Torruella, Selya, and Lipez, Circuit Judges.
Harry Anduze Montaño for appellants Kennedy and Rivera.
Linda Backiel for appellants Ayala and Ortíz.
Stella Song, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant United States Attorney, and Frank J. Bustamonte, Special
Assistant United States Attorney, were on brief, for appellee.
April 29, 2002
LIPEZ, Circuit Judge. Rafael Ayala Ayala, Robert F.
Kennedy, Jr., Dennis Hickey Rivera, and Armando Torres Ortíz were
convicted of entering onto the Camp García Naval Installation on
the island of Vieques, in violation of 18 U.S.C. § 1382.
Unpersuaded by their arguments on appeal, we affirm their
convictions.
I. Background
On April 28, 2001, appellants participated in a campaign
of civil disobedience aimed at disrupting live-fire artillery and
bombardment exercises which the Navy periodically conducts in and
around Vieques. Each was charged with violating 18 U.S.C. § 1382
(barring entry "upon any military, naval, or Coast Guard
reservation, post, fort, arsenal, yard, station, or installation,
for any purpose prohibited by law or lawful regulation"). The four
cases (along with four others) were consolidated for trial in the
district court on July 6, 2001. Appellants were convicted and
sentenced to thirty days' imprisonment.
On appeal, Ayala and Ortíz argue that the informations
against them should have been dismissed because the government
failed to take them before a magistrate within 48 hours of their
arrest; that the government did not prove that they had entered
onto a naval installation in violation of 18 U.S.C. § 1382; and
that the evidence at trial was insufficient to establish that they
were among the individuals detained on Vieques on April 28, 2001.
Kennedy and Rivera argue that the district court judge erred in
refusing to permit them to put on a defense of necessity, and in
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not recusing himself from the case. We address these issues in
turn.
II. The 48-Hour Rule
Federal Rule of Criminal Procedure 5(a) states, in
pertinent part, that "any person making an arrest without a warrant
shall take the arrested person without unnecessary delay before the
nearest available federal magistrate judge." Although Rule 5(a)
does not specify what would constitute an "unnecessary delay,"
courts have construed the Fourth Amendment as imposing a
presumptive 48-hour time limit on detentions in the absence of a
probable cause determination.1 "Where an arrested individual does
not receive a probable cause determination within 48 hours," the
burden is on the government "to demonstrate the existence of a bona
fide emergency or other extraordinary circumstance." County of
Riverside v. McLaughlin, 500 U.S. 44, 57 (1991). Having been
brought before a magistrate approximately 51 hours after their
initial detention, Ayala and Ortíz argue that the district court
erred in denying their motion to dismiss the informations against
them on that ground. We review the district court's construction
of Rule 5(a) and the Fourth Amendment de novo, and its factual
determinations for clear error. United States v. Encarnacíon, 239
F.3d 395, 397 (1st Cir. 2001).
1
On the interaction of Rule 5(a) and the Fourth Amendment,
we have observed that "[w]hile the Rule 5(a) and Fourth Amendment
contexts are certainly analogous, the 48-hours rule is a
requirement of the Fourth Amendment, not Rule 5(a)." United States
v. Encarnacíon, 239 F.3d 395, 398 n.2 (1st Cir. 2001) (citation and
internal quotation marks omitted).
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Ayala and Ortíz's motion to dismiss asserted the
following facts, which the government has not disputed. Appellants
were detained by military personnel at approximately 11:20 a.m. on
April 28 and transported to a detention/processing center at Camp
García (on Vieques), where they were searched, questioned, and
photographed. The next morning appellants were transported by boat
to Roosevelt Roads, a naval installation on the main island of
Puerto Rico, where they were again searched, questioned, and
photographed. "Late on Sunday night," April 29, appellants were
moved to the Metropolitan Detention Center in Guaynabo. Some time
after 2:00 p.m. on April 30, Ayala and Ortíz were taken before a
magistrate.
The government filed a cursory response: "The motion is
without merit. It has been rejected by the sections of this Court
considering this issue. See e.g. Memorandum Order by Judge José
Antonio Fusté, dated June 1, 2001, in the case of United States v.
Cecilio Lebron, #01-330. Based upon the extraordinary demands
fixed by the large number of arrestees brought over from Vieques
Island, the time elapsed was not unreasonable."
At trial, in denying the motion to dismiss, the district
court said that 181 individuals had been arrested in the "wave" of
trespassers which included Ayala and Ortíz, and that the large
number of detainees, and the transportation required to get them
before a magistrate, constituted "extraordinary circumstances" that
warranted an exception to the 48-hour rule. The district court was
entitled to take judicial notice of the 181 arrests, a circumstance
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readily ascertainable by the district court. See Fed. R. Evid.
201(b)(2) (authorizing judicial notice of facts "capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned"). Although the relevant
facts in the record are regrettably sparse, the district court
concluded correctly that over 100 civil disobedience arrests at a
naval base on an island off the coast of Puerto Rico, executed in
the midst of a military exercise, constitute an extraordinary
circumstance sufficient to justify the slight delay beyond 48 hours
in bringing Ayala and Ortíz before a magistrate.2
2
In United States v. Salivas-González, 147 F. Supp. 2d 58
(D.P.R. 2001), a case arising out of the same Vieques protest,
Judge Fusté ruled that delays in excess of 48 hours in taking
detainees before a magistrate were justified by extraordinary
circumstances. This is presumably the opinion the government had
in mind in its motion to dismiss, which cited a "Memorandum Order
by Judge José Antonio Fusté, dated June 1, 2001" (same date as
Salivas-González). Judge Fusté gave a detailed explanation of the
circumstances which he deemed extraordinary:
The logistics entailed by the Navy arrest and
processing, and the eventual civil processing and
transportation of the arrestees to the metropolitan area
was not a simple task. The majority of Deputy U.S.
Marshals available had been previously assigned to secure
the perimeters within the naval base at Camp García,
leaving a small number of Deputy U.S. Marshals available
for the processing of arrestees. Thus, special
consideration should be given to:
(a) the limited transportation means between
Vieques and Puerto Rico;
(b) the burdensome conditions being faced by
the U.S. Marshals (limited available personnel
to arrest, process, and transport over one-
hundred arrestees, while still meeting
security requirements);
(c) the large number of violent incidents
being reported (which excluded the possibility
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In Encarnacíon, we reserved the question "whether Rule
5(a) can ever be a basis for dismissal of an indictment absent
evidence of unwarranted interrogation during the period of
detention." 239 F.3d at 400 n.5. Without now deciding that
question, we also note the absence in this case of any claim of
prejudice arising out of appellants' detention beyond 48 hours.
III. The Informations
The informations charged that Ayala and Ortíz had entered
onto "lands reserved for the exclusive jurisdiction of the United
States" in violation of 18 U.S.C. § 1382, which provides for
punishment of "[w]hoever, within the jurisdiction of the United
States, goes upon any military, naval, or Coast Guard reservation,
post, fort, arsenal, yard, station, or installation, for any
purpose prohibited by law or lawful regulation." Ayala and Ortíz
moved under Federal Rule of Criminal Procedure 29 for a judgment of
of assigning a judicial officer to conduct
initial proceedings to any other place than
secure/court premises) . . . .
[U]pon receiving notice that the U.S. Marshals did not
have sufficient personnel to escort over one-hundred
arrestees to court, arrangements were made to hold the
initial appearances at MDC-Guaynabo, the most logical
place that could accommodate the large number of people
to be handled. All regular visits to MDC had to be
canceled by the Bureau of Prisons. Equipment was
gathered for use, such as copy machines and faxes.
Personnel was assigned to process the individuals,
including two magistrates, two courtroom deputy clerks,
two interpreters, and various other court employees. A
system had to be devised between the Clerk's Office and
MDC to coordinate bond, bond setting and taking of the
bond monies.
Id. at 61-62 (footnote omitted).
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acquittal at the close of the prosecution's case, arguing, inter
alia, that the piece of land on which they were arrested, the South
Salinas Finger, is not "reserved for the exclusive jurisdiction of
the United States," as the informations allege. In their view, the
South Salinas Finger is not part of a "military, naval, or Coast
Guard reservation," but instead is "submerged land[]" which has
been placed "under the control of the government of Puerto Rico"
pursuant to 48 U.S.C. § 749. Our review of the district court's
denial of a Rule 29 motion is de novo. United States v. Frigerio-
Migiano, 254 F.3d 30, 33 (1st Cir. 2001).
We agree with Ayala and Ortíz that the government failed
to prove that the South Salinas Finger is encompassed within the
boundaries of the Camp García naval reservation proper. Petty
Officer Larry Werner Roberts II described the South Salinas Finger
as "a little island on the south" side of Vieques. He testified
that "[i]t has a little land that connects the beach to the
island," a natural bridge of approximately 35 feet.3 However, a
line on the map the prosecution offered into evidence depicting the
ordinary high-tide line at Vieques -- the boundary of the Navy's
holdings -- does not encompass the location of the South Salinas
3
Although Roberts described the South Salinas Finger as an
"island," the government says that it is a peninsula. The
evidence, however, did not establish whether, at high tide, the
South Salinas Finger is connected to Vieques by land. Roberts
testified that he did not recall his feet getting wet as he walked
out to this "island," but there was no testimony concerning the
status of the tide at the time of the arrests. We need not resolve
this question, because, as explained infra, the government was not
required to prove that the South Salinas Finger was part of Camp
García proper.
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Finger. Instead, the portion of the map that corresponds to its
location is blank.
As the line on the Navy's map marking the mean high-tide
line around Camp García does not depict the South Salinas Finger,
Ayala and Ortíz argue that it must therefore be among Puerto Rico's
"submerged lands," which are "under the control of the government
of Puerto Rico." 48 U.S.C. § 749.4 The statute defines "control"
to include "all right, title and interest in and to and
jurisdiction and authority over the submerged lands underlying the
harbor areas and navigable streams and bodies of water in and
around the island of Puerto Rico and the adjacent islands and
waters." Id. § 749(3). Ayala and Ortíz assert that the South
Salinas Finger "is a classic example of submerged coastal [lands]
over which 'all right, title and interest in and to and
jurisdiction and authority' has been placed in the hands of Puerto
Rico" (quoting 48 U.S.C. § 749(3)), and that their venture onto the
South Salinas Finger thus could not have been an entrance onto
lands "reserved for the exclusive jurisdiction of the United
States," as the informations allege.
Again, Ayala and Ortíz have a point. Because the
government failed to prove that the South Salinas Finger is above
the mean high-tide line, we must accept the proposition in this
case that it is indeed "submerged land[]" placed "under the control
4
"Submerged lands" are defined to "include lands permanently
or periodically covered by tidal waters up to but not above the
line of mean high tide." 48 U.S.C. § 749(1).
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of the government of Puerto Rico" by 48 U.S.C. § 749. Such
submerged lands are not "reserved for the exclusive jurisdiction of
the United States," as the informations allege. However,
"[c]onvictions generally have been sustained as long as the proof
upon which they are based corresponds to an offense that was
clearly set out in the indictment. A part of the indictment
unnecessary to and independent of the allegations of the offense
proved may normally be treated as a useless averment that may be
ignored." United States v. Miller, 471 U.S. 130, 136 (1985)
(internal quotation marks omitted). In other words, "[s]urplusage
in an indictment need not be proved." United States v. McVeigh,
153 F.3d 1166, 1196 (10th Cir. 1998). The phrase "on lands
reserved for the exclusive jurisdiction of the United States" is
surplusage.5 If we disregard it, the informations still charge
unmistakably that Ayala and Ortíz knowingly and unlawfully entered
5
The text of the information charging Ortíz with a violation
of § 1382 reads as follows:
On or about April 28, 2001, in the District of Puerto
Rico and within the jurisdiction of this Court, that is,
on Camp Garcia Naval Installation at Vieques, Puerto
Rico, that is, on lands reserved for the exclusive
jurisdiction of the United States, ARMANDO TORRES ORTIZ,
defendant, did knowingly and unlawfully go upon said
Naval installation for any purpose prohibited by law or
lawful regulation, that is, 32 CFR Section 770.35 through
770.40, without first having obtained permission from the
Commanding Officer as required by the aforesaid
regulations. All in violation of Title 18, United States
Code, Section 1382.
The text of the information charging Ayala is identical in all
material respects.
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the Camp García Naval Installation in violation of 18 U.S.C.
§ 1382.6
The government's proof at trial established this unlawful
entry. In United States v. Ventura-Meléndez, another Vieques
trespassing case, we held that "'government ownership of the
property in question is not a requisite to violating Section
1382.'" 275 F.3d 9, 16 (1st Cir. 2001) (quoting United States v.
Allen, 924 F.2d 29, 31 (2d Cir. 1991)). Instead, a conviction
under 18 U.S.C. § 1382 "requires only that the government
demonstrate either a possessory interest in, or occupation or
control of, the area reserved by the military." Id. at 17.
Applying that rule to the installation on Vieques, we held that a
portion of "the area beyond the mean high-tide lines [was] under
the occupation and control of the Navy for purposes of § 1382"
because "a large swath of area extending beyond the shoreline of
the beach was permissibly designated as part of a 'danger zone' by
federal regulation" and therefore was subject to Navy occupation
and control. Id. at 17 (citing 33 C.F.R. §§ 334.2, 334.1480). We
explained that "Puerto Rico's jurisdiction over the shoreline was
established subject to the control of the United States." Id.
6
The surplus language in the informations does not obscure
the conduct that the government alleges violated § 1382: entry onto
the Camp García Naval Installation. Ayala and Ortíz do not claim
to have been in any way misled or unfairly prejudiced in their
defense by the government's inaccurate description of the land as
"reserved for the exclusive jurisdiction of the United States."
See Miller, 471 U.S. at 138 n.5. (disregarding surplusage where
appellant "show[ed] no prejudice to his ability to defend himself
at trial").
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There was uncontested evidence at trial that the South
Salinas Finger, the land on which Ayala and Ortíz were found, was
located inside a "danger zone" established by federal regulation.
See 33 C.F.R. §§ 334.2, 334.1470. A "danger zone" is "[a] defined
water area . . . used for target practice, bombing, rocket firing
or other especially hazardous operations, normally for the armed
forces," and "may be closed to the public on a full-time or
intermittent basis, as stated in the regulations."7 33 C.F.R.
§ 334.2(a).
Ayala and Ortíz counter that they were not charged with
violating 33 C.F.R. § 334.1470 (barring entry into a danger zone),
but rather 32 C.F.R. § 770.40 (barring entry onto "U.S. Naval
installations and properties"). However, we held in Ventura-
Meléndez, 275 F.3d at 16-18, that the language of § 1382, which on
its face is limited to "[w]hoever . . . goes upon any military,
naval, or Coast Guard reservation, post, fort, arsenal, yard,
7
The boundaries of the danger zone that encompasses the
South Salinas Finger are as follows:
From Punta Conejo on the south coast of Vieques at
latitude 18°06'30", longitude 65°22'33"; thence to
latitude 18°03'00", longitude 65°21'00"; thence to
latitude 18°03'00", longitude 65°15'30"; thence to
latitude 18°11'30", longitude 65°14'30"; thence to
latitude 18°12'00", longitude 65°20'00"; and thence to
Cabellos Colorados on the north coast of Vieques at
latitude 18°09'49", longitude 65°23'27".
§ 334.1470(a). The danger zone is "open to navigation at all times
except when firing is being conducted. At such times, no
persons . . . shall enter or remain within the danger area."
§ 334.1470(b)(1).
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station, or installation," also extends to those who enter into a
danger zone in proximity to a reservation, post, fort, arsenal,
yard, station, or installation. That being so, the distinction
Ayala and Ortíz advance, between entering a danger zone and
entering a naval installation, is without significance in this
context.8
IV. Notice
Section 1382 bars entry into a military installation "for
any purpose prohibited by law or lawful regulation." To establish
a prohibited purpose, the informations cited 32 C.F.R. § 770.40,
which provides that "[a]ny person entering or remaining on U.S.
Naval installations and properties in Puerto Rico, without the
advance consent of [enumerated officials], shall be . . . subject
to the penalties prescribed by 18 U.S.C. § 1382." This reliance on
the regulation is consistent with our holding in United States v.
Parrilla Bonilla, 648 F.2d 1373, 1377 (1st Cir. 1981), that "the
8
There was also uncontroverted evidence that the South
Salinas Finger was inside a security zone that was in existence on
April 28, 2001. A security zone is "an area of land, water, or
land and water which is so designated by the Captain of the Port or
District Commander for such time as is necessary to prevent damage
or injury to any vessel or waterfront facility, to safeguard ports,
harbors, territories, or waters of the United States or to secure
the observance of the rights and obligations of the United States."
33 C.F.R. § 165.30(a). The regulations provide that "[n]o person
or vessel may enter or remain in a security zone without the
permission of the Captain of the Port." 33 C.F.R. § 165.33(a). In
Allen, the Second Circuit held that unauthorized entry into a
security zone around a naval reservation was itself a violation of
18 U.S.C. § 1382. 924 F.2d at 30-31. As appellants' entry into
the danger zone is sufficient to support their conviction, we need
not decide whether entry into the security zone alone in this case
violated § 1382.
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requisite prohibited 'purpose' under section 1382 can consist of
unauthorized entry itself."
We have said that "when a section 1382 prosecution
proceeds on the basis that the defendant has entered a restricted
military reservation 'for the purpose of' unauthorized entry, . . .
it must be shown that the defendant had knowledge or notice that
such entry was, in fact, prohibited." Id. In the case of the
regulation establishing the danger zone at issue in Ventura-
Meléndez, the regulation itself states that "[n]o person or vessel
shall enter or remain within the restricted areas at any time
unless on official business." § 334.1480(b). The regulation
establishing the danger zone at issue in this case, however,
stipulates that "[i]t will be open to navigation at all times
except when firing is being conducted. At such times, no
persons . . . shall enter or remain within the danger area."
§ 334.1470(b)(1). To prove a violation of § 1382, then, the
government was required to demonstrate that notice was given that
the danger zone was closed to the public at the time of the
arrests.
There was testimony to that effect at trial. Lieutenant
Commander Russell Gottfried indicated that notice of imminent
military activities within the danger zone had been given in the
form of a fishermen's notice that was distributed around Vieques a
week in advance of the exercises. In addition to the fishermen's
notice, Gottfried testified that a temporary security zone was
established to prevent intrusions into the danger zone during the
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live-fire exercises, and that he heard notice of the security zone
broadcast over marine band radio "several times a day in the course
of the operations."9 In the Navy's view, these broadcasts supplied
additional notice that entry into the danger zone -- and thus onto
the South Salinas Finger -- was prohibited.10
Although there are two vague references to lack of notice
in their brief, Ayala and Ortíz do not make a developed mens rea
argument to the effect that they personally lacked knowledge or
notice of the exclusion of the public from the South Salinas
Finger. The two references appear in the section of the brief
challenging the government's failure to prove that appellants were
found on land "reserved for the exclusive jurisdiction of the
United States." There Ayala and Ortíz assert that "the Navy had
taken no action to warn others that it considered [the South
Salinas Finger] part of its exclusive domain in Vieques" (emphasis
added). This statement is explicitly linked to the exclusive
jurisdiction argument that we have rejected. They subsequently add
that the land was "in no way posted or otherwise identified to the
public as part of Camp García or land controlled by the Navy."11
9
The security zone is described supra at note 8.
10
Of course, the broadcasts also served to give notice that
entry into the security zone itself was prohibited.
11
There is arguably a third, even more oblique reference, to
a lack of warning that the South Salinas Finger was off limits to
the public. Appellants say that the danger zone created for
exercises in Vieques did not warn that violation would result in
prosecution. This statement seems to register a complaint about an
inadequate warning of the consequences of a violation. Notably,
the comment does not suggest a misapprehension about the fact that
entry into the danger zone would be a violation.
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This unelaborated reference to inadequate notice falls far short of
a developed argument that the government's proof did not satisfy
the mens rea element of § 1382. To the extent that there is a mens
rea claim lurking in the exclusive jurisdiction argument of Ayala
and Ortíz, we deem it waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) ("Issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.").
V. Identification of Ayala and Ortíz
Petty Officer Roberts testified that on April 28, 2001,
he detained four people on the South Salinas Finger. Rather than
identify those individuals in court, or testify to an out-of-court
identification pursuant to Federal Rule of Evidence 801(d)(1)(C),
Roberts simply stated that he recognized four photographs the
prosecutor displayed to him as having been taken on April 28 in his
presence.12 Although appellants acknowledge that the thrust of this
testimony was that the individuals in the photographs were the
persons arrested on April 28 on the South Salinas Finger, they
point out that Petty Officer Roberts never identified the
individuals in the photographs. Instead, the prosecutor submitted
the photographs to the court, with the explanation that "Government
Exhibit 9 is the photograph of Rafael Ayala-Ayala; No. 10 is that
of Defendant Armando Torres-Ortiz." The district court overruled
appellants' objection to the prosecutor's explanation.
12
Petty Officer Roberts himself appeared in the photographs
of Ayala and Ortíz.
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Ayala and Ortíz argued in their Rule 29 motion that there
was insufficient evidence to support a finding that they were the
individuals detained on the South Salinas Finger.13 The court ruled
that in-court identification was not required, "[a]s long as there
is evidence in the record that shows that the person that was
arrested is the person that is being accused."
"Identification of the defendant as the person who
committed the charged crime is always an essential element which
the government must establish beyond a reasonable doubt. However,
in-court identification by a witness is not necessarily required.
'Identification can be inferred from all the facts and
circumstances that are in evidence.'" United States v. Alexander,
48 F.3d 1477, 1490 (9th Cir. 1995) (citations omitted) (quoting
United States v. Weed, 689 F.2d 752, 754 (7th Cir. 1982)). Petty
Officer Roberts testified that the individuals he arrested on April
28 on the South Salinas Finger were those depicted in the
photographs which the prosecutor submitted to the court. At the
outset of the trial defense counsel had indicated to the court that
she was appearing "on behalf of Armando Torres-Ortiz and Rafael
Ayala-Ayala." See Alexander, 48 F.3d at 1490 ("[I]n-court
identification is not necessary when the defendant's attorney
himself identifies his client at trial."). The trial judge was
13
A heading in appellants' brief includes Rivera among the
appellants raising the identification issue. The argument under
that heading, however, refers only to Ayala and Ortíz. To the
extent that Rivera has stated an appeal on this issue, we reject it
for the same reasons we reject the appeals of Ayala and Ortíz.
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therefore in a position to make the necessary identification
finding based on a visual comparison of the photographs with the
defendants in the courtroom. The evidence was sufficient to
support a finding, beyond a reasonable doubt, that defendants Ayala
and Ortíz were among those detained on the South Salinas Finger on
April 28.
VI. The Necessity Defense
Appellants Kennedy and Rivera argue that the district
court erred in refusing to permit them to present the defense of
necessity. Kennedy and Rivera assert that they reasonably believed
that entering the Camp García installation was necessary to avert
a greater evil, which they characterize as "the Navy's violation of
the procedural and substantive requirements of the Endangered
Species Act [16 U.S.C. § 1531 et seq.] by continuously bombing
Vieques without completing or submitting to the United States Fish
and Wildlife Service . . . a proper biological assessment,
detailing the [likely] impact of the bombing on 13 separate species
of endangered or threatened animals and [plants] in the Vieques
area and the attendant harm to the species." We review a decision
to bar presentation of a specific defense at trial de novo. United
States v. Maxwell, 254 F.3d 21, 26 (1st Cir. 2001).
"The necessity defense requires the defendant[s] to show
that [they] (1) [were] faced with a choice of evils and chose the
lesser evil, (2) acted to prevent imminent harm, (3) reasonably
anticipated a direct causal relationship between [their] acts and
the harm to be averted, and (4) had no legal alternative but to
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violate the law." Id. at 27. Before putting on a necessity
defense, however, an initial hurdle must be cleared: if a "proffer
in support of an anticipated [necessity] defense is insufficient as
a matter of law to create a triable issue, a district court may
preclude the presentation of that defense entirely." Id. at 26.
We need not address the sufficiency of appellants'
proffer on the first two elements of the necessity defense because
we conclude that they failed to establish the third and fourth
elements of the defense. Appellants were required to show that
they "reasonably anticipated a direct causal relationship between
[their] acts and the harm to be averted." Id. at 27. They argue
that because it is the Navy's practice to suspend live-fire
exercises when civilians are spotted in the area, it was reasonable
for them to have believed that their presence on Vieques would
cause at least a temporary suspension of the exercises. However,
we rejected a similar necessity defense advanced in another Vieques
trespassing case, observing that "[a]ppellants offered no evidence
to support their claim that their trespassory protests will result
in a change of U.S. Naval policy so that the bombing and ammunition
testing in Vieques will cease." United States v. Sued-Jiménez, 275
F.3d 1, 7 (1st Cir. 2001). In short, there is not a direct causal
relationship between the trespassing and the harm to be averted,
beyond the sort of "temporary cessation" of the bombing that we
have found insufficient to support a necessity defense. Id.
Nor have Kennedy and Rivera exhausted all legal
alternatives to violating the law. We have observed that "the
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decided cases teach that a defendant's legal alternatives will
rarely, if ever, be deemed exhausted when the harm of which he
complains can be palliated by political action." Maxwell, 254 F.3d
at 29. Appellants submit that the district court's failure to act
on their demand for a preliminary injunction barring military
exercises on Vieques indicates that they had no legal alternative
to engaging in civil disobedience.14 There are, however,
innumerable forms of political and legal action that Kennedy and
Rivera could have undertaken in pursuit of their objective of
stopping the bombing on Vieques. See Maxwell, 254 F.3d at 28-29.
While legally sanctioned forms of activism might not have achieved
an immediate halt to the military exercises, "appellants cannot
claim they have no legal alternatives merely because their law-
abiding efforts are unlikely to effect a change in policy as soon
as they would like." Sued-Jiménez, 275 F.3d at 7. A contrary
holding "would be tantamount to giving an individual carte blanche
to interpose a necessity defense whenever he becomes disaffected by
the workings of the political process." Maxwell, 254 F.3d at 29.
14
That demand was made in a lawsuit filed by Water Keeper
Alliance, of which appellants Kennedy and Rivera are members, in
October of 2000. As of April 28, 2001, the district court had not
acted on the demand for a preliminary injunction. See Water Keeper
Alliance v. United States Dept. of Def., 152 F. Supp. 2d 155
(D.P.R. 2001). Appellant Kennedy is also an attorney for Water
Keeper Alliance. The district court denied the motion for a
preliminary injunction in June of 2001, and we affirmed that denial
in November of 2001. See Water Keeper Alliance v. United States
Dept. of Def., 271 F.3d 21 (1st Cir. 2001).
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VII. Recusal of the District Court Judge
Kennedy and Rivera appeal the district court judge's
denial of their motion that he recuse himself from the case. Under
28 U.S.C. § 455(a), a federal judge "shall disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned." They argue that because the judge had presided over
a lawsuit seeking to halt the bombing exercises on Vieques that was
filed by the Water Keeper Alliance, an organization of which
Kennedy and Rivera were members and for whom Kennedy was an
attorney, "a reasonable observer could conclude that [his]
impartiality in the criminal case was compromised."15 The
allegation is not one of actual bias, but rather that an appearance
of partiality existed. See United States v. Snyder, 235 F.3d 42,
45 (1st Cir. 2000) (28 U.S.C. § 455 "forbids not only the reality
of partiality but its objective appearance as well"). Kennedy and
Rivera suggest that recusal is in order "when participants in a
civil case . . . become criminal defendants before the same judge,
accused, in essence, of attempting to obtain by 'self-help' the
relief they had sought to obtain . . . in the civil action."16 We
15
See supra at note 14 for the history of the Water Keeper
litigation.
16
In the view of Kennedy and Rivera, the recusal issue is
linked to the necessity defense. Kennedy and Rivera argue that
recusal was required because "an objective person . . . could
reasonably perceive one of the factual elements of [the necessity]
defense -- . . . Kennedy and Rivera'[s] belief that [the] Court's
failure to rule on their preliminary injunction motion prior to the
bombing on April 27, 2001 left them with no alternative but to
enter [Camp García] in order to stop [the] bombing -- to be an
affront to the Court's authority in the civil case."
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review the refusal of a trial judge to recuse himself for abuse of
discretion. Id. at 46.
We discern no abuse of discretion in the district court
judge's decision not to recuse himself. We have said that
disqualification is appropriate when "the facts asserted provide
what an objective, knowledgeable member of the public would find to
be a reasonable basis for doubting the judge's impartiality." In
re Boston's Children First, 244 F.3d 164, 167 (1st Cir. 2001)
(internal quotation marks omitted). "Prior judicial exposure to a
defendant or defendants, without more, is . . . not enough [to
establish bias]." United States v. Parrilla Bonilla, 626 F.2d 177,
180 (1st Cir. 1980). Kennedy and Rivera made no showing that the
district court judge's impartiality could reasonably be questioned.
We therefore conclude that the judge did not abuse his discretion
in declining to recuse himself.
Affirmed.
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