United States v. Cruz

Opinion

USCA1 Opinion

May 7, 1996           [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                                     
                                 ____________________



        No. 95-1240



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                      JOHN CRUZ,



                                Defendant, Appellant.



                                                     
                                 ____________________



        No. 95-1650



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                  HUMBERT CARRERAS,



                                Defendant, Appellant.



                                                     
                                 ____________________


APPEALS FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________



                                                     
                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                            Coffin, Senior Circuit Judge,
                                    ____________________



                               and Cyr, Circuit Judge.
                                        _____________



                                                     
                                 ____________________



Frank D. Inserni for appellant Cruz.
             ________________

             Joseph A. Bondy, with whom Richard A. Canton and Canton & Jasper
             _______________            _________________     _______________

        were on brief for appellant Carreras.

             Warren V zquez, Assistant United States Attorney, with whom
             ______________

        Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, Senior
        _____________                          _______________________

        Litigation Counsel, Antonio R. Bazan, Assistant United States
                            ________________

        Attorney, and Miguel A. Pereira, Assistant United States Attorney,
                      _________________

        were on brief for appellee.


____________________


____________________


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Per curiam.  Appellants  Humbert Carreras and John Cruz
                    Per curiam.
                    __________



          challenge the district court judgments of conviction and sentence



          entered against  them following their  joint jury trial  for pos-



          sessing cocaine  with intent  to distribute, and  for conspiracy.



          See 21 U.S.C.    841(a)(1), 846 (1994).  We affirm. 
          ___



                                          I
                                          I



                                      BACKGROUND
                                      BACKGROUND
                                      __________



                    Just before  noon on September 19,  1993, United States



          Customs Service Officer Wilfredo  Cruz-Col n ("Officer Cruz") and



          "Jo-Jo," a  certified narcotics  detection dog, were  working the



          American Airlines "baggage pit" at Luis Mu oz Mar n International



          Airport ("Airport") in Carolina,  Puerto Rico, when Jo-Jo "alert-



          ed" to the presence of narcotics in a suitcase on a conveyor belt



          carrying  luggage  ultimately  bound  for  foreign  and  domestic



          airports.  Jo-Jo alerted  to nine other suitcases within  a short



          time  thereafter.   All ten  bags were  bound for  New York  City



          aboard American Airlines Flight 678.  Several bags bore Carreras'



          name and address.   Other luggage tags  designated either Nereida



          R os-Sol , Mar a Ort z, or  Mar a Due o-Ort z, who were traveling



          with Carreras.   Although appellant  John Cruz was  booked aboard



          Flight 678 as well, his name did not appear on any baggage tag. 



                    With  assistance  from  American   Airlines  personnel,



          Customs agents located Carreras and the three women on Flight 678



          as  it was  preparing to  depart for  New York.   After  the four



          passengers  had deplaned, Customs  agents examined their boarding



          passes and quickly looked  through Carreras' briefcase.  Although


3



all  four were  detained,  and  interrogated intermittently  over



          several hours, they did not consent to a search of their suitcas-



          es  or acknowledge possession of  any contraband.   Nor were they



          formally  placed under  arrest.   Finally, at  around  8:30 p.m.,



          after obtaining  a search warrant,  government agents  discovered



          approximately  20 kilograms of cocaine in each suitcase.  At that



          point,  Carreras  was given  Miranda  warnings  and placed  under
                                       _______



          arrest.



                    In due  course, Carreras  moved to  suppress admissions



          made  during  his extended  detention,  as well  as  the physical



          evidence seized  by Customs.   Following  a three-day  hearing, a



          magistrate judge  recommended suppression of  all the  challenged



          evidence  except  the cocaine  seized  from the  suitcases.   The



          district court  later ordered the Carreras admissions suppressed,



          but  declined to suppress the  cocaine and the  items seized from



          the Carreras briefcase.   United States v. Carreras,  851 F.Supp.
                                    _____________    ________



          502, 505-06 (D.P.R. 1994).



                    On  September 20,  1994,  the district  court issued  a



          final scheduling order,  setting October 24,  1994, as the  trial



          date and  directing that  all  "[d]ispositive motions,  including
                                                                  _________



          motions to  suppress, . .  . be filed  not later than  October 5,
          _______ __  ________            _____                  _______ _



          1994.  There-after  they shall not be  entertained.  See Fed.  R.
          ____   ___________  ____ _____ ___ __  ___________   ___



          Cr. P. 12(b)." (emphasis added).  On October 5, Carreras' present



          counsel  mailed a second motion to suppress  from New York to San
                   ______



          Juan, which was not  filed with the district court  until October
                               _____                                _______



          11.    The belated  motion challenged  the  legality of  the "dog
          __


4



sniff" and the practice of commingling domestic and international



          luggage  at the Airport.  In accordance with its final scheduling



          order, the district court declined to consider the  second motion



          to  suppress,  deeming its  claims  waived.   Trial  commenced on



          October 24, 1994, as scheduled.



                                          II
                                          II



                                      DISCUSSION
                                      DISCUSSION
                                      __________



          A.  The Carreras Appeal
          A.  The Carreras Appeal
              ___________________



                    Carreras attempts  to resuscitate the claims  raised in



          the second  motion to suppress, despite the  undisputed fact that



          he failed  to comply with the bar date.  See McIntosh v. Antonio,
                                                   ___ ________    _______



          71 F.3d 29, 35-37  (1st Cir. 1995) ("filing" occurs  upon receipt



          by clerk,  not upon mailing, per  Fed. R. Civ. P.  5(e)); Fed. R.



          Crim. P. 49(d) (incorporating  civil case filing rule).   Nor did



          Carreras  either request an extension  of the bar  date or invoke



          Criminal  Rule 12(f),  which explicitly  authorizes the  district



          court to grant relief from  waiver for cause shown.  See  Fed. R.
                                                               ___



          Crim.  P. 12(f);  see also United  States v. Nu ez,  19 F.3d 719,
                            ___ ____ ______________    _____



          722-23 (1st Cir. 1994) (noting importance of deciding motions  to



          suppress before trial).



                    Given the  failure to  present the district  court with



          any  reason for  the waiver,  Carreras' claim  that  the district
          ___  ______



          court abused  its discretion, see United  States v. Gomez-Benabe,
                                        ___ ______________    ____________



          985  F.2d 607, 611 (1st  Cir. 1993), by  enforcing its scheduling



          order and imposing waiver, is utterly frivolous, see id.  Accord-
                                                           ___ ___



          ingly,  we do not reach  the lame arguments     first broached on


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appeal     for his  "abuse of discretion"  claim.  Appeal  of Sun
                                                             ______________



          Pipe Line  Co., 831 F.2d 22, 25 (1st Cir. 1987) (refusing to find
          ______________



          abuse of discretion based on matters never presented  to district



          court), cert. denied, 486 U.S. 1055 (1988).1 
                                                     1
                  _____ ______



                    Carreras also attempts to broach on appeal  a Fifth and



          Sixth  Amendment  challenge  to  the  jury  selection  procedures



          employed below, by arguing that higher income professionals, non-



          voters,  and  non-English  speaking  persons  are  systematically



          exempted or excluded from petit jury service in the United States



          District Court  for the  District of Puerto  Rico.  We  hold this



          claim  to have been forfeited  for failure to  interpose a proper



                              
          ____________________



               1Moreover, the  claims  raised  in  the  second  suppression

          motion were frivolous.  Cf. United States v. Olano, 507 U.S. 725,
                                  ___ _____________    _____

          732-33 (1993) (Criminal Rule  52 contemplates, at threshold, that

          appellant establish "error");  see also Fed.  R. Crim. P.  52(a).
                                         ___ ____

          First,  as Carreras  concedes,  a "dog  sniff"  is not  a  Fourth

          Amendment  "search."  See, e.g.,  United States v.  De Los Santos
                                ___  ____   _____________     _____________

          Ferrer,  999 F.2d 7, 10 (1st Cir.),  cert. denied, 114 S. Ct. 562
          ______                               _____ ______

          (1993).    Thus, the  government did  not  need to  demonstrate a

          particularized suspicion to justify  Jo-Jo's use in detecting the

          cocaine inside the Carreras luggage.  United States v. Maldonado-
                                                _____________    __________

          Espinosa,  968 F.2d 101, 103  (1st Cir. 1992),  cert. denied, 507
          ________                                        _____ ______

          U.S. 984 (1993).   Furthermore, Jo-Jo's "alert" to the  ten suit-

          cases bound for  New York  City provided probable  cause for  the

          warrant which  authorized the search that  disclosed the cocaine.

          Id.   Similarly,  the challenge  to the  second briefcase  search
          ___

          fails, since  Carreras neither points to  any evidence introduced

          against  him as  a result  of  the first  cursory  search of  the

          briefcase,  nor suggests a plausible legal basis for finding that

          the subsequent seizure of the briefcase and its contents, immedi-

          ately  after he was placed under arrest, was not entirely reason-

          able under  any  of several  exceptions to  the Fourth  Amendment

          warrant requirement.  See, e.g., Illinois v. Lafayette, 462  U.S.
                                ___  ____  ________    _________

          640, 645-46 (1983) (inventory  search); Chimel v. California, 395
                                                  ______    __________

          U.S. 752  (1969) (search incident to arrest); Maldonado-Espinosa,
                                                        __________________

          968  F.2d at  104 (inevitable  discovery); see  also Wong  Sun v.
                                                     ___  ____ _________

          United States, 371 U.S. 471, 487-91 (1963) (declining to suppress
          _____________

          evidence, since attenuated connection between lawless conduct and

          discovery of evidence dissipated taint).  



                                          6



objection below, United States v. Flores-Rivera, 56 F.3d 319, 326
                           _____________    _____________



          (1st Cir. 1995) (refusing relief  absent showing of "manifest" or



          "clear"  injustice); see also 28 U.S.C.    1867(a) (1994); United
                               ___ ____                              ______



          States v. Pion,  25 F.3d  18 (1st Cir.  1994), and  substantially
          ______    ____



          foreclosed by our precedent as  well.  See, e.g.,  Flores-Rivera,
                                                 ___  ____   _____________



          56 F.3d at  326 (upholding English-language  requirement); United
                                                                     ______



          States v. Benmuhar, 658  F.2d 14, 19-20 (1st Cir.  1981) (finding
          ______    ________



          no "systematic"  exclusion of  professionals), cert.  denied, 447
                                                         _____  ______



          U.S. 1117 (1982); see also United States v. Cecil, 836 F.2d 1431,
                            ___ ____ _____________    _____



          1448-49  (4th Cir.)  (non-voters),  cert. denied,  497 U.S.  1205
                                              _____ ______



          (1988).



                    Finally,  we reject  the  request to  vacate  Carreras'



          sentence and remand  to the  district court to  consider an  age-



          based  downward departure,  since  Carreras failed  to request  a



          downward departure  before the district court.  See United States
                                                          ___ _____________



          v. Catucci, 55 F.3d 15, 18 (1st Cir. 1995).2
             _______



          B.  The Cruz Appeal                  
          B.  The Cruz Appeal
              _______________



                    Appellant  Cruz  contends that  it  was  error for  the



          district court to deny a pretrial motion for severance under Fed.



          R. Crim. P.  14, whereby  he alerted the  court that  codefendant



          Carreras would deny ownership of the suitcases containing cocaine



          and "point the finger"  at Cruz.  On appeal, Cruz  maintains that



          his  fears were realized because  he was unfairly  convicted as a



          result of the antagonistic defenses presented at the joint trial.



          We review only for manifest abuse  of discretion.  Flores-Rivera,
                                                             _____________

                              
          ____________________



               2Carreras has withdrawn an "ineffective assistance" claim.



                                          7



56 F.3d at 325. 



                    As  we  have  noted  in  countless  cases,  significant



          benefits derive  from joint trials in  conspiracy cases involving



          identical  substantive offenses.    See, e.g.,  United States  v.
                                              ___  ____   _____________



          DiMarzo, Nos.  95-1441 & 1442,  1996 WL  159365, at *2  (1st Cir.
          _______



          Apr. 10, 1996).   Cruz has not shown that  the joint trial either



          jeopardized  a  specific  trial  right or  risked  an  unreliable



          verdict.    See Zafiro  v. United  States,  506 U.S.  534, 538-39
                      ___ ______     ______________



          (1993) (discussing examples of  prejudice).  Neither the Carreras



          closing argument nor the  Carreras cross-examination of a govern-



          ment witness generated a significant  risk of unfair prejudice to



          Cruz.   See United  States v. Yefsky,  994 F.2d 885,  896-97 (1st
                  ___ ______________    ______



          Cir. 1993).



                    The  district court  properly  denied  the  motion  for



          judgment  of acquittal as well.   The jury,  employing its common



          sense  in evaluating  the circumstantial  evidence, fairly  could



          conclude, beyond a reasonable doubt, that Cruz knew the suitcases



          contained  cocaine, see United States v. Ortiz, 966 F.2d 707, 711
                              ___ _____________    _____



          (1st Cir.  1992) (equating direct  and circumstantial  evidence),



          cert.  denied,  506 U.S.  1063  (1993),  and that  all  essential
          _____  ______



          elements of  the crimes charged  had been  duly established,  see
                                                                        ___



          DiMarzo,  1996  WL 159365,  at  *4-5  (rejecting "mere  presence"
          _______



          defense).  



                    Viewed in  the light most favorable  to the government,



          see  id. at *4,  the evidence showed that  Carreras and Cruz were
          ___  __



          close associates  who had agreed  to meet in  Puerto Rico and  to


8



transport  a large  quantity  of cocaine  to  New York  City  for



          distribution  on the  mainland.   Cruz played  an active  role in



          planning, financing, and carrying out the operation.  Among other



          things,  he supplied the ten  suitcases in which  the cocaine was



          carried and hired two women in Miami to travel with him to Puerto



          Rico,  assist in checking the  ten suitcases at  the Airport, and



          fly on to  New York.   Cruz and these  two female associates  met



          Carreras at the  Airport upon  their arrival from  Miami the  day



          before their scheduled flight to New York City.  Later  that eve-



          ning, Cruz guarded the  fully-loaded suitcases in Carreras' hotel



          room while Carreras went out to dinner.  Immediately prior to the



          scheduled  flight to New York  the next day,  Carreras filled out



          luggage tags and placed bogus agricultural inspection stickers on



          the cocaine-laden suitcases to circumvent x-ray monitoring at the



          Airport.  Significantly,  since his  name did not  appear on  the



          luggage tags, and  he was traveling to New York  under an assumed



          name, Cruz was able to avoid detection at the Airport even though



          the ten suitcases had been found to contain cocaine.  



                    Finally, even though the trial record plainly discloses



          that he was  afforded effective assistance by  able trial counsel



          at sentencing,  Cruz contends  that the district  court sentenced



          him  in an  unconstitutional  manner by  denying his  last-minute



          request for a continuance of the sentencing hearing to permit new



          counsel,  who  apparently  was  handling other  criminal  matters



          against  Cruz in  Ohio, to  represent him  at sentencing  in this



          case.  The district court did not abuse its discretion by denying


9



the  late request for continuance.   See United  States v. Betan-
                                               ___ ______________    ______



          court-Arretuche, 933  F.2d 89, 93  (1st Cir.), cert.  denied, 502
          _______________                                _____  ______



          U.S. 959 (1991).



                    The  district court originally scheduled sentencing for



          February 3, 1995, but reset it for February 8 after Cruz request-



          ed  a continuance on January 18.  Despite this accommodation, for



          no apparent reason  Cruz' stateside counsel  failed to appear  on



          February 8,  nor did  he ever  enter an  appearance in  the case.



          Instead, at the February 8  sentencing hearing Cruz requested yet



          another continuance on the ground that his stateside counsel  was



          unavailable.  The district court acted well within its discretion



          in calling a  halt to these "cat and mouse"  tactics.  See United
                                                                 ___ ______



          States  v. Torres, 793 F.2d 436, 440-41 (1st Cir.), cert. denied,
          ______     ______                                   _____ ______



          479 U.S. 889 (1986).



                    The settled  principle that the "right of an accused to



          choose his own  counsel cannot be insisted upon in  a manner that



          will obstruct reasonable and  orderly court procedure" applies in



          full force here.  Betancourt-Arretuche,  933 F.2d at 93 (citation
                            ____________________



          omitted).   "'Only an  unreasoning and arbitrary  insistence upon



          expeditiousness in  the face of  a justifiable request  for delay



          violates  the right  to  the assistance  of  counsel,' and  would



          amount to an abuse of [the district court's] discretion."  United
                                                                     ______



          States  v. Brand, No.  94-1350, 1996 WL  121716, at *3  (1st Cir.
          ______     _____



          Mar.  26,  1996) (quoting  Morris v.  Slappy,  461 U.S.  1, 11-12
                                     ______     ______



          (1983)).  Cruz  was given ample  opportunity to secure  stateside



          counsel  but failed to explain his failure to do so.  Consequent-


10



ly, denial of  the second  request for continuance,  made at  the



          rescheduled sentencing hearing and  without any reasonable assur-



          ance to the district court that further delay was either warrant-



          ed     since  able trial  counsel was available     or  likely to



          ensure the appearance of stateside counsel, was eminently sound. 



                    Affirmed.            
                    ________


11