United States v. Gomez Benabe

• Court: Court of Appeals for the First Circuit
• Decided: February 8, 1993
• Docket: 92-1254
• Status: Published

Opinion

USCA1 Opinion

February 8, 1993

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1254

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 MIGUEL GOMEZ-BENABE,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                            Aldrich, Senior Circuit Judge,
                                     ____________________
                             and Boyle,* District Judge.
                                         ______________

                                 ____________________

            Francisco  M. Lopez-Romo  with whom  Edgar  R.  Vega Pabon  was on
            ________________________             _____________________
        brief for appellant.
            Warren  Vazquez,  Assistant  United  States  Attorney,  with  whom
            _______________
        Charles E.  Fitzwilliam, Acting  United States  Attorney, and Jose  A.
        _______________________                                       ________
        Quiles, Assistant United States Attorney, were on brief for appellee.
        ______

                                 ____________________

                                   February 5, 1993
                                 ____________________
        _____________________

        *Of the District of Rhode Island, sitting by designation.

BOYLE, District Judge.
                 ______________

Miguel Gomez appeals from judgments of conviction for the

          willful, knowing, and unlawful possession with intent to

          distribute of a controlled substance, in violation of 21 U.S.C.  

          841(a)(1); and for importation of a controlled substance into the

          customs territory of the United States from a place outside

          thereof, in violation of 21 U.S.C.   952(a).  At trial,

          appellant, both at the end of the presentation of the

          government's evidence and again after the jury reached its

          verdict, moved for a judgment of acquittal pursuant to Fed. R.

          Crim P. 29(c) arguing that evidence of pretrial photographic

          identifications should have been suppressed at trial since the

          identifications were either obtained as the fruit of an illegal

          arrest or were so suggestive so as to violate appellant's due

          process right.  The district court denied appellant's motion

          because of appellant's failure to bring his suppression motion

          before trial as required by Fed. R. Crim. P. 12(b)(3) and (f). 

          The district court further ruled that the pretrial identification

          procedures did not violate appellant's due process rights.  After

          careful consideration of the record, we affirm.
                                                  ______

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I.  Background  

                 On July 21, 1991, the vessel Eurocolombia arrived in

          Puerto Rico at the Ponce municipal pier around 7:00 P.M.1  The

          Eurocolombia had been under investigation by the United States

          Customs Service ("Customs") for eight to nine months.  As part of

          an on-going investigation by Customs into narcotics smuggling at

          the municipal pier in Ponce, Customs enforcement personnel were

          in the practice of using confidential informants to provide

          information regarding  narcotics transactions.  One such

          confidential informant, a seaman aboard the Eurocolombia,

          signalled Customs personnel that contraband was on board the ship

          on this particular night.  After seeing the signal, Customs Agent

          Jose Ruiz boarded the Eurocolombia and contacted the confidential

          informant.  

                 The confidential informant showed agent Ruiz a locker

          where a Colombian national named Alfonso had placed five one-kilo

          packages of cocaine while the Eurocolombia was in port in

          Colombia.  Alfonso had given the confidential informant two

          telephone numbers and instructed the confidential informant to

          call the phone numbers when he arrived in Ponce, ask for "Pepe"

          or "Jose", and arrange for the exchange of the drugs.  Although

____________________

          1Evidence  was presented  at trial  that this  vessel arrives  in
          Ponce just about every ten days.     

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                                          3

initially frustrated by an out-of-order dockside phone, the

          confidential informant eventually reached the Puerto Rico

          contacts around 11:00 P.M. using agent Ruiz's cellular phone.

          After a series of phone calls, the confidential informant was

          instructed to meet "Jose" and a friend, who would be waiting in a

          red Toyota four-by-four vehicle, at the Ponce pier gate to make

          the exchange.  Agent Ruiz already had arranged for surveillance

          units to be placed in and around the municipal pier area.      

                 The confidential informant taped the five kilos of cocaine

          to his body and walked from the vessel, out of the pier area, and

          onto Comercio Avenue where he made contact with the red Toyota. 

          Upon entering the vehicle, he found "Jose" in the driver's seat

          and appellant in the front passenger seat.  The vehicle moved to

          a nearby cash-and-carry where they exchanged $10,000 for the

          cocaine.  After the exchange, the confidential informant exited

          the vehicle, noted its license plate number, and returned to the

          ship.  At this point, the confidential informant had given no

          description of the occupants of the Toyota to Customs personnel.  

                 After the confidential informant left the Toyota, the

          Customs enforcement operation unravelled.  Customs surveillance

          units were supposed to stop the vehicle after the transaction was

          completed.  The red Toyota, however, sped away from the area

          before Customs agents had an opportunity to detain it.  The

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occupants of the Toyota led agent Ruiz and other Customs agents

          on a high-speed chase through Ponce which ended in the town of

          Santa Isabel. 

                 Although agent Ruiz testified that the Customs agents

          never lost sight of the Toyota, other evidence contradicts his

          testimony.  Apparently, at around 4:30 A.M., Customs agents

          discovered the abandoned Toyota, which had glanced off a

          telephone pole and had smashed into the wall of a funeral home

          near the entrance to Santa Isabel.  A search of the vehicle

          turned up $15.90 in cash, two cellular phones, a revolver

          holster, and a one-kilo package which field-tested positive for

          cocaine.  Witnesses at the scene told agent Ruiz and Carlos Ruiz,

          another Customs agent, that the two occupants of the red Toyota

          fled the vehicle and headed toward town. 

                 While at the scene investigating the car accident, Puerto

          Rico police officer Juan de Leon received a local police radio

          report of a person acting strangely at a local bar-restaurant

          about half a kilometer from the accident scene.  Agent Ruiz and

          officer de Leon went to the bar where the bar owner told them

          that a certain stranger appeared nervous and was shaking.  The

          nervous stranger was later identified as appellant Miguel Gomez. 

                 At this point, the officers still had no description of

          the Toyota's occupants.  Appellant did not appear injured and no

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other evidence linked him to the accident vehicle.  Nevertheless,

          based on the suspect's nervousness and the fact that he was a

          stranger, appellant was placed under arrest at around 5:15 A.M.

          and was taken first to the scene of the accident and then to the

          Customs enforcement office in Ponce.     

                 Following defendant's arrest, two Customs officials

          questioned the confidential informant aboard the Eurocolombia. 

          First, Customs official Manuel Zurita boarded the vessel and

          obtained a description of the two occupants of the Toyota from

          the confidential informant.  The confidential informant testified

          at trial that Zurita's visit took place between 6:00 and 6:30

          A.M..  Shortly after the first visit, agent Ruiz went to the

          Eurocolombia and showed the confidential informant two

          photographs taken of the defendant at the Customs enforcement

          office following his arrest.  Ruiz asked if the person in the

          photo was the driver of the red Toyota.  The confidential

          informant replied that the person in the photo was the passenger

          and not the driver.  At around 7:30 A.M., shortly after agent

          Ruiz left the ship,  the Eurocolombia departed the port of Ponce

          with the confidential informant aboard.    

                 Later that morning, at around 9:00 A.M., Officer de Leon

          received a phone call from a Santa Isabel resident reporting the

          presence of a stranger in the Paso Seco neighborhood.  According

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to the report, the stranger appeared nervous, wore torn clothes,

          and had a wound on his forehead.  Officer de Leon responded to

          the report and arrested the stranger who was later identified as

          Jose Gonzalez.  Officer de Leon reported this arrest to agent

          Ruiz.  No evidence indicated that officer de Leon had received a

          description of Gonzalez prior to his arrest.2  One week later,

          on July 29, 1990, the remaining four kilos of cocaine were

          discovered in the backyard of a home located about twenty-five

          meters from where the accident had occurred.

                 On August 2, 1991, ten days after the arrest of the

          appellant, the Eurocolombia returned to Ponce.  At that time,

          agent Ruiz again met with the confidential informant and showed

          him two photo arrays each containing six photos.  One array

          contained a photo of appellant and the other contained a photo of

          Jose Gonzalez.  From the photo arrays, the confidential informant

          identified Miguel Gomez and Jose Gonzalez as the occupants of the

          red Toyota.

                 Before trial, appellant filed a motion for discovery

          pursuant to Fed. R. Crim. P. 16 requesting: (1) names and

          addresses of all informants which the government was going to use

          at trial; (2) materials relating to offers of immunity or

          leniency offered by the government to potential witnesses; and
                              
          ____________________

          2Jose Gonzalez pled guilty before the trial commenced. 

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                                          7

(3) names of the enforcement agents that participated in the

          surveillance at the Ponce pier.  Appellant made no pretrial

          request, however, to discover documents or photos relating to the

          pretrial identification procedures within the possession of the

          government pursuant to Fed. R. Crim. P. 16(a)(1)(C).3  At trial,

          following the presentation of its case, the government renewed a

          prior motion to admit two photo arrays into evidence.4 

          Appellant had failed to move to suppress this pretrial

          identification evidence before trial as required by Fed. R. Crim.

          P. 12(b)(3) and (f).  As a result, it was not until the close of

          the government's case-in-chief, when the prosecutor renewed his

          motion to admit the photos, that Gomez first moved to suppress

          the photos.  After hearing the parties' arguments, the district

          court admitted the photo arrays into evidence.5  Appellant

____________________

          3The government gave open-file  discovery to defendant.  However,
          the  parties failed to confirm  in writing what  was contained in
          the open-file discovery package.  The defendant claims he did not
          see the photos before  trial yet the government claims  they were
          available. 

          4Twice  during  the  government's  case-in-chief  the  prosecutor
          sought to admit the  two photospreads into evidence.   Both times
          the  court deferred  ruling  on their  admissibility until  after
          appellant had the opportunity to cross-examine the witnesses.

          5The confidential informant also made  an in-court identification
          of defendant at trial.  

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objected to the district court's ruling and the government rested

          its case.  

             Following the government's case-in-chief,  appellant moved for

          a judgment of acquittal pursuant to Fed. R. Crim. P. 29.6  After

          the district court denied this motion, the defense rested. 

          Following a jury verdict of guilty as to both counts of the

          indictment, appellant renewed its Fed. R. Crim. P. 29 motion. 

          The district court denied this motion as well, United States v.
                                                         ________________

          Gomez-Benabe, 781 F. Supp. 848 (D.P.R. 1991), and Miguel Gomez
          ____________

          appeals.  

                                  II.  Discussion  

                 Appellant claims that his constitutional rights were

          violated because the photo arrays used for pretrial

          identification were unduly suggestive and the product of an

          illegal arrest.  The record is clear, however, that appellant

          failed to make a Rule 16 motion requesting discovery of the

          pretrial identification evidence before trial.  Rather, appellant

          only sought pretrial discovery of the identity of the

____________________

          6 Rule 29(c) provides, in its pertinent part:  
             (c)  Motion after  Discharge of  Jury. If  the jury  returns a
          verdict  of guilty  or is  discharged without  having returned  a
          verdict,  a motion  for  judgment of  acquittal  may be  made  or
          renewed within 7 days after the jury is discharged or within such
          further time as  the court may fix during the  7-day period. If a
          verdict of  guilty is returned the  court may on such  motion set
          aside the verdict and enter judgment of acquittal.    

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                                          9

confidential informant, the identities of the law enforcement

          agents, and any exculpatory materials in the government's

          possession.  More importantly, appellant also failed to make a

          Rule 12 motion to suppress the photo identifications before

          trial.  The relevant sections of Fed. R. Crim. P. 12 state:

                 (b) Pretrial Motions. Any defense, objection, or
                     Pretrial Motions.
                 request which is capable of determination without
                 the trial of the general issue may be raised before
                 trial by motion.  Motions may be written or oral at
                 the discretion of the judge.  The following must be
                                                             _______
                 raised prior to trial:    
                 _____________________
                 *     *    *    *    *    *
                 (3) Motions to suppress evidence; or 
                 *     *    *    *    *    *
                 (4) Requests for discovery under Rule 16 . . . .  
                 *     *    *    *    *    *
                 (f) Effect of Failure to Raise Defenses or
                     Effect of Failure to Raise Defenses or
                 Objections. Failure by a party to raise defenses or
                 Objections
                 objections or to make requests which must be made
                 prior to trial, at the time set by the court
                 pursuant to subdivision (c), or prior to any
                 extension thereof made by the court, shall
                 constitute waiver thereof, but the court for cause
                 shown may grant relief from the waiver. 
             
          Fed. R. Crim. P. 12(b)(3) & (f) (emphasis added).  When, as here,

          a defendant has failed to take full advantage of his Rule

          16(a)(1)(C) discovery request options, his resulting ignorance of

          a photo's existence does not excuse him from Rule 12's

          requirement that motions to suppress be filed early.

                 The plain language of Fed. R. Crim. P. 12(b)(3) & (f)

          establishes that Gomez waived his right to a suppression hearing

          by failing to move for such a hearing before trial.  See United
                                                               ___ ______

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States v. Leal, 831 F.2d 7, 10 (1st Cir. 1987).  A court may
          ______________

          grant relief from this waiver only "for cause shown." United
                                                                ______

          States v. Mendoza-Acevedo, 950 F.2d 1, 3 (1st Cir. 1991); United
          _________________________                                 ______

          States v. Gomez, 770 F.2d 251, 253-54 (1st Cir. 1985).  As we
          _______________

          have stated before "the decision to grant or deny relief under

          Fed. R. Crim. P. 12(f) is committed to the sound discretion of

          the trial court and should not be disturbed on appeal absent a

          showing of abuse." Gomez, 770 F.2d at 253.  We find no such abuse
                             _____

          in this case.

                 Before trial, appellant did not challenge the

          circumstances surrounding his arrest or the validity of the

          pretrial photo identification.  Appellant made no pretrial

          suppression motion on either basis.  As the district court

          pointed out, it "had no idea that the pretrial identification

          procedures might have been the fruits of an illegal arrest and

          subject to the exclusionary rule or that they had been conducted 

          in such a way as to possibly violate defendant's due process

          right" until evidence was presented at trial. United States v.
                                                        ________________

          Gomez-Benabe, 781 F. Supp. 848, 854 (D.P.R. 1991).  
          ____________

                 As a matter of policy, suppression issues should be

          considered before trial because "'interrupt[ing] the course of

          the trial for such auxiliary inquiries impedes the momentum of

          the main proceeding and breaks the continuity of the jury's

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attention.'" Gomez, 770 F.2d at 253, quoting Nardone v. United
                       _____                   _______ _________________

          States, 308 U.S. 338, 342 (1939).  The district judge's decision
          ______

          furthers this sensible and longstanding policy.

                 Furthermore, there is no legitimate explanation for

          appellant's delay in filing a suppression motion that would have

          allowed the district court to grant relief from the waiver.7 See
                                                                       ___

          United States v. Mendoza-Acevedo, 950 F.2d 1, 3 (1st Cir. 1991). 
          ________________________________

          In short, the record is that appellant knew all there was to know

          about the circumstances surrounding his arrest necessary to bring

          a motion to suppress.  We must agree with the district court's

          conclusion that "[w]ithout some reason as to why a motion to

          suppress was not filed, th[e] court c[ould] find no basis for not

          applying the waiver rule.8" Gomez-Benabe, 781 F. Supp. at 854. 
                                      ____________
                              
          ____________________

          7At oral argument, appellant  claimed that language in  a certain
          FBI report led appellant's trial counsel to believe that at least
          one  of   the  photo   identifications  had  occurred   prior  to
          appellant's  arrest and served as  a basis for  probable cause to
          make that arrest.  Appellant  argues that this report discouraged
          his trial counsel from  making a pretrial motion to  suppress the
          photo identification as the fruit of  an illegal arrest.  The FBI
          report is not part of  the appellate record.  The district  judge
          observed   that  appellant  failed  to  present  "any  legitimate
          explanation  for  his  failure to  timely  move  to suppress  the
          evidence."  United States v. Gomez-Benabe, 781  F. Supp. 848, 854
                      _____________________________
          (D.P.R.  1991).   In these  circumstances, we  may not  take this
          belated explanation into account on appeal.

          8In  fact, codefendant  Jose Gonzalez  apparently considered  the
          issue  as  a potential  defense. In  his  motion to  continue the
          trial, codefendant's attorney advised  the court of his intention
          to  look  into  the  pretrial identification  issue.    Gonzalez,
          however, pled guilty before filing any motions.

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                                          12

It is unnecessary to address the substantive aspects of

          appellant's arguments concerning the legality of his arrest,

          since appellant has totally failed to put the matter in issue.

                 We do  not reach  the  merits of  appellant's due  process

          claim  that  the  pretrial  photo   identifications  were  unduly

          suggestive.  The district court construed First Circuit precedent

          "as    limiting   [appellant's]   waiver   to   challenging   the

          identification  procedures  on  'fruit  of  the  poisonous  tree'

          grounds."  Gomez-Benabe, 781 F. Supp. at 856.  The district court
                     ____________

          went  on  to consider  the substance  of appellant's  due process

          claim.9  It is not necessary to make this excursion.

                  In United States  v. Barletta, we considered  significant
                     __________________________

          the difference between motions to "suppress" and other motions to

          merely "exclude" evidence. 644  F.2d 50, 54-55 (1st Cir.  1981). 

          Generally,  motions to "suppress" deal with  the operation of the

          exclusionary rule or "'police conduct not immediately relevant to

          the  question of  guilt.'" Id.  at 54,  quoting, Jones  v. United
                                     ___          _______  ________________

          States, 362 U.S. 257, 264 (1960).  The upshot of this distinction
          ______

          is that motions  to "suppress"  evidence must  be brought  before

          trial  under Fed.  R. Crim.  P. 12(b)(3)  while other  motions to

          "exclude" evidence may be brought  after trial has commenced. Id.
                                                                        ___
                              
          ____________________

          9The district  court ultimately  decided that the  pretrial photo
          identification procedures were not  unduly suggestive and  denied
          appellant's due process claim. Gomez-Benabe, 781 F. Supp. at 859.
                                         ____________

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at 54-55.   The district court  interpreted Barletta as  removing
                                                      ________

          from the  operation of the Fed. R. Crim. P. 12(f) waiver rule any

          cases that do not  implicate the exclusionary rule. Gomez-Benabe,
                                                              ____________

          781 F.  Supp. at 856.  Pretrial  photo identification procedures,

          however, are "matters of  police conduct not immediately relevant

          to the question of guilt" and are therefore the proper subject of

          a motion to "suppress" as defined in Barletta and governed by the
                                               ________

          restrictions  of Fed.  R.  Crim.  P.  12(b)(3)  &  (f).  See  id.
                                                                   ___  ___

          Appellant's due process claims, therefore, have also been waived.

III. Conclusion

                 By  failing  to  file  a  motion  to  suppress  the  photo

          identifications before  trial as  required  by Fed.  R. Crim.  P.

          12(b)(3)  & (f),  appellant  waived his  right  to challenge  the

          admission of the evidence during trial, unless the district court

          found good cause  shown.  Here, the district  judge did not abuse

          his discretion in denying appellant relief from  the waiver under

          Fed. R. Crim. P. 12(f).  Accordingly, the judgments of conviction

          are affirmed.   
              affirmed
              ________

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