United States v. Hector Luis Lopez Andino, United States of America v. Israel Mendez Santiago

831 F.2d 1164, 1987 U.S. App. LEXIS 14279

• Court: Court of Appeals for the First Circuit
• Decided: October 28, 1987
• Docket: 86-1583, 86-1584
• Status: Published

Opinions

BOWNES, Circuit Judge.

Defendants-appellants Hector Luis Lopez Andino and Israel Mendez Santiago, formerly members of the Puerto Rico Police, were convicted in district court of civil rights violations for assaulting and beating three men, one of whom died. Appellants make five arguments in challenging their convictions: (1) that the United States statutes under which they were convicted are inapplicable to Puerto Rico; (2) that their convictions violated the constitutional bar on double jeopardy because appellants previously had been convicted in Puerto Rico Superior Court for their acts; (3) that their sixth amendment right to counsel was violated by their having been jointly represented; (4) that the jury was not properly instructed on the elements of the charged offenses; and (5) that the trial court erred by not instructing the jury on lesser offenses included in the offenses charged. We are not persuaded by any of appellants’ arguments, and, therefore, we affirm their convictions.

I. SUMMARY OF THE EVIDENCE

The government’s evidence described an incident in which officers of the law brutalized three citizens. Two eyewitnesses, as well as the victims of the assault, testified to the following. At about 4:00 P.M. on December 19, 1982, Angel Carmona Ortiz and Juan Ramon Figueroa Serrano met with Ruben Padilla Rios in a field near a housing project in Bayamon, Puerto Rico. Padilla Rios had come there to buy drugs. As the meeting broke up, two police officers — appellant Lopez Andino, who was a sergeant, and Luis Ernesto Ortiz Maldonado — approached with revolvers in hand. The three men were forced to lie face down in tall grass, and Lopez Andino instructed Ortiz Maldonado to go and bring a third officer, appellant Mendez Santiago. When he returned with Mendez Santiago, Ortiz Maldonado was carrying a nightstick.

The officers then subjected the men to an ordeal of physical abuse lasting about thirty minutes. Lopez Andino and Mendez Santiago interrogated them, asking about whether they had drugs, and repeatedly beat them with the nightstick. The men also were forced to beat each other with the stick. Lopez Andino and Mendez Santiago kicked the men as they lay on the ground, and, at one point, these two officers jumped on Figueroa Serrano’s back. Finally, the victims were told to walk deeper into the brush, and the officers left by another route.

Figueroa Serrano died the evening of the assault. According to the autopsy report, the cause of his death was severe thoracic abdominal trauma resulting from blows received to his thoracic and abdominal cavities.

The indictment charging the defendants had four counts. Count I was for violating 18 U.S.C. § 241 (1982)¹ by conspiring to injure, oppress, threaten, and intimidate the three victims of the assault in the exercise and enjoyment of their rights not to be deprived of liberty without due process, not to be subjected to summary punishment, and not to be compelled to be witnesses against themselves. It was alleged that the conspiracy resulted in the death of Figueroa Serrano. Count II was for acting under color of the law to deprive Figueroa Serrano of his rights, resulting in his death, in violation of 18 U.S.C. § 242.² Counts III and IV also were for violations of section 242 in respect to Carmona Ortiz and Padilla Rios. The trial lasted from April 21 through April 24, 1986. All three defendants were convicted on all charges. On Count I, Lopez Andino was sentenced to ninety-nine years imprisonment and Mendez Santiago to thirty years. Ortiz Maldonado was given a suspended sentence of twenty-five years on the same count. Each defendant was given concurrent sentences on the other counts.

II. THE STATUTES’ APPLICABILITY TO PUERTO RICO

Appellant Mendez Santiago contends that the United States statutes under which he was convicted, 18 U.S.C. §§ 241, 242, do not apply to Puerto Rico. We disagree. This court has held that section 242 is applicable to Puerto Rico. United States v. Villarin Gerena, 553 F.2d 723, 724-26 (1st Cir.1977). The reasoning expressed in Villarin Gerena regarding section 242 applies to section 241 as well. See also United States v. Rivera Torres, 826 F.2d 151, 155 (1st Cir. Aug. 14, 1987).

Just as we saw no reason to withhold from the people of Puerto Rico the protection section 242 affords against the misuse of official authority at the expense of citizens’ rights, we see no reason to exclude the complementary statutory prohibition on conspiracies against those rights. We hold that the district court had jurisdiction to try appellants for the charged offenses.

III. DOUBLE JEOPARDY

Appellant Mendez Santiago argues that the federal prosecution violated the constitutional proscription that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. According to the presentence investigation reports contained in the record, all three defendants had been convicted in Puerto Rico Superior Court on two counts of aggravated assault against Carmona Ortiz and Padilla Rios. The reports indicate that they also had been charged with first degree murder of Figueroa Serrano, but were found guilty on reduced charges of involuntary manslaughter. According to appellants, this was by way of guilty pleas. Appellants’ sentences of imprisonment were suspended, and they were placed on probation by the superior court.

We note initially that “[sjuccessive prosecutions are barred by the Fifth Amendment only if the two offenses for which the defendant is prosecuted are the ‘same’ for double jeopardy purposes.” Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985). Separate statutory offenses with different aims, each requiring proof of a fact not required by the other, are not the same offenses for purposes of double jeopardy. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Christensen, 732 F.2d 20, 23 (1st Cir.1984). Unlike the local law provisions regarding crimes against the person for which appellants previously had been convicted, a violation of section 241 occurs only if there was a specific intent to interfere with rights secured by the Constitution or laws of the United States, see Anderson v. United States, 417 U.S. 211, 223, 94 S.Ct. 2253, 2262, 41 L.Ed.2d 20 (1974), and section 242 has been violated only if there has been a willful deprivation of rights under color of law. Thus, it is not clear, although we do not decide, that the federal prosecutions were for the same offenses as were the Puerto Rico proceedings.

For the purposes of this appeal, however, it does not matter whether or not the local and federal prosecutions were for different offenses. According to the “dual sovereignty” doctrine, successive prosecutions are not prohibited by the fifth amendment if they are brought by separate sovereigns. As the Supreme Court recently described it, “[t]he dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences’” and is subject to prosecution and punishment for both. Heath v. Alabama, 106 S.Ct. at 437.

The question before us, therefore, is whether Puerto Rico and the United States are “dual sovereigns” for double jeopardy purposes. Prosecuting entities are considered to be separate for double jeopardy purposes when they derive their power from different sources. Heath v. Alabama, 106 S.Ct. at 437; United States v. Wheeler, 435 U.S. 313, 319-22, 98 S.Ct. 1079, 1083-85, 55 L.Ed.2d 303 (1978). It is well settled that when states enact and enforce their own criminal laws, they are acting pursuant to their own sovereign power, not that of the national government. See United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922). Puerto Rico’s status is not that of a state in the federal union, but, its criminal laws, like those of a state, emanate from a different source than the federal laws.

Although the legal relationship between Puerto Rico and the United States is far from clear and fraught with controversy, it is established that Puerto Rico is to be treated as a state for purposes of the double jeopardy clause. In 1950 Congress enacted legislation “so that the people of Puerto Rico may organize a government pursuant to a constitution of their own adoption.” Puerto Rican Federal Relations Act, Pub.L. No. 600, 64 Stat. 319 (1950). The purpose of the Federal Relations Act “was to accord to Puerto Rico the degree of autonomy and independence normally associated with States of the Union.” Examining Bd. of Eng’rs, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 594, 96 S.Ct. 2264, 2277, 49 L.Ed.2d 65 (1976). “Puerto Rico, like a state, is an autonomous political entity,____” Rodriguez v. Popular Democratic Party, 457 U.S. 1, 8, 102 S.Ct. 2194, 2199, 72 L.Ed.2d 628 (1982). In United States v. Benmuhar, 658 F.2d 14, 18 (1st Cir.1981), cert. denied, 457 U.S. 1117, 102 S.Ct. 2927, 73 L.Ed.2d 1328 (1982), we held, treating Puerto Rico as a state, that a charge under Puerto Rico law for arson and the destruction of an insured building did not preclude a subsequent federal conspiracy prosecution, even though both were based on the same act.

The offenses for which appellants were prosecuted in superior court were against the Commonwealth, which for double jeopardy purposes is treated as a state. Therefore, the fifth amendment did not prohibit the federal prosecution.

IV. JOINT REPRESENTATION

Each appellant argues that his representation by the same attorney that represented the other defendants deprived him of his constitutional right “to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. All three defendants were represented in district court by attorney Teodoro Mendez Lebrón, who also represented one of the defendants in the local prosecution. Appellants claim that they were not sufficiently made aware of the risks of joint representation, and that this failure resulted in prejudicial error.

There are inherent risks involved when multiple defendants are represented by the same attorney. Federal Rule of Criminal Procedure 44(c) addresses these risks by requiring, in every case of joint representation, that the trial court ask about the arrangement and “personally advise each defendant of the right to the effective assistance of counsel, including separate representation.” Unless the court concludes that “it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant’s right to counsel.” Fed.R.Crim.P. 44(c).

Even before the adoption of Rule 44(c), district courts in this circuit were required to take certain steps to ensure that multiple defendants sharing counsel were adequately represented. United States v. Foster, 469 F.2d 1, 4-5 (1st Cir.1972); see United States v. Elkins, 774 F.2d 530, 541 (1st Cir.1985). Our supervisory rule requires district courts to warn defendants of the risks of joint representation and to inquire whether they have discussed these risks with their attorney. Also, we have instructed the courts to inquire of defendants “whether they understand that they may retain separate counsel, or if qualified, may have such counsel appointed by the court and paid for by the government.” United States v. Foster, 469 F.2d at 5. If adequate warnings are not given, the burden is on the government to show that no prejudice resulted from the joint representation. Id.

In this case, it was the government that first raised the potential problems of joint representation. The government filed a motion requesting the court to consider the possible conflict of interest posed by Mendez Lebron’s representation of all three defendants. The court conducted a hearing, at which defendants and their counsel were questioned about their knowledge of possible conflicts. Each defendant was asked whether he was aware of the possibility that the interests of the other defendants would be pursued at his expense, and each responded that he understood this risk but insisted on having Mendez Lebrón represent him. Each defendant said he understood that if he insisted on being represented by Mendez Lebrón, and was convicted, he could not later raise the issue of joint representation.

The court also asked counsel whether they knew of any potential conflicts. Counsel for the government responded in the negative. Counsel for defendants also said he saw no conflicts. He told the court he had advised his clients of a number of problems with joint representation: that the government’s case may not be equally strong against all defendants; that the strategy may be different than if each defendant had his own counsel; and that their counsel would be in a very bad position to entertain conversations with the government about one defendant testifying against the others. Mendez Lebrón told the court he had even discussed these matters with defendants’ families. He said that despite his warnings, all three defendants insisted that he represent them. Defendants told the court that they agreed with what their counsel reported.

In light of this, there is no basis for the assertion that the trial court failed to inquire into the risks of joint representation and make defendants aware of such risks. The record does not indicate, however, that defendants were advised that they had a right to separate representation, and that this could be provided at government expense if they qualified. Based on the court’s inquiries about whether defendants wanted the same counsel, and defendants’ insistence on having Mendez Lebrón represent them, it could be argued that the court at least strongly implied that defendants were entitled to separate counsel. Nevertheless, because it is not crystal clear that defendants were made aware of the availability of separate counsel, we examine the probability of prejudice to defendants by the joint representation.

There is nothing to indicate that, although their present counsel have raised the matter, any of the defendants wanted to become a government witness, or that the government was willing to make such an arrangement. Cf. United States v. Donahue, 560 F.2d 1039, 1044 (1st Cir. 1977) (prejudice not improbable when one of the two defendants being jointly represented manifested a desire to testify on his own behalf, the evidence was weaker against him than against the other defendant, and he might have been able to divorce himself from his codefendant). As the government points out, Ortiz Maldonado, who apparently was the least culpable of the three officers involved, was in the best position to strike a bargain for his testimony, but he does not appeal.

According to Lopez Andino, defense counsel opted to try to get Ortiz Maldonado acquitted at the expense of himself and Mendez Santiago. It is possible, of course, that counsel representing multiple defendants could attempt to obtain an acquittal, or at least leniency, for one defendant by emphasizing the role played by another. But we have carefully reviewed the record and see no basis for concluding that counsel defended any one defendant less diligently than the others. The government’s evidence, which included the testimony of two eyewitnesses, was very strong. Trial counsel vigorously cross-examined the government’s witnesses, attempting to raise doubts about their ability to perceive and recall the events. He also put on witnesses in an attempt to raise a doubt about whether Figueroa Sorrano’s death was the result of the beatings and thus obtain acquittals on the more serious charges of death resulting from the civil rights violations.

If an alternative defense strategy was available to defendants, and it posed the potential for a conflict of interest between them, prejudice would be established. United States v. Elkins, 774 F.2d at 541. It is possible to hypothesize such a strategy. Lopez Andino was the ranking officer at the scene. The evidence is that he sent Ortiz Maldonado to get Mendez Santiago and bring him to the field. Therefore, at least initially, Lopez Andino appeared to be initiating the incident. It is conceivable that the other defendants could claim that their subsequent participation was at the direction of Lopez Andino, and thus they were not willing participants in the conspiracy and did not have the intent necessary for a conviction. In view of the evidence, however, this scenario is purely hypothetical.

Because Ortiz Maldonado is not a party to this appeal, and Lopez Andino was the senior officer at the scene, Mendez Santiago would be the one logically to claim he was not a willing participant. The weight of the evidence, however, makes such a claim untenable. Among other incriminating evidence, there was testimony that Mendez Santiago beat Figueroa Serrano with the nightstick and jumped repeatedly on his back. In short, there is nothing in the record to indicate that a claim of unwilling participation would be something other than pure fabrication.

Unfounded speculation is not an adequate reason for concluding that appellants were denied their right to counsel. There would be cause for greater concern if the court had not conducted a hearing at which defendants insisted on joint representation despite being told that there were risks in such an arrangement. But “we must take care not to provide a windfall to a defendant, who has been found guilty of a serious crime, simply because of some attenuated hypothesis of prejudice woven by counsel after conviction. Joint representation, after all, may sometimes be quite beneficial to a defendant and may at other times be of little consequence to the adequacy of a defendant’s representation.” United States v. Martorano, 620 F.2d 912, 916 (1st Cir.), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980). Although cautionary steps must be taken to protect a defendant’s right to counsel, courts must allow defendants to choose joint representation when they know the risks involved and insist on it. We hold that defendants were not deprived of their right to counsel.

V. THE JURY INSTRUCTIONS

Appellants raise two arguments regarding the jury instructions. The first is that the court failed to instruct the jury on the elements of the offenses with which defendants were charged. Although there was no objection by defense counsel, it is clear that such an omission would constitute plain error and require reversal. The origin of this contention, apparently, was a clerical error in the preparation of the record. According to the transcript initially prepared for this appeal, the charge contained no instructions on the elements of the offenses charged. In response to a motion by the government to correct the record pursuant to Federal Rule of Appellate Procedure 10(e), the district court held a hearing at which the court reporter said other instructions in addition to those in the transcript had been given but mistakenly not typed. A supplemental transcript was prepared, which contains detailed and accurate instructions on the offenses charged.

At oral argument, appellate counsel for defendants Lopez Andino and Mendez Santiago questioned whether the supplemental record was an accurate record of the jury instructions given. Counsel were given two weeks to file a supplemental brief and a copy of the transcript of the Rule 10(e) hearing. Despite the fact that they were filed late, we have read carefully the supplemental briefs, one of which contains as an appendix the transcript of the Rule 10(e) hearing. We find that the supplemental transcript is an accurate record of the jury instructions given at the close of the trial. Our finding is based on what was established at the Rule 10(e) hearing.

The court reporter stated that it was her custom to dictate her courtroom stenographic notes onto tape recorder cassettes which were given to a typist for preparing the transcript. She stated further that the cassette containing this portion of the charge, which was read to the jury by the judge from proposed instructions submitted by the government, were not transcribed. The court reporter said further that she did not proofread the transcript of the jury instructions and, therefore, did not realize any portion had not been transcribed. When the matter was called to her attention, she reread her courtroom notes and found the jury instructions that had not been transcribed. She then typed up the supplemental transcript of the charge with the instructions on the elements of the offenses included.

Mendez Lebrón, trial counsel for the defendants, was at the Rule 10(e) hearing. He stated that he remembered the conference on jury instructions and that he informed the court he had no objections to the government’s proposed instructions on the elements of the offenses. He also stated that he had “no doubt” that the court instructed the jury in accord with those instructions.

Assistant United States Attorney Flanagan stated that at the instructions conference the court denied the prosecutor’s request for a lesser included defense instruction and then asked defense counsel if he had any objection to the government’s proposed instructions. After defense counsel stated that he had none, the court said it would give them.

The trial judge was emphatic in stating that he remembered giving the instructions proposed by the government and that defense counsel had said at the instructions conference that he had no objection to them.

The court denied defense counsel’s request to have the court reporter read the pertinent portion of her courtroom notes because she had stated that the supplemental transcript was an accurate transcription of her notes. The notes have been retained in the clerk’s safe pending final disposition of the case.

Although there is a possibility, as appellate defense counsel argue, that the court reporter doctored the record, we think it extremely unlikely.. This means that someone would have had to furnish her with a copy of the government’s proposed instructions before she typed the supplemental transcript. There is nothing in the transcript of the Rule 10(e) hearing to suggest this. We also note that appellate defense counsel did not seek to question the court reporter at the hearing.³

Appellants’ second argument regarding the jury instructions is that the court committed error by not instructing the jury on lesser included offenses. This argument founders on two grounds: first, trial counsel did not ask the court to instruct the jury on lesser included offenses; and two, he told the court, after the charge had been given, that he had no objections to it. Federal Rule of Criminal Procedure 30 requires the parties to raise objections to the instructions before the jury retires to consider its verdict.

A “defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973). A defendant, however, also is entitled to forgo the instruction for strategic reasons. Look v. Amaral, 725 F.2d 4, 9 (1st Cir.1984). In this case, the government wanted to have lesser included offense instructions given on Counts I and II, which charged that death resulted from the conspiracy and assault against Figueroa Serrano, but the court denied the request. The court may have concluded that defense counsel intentionally did not ask for such instructions in the hope that, if he raised doubt about whether Figueroa Serrano’s death resulted from the assault, defendants would be acquitted on Counts I and II, rather than convicted on lesser charges. Thus, the omission may have been the result of a strategic choice by defense counsel. In any event, the court did not err in not giving lesser included offense instructions when defense counsel had neither requested them nor objected when they had been omitted from the charge.

VI. CONCLUSION

We hold that the statutes under which appellants were convicted are applicable to Puerto Rico, and that the court, therefore, had jurisdiction over appellants. Because Puerto Rico is a sovereign separate from the United States for purposes of double jeopardy, these prosecutions were not barred by prior convictions in Puerto Rico Superior Court. With respect to appellants’ representation by the same counsel, even though the court’s inquiry into the issue may have fallen short of what technically was required, no prejudice resulted from appellants having been jointly represented, and, therefore, any error would not suffice to upset the verdicts. Finally, we find no reversible error regarding the jury instructions or the district court’s ruling that allowed the record to be supplemented with instructions that had been given to the jury but not typed initially as part of the transcript.

Affirmed.

1 . Section 241 provides in pertinent part:

§ 241. Conspiracy against rights of citizens

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life.

2 . Section 242 provides in pertinent part:

§ 242. Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.

3 . In light of the trial judge’s remarks to appellate counsel at the close of the hearing, we are constrained to state that, in our opinion, Attorney Dolz Sanchez pursued this matter properly and ethically.