United States v. Luis Reveron Martinez

836 F.2d 684, 1988 WL 173
CourtCourt of Appeals for the First Circuit
DecidedJanuary 13, 1988
Docket85-1467, 86-1968
StatusPublished
Cited by64 cases

This text of 836 F.2d 684 (United States v. Luis Reveron Martinez) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Luis Reveron Martinez, 836 F.2d 684, 1988 WL 173 (1st Cir. 1988).

Opinions

SELYA, Circuit Judge.

The matter before us is in a sense an eschatocol to an earlier, more complex piece of work. See United States v. Moreno Morales, 815 F.2d 725 (1st Cir.1987). In Moreno Morales, a divided panel of this court affirmed the convictions of eight defendants who had been charged with violating 18 U.S.C. § 371 by conspiring to (i) [686]*686obstruct justice, (ii) give false testimony, and (iii) suborn perjury. E.g., 815 F.2d at 730; id. at 752. We likewise affirmed the convictions of the same octet on an assortment of discrete charges of perjury and kindred misconduct in violation of 18 U.S.C. §§ 1621-23. See, e.g., 815 F.2d at 730; id. at 752. The convictions of yet a ninth defendant, William Colon Berrios, were reversed because the evidence was too weak to support them. Id. at 742-44, 751. The case at bar comprises the appeal of Luis Reveron Martinez,1 a codefendant of the nine persons with whom we dealt in Moreno Morales. Reveron Martinez was tried jointly with the other nine but, for reasons which need not concern us today, his appeal was not in order to be heard when we took up the consolidated appeals of his code-fendants.

The prosecution of all ten men arose out of what came to be known as the affair at Cerro Maravilla. The facts of the incident and of its aftermath have been recounted in exegetic detail in both the majority and minority opinions in Moreno Morales, and we see no need to plow that tired ground again. We do, however, borrow heavily from the introductory portion of Chief Judge Campbell’s opinion in Moreno Morales, id. at 729-30, to put appellant’s points into perspective.

Arnaldo Dario Rosado and Carlos Soto Arrivi were both members of the Puerto Rico independence movement. They journeyed to Cerro Maravilla on July 25, 1978 with sabotage in mind. As matters turned out, they walked into a trap. Both of them were shot and killed by the police. The latter claimed originally that the two inde-pendentistas had died in a shootout while resisting arrest. Yet after prolonged investigation, legislative hearings, and the like, another story was told: the gendarmes, it was said, went to Cerro Maravil-la for the avowed purpose of murdering the two saboteurs; they were captured and thereafter killed in cold blood; and the conspirators then embarked on a massive cover-up.

In the course of the ensuing investigation, testimony was given in a variety of fora: before federal grand juries, in Senate hearings, and in discovery depositions in a civil action brought by the heirs of the slain men. On February 6, 1984, a grand jury empanelled in the United States District Court for the District of Puerto Rico returned a forty-four count indictment against ten men (the nine involved in the Moreno Morales appeal and the present appellant), all of whom were members of the police force allegedly in attendance at the murder scene. After a month-long trial, guilty verdicts were returned on the vast majority of the accusations. Appellant was convicted of all five of the counts against him — a conspiracy charge, 18 U.S. C. § 371, three charges of making material false statements before a federal grand jury, 18 U.S.C. § 1621, and a charge of testifying falsely in a sworn deposition, 18 U.S.C. § 1623.

The appellant has spared no effort in his assault on the judgment below. We treat initially with a trio of assertions which question the fairness of his trial generally. We then deal with appellant’s sufficiency challenges to each of three separate charges on which he stands convicted. (Reveron Martinez has not contested on appeal, and apparently concedes the adequacy of the proof anent, two of the perjury charges, viz., Counts 24 and 25.) We complete our peregrination by scrutinizing the validity of the sentences imposed by the district court.

I. PRETRIAL PUBLICITY

Reveron Martinez first contends that because the pervasive pretrial publicity associated with the affair at Cerro Maravilla was so “prejudicial and inflammatory,” Moreno Morales, 815 F.2d at 775 (Torrad-la, J., dissenting), the district court had an [687]*687obligation, sua sponte, to explore the possibility of changing venue. We disagree.

In Moreno Morales, we ruled that the pretrial publicity surrounding these events, though extensive, did not deprive the persons accused of their right to a fair trial. Id. at 730-39. Given the imbrication between appellant’s claim and those earlier advanced by his codefendants, the doctrine of stare decisis bars relitigation of that issue. The judgment of the majority of the Moreno Morales panel on this precise point has become precedent, binding in future cases before us. If order and fairness are to attend the legal process, that point can be resolved no differently for Reveron Martinez than for his identically situated codefendants. See EEOC v. Trabucco, 791 F.2d 1, 2 (1st Cir.1986); Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir.1973).2 And the changed composition of the panel matters not at all. See Lacy v. Gardino, 791 F.2d 980, 985 (1st Cir.) (“Uniformity of decisions within a multi-panel circuit can only be achieved by strict adherence to prior circuit precedent, with the error-correcting function reserved to the court sitting en banc.”), cert. denied, — U.S. -, 107 S.Ct. 284, 93 L.Ed.2d 259 (1986).

Once we acknowledge that we are duty hound to accord preclusive effect to Moreno Morales on the pretrial publicity issue generally, then it becomes a given that neither the nature nor the extent of the notoriety warranted a presumption of prejudice. Likewise, it becomes a given that the glare of the limelight, though unfortunate, did not require the granting of a further adjournment of the trial date. See Moreno Morales, 815 F.2d at 739. All in all, we are left with but one fresh argument anent pretrial publicity: that the district court, on its own initiative, should have brought into sharper focus the possibility of a change of venue.

Boiled down to bare essence in this manner, the residue of the argument deserves little comment. The defendants had a constitutional right of vicinage — a right to be tried “by an impartial jury of the ... district wherein the crime shall have been committed, _” U.S. Const., Art. VI. They could not have been compelled to accept an alternate venue, and they chose not to seek one. There is no question but that they were apprised of their rights. All of the defendants, not the least Rever-on Martinez, were represented by qualified counsel. The government, in its objections to the defendants’ motions for an additional continuance grounded on the intense publicity, pointed out explicitly that none of the defendants had moved for a change in venue. From aught that appears of record, the decision to forgo such a motion was a knowing one, akin to a deliberate tactical bypass.

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Bluebook (online)
836 F.2d 684, 1988 WL 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-luis-reveron-martinez-ca1-1988.