United States v. Mantecon Zayes

• Court: Court of Appeals for the First Circuit
• Decided: August 28, 1992
• Docket: 92-1654
• Status: Published

Opinion

USCA1 Opinion

          August 28, 1992       [NOT FOR PUBLICATION]

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No. 92-1654

                               UNITED STATES OF AMERICA
                                Plaintiff, Appellee,,

                                          v.

                                NELSON MANTECON ZAYAS,
                                Defendant, Appellant.

                                  __________________

          No. 92-1879

IN RE: NELSON MANTECON ZAYAS,
                                     Petitioner.

                                 ___________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                              Torruella, Cyr and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

J.C. Codias on brief for appellant.
               ___________
               Robert S. Mueller, III, Assistant Attorney General, Mary Lee
               ______________________                              ________
          Warren, Chief, Hope P. McGowan  and William H. Kenety, Attorneys,
          ______         _______________      _________________
          Narcotic and Dangerous Drug Section, Criminal Division, on  brief
          for appellee.
                                  __________________

                                 __________________ 

Per curiam.  These  matters concern (though, as  we will
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            explain, they do not directly challenge) the district court's

            denial  of  Nelson  Mantecon  Zayas' motion  to  dismiss  his

            indictment.   In September 1991 Mantecon  was indicted, along

            with thirty-eight  co-defendants, in  the District of  Puerto

            Rico.   The  superseding Puerto  Rico indictment  charged him

            with  one  count of  conspiracy  to possess,  with  intent to

            distribute, large quantities  of marijuana  and cocaine,  and

            with  seventeen  substantive   drug  offenses  involving  the

            importation and possession  of those drugs.   Trial on  these

            charges is scheduled to begin in September 1992.  

                 Previously,  in 1990,  Mantecon had  been  indicted with

            eleven co-defendants on drug charges in the Southern District

            of  Florida.    The  second  superseding  Florida  indictment

            charged him with one count of conspiracy to  import marijuana

            and cocaine, and  two counts of attempting to import cocaine.

            Mantecon was recently tried on these charges.

                 On  September  27,  1991,  Mantecon filed  a  motion  to

            dismiss the Puerto Rico indictment.   His contention was that

            the  indictment violated  the Double  Jeopardy Clause  of the

            Fifth Amendment by charging him  with the "same offenses" for

            which  he had already been  indicted in Florida.   On October

            21, the government opposed  the motion.  On November  21, the

            district court  denied the motion.   On December  3, Mantecon

            filed a "reply"  to the government's opposition.  On December

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9,  he filed a motion to  reconsider the denial of his motion

            to dismiss.   In the motion, Mantecon's attorney  stated that

            he had  not received  a copy  of the  government's opposition

            until  November  15, and  that he  had  filed the  reply memo

            "promptly" on November 21.   The latter statement was untrue,

            and it created the  false impression that the reply  memo and

            the order  had crossed  paths through  no fault of  Mantecon.

            The  motion asked the court  to reconsider its  denial of the

            motion to dismiss in light of the arguments made in the reply

            memo.

                 At length, the district court discovered that Mantecon's

            attorney  had in fact not  filed the reply  memo until almost

            two weeks  after the November 21  order issued.   In an order

            dated  February  11, 1992,  the  court  therefore denied  the

            motion to reconsider on  the grounds that the reply  memo (a)

            was  untimely, and  (b) had  been filed  without  the court's

            permission,  as  required by  Local  Rule  311.7.1   Mantecon

            appealed the  denial of  the motion  to  reconsider (No.  92-

            1654),2 and later filed  a petition for a writ  of "mandamus"

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            1.  The court also observed that, even if it were to consider
            the  reply memo, it would  still deny the  motion because the
            Florida and Puerto Rico indictments were factually  distinct,
            and because the  issue of  double jeopardy was  not ripe  for
            disposition  when both  cases were  still in  their pre-trial
            stages.

            2.  Mantecon did not  file a  notice of appeal  until May  8,
            1992, well  past the ten-day  deadline for filing  appeals in
            criminal cases, see Fed. R. App. P. 4(b), and beyond even the
                            ___
            additional   thirty-day  "bubble"  in  which  extensions  for

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(No. 92-1879) ordering the  district court not to try  him on

            the  Puerto Rico charges  during the pendency  of the appeal.

            We now affirm  the denial  of the motion  to reconsider,  and

            deny Mantecon's petition for a writ.

I
                                          _

The scope of our  review is narrow.  We have no occasion

            to consider  the denial of  the underlying motion  to dismiss

            the  indictment  because Mantecon  never  filed  a notice  of

            appeal  from that decision.   In criminal cases,  as in civil

            cases,  it is  true  that the  timely filing  of a  motion to

            reconsider  will render  the underlying  order "nonfinal  for

            purposes of appeal for  as long as the [motion]  is pending."

            United States v. Dieter,  429 U.S. 6, 8 (1976)  (per curiam).
            _____________    ______

            Thus,  if the defendant files  a timely motion to reconsider,
                                             ______

            he need not immediately appeal the underlying  order, and his

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            excusable neglect can be made.   Id.  Mantecon says that  his
                                             ___
            notice was timely nonetheless  because (a) the district court
            failed  to  notify  him  of  the  denial  of  his  motion  to
            reconsider,  and (b) after he finally  learned of the denial,
            in  late April, the  district court gave  him "permission" to
            file  an appeal.   It  is not  at all  clear to  us that  the
            district  court actually  granted  the "permission"  Mantecon
            describes,  and even less  clear that the  district court had
            the power to do so.  But, we need not  answer these questions
            because, as  we will explain, the appeal is otherwise without
            substance.  Whether  we dismiss for lack  of jurisdiction, or
            affirm  on the merits,  "the effect is the  same.  It follows
            that there is no  need to decide the theoretical  question of
            jurisdiction in this case."  Norton v. Mathews, 427 U.S. 524,
                                         ______    _______
            532 (1976).

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subsequent appeal from the denial of the motion to reconsider

            will preserve his challenges to the initial decision.  On the

            other  hand, if the motion to reconsider is untimely, then it

            has no effect on the need to file or time for filing a notice

            of  appeal  from  the  underlying  order.    See  Browder  v.
                                                         ___  _______

            Director,  Dept. of  Corrections of  Illinois, 434  U.S. 257,
            _____________________________________________

            264-65  (1978).    The  defendant  must,  if  he  intends  to

            challenge  the  initial decision,  file  a  timely notice  of

            appeal directly from it.

                 A motion to reconsider  in a criminal case is  timely if

            "filed  within the original period  for review."   Id. at 268
                                                               ___

            (quoting United  States v.  Healy, 376  U.S. 75,  78 (1964)).
                     ______________     _____

            Because a  criminal defendant has ten days in which to file a

            notice  of  appeal,  Fed. R.  App.  P.  4(b),  his motion  to

            reconsider is timely only  if filed within ten days.   United
                                                                   ______

            States v. Lefler, 880 F.2d 233, 234-35 (9th Cir. 1989). Here,
            ______    ______

            the motion  to reconsider  was untimely because  the district

            court entered its denial of the motion to dismiss on November

            21,  1991, and Mantecon did not file the motion to reconsider

            until  December 9, 1991 --  eighteen days later.   And, since

            Mantecon did not file  a notice of appeal within  ten days of

            the November 21 order  denying his motion to dismiss,  he has

            forfeited his  right to review  of that order.   On appeal we

            can  assess  only  the  propriety  of  the  district  court's

            decision to deny the motion to reconsider.

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Because  the  motion to  reconsider  asked  the district

            court  to look  at the  reply memo,  the  issue on  appeal is

            whether the district court  abused its discretion in refusing

            to do so.   Id. ("Denial  of a motion for  reconsideration is
                        ___

            reviewed for  abuse of discretion.").   Here, the  reply memo

            was late (i.e., filed after the district court had issued its

            decision to deny  the underlying motion  to dismiss), and  it

            was filed without the court's permission as required by local

            rule.    The  motion to  reconsider  also  was  late, and  it

            contained a false averment (i.e., that Mantecon had submitted

            his reply memo  "promptly").   Any one of  these facts  would

            have  justified the  district  court's decision  to deny  the

            motion to reconsider.   In combination  they make the  denial

            unassailable.

II
                                          __

Even if this appeal gave us an opportunity to review the

            merits of the underlying motion to dismiss the indictment, we

            could  find  no basis  for  disturbing  the district  court's

            denial.  The  Double Jeopardy Clause provides  that no person

            shall  be twice  put  in  jeopardy  for the  "same  offense."

            Mantecon contends that the Florida and Puerto Rico conspiracy

            charges  reflect  but  a  single criminal  scheme  which  the

            government   has   artificially  sundered   and  successively

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prosecuted. See North Carolina  v. Pearce, 395 U.S.  711, 717
                        ___ ______________     ______

            (1969) (Double Jeopardy Clause protects against,  among other

            things, successive prosecutions for one crime).  

                 In  order to determine "whether two charged conspiracies

            constitute the same offense for purposes of double jeopardy,"

            United States v.  Hart, 933 F.2d 80,  85 (1st Cir. 1991),  we
            _____________     ____

            have in the  past examined "the  relationship of the  charged

            (multiple) conspiracies  to one  another in terms  of factors

            such as  the times  when the relevant  activities transpired;

            the  locations   at  which  the   activities  occurred;   the

            identities  of  the  persons  involved;  the co-conspirators'

            ends;  the  means  used  to   achieve  those  ends;  and  the

            similarities (or  differences) in the evidence  used to prove

            the two conspiracies."  United States v. David, 940 F.2d 722,
                                    _____________    _____

            734 (1st Cir.  1991).  See  also United States  v. Hart,  933
                                   _________ _____________     ____

            F.2d at  85-86 (setting out five-factor  test); United States
                                                            _____________

            v.  Gomez-Pabon, 911  F.2d  847 (1st  Cir.  1990)).   We  can
                ___________

            consider "anything  [in the  record] that seems  relevant" to

            these  factors.  United States  v. Thomas, 759  F.2d 659, 662
                             _____________     ______

            n.4 (8th Cir. 1985).

                 In  this case,  the  relevant material  available to  us

            consists  almost  entirely  of  the indictments  in  the  two

            prosecutions, along with the government's statement  that the

            Florida prosecutors introduced no "evidence of criminal  acts

            in Puerto  Rico."  The indictments  tell us that both  of the

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charged conspiracies involved efforts to  import cocaine from

            South America to the United States during overlapping periods

            of time (July 1988 to March  1991 in Florida, January 1987 to

            September 1991 in Puerto Rico).  The indictments also suggest

            that at least some  of the drugs imported by  each conspiracy

            ended  up  (or were  intended to  end  up) in  South Florida.

            These are  attributes, however,  that might  unfortunately be

            given  at any particular  moment to any  number of completely

            distinct criminal operations, and they are  hardly indicative

            of an identity between the conspiracies charged here.

                 More telling  are the  differences  between the  alleged

            schemes.    The  two  indictments  named  a  total  of  fifty

            conspirators, but  only Mantecon  was charged in  both cases.

            Though they had  similar goals -- the  importation of illegal

            drugs  --  the  organizations  described in  the  indictments

            appear  to  have  employed  different  methods:  the  Florida

            conspiracy obtaining shipments directly from  foreign sources

            by boat;  the Puerto Rico  conspiracy using a  more elaborate

            system that involved dropping  loads of drugs into  the ocean

            from  airplanes   or   "motherships,"  retrieving   them   in

            speedboats,  and finally  transferring  them  to rubber  life

            rafts  and bringing  them  to shore.   Certainly,  Mantecon's

            alleged roles in the conspiracies differed significantly.  In

            Puerto  Rico he is charged  with having played  a limited and

            subordinate role, one of  several men assigned to the  job of

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recovering  drugs from  their drop-off  points in  the ocean.

            The  Florida indictment, on the other hand, identified him as

            a   ringleader   who   arranged   for   shipments,   financed

            preparations, provided  boats, captains  and  crews, and  was

            responsible for distributing the imported drugs.

                 In  sum,  the  only  points of  similarity  between  the

            conspiracy prosecuted  in Florida and the  conspiracy charged

            in  Puerto Rico are (1)  that Mantecon was  involved in both,

            (2)  that both involved schemes to import drugs, and (3) that

            both  took place at about the same time.  "[S]uch factors are

            suggestive  rather than dispositive," United States v. David,
                                                  _____________    _____

            940 F.2d at 734,  and when viewed here against  the important

            differences  between  the   indictments  they  suggest   that

            Mantecon  was  in  fact  stirring  two  pots,  not  that  the

            government  has conjured  two conspiracies  out of  the "same

            offense."

                 Mantecon's  reliance on  Grady v.  Corbin, 495  U.S. 508
                                          _____     ______

            (1990),  does not  avail him.   Grady  held that  "the Double
                                            _____

            Jeopardy  Clause  bars  a   subsequent  prosecution  if,   to

            establish  an essential element of an offense charged in that

            prosecution,   the  government   will   prove  conduct   that

            constitutes an  offense for  which the defendant  has already

            been  prosecuted."    Id.  at  510.    In  United  States  v.
                                  ___                  ______________

            Calderone, 917 F.2d 717 (2d Cir. 1990), a divided panel ruled
            _________

            that Grady will  bar a conspiracy  prosecution where, in  the
                 _____

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course  of  litigating  a  previous  conspiracy  charge,  the

            government has  "proved  conduct" (i.e.,  the  commission  of

            overt acts) that it will also  need to prove to establish the

            existence of the second conspiracy.  

                 Supposing  without deciding that  the Calderone majority
                                                       _________

            properly   applied  Grady   to  cases   involving  successive
                                _____

            conspiracy  prosecutions, cf.  United  States  v. Felix,  112
                                      ___  ______________     _____

            S.Ct.   1377,  1383-85   (1992)  (previous   prosecution  for

            substantive   crimes  does   not   prevent  government   from

            prosecuting conspiracy where conduct constituting substantive

            crimes  will  be  proved  as  overt  acts  to  establish  the

            conspiracy); United  States v. Rivera-Feliciano, 930 F.2d 951
                         ______________    ________________

            (1st Cir.  1991) (same), the rule it stated has no bearing on

            this  case.   The Florida  and Puerto  Rico prosecutions  are

            independent  in  essence  and  in all  particulars  save  for

            Mantecon's presence  as a defendant. According  to the Puerto

            Rico  indictment,  all  of  the overt  acts  which  establish

            Mantecon's involvement  in the  Puerto  Rico conspiracy  were

            committed  in Puerto Rico.  On the other hand, the government

            has told us  (and Mantecon has not challenged  the assertion)

            that  the  Florida  prosecutors  introduced  no  evidence  of

            criminal acts in Puerto  Rico.  It therefore does  not appear

            that the Puerto Rico prosecutors  will need even to introduce

            any  of the  evidence used  in the  Florida case,  see United
                         ________                              ___ ______

            States v. Felix, 112 S.Ct. at  1382 ("a mere overlap in proof
            ______    _____

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between two prosecutions does not establish a double jeopardy

            violation"),  much less that they will have to "prove conduct

            that constitutes  an offense" for which  Mantecon has already

            been tried.

                 The  district   court's  order  denying  the  motion  to

            reconsider is summarily affirmed pursuant to Local Rule 27.1.
                                    ________

            The petition for a writ of mandamus is denied.  Mandate shall
                                                   ______   _____________

            issue forthwith.
            _______________

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