United States Court of Appeals For the First Circuit

No. 01-1400

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

MARÍA DEL CARMEN VENTURA-MELÉNDEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge] [Hon. Aida M. Delgado-Colón, U.S. Magistrate Judge]

Before

Torruella, Circuit Judge, Kravitch,* Senior Circuit Judge, and Lynch, Circuit Judge.

Linda Backiel, for appellant. Francis J. Bustamante, Special Assistant U.S. Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant U.S. Attorney, Chief, Criminal Division, and Anthony Chávez, Special Assistant U.S. Attorney, were on brief, for appellee.

December 19, 2001

* Of the Eleventh Circuit, sitting by designation. -2- TORRUELLA, Circuit Judge. Defendant María del Carmen

Ventura-Meléndez ("Ventura" or "defendant") appeals her conviction for

trespassing on a United States military installation. She asserts

numerous grounds for appeal, all of which we find unavailing. We

therefore affirm her conviction.

I. BACKGROUND

Ventura, a native of Vieques, Puerto Rico, was arrested on

June 1, 2000 on a beach in Vieques during a peaceful protest against

the Navy's continuing use of portions of the island for military

maneuvers. The beach is part of the Naval installation at Camp García

and sits approximately 200 yards from the live impact area designated

for live-fire artillery and bombardment exercises. Approximately

thirty-one people, all of whom were engaged in acts of civil

disobedience, were arrested at the same time and place.

Ventura was charged, in a single-count information filed on

July 17, 2000, with violation of

. The district court

conducted a one-day bench trial and found Ventura, along with her two

co-defendants, guilty of the one count charged. The district court

then sentenced the defendant to one year of unsupervised probation,

with a special condition that she not enter any part of the Navy's

closed base at Camp García without permission, and assessed a fine in

the amount of ten dollars.

II. ANALYSIS

-3- The federal trespassing statute under which Ventura was

convicted provides, in relevant part:

Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; . . . Shall be fined under this title or imprisoned not more than six months, or both.

(1994). The statute, in essence, prohibits persons

from "enter[ing] military reservations that are closed to them,

provided they have notice or knowledge that their entry is prohibited."

United States v. Parrilla-Bonilla,

(1st Cir. 1981).

Ventura argues three basic grounds for appeal. First, she

contends that the district court improperly admitted a "Certificate of

Non-Existence of Record" that purported to show that she was not among

those with permission to enter Camp García on the day of her arrest.

Second, she argues that the evidence was insufficient as a matter of

law to show that her presence on the beach constituted entry upon lands

reserved by the Navy. Lastly, she argues that the district court

erroneously failed to disqualify Navy personnel from acting as Special

Assistant United States Attorneys. We address each of her appeal

arguments in turn.

A. Admission of the Certificate of Non-Existence of Record

-4- Shortly before trial, Ventura filed a motion in limine to

exclude from evidence a Certificate of Non-Existence of Record ("CNER")

signed by Lieutenant Commander Neftalí Pagán ("LC Pagán"). The CNER

stated that a diligent search of the records containing the names of

those with permission to enter Camp García on the day in question had

been conducted, and that the search revealed no record or entry

identifying Ventura. The document was introduced to show that Ventura

was not authorized to be on the property controlled by the Navy when

she was arrested. LC Pagán did not testify at trial. Ventura's motion

to exclude the CNER was denied from the bench on the date of trial,

without opinion. Her objection was renewed and overruled during trial.

1. Application of Rule 803(10)

Ventura first disputes whether the district court correctly

admitted the CNER in accordance with Federal Rule of Evidence 803(10).

"[A] trial court enjoys considerable discretion in connection with the

admission or exclusion of evidence." Udemba v. Nicoli,

(1st Cir. 2001). Consequently, we review the district court's

application of Rule 803(10) for an abuse of discretion.

Subject to the limitations of Rule 803(10), an out-of-court

statement is admissible to prove the absence of a public record or

entry, even where the declarant is available as a witness. Evidence

admitted pursuant to Rule 803(10) must meet the following criteria:

-5- To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. Fed R. Evid. 803(10). Thus, any certificate declaring that a diligent

search of public records failed to disclose a record or entry must

comport with Rule 902, which governs the self-authentication of certain

documents. Rule 902 provides, in relevant part, for the self-

authentication of:

A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

Fed. R. Evid. 902(1).

Ventura challenges the district court's admission of the CNER

under Rule 803(10) on several grounds. She claims: 1) that the

underlying records of those with permission to enter Camp García are

not "regularly made and preserved by a public office or agency"; 2)

that the CNER does not bear the proper seal; and 3) that there is no

proper "attestation" to the contents of the document. We find each of

these arguments unpersuasive.

-6- First, Ventura argues that, in order for the underlying

records to be "regularly made and preserved by a public office or

agency," their creation and maintenance must be legally mandated by

statute or regulation. As such, defendant argues, the Navy's mere

practice of making and retaining records of those with permission to

enter Camp García does not satisfy the rule. However, we are unable to

find such a limitation in the text of the rule. Had the drafters of

the Rules of Evidence intended such a requirement, they were well aware

of how it could be imposed. Cf. Fed. R. Evid. 803(6)(B) (providing for

admission of records and reports of public offices or agencies setting

forth "matters observed pursuant to duty imposed by law") (emphasis

added). The plain text of the rule mandates only that the underlying

records "be regularly made and preserved by a public office or agency";

we discern no error in the district court's conclusion that this

limitation was satisfied by a proffer of evidence that logs of those

with permission to enter the base are made and gathered on a daily

basis.

Second, with regard to the adequacy of the seal, the CNER

admitted by the district court clearly bears the raised seal of the

Department of the Navy, a political subdivision of United States. We

believe this satisfies the rule since, "[u]nder the approach of Rule

902(1), the seal of any executing officer or custodian will generally

suffice." 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's

-7- Federal Evidence § 902.03[1], at 902-11 (3d ed. 1997) (footnote

omitted).

Third, although LC Pagán did not use the precise term

"attest," he stated that he "certifies and swears" that the contents of

the CNER are accurate. The word "certify" means to " attest to being

true," Black's Law Dictionary 124 (7th ed. 1998) (emphasis added), and

thus easily supports the requirement of Rule 902(1) that the signature

"purport[] to be an attestation." See United States v. Mateo-Méndez,

(9th Cir.), cert. denied,

(2000);

see also 5 Weinstein's Federal Evidence § 902.03[1], at 902-12 ("Rule

902(1) does not specify any particular form of attestation or

execution."). We therefore conclude that the district court was well

within its discretion in determining that the CNER met each of the

requirements for admission under Rule 803(10).1

2. Confrontation Clause

Ventura also challenges the admission of the CNER on

constitutional grounds, claiming that she was deprived of rights

secured by the Confrontation Clause. We review the district court's

ruling on this constitutional question de novo. United States v.

Rosario-Díaz,

, 70 (1st Cir. 2000).

1 Because we agree that the CNER was properly admitted as self- authenticating under Rule 902(1), we need not address defendant's contention that the certification is not a self-authenticating domestic public document not under seal within the meaning of Rule 902(2).

-8- The Sixth Amendment provides, in relevant part, that "the

accused shall enjoy the right . . . to be confronted with the witnesses

against him." U.S. Const. amend. VI. "The central concern of the

Confrontation Clause is to ensure the reliability of the evidence

against a criminal defendant by subjecting it to rigorous testing in

the context of an adversary proceeding before the trier of fact."

Maryland v. Craig,

(1990). When the government seeks

to use an out-of-court statement against the accused, "courts must

decide whether the [Confrontation] Clause permits the government to

deny the accused his usual right to force the declarant 'to submit to

cross-examination, the greatest legal engine ever invented for the

discovery of truth.'" Lilly v. Virginia,

(1999)

(plurality opinion) (quoting California v. Green,

(1970) (footnote and citation omitted)).

The hearsay exception and Confrontation Clause inquiries are

not coterminous, "and evidence that is admissible under the former may

still be inadmissible under the latter." United States v. Barone,

(1st Cir. 1997). Nonetheless, the Confrontation Clause

and the hearsay rules are both "generally designed to protect similar

values . . . ." Bourjaily v. United States,

(1987) (citations and quotations omitted). Thus, an otherwise

admissible out-of-court statement also satisfies the requirements of

the Sixth Amendment "if it bears adequate indicia of reliability."

-9- Idaho v. Wright,

(1990) (internal quotations

omitted).

Ventura argues that admission of the CNER fails the

reliability requirement of the Confrontation Clause because the

evidence neither falls within a "firmly rooted" hearsay exception, nor

contains the particularized indicia of trustworthiness that would

otherwise pass constitutional muster.2 Because we conclude that the

CNER demonstrates "particularized guarantees of trustworthiness"

sufficient to satisfy the Confrontation Clause, see Ohio v. Roberts,

(1980), we need not decide whether Rule 803(10)

embodies a "firmly rooted" hearsay exception.3

The requisite "'particularized guarantees of trustworthiness'

must be shown from the totality of the circumstances." Wright,

. Though "courts have considerable leeway in their

consideration of appropriate factors," the relevant circumstances are

those "that surround the making of the statement and that render the

2 Ventura does not appear to challenge introduction of the CNER on the basis that the government failed to demonstrate that LC Pagán was unavailable to testify. Cf. Barone,

(noting that under certain circumstances the Confrontation Clause requires the government to demonstrate the declarant's unavailability). 3 "Where the evidence is admitted under a 'firmly rooted' hearsay exception, reliability may be inferred without more." Barone,

(citing Roberts,

). "Admission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements . . . ." Wright,

.

-10- declarant particularly worthy of belief," such that "the test of

cross-examination would be of marginal utility."

. We

therefore eschew the endorsement of a single "mechanical test,"

, and look to the factors that best assay the reliability of the

CNER. In this regard, the Supreme Court's plurality decision in Dutton

v. Evans,

(1970), provides helpful guidance. In Dutton,

the Court articulated a four-prong analysis for testing the reliability

of out-of-court statements, inquiring whether: 1) the statement

contained no express assertions about past facts; 2) the declarant was

in a position to have personal knowledge of the matters in the

statement; 3) the possibility that the declarant's statement was

founded on faulty recollection is extremely remote; and 4) the

circumstances surrounding the making of the statement were such that

the possibility of misrepresentation was unlikely.

.

Here, the CNER admitted into evidence by the district court

satisfies each of the Dutton factors. First, the document contains no

assertion of past facts; rather, it relates only to the LC Pagán's

contemporaneous search of existing records. Second, LC Pagán, whose

duties include "control of access to the area known as Camp García" and

the "authority to grant permission to particular individuals to enter

Camp García," was well positioned to have personal knowledge of the

matters in the CNER. Third, because a search of the records was

conducted shortly before the creation of the CNER, the resulting

-11- possibility of faulty recollection is minute. Lastly, the

circumstances surrounding the making of the CNER make misrepresentation

unlikely: the statement is sworn by an officer of the government in the

discharge of his official duties; and the underlying records are

created and maintained in a manner that bespeaks completeness and

reliability.

Based on the Dutton factors, we conclude that the CNER is

entitled to a dignity and trustworthiness on par with that recognized

for out-of-court statements that fall within "firmly rooted" hearsay

exceptions. See Wright,

("[E]vidence possessing

'particularized guarantees of trustworthiness' must be at least as

reliable as evidence admitted under a firmly rooted hearsay exception

. . . .") (citation omitted). Our conclusion is further buttressed by

courts that have determined that other certificates of the absence of

a public record or entry have particularized guarantees of

trustworthiness sufficient to satisfy the Confrontation Clause. See,

e.g., United States v. Rith,

(10th Cir. 1999);

United States v. Hutchinson,

(9th Cir. 1993); United

States v. Metzger,

(6th Cir. 1985); United

States v. Herrera-Britto,

(11th Cir. 1984) (per

curiam). Thus, the admission of the CNER in the criminal trial did not

violate Ventura's Sixth Amendment rights.

B. Sufficiency of evidence challenge

-12- Ventura next assails the government's proof of entrance onto

property reserved by the Navy. Ventura made these challenges in a

motion for judgment of acquittal under Federal Rule of Criminal

Procedure 29. A Rule 29 motion will be denied "unless the evidence,

viewed in the light most favorable to the government, could not have

persuaded any trier of fact of the defendant's guilt beyond a

reasonable doubt." United States v. Hernández,

(1st

Cir. 2000) (quotation omitted), cert. denied,

(2001). We

review the district court's denial of the motion de novo. United

States v. Frigerio-Migiano,

(1st Cir. 2001).

Ventura argues that her unauthorized presence on the beach

near the live impact area does not violate

because the

statute requires proof of both ownership and control of area in

question. Although defendant concedes that the Navy owned and

controlled the area up to the mean high-tide line of the beach, she

maintains that the area seaward of that line was essentially fair game

for her and the other protesters because Congress has recognized Puerto

Rico's jurisdiction over its beaches, see

. She

argues further that, because the evidence at trial established only

that she was arrested on the beach -- but not specifically landward of

the mean high-tide line -- her conviction cannot be sustained.

As an initial matter, and despite the defendant's

protestations to the contrary, we conclude that "[g]overnment ownership

-13- of the property in question is not a requisite to violating Section

1382." United States v. Allen,

(2d Cir. 1991)

(emphasis added) (citing United States v. McCoy,

(6th Cir. 1989)).

In Allen, the Second Circuit addressed this issue in the

context of several defendants charged with violating § 1382 by swimming

alongside a docked Trident nuclear submarine. In that case, the

defendants argued that they could not have violated § 1382 because

"they never intended to, and in fact did not, penetrate the boundary of

the naval reservation . . . but rather only the 'security zone' of the

waters surrounding that reservation." Id. at 30. The Allen court held

that "entering the security zone is entering the naval reservation and

is a violation of Section 1382." Id. The waters' designation as part

of a security zone in accordance with federal regulations was

sufficient to invest the Navy with "exclusive rights to occupy [the]

area." Id.

The holding of the Second Circuit in Allen echoes that of the

Ninth Circuit in United States v. Mowat,

(9th Cir. 1978),

where the court stated that "even if the Navy did not possess a fee

simple absolute title to the Island of Kahoolawe, the maintenance of

the 'naval reservation' there suffices to support the convictions under

."

. In accord with these courts, we hold

that, when the government does not own the land, § 1382 requires only

-14- that the government demonstrate either a possessory interest in, or

occupation or control of, the area reserved by the military.

Here we apply the occupation-and-control test and conclude,

in agreement with the district court, that the government demonstrated

that the area beyond the mean high-tide lines is under the occupation

and control of the Navy for purposes of § 1382. Puerto Rico's

jurisdiction over the shoreline was established subject to the control

of the United States. Thus, a large swath of area extending beyond the

shoreline of the beach was permissibly designated as part of a "danger

zone" by federal regulation. See

, 334.1480. These

regulations allow the Navy to "occupy and control" these areas, and

there was adequate testimony at trial demonstrating that the Navy has

in fact exercised this power. The Navy has continuously used the

adjacent area as a live impact zone for live-fire artillery and

bombardment exercises and has continuously patrolled the beach for

possible intruders. Furthermore, regulations establish that Camp

García is a "closed" base, meaning that the public may not enter

without permission of the commanding officer. See

-

770.40. The evidence therefore permitted the district court, acting as

the fact-finder, to conclude beyond a reasonable doubt that Ventura had

violated § 1382.

C. Use of Special Assistant U.S. Attorneys General

-15- Finally, Ventura argues that the district court erred by not

disqualifying Navy officers from serving as the prosecuting attorneys.

Before trial, Ventura filed motions seeking to disqualify United States

Navy officers from prosecuting the case. She argued that the Navy

officers, appointed as Special Assistant United States Attorneys to

prosecute the case, had an institutional conflict. More specifically,

she avers that the ongoing controversy between the Navy and local

residents over the live bombing exercises at Camp García prevented Navy

personnel from serving as disinterested prosecutors. The district

court denied Ventura's motions, and the government was represented at

trial by Navy officers.

We addressed the identical argument in United States v.

Silva-Rosa, No. 01-1347, slip op. at 4-6 (1st Cir. Dec. __, 2001), and

need not recite the precise analysis set forth in that opinion.

Suffice it say, however, that the defendant's argument must be rejected

on the same rationale.

III. CONCLUSION

For the reasons stated above, we affirm.

-16-