United States v. Sued-Jiménez
Opinion of the Court
Appellants raise various challenges to their convictions for trespassing that arose out of protests at a United States Naval installation in Vieques, Puerto Rico. Because we find these challenges unpersuasive, we affirm.
Background
Appellants, whose cases have been consolidated for purposes of appeal, were arrested at various times between April and June of 2000 for trespassing onto Camp García, a United States Naval installation located on the island of Vieques, Puerto Rico. Pursuant to regulations promulgated by the Department of the Navy, Camp Garcia is a “closed” base, meaning that the public may not enter without permission from the commanding officer. 32 C.F.R. §§ 770.35-770.40 (2001). Appellants entered Camp Garcia, without authorization, to protest and interfere with the military exercises occurring there. Appellants alleged that the Navy’s activities, including live-fire artillery and bombardment exercises, were causing civilian deaths, serious health threats to Vieques’ residents, and environmental damage.
Either before or during their trials in the district court, appellants made offers of proof or attempted to assert the defense of necessity. In each case, the district court ruled that the necessity defense was irrelevant and excluded the presentation of this defense.
Following bench trials, appellants were all convicted of violating 18 U.S.C. § 1382 (1994), which prohibits entry onto a military base “for any purpose prohibited by law or lawful regulation,” including entry onto a U.S. Naval installation in Puerto Rico without advance permission. See 32 C.F.R. §§ 770.38, 770.40. Appellants received various sentences for this Class B misdemeanor. They now appeal their convictions.
Analysis
Appellants raise four separate challenges to their convictions. We address each in turn.
A. Failure to Prove the Unlawful Purpose Element of Statute
The trespassing statute under which appellants were convicted forbids the entry
This is not the first time this argument has been raised in appeals from convictions under § 1382. See, e.g., United States v. Maxwell, 254 F.3d 21, 24-25 (1st Cir. 2001). We have previously held that a showing of illegal purpose for entry onto a restricted military base requires two elements: deliberate entry onto the base and knowledge or notice that such entry was prohibited. See id. at 24. In Maxwell, another appeal from a section 1382 conviction for protesting in Vieques, we held that the Department of the Navy’s regulations, promulgated at 32 C.F.R. §§ 770.35-770.40, are sufficient to satisfy the knowledge or notice requirement that military installations in Puerto Rico are off limits to the public. See Maxwell, 254 F.3d at 24-25. Thus, all the government has to prove at trial to satisfy the illegal purpose element is that the defendant deliberately entered the naval base. See id. at 25.
In this case, appellant admitted at trial that he entered onto the naval base without authorization. Moreover, appellant’s intended purpose was to enter onto the Navy’s land to protest the military activities occurring there. Therefore, the government has undeniably satisfied its burden of proving deliberate entry. As a result, appellant’s argument that the illegal purpose element was not satisfied lacks merit.
B. The Necessity Defense
Appellants collectively assert that the district court erred by finding the defense of necessity irrelevant to their trespassing convictions and therefore barring its presentation (and related expert testimony) at trial.
To successfully assert the necessity defense, a defendant must show that he (1) was faced with a choice of evils and chose the lesser evil, (2) acted to prevent imminent harm, (3) reasonably anticipated a direct causal relationship between his acts and the harm to be averted, and (4) had no legal alternative. See Maxwell, 254 F.3d at 27. However, if a defendant’s proffer of evidence to support the defense is insufficient as a matter of law, the court can bar presentation of the defense. See id. at 26. Because the elements of the necessity defense are conjunctive, the defense may be precluded entirely if proof of any one of the four prongs is lacking. See United States v. Schoon, 971 F.2d 193, 195 (9th Cir. 1992).
Appellants argue that their illegal entry into Camp Garcia was necessary to prevent the greater imminent harms of civilian deaths, health threats, and environmental damages that they say are posed by the military exercises being conducted there. Second, they assert that their presence in Camp Garcia will necessarily bring a halt to the Navy’s exercises and the concomitant risks that arise from those activities. Finally, appellants contend that they have exhausted all other legal alternatives, such as seeking temporary restraining orders and the scheduled referendum,
The district court’s decision to preclude the necessity defense can most easily be affirmed by examining appellants’ proffered evidence as to the last two components of the defense: reasonable anticipation of averting the alleged harm and no legal alternatives. Appellants offered no evidence to support their claim that their trespassory protests will result in a change of U.S. Naval policy so that the bombing and ammunition testing in Vieques will cease. See Maxwell, 254 F.3d at 28 (noting that a “defendant must demonstrate cause and effect between an act of protest and the achievement of the goal of the protest by competent evidence”). In fact, the Navy has experienced numerous protests in Camp Garcia, yet none has effected more than a temporary cessation of military activities there. See id. at 23, 28 (discussing only temporary disruptions caused by past protests); United States v. Sharpton, 252 F.3d 536, 538-39 (1st Cir. 2001) (per curiam) (same).
Appellants also failed to offer sufficient evidence to demonstrate a lack of legal alternatives. Although appellants cite unsuccessful attempts to obtain temporary restraining orders against the U.S. Navy, they have not demonstrated an exhaustion of all legal options. See Maxwell, 254 F.3d at 28 (exploring several legal avenues without results does not demonstrate exhaustion of legal alternatives). Moreover, appellants cannot claim they have no legal alternatives merely because their law-abiding efforts are unlikely to effect a change in policy as soon as they would like. See id. at 29 (stating that a possibility of succeeding through legal alternatives, even if unlikely, does not mean that those alternatives are “nonexistent”). This is true even for residents of Puerto Rico, who may have fewer options for effecting political change since they are not directly represented in Congress. See id. at 29 (rejecting argument that all legal alternatives were foreclosed because defendant was a citizen of Puerto Rico); Igartúa De La Rosa v. United States, 229 F.3d 80, 88 (1st Cir. 2000) (Torruella, J., concurring) (stating that “Puerto Rico remains a colony with little prospect of exerting effective political pressure on the elected branches of government to take corrective action”); Schoon, 971 F.2d at 198 (asserting that legal alternatives can never be exhausted when the harm could be mitigated through congressional action). See generally Trailer Marine Transp. Corp. v. Rivera Vázquez, 977 F.2d 1, 6-7 (1st Cir. 1992) (discussing status of Puerto Rico).
Because appellants have not proffered sufficient evidence to support the third or fourth prongs of the necessity defense, the district court properly precluded the defense, as well as any evidence relevant to the defense. As such, we need not address whether the alleged harm, if true, constitutes a “greater evil” than trespassing, see Maxwell, 254 F.3d at 27 (assuming, but not deciding, that defendant’s trespassory protest was a “lesser evil” than the harm posed by nuclear-armed submarines allegedly participating in Navy exercises in Vieques), or whether the alleged risks to health, life, and the environment, though cumulative over time, could
C. Discovery as to Use of Non-Conventional Weapons
All appellants, except Sued-Jiménez, collectively assert that the district court erred in not permitting discovery on the government’s alleged use of non-conventional weapons in Vieques’ Live Impact Area.
Given our affirmance of the district court’s preclusion of the necessity defense, any evidence relating to this defense that might be obtained through discovery is irrelevant.
D. Speedy Trial Act Claim
Appellant Agosto-Hernández appeals her conviction on the additional ground that it allegedly violates the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1994). A criminal complaint was filed against Agos-to-Hernández on June 25, 2000, the same day she was arrested. An information was filed against her on June 29, 2000, and she was arraigned on August 28, 2000. Appellant pled not guilty, and the government moved to dismiss the criminal complaint that had previously been filed. At a status conference on December 13, 2000, appellant announced that she would move for a dismissal based on the Speedy Trial Act. On December 20, 2000, she filed her motion to dismiss, alleging that more than 70 days had elapsed between her plea of not guilty and trial. The district court denied the motion and appellant appeals.
The Speedy Trial Act provides that when a defendant pleads not guilty to “the commission of an offense,” the trial must occur within seventy days from the date the information or indictment was filed, or from the date the defendant appeared before the court where the charge is pending, whichever is later. See 18 U.S.C. § 3161(c)(1). If the Act is violated, the charges will be dismissed on defendant’s motion for failure to comply with this time table. See 18 U.S.C. § 3162(a)(2).
The Speedy Trial Act, however, only applies to defendants charged with an “offense,” which is defined as “any Federal criminal offense which is in violation of any Act of Congress and is triable by a court established by Act of Congress (other than a Class B or C misdemeanor ...).” 18 U.S.C. § 3172(2). Thus, Class B and C misdemeanors are explicitly excluded from the Act’s coverage. The criminal trespass
Thus, appellant’s policy-based argument that the Speedy Trial Act should apply to her case, despite the clear language of the Act, must fail because it is directly contrary to the Act’s provisions.
Conclusion
Because we find no error in the district court’s rulings, we affirm.
Affirmed.
. At the time of appellants’ protests, a referendum had been scheduled to be held by Febru
. The Live Impact Area is the section of Camp Garcia where the live-fire artillery and bombardment exercises occur.
. This is all the more true because appellants only seek discovery of evidence relevant to the first two prongs of the necessity defense, the merits of which we have declined to address or rely upon in affirming the district court’s preclusion of the defense.
Reference
- Full Case Name
- United States v. Jalil Gazir SUED-JIMÉNEZ, Appellant United States of America v. Elga Mari Castro-Ramos, Appellant United States of America v. Elliot Vicente Castro-Tirado, Appellant United States of America v. José Luis Romero-Burgos, Appellant United States of America v. Carlos Taíno Dávila-Reverón, Appellant United States of America v. Juan Osvaldo Budet-Meléndez, Appellant United States of America v. Edwin Rivera, Appellant United States of America v. Norma Rodríguez-Ferrán, Appellant United States of America v. Miguel A. Rivera-González, Appellant United States of America v. Tubal Padilla-Galeano, Appellant United States of America v. Rufino Echevarría-Rivera, Appellant United States of America v. Efraín Figueroa-Báez, Appellant United States of America v. Alfredo J. Colón-Meléndez, Appellant United States of America v. José Pérez-González, Appellant United States of America v. Liliana García-Arroyo, Appellant United States of America v. Alice Agosto-Hernández, Appellant United States of America v. Roberto Barreto-Valentin, Appellant United States of America v. Erika Fontánez-Torres, Appellant United States of America v. Maritza García-Arroyo, Appellant United States of America v. Néstor Cruz-Crespo, Appellant United States of America v. José Mayol-Sepúlveda, Appellant United States of America v. Roberto A. Gándara-Barnett, Appellant United States of America v. Omar Gómez-Couvertier, Appellant United States of America v. José E. Flores-Arriaga, Appellant United States of America v. Ramón Díaz-Rivera, Appellant United States of America v. Ubaldo Rosario-Nieves, Appellant United States of America v. Israel Torres-Llaurador, Appellant United States of America v. Norma Lugo-Maldonado, Appellant United States of America v. Blanca Gari-Pérez, Appellant United States of America v. Pedro José Muñiz-García, Appellant United States of America v. Néstor Nazario-Trabal, Appellant United States of America v. Julio Ortega-Miranda, Appellant United States of America v. Reinand Ortiz-Feliciano, Appellant United States of America v. Zoraida Santiago-Feliciano, Appellant United States of America v. José Rivera-Santana, Appellant United States of America v. Asunción Rodríguez-Crespo, Appellant United States of America v. Ernesto Peña-Carambot, Appellant United States of America v. Rosalinda Soto-Toledo
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- 18 cases
- Status
- Published