USCA1 Opinion

May 7, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1240

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN CRUZ,

Defendant, Appellant.

____________________

No. 95-1650

UNITED STATES OF AMERICA,

Appellee,

v.

HUMBERT CARRERAS,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Coffin, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

____________________

Frank D. Inserni for appellant Cruz.

________________

Joseph A. Bondy, with whom Richard A. Canton and Canton & Jasp
_______________
_________________
_____________
were on brief for appellant Carreras.
Warren V zquez, Assistant United States Attorney, with whom
______________

Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, Sen

_____________
_______________________
Litigation Counsel, Antonio R. Bazan, Assistant United States
________________
Attorney, and Miguel A. Pereira, Assistant United States Attorney,
_________________
were on brief for appellee.

____________________

____________________

Per curiam.
Per curiam.
__________

Appellants

Humbert Carreras and John Cruz

challenge the district court judgments of conviction and sentence

entered against

them following their

sessing cocaine

with intent

See 21 U.S.C.
___

841(a)(1), 846 (1994).

joint jury trial

to distribute, and

for pos-

for conspiracy.

We affirm.

I
I

BACKGROUND
BACKGROUND
__________

Just before

noon on September 19,

Customs Service Officer Wilfredo

"Jo-Jo," a

certified narcotics

1993, United States

Cruz-Col n ("Officer Cruz") and

detection dog, were

working the

American Airlines "baggage pit" at Luis Mu oz Mar n International

Airport ("Airport") in Carolina,

Puerto Rico, when Jo-Jo "alert-

ed" to the presence of narcotics in a suitcase on a conveyor belt

carrying

airports.

time

luggage

ultimately

Jo-Jo alerted

thereafter.

bound

foreign

and

to nine other suitcases within

All ten

bags were

aboard American Airlines Flight 678.

name and address.

for

Other luggage tags

bound for

domestic

a short

New York

City

Several bags bore Carreras'

designated either Nereida

R os-Sol , Mar a Ort z, or

with Carreras.

Mar a Due o-Ort z, who were traveling

Although appellant

John Cruz was

booked aboard

Flight 678 as well, his name did not appear on any baggage tag.

With

assistance

from

American

Airlines

personnel,

Customs agents located Carreras and the three women on Flight 678

as

it was

passengers

preparing to

depart for

had deplaned, Customs

passes and quickly looked

New York.

After

agents examined their boarding

through Carreras' briefcase.

the four

Although

all

four were

detained,

and

interrogated intermittently

over

several hours, they did not consent to a search of their suitcas-

es

or acknowledge possession of

formally

placed under

after obtaining

approximately

point,

arrest.

any contraband.

Finally, at

a search warrant,

Nor were they

around

8:30 p.m.,

government agents

discovered

20 kilograms of cocaine in each suitcase.

Carreras

was given

Miranda
_______

warnings

and placed

At that

under

arrest.

In due

made

during

course, Carreras

his extended

evidence seized

by Customs.

moved to

detention,

Following

suppress admissions

as well

as

a three-day

the physical

hearing, a

magistrate judge

recommended suppression of

evidence

the cocaine

except

district court

but

seized

all the

from the

challenged

suitcases.

The

later ordered the Carreras admissions suppressed,

declined to suppress the

the Carreras briefcase.

cocaine and the

items seized from

United States v. Carreras,

_____________
________

851 F.Supp.

502, 505-06 (D.P.R. 1994).

On

September 20,

final scheduling order,

date and

directing that

motions to
_______ __

1994.
____

suppress, . .
________

There-after
___________

1994,

setting October 24,

all

court issued

1994, as the

"[d]ispositive motions,

. be filed
_____

they shall not be

____ _____ ___ __

Cr. P. 12(b)." (emphasis added).

counsel

the district

not later than

entertained.
___________

trial

including
_________

October 5,
_______ _

See Fed.
___

R.

On October 5, Carreras' present

mailed a second motion to suppress

______

from New York to San

Juan, which was not

11.
__

The belated

filed with the district court

_____

motion challenged

the

until October
_______

legality of

the "dog

sniff" and the practice of commingling domestic and international

luggage

at the Airport.

In accordance with its final scheduling

order, the district court declined to consider the

second motion

to

suppress,

deeming its

claims

waived.

Trial

commenced on

October 24, 1994, as scheduled.

II
II

DISCUSSION
DISCUSSION
__________

A.
A.

The Carreras Appeal

The Carreras Appeal
___________________

Carreras attempts

the second

he failed

motion to suppress, despite the

to comply with the bar date.

71 F.3d 29, 35-37

by clerk,

not upon mailing, per

See McIntosh v. Antonio,

___ ________
_______

Fed. R. Civ. P.

upon receipt

5(e)); Fed. R.

civil case filing rule).

either request an extension

raised in

undisputed fact that

(1st Cir. 1995) ("filing" occurs

Crim. P. 49(d) (incorporating

Carreras

to resuscitate the claims

of the bar

Nor did

date or invoke

Criminal

Rule 12(f),

which explicitly

court to grant relief from

Crim.

P. 12(f);

authorizes the

waiver for cause shown.

see also United States v. Nu ez,

___ ____ ______________
_____

district

See
___

Fed. R.

19 F.3d 719,

722-23 (1st Cir. 1994) (noting importance of deciding motions

to

suppress before trial).

Given the

any
___

reason for
______

court abused

985

failure to

the waiver,

present the district

Carreras' claim

that

court with

the district

its discretion, see United States v. Gomez-Benabe,

___ ______________
____________

F.2d 607, 611 (1st

Cir. 1993), by

enforcing its scheduling

order and imposing waiver, is utterly frivolous, see id.

___ ___

ingly,

we do not reach

the lame arguments

Accord-

first broached on

appeal

for his

"abuse of discretion"

claim.

Appeal of Sun
______________

Pipe Line Co., 831 F.2d 22, 25 (1st Cir. 1987) (refusing to find
______________

abuse of discretion based on matters never presented

to district

court), cert. denied, 486 U.S. 1055 (1988).1

1
_____ ______

Carreras also attempts to broach on appeal

Sixth

Amendment

challenge

to

the

jury

selection

a Fifth and

procedures

employed below, by arguing that higher income professionals, non-

voters,

and

non-English

speaking

persons

are

systematically

exempted or excluded from petit jury service in the United States

District Court

claim

for the

District of Puerto

to have been forfeited

Rico.

for failure to

We

hold this

interpose a proper

____________________

1Moreover, the

claims

motion were frivolous.

raised

appellant establish "error");

as Carreras

Amendment
Ferrer,
______
(1993).

see also Fed.

___ ____
a "dog

See, e.g.,
___ ____

suppression

sniff"

R. Crim. P.

52(a).

is not

Fourth

United States v.
_____________

999 F.2d 7, 10 (1st Cir.),

Thus, the

second

52 contemplates, at threshold, that

concedes,

"search."

the

Cf. United States v. Olano, 507 U.S. 725,

___ _____________
_____

732-33 (1993) (Criminal Rule

First,

in

government did

De Los Santos
_____________

cert. denied, 114 S. Ct. 562

_____ ______
not

need to

demonstrate a

particularized suspicion to justify

Jo-Jo's use in detecting the

cocaine inside the Carreras luggage.

United States v. Maldonado_____________

__________

Espinosa,
________

968 F.2d 101, 103

U.S. 984 (1993).

(1st Cir. 1992),

cert. denied, 507

_____ ______

Furthermore, Jo-Jo's "alert" to the

ten suit-

cases bound for

warrant which
Id.
___

New York

authorized the search that

Similarly,

fails, since
against

the challenge

to the

a result

of

cause for

the

disclosed the cocaine.

second briefcase

Carreras neither points to

him as

briefcase,

City provided probable

the first

search

any evidence introduced

cursory

search of

the

nor suggests a plausible legal basis for finding that

the subsequent seizure of the briefcase and its contents, immediately

after he was placed under arrest, was not entirely reason-

able under

any

of several

warrant requirement.

968

the Fourth

Amendment

See, e.g., Illinois v. Lafayette, 462

___ ____ ________
_________

640, 645-46 (1983) (inventory

U.S. 752

exceptions to

U.S.

search); Chimel v. California, 395

______
__________

(1969) (search incident to arrest); Maldonado-Espinosa,

__________________

F.2d at

104 (inevitable

discovery); see
___

also Wong Sun v.

____ _________

United States, 371 U.S. 471, 487-91 (1963) (declining to suppress

_____________

evidence, since attenuated connection between lawless conduct and

discovery of evidence dissipated taint).

objection below, United States v. Flores-Rivera, 56 F.3d 319, 326

_____________
_____________

(1st Cir. 1995) (refusing relief

"clear"

absent showing of "manifest" or

injustice); see also 28 U.S.C.

___ ____

States v. Pion,
______
____

25 F.3d

18 (1st Cir.

foreclosed by our precedent as

56 F.3d at

well.

1867(a) (1994); United

______

1994), and

See, e.g.,
___ ____

326 (upholding English-language

States v. Benmuhar, 658

______
________

no "systematic"

Flores-Rivera,
_____________

requirement); United
______

F.2d 14, 19-20 (1st Cir.

exclusion of

substantially

1981) (finding

professionals), cert.
_____

denied, 447
______

U.S. 1117 (1982); see also United States v. Cecil, 836 F.2d 1431,
___ ____ _____________
_____

1448-49

(4th Cir.)

(non-voters),

cert. denied,
_____ ______

497 U.S.

1205

(1988).

Finally,

sentence and remand

based

we reject

to the

downward departure,

downward departure

the

request to

district court to

since

vacate

consider an

Carreras failed

before the district court.

Carreras'

age-

to request

See United States

___ _____________

v. Catucci, 55 F.3d 15, 18 (1st Cir. 1995).2

_______

B.
B.

The Cruz Appeal

The Cruz Appeal
_______________

Appellant

Cruz

contends that

it

was

error for

the

district court to deny a pretrial motion for severance under Fed.

R. Crim. P.

14, whereby

he alerted the

court that

codefendant

Carreras would deny ownership of the suitcases containing cocaine

and "point the finger"

his

at Cruz.

On appeal, Cruz

maintains that

fears were realized because

he was unfairly

convicted as a

result of the antagonistic defenses presented at the joint trial.

We review only for manifest abuse

of discretion.

Flores-Rivera,
_____________

____________________

2Carreras has withdrawn an "ineffective assistance" claim.

56 F.3d at 325.

As

we

benefits derive

identical

in

countless

from joint trials in

95-1441 & 1442,

Apr. 10, 1996).

verdict.

noted

substantive offenses.

DiMarzo, Nos.
_______

jeopardized

have

See Zafiro
___ ______

trial

See, e.g.,
___ ____

1996 WL

closing argument nor the

right or

prejudice).

v.

(1st Cir.

the joint trial either

risked

an

506 U.S.

unreliable

534, 538-39

Neither the Carreras

Carreras cross-examination of a govern-

ment witness generated a significant

Cruz.

United States
_____________

159365, at *2

v. United States,
______________

(1993) (discussing examples of

significant

conspiracy cases involving

Cruz has not shown that

specific

cases,

See United States v. Yefsky,

___ ______________
______

risk of unfair prejudice to

994 F.2d 885,

896-97 (1st

Cir. 1993).

The

judgment

sense

district court

properly

of acquittal as well.

in evaluating

denied

The jury,

the circumstantial

the

motion

for

employing its common

evidence, fairly

could

conclude, beyond a reasonable doubt, that Cruz knew the suitcases

contained

cocaine, see United States v. Ortiz, 966 F.2d 707, 711

___ _____________
_____

(1st Cir.

1992) (equating direct

cert.
_____

denied,
______

elements of

DiMarzo,
_______

506 U.S.

1063

the crimes charged

1996

WL 159365,

at

and circumstantial

(1993),

had been

*4-5

and that

all

evidence),

essential

duly established,

(rejecting "mere

see
___

presence"

defense).

Viewed in

see
___

id. at *4,
__

the light most favorable

the evidence showed that

to the government,

Carreras and Cruz were

close associates

who had agreed

to meet in

Puerto Rico and

to

transport

a large

distribution

on the

quantity

of cocaine

mainland.

to

Cruz played

New York

an active

planning, financing, and carrying out the operation.

things,

he supplied the ten

City

suitcases in which

for

role in

Among other

the cocaine was

carried and hired two women in Miami to travel with him to Puerto

Rico,

assist in checking the

fly on to

New York.

Carreras at the

ten suitcases at

Cruz and these

Airport upon

two female associates

their arrival from

before their scheduled flight to New York City.

ning, Cruz guarded the

Miami the

Later

met

day

that eve-

fully-loaded suitcases in Carreras' hotel

room while Carreras went out to dinner.

scheduled

the Airport, and

flight to New York

Immediately prior to the

the next day,

Carreras filled out

luggage tags and placed bogus agricultural inspection stickers on

the cocaine-laden suitcases to circumvent x-ray monitoring at the

Airport.

Significantly,

luggage tags, and

since his

name did not

he was traveling to New York

appear on

the

under an assumed

name, Cruz was able to avoid detection at the Airport even though

the ten suitcases had been found to contain cocaine.

Finally, even though the trial record plainly discloses

that he was

afforded effective assistance by

at sentencing,

him

in an

Cruz contends

unconstitutional

able trial counsel

that the district

manner by

court sentenced

denying his

last-minute

request for a continuance of the sentencing hearing to permit new

counsel,

against

case.

who

apparently

Cruz in

Ohio, to

was

handling other

represent him

criminal

matters

at sentencing

in this

The district court did not abuse its discretion by denying

the

late request for continuance.

court-Arretuche, 933
_______________

F.2d 89, 93

See United States v. Betan___ ______________

______

(1st Cir.), cert.

_____

denied, 502
______

U.S. 959 (1991).

The

district court originally scheduled sentencing for

February 3, 1995, but reset it for February 8 after Cruz request-

ed

a continuance on January 18.

no apparent reason

February 8,

nor did

Despite this accommodation, for

Cruz' stateside counsel

he ever

Instead, at the February 8

enter an

failed to appear

appearance in

the case.

sentencing hearing Cruz requested yet

another continuance on the ground that his stateside counsel

unavailable.

on

was

The district court acted well within its discretion

in calling a

States
______

halt to these "cat and mouse"

tactics.

See United
___ ______

v. Torres, 793 F.2d 436, 440-41 (1st Cir.), cert. denied,

______
_____ ______

479 U.S. 889 (1986).

The settled

choose his own

principle that the "right of an accused to

counsel cannot be insisted upon in

will obstruct reasonable and

full force here.

omitted).

expeditiousness in

violates

orderly court procedure" applies in

Betancourt-Arretuche,
____________________

"'Only an

933 F.2d at 93 (citation

unreasoning and arbitrary

the face of

the right

to

a manner that

insistence upon

a justifiable request

the assistance

of

for delay

counsel,' and

amount to an abuse of [the district court's] discretion."

States
______

v. Brand, No.
_____

94-1350, 1996 WL

121716, at *3

would

United
______

(1st Cir.

Mar.

26,

(1983)).

counsel

1996) (quoting

Cruz

Morris v.
______

was given ample

Slappy,
______

461 U.S.

opportunity to secure

but failed to explain his failure to do so.

1, 11-12

stateside

Consequent-

10

ly, denial of

the second

request for continuance,

rescheduled sentencing hearing and

made at

the

without any reasonable assur-

ance to the district court that further delay was either warrant-

ed

since

able trial

counsel was available

or

likely to

ensure the appearance of stateside counsel, was eminently sound.

Affirmed.
________

11