USCA1 Opinion

August 28, 1992

[NOT FOR PUBLICATION]

___________________

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

explain, they do not directly challenge) the district court's

denial

of

indictment.

Nelson

with

The
one

co-defendants, in

superseding Puerto
count of

conspiracy

distribute, large quantities

with

Zayas' motion

In September 1991 Mantecon

with thirty-eight
Rico.

Mantecon

seventeen

substantive

importation and possession

to

dismiss

was indicted, along

the District of

Rico indictment
to possess,

of marijuana
drug

his

with

charged him
intent to

and cocaine,

offenses

of those drugs.

Puerto

involving
Trial on

charges is scheduled to begin in September 1992.

and
the
these

Previously,

in 1990,

Mantecon had

been

indicted with

eleven co-defendants on drug charges in the Southern District

of

Florida.

The

second

superseding

Florida

charged him with one count of conspiracy to

and cocaine, and

indictment

import marijuana

two counts of attempting to import cocaine.

Mantecon was recently tried on these charges.

On

September

27,

1991,

Mantecon filed

motion

to

dismiss the Puerto Rico indictment.

His contention was that

the

Jeopardy Clause

indictment violated

the Double

Fifth Amendment by charging him

which

he had already been

district court

with the "same offenses" for

indicted in Florida.

21, the government opposed

the motion.

denied the motion.

filed a "reply"

of the

On October

On November

21, the

On December

3, Mantecon

to the government's opposition.

On December

-2-

9,

he filed a motion to

to dismiss.
he had
until

reconsider the denial of his motion

In the motion, Mantecon's attorney

not received
November

a copy

15, and

of the

that he

had

stated that

government's opposition
filed the

reply memo

"promptly" on November 21.

and it created the
the order
The

The latter statement was untrue,

false impression that the reply

had crossed

paths through

motion asked the court

no fault of

to reconsider its

memo and
Mantecon.

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

two weeks
dated

after the November 21

February

11, 1992,

motion to reconsider on
was

filed the reply

untimely, and

permission,
appealed the

as

required by

1654),2 and later filed

order issued.
court

In an order

therefore denied

the grounds that the reply

(b) had

denial of

the

memo until almost

been filed
Local

the motion

Rule
to

without

memo (a)

the court's

311.7.1

Mantecon

reconsider (No.

a petition for a writ

the

92-

of "mandamus"

____________________
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
-3-

(No. 92-1879) ordering the

the

Puerto Rico charges

We now affirm

district court not to try

during the pendency

the denial

of the motion

him on

of the appeal.

to reconsider,

and

deny Mantecon's petition for a writ.

I
_

The scope of our

to consider
the

review is narrow.

the denial of

indictment

the underlying motion

because Mantecon

appeal

from that decision.

cases,

it is

reconsider

true

that the

will render

purposes of appeal for

United States v. Dieter,
_____________
______
Thus,

We have no occasion

never

filed

to dismiss
a notice

In criminal cases,
timely filing

the underlying

of

as in civil

of a

motion to

order "nonfinal

for

as long as the [motion]

is pending."

429 U.S. 6, 8 (1976)

(per curiam).

if the defendant files

a timely motion to reconsider,

______

he need not immediately appeal the underlying

order, and his

____________________
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).
-4-

subsequent appeal from the denial of the motion to reconsider

will preserve his challenges to the initial decision.
other

On the

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
___

Director, Dept. of Corrections of Illinois, 434

_____________________________________________
264-65

(1978).

challenge

the

The

defendant

initial decision,

must,
file

if
a

he

Browder
_______

v.

U.S. 257,
intends

to

timely notice

of

appeal directly from it.

A motion to reconsider
"filed

in a criminal case is

within the original period

(quoting United

States v.

for review."

Healy, 376

U.S. 75,

timely if
Id. at 268
___
78 (1964)).

______________
Because a
notice

_____

criminal defendant has ten days in which to file a

of

appeal,

Fed. R.

reconsider is timely only

App.

P.

4(b),

his motion

if filed within ten days.

to

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,
until

1991, and Mantecon did not file the motion to reconsider

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,

forfeited his
can

assess

right to review
only

the

of that order.

propriety

of

the

he has

On appeal we

district

court's

decision to deny the motion to reconsider.

-5-

Because
court

to look

the

motion to

at the

reconsider

reply memo,

whether the district court

the

asked

the district

issue on

appeal is

abused its discretion in refusing

to do so.

Id. ("Denial
___

reviewed for

of a motion for

abuse of discretion.").

reconsideration is

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
have

"promptly").

justified the

Any one of

district

motion to reconsider.

these facts

court's decision

In combination

would

to deny

they make the

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
denial.
shall

find
The

no basis

for

disturbing

the district

Double Jeopardy Clause provides

be twice

put

in

jeopardy

for the

court's

that no person
"same

offense."

Mantecon contends that the Florida and Puerto Rico conspiracy

charges

reflect

government

has

but

single criminal

artificially

-6-

sundered

scheme
and

which

the

successively

prosecuted. See North Carolina

___ ______________

v. Pearce, 395 U.S.

______

(1969) (Double Jeopardy Clause protects against,

711, 717

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.
_____________
have in the

Hart, 933 F.2d 80,

____

past examined "the

(multiple) conspiracies
such as
the

the times

locations
of

ends;

means

the

which

the

F.2d at
v.

1991).

activities

involved;

to

consider "anything
factors.

we

charged

of factors

activities transpired;

achieve

occurred;

the

the co-conspirators'
those

ends;

and

the

used to prove

United States v. David, 940 F.2d 722,

_____________
_____
See also United States
_________ _____________

85-86 (setting out five-factor

Gomez-Pabon, 911
___________

these

another in terms

differences) in the evidence

the two conspiracies."

734 (1st Cir.

the

persons
used

similarities (or

relationship of the

when the relevant

at

identities

to one

85 (1st Cir. 1991),

F.2d
[in the

847 (1st

933

test); United States

_____________

Cir.

1990)).

record] that seems

United States
_____________

v. Hart,
____

v. Thomas, 759
______

We

can

relevant" to
F.2d 659, 662

n.4 (8th Cir. 1985).

In

this case,

consists

almost

the

relevant material

entirely

of

available to

the indictments

in

the

prosecutions, along with the government's statement

Rico."

The indictments

two

that the

Florida prosecutors introduced no "evidence of criminal

in Puerto

us

tell us that both

acts
of the

-7-

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).

that at least some
ended

up

These are
given

The indictments also suggest

of the drugs imported by

(or were

intended to

attributes, however,

at any particular

end

each conspiracy

up) in

that might

moment to any

South Florida.
unfortunately be

number of completely

distinct criminal operations, and they are

hardly indicative

of an identity between the conspiracies charged here.

More telling
schemes.

The

are the
two

differences

indictments

named

between the
a

total

alleged
of

fifty

conspirators, but
Though they had
drugs

--

appear

the

to

have

only Mantecon

was charged in

similar goals -- the

organizations
employed

importation of illegal

described in

different

the

the Puerto Rico

conspiracy using a

system that involved dropping

from

airplanes

speedboats,
rafts

or

and bringing

transferring

them

the

more elaborate

to shore.

retrieving
them

Florida

foreign sources

loads of drugs into

"motherships,"

and finally

indictments

methods:

conspiracy obtaining shipments directly from

by boat;

both cases.

the ocean
them

to rubber

Certainly,

life

Mantecon's

alleged roles in the conspiracies differed significantly.

Puerto

Rico he is charged

subordinate role, one of

with having played

in

In

a limited and

several men assigned to the

job of

-8-

recovering
The
a

drugs from

their drop-off

points in

the ocean.

Florida indictment, on the other hand, identified him as

ringleader

who

preparations, provided

arranged

for

boats, captains

shipments,
and

financed

crews, and

responsible for distributing the imported drugs.

was

In

sum,

the

only

conspiracy prosecuted
in
(2)
both

points of

similarity

in Florida and the

Puerto Rico are (1)

between

the

conspiracy charged

that Mantecon was

involved in both,

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

took place at about the same time.

suggestive

rather than dispositive," United States v. David,

_____________
_____

940 F.2d at 734,

differences
Mantecon

"[S]uch factors are

and when viewed here against

between

was

government

in

the

fact

indictments
stirring

has conjured

two

they
pots,

two conspiracies

the important
suggest
not

that

out of

that
the

the "same

offense."
Mantecon's

reliance on

(1990),

does not

Jeopardy

Clause

establish

avail him.
bars

Grady
_____

subsequent

Corbin, 495
______
held that

U.S. 508

"the Double

prosecution

if,

to

an essential element of an offense charged in that

prosecution,
constitutes an
been

Grady v.
_____

the

government

offense for

prosecuted."

Id.
___

will

prove

conduct

which the defendant

at

510.

In

that

has already

United States
______________

v.

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

bar a conspiracy

-9-

prosecution where, in

the

course

of

litigating

government has

"proved

previous

conspiracy

conduct" (i.e.,

overt acts) that it will also

the

charge,

the

commission

of

need to prove to establish the

existence of the second conspiracy.

Supposing
properly

applied

conspiracy
S.Ct.

without deciding that

Grady
_____

to

cases

prosecutions, cf.
___

1377,

substantive

1383-85
crimes

involving

United States
______________

(1992)
does

the Calderone majority

_________

(previous

not

prevent

successive

v. Felix,
_____

112

prosecution

for

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.
this

case.

independent

1991) (same), the rule it stated has no bearing on

The Florida
in

essence

Mantecon's presence
Rico

indictment,

has told us

and

in all

Rico prosecutions

are

particulars

for

as a defendant. According
all

Mantecon's involvement
committed

and Puerto

of

the overt

in the

in Puerto Rico.

Puerto

acts

save

to the Puerto

which

establish

Rico conspiracy

were

On the other hand, the government

(and Mantecon has not challenged

the assertion)

that

the

Florida

prosecutors

criminal acts in Puerto

introduced

Rico.

of the

evidence used
________

of

not appear

will need even to introduce

in the

States v. Felix, 112 S.Ct. at

______
_____

evidence

It therefore does

that the Puerto Rico prosecutors

any

no

Florida case,

see United
___ ______

1382 ("a mere overlap in proof

-10-

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.
______
issue forthwith.
_______________

Mandate shall
_____________

-11-