
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          August 28, 1992       [NOT FOR PUBLICATION]                                 ___________________          No. 92-1654                               UNITED STATES OF AMERICA                               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  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                                         -2-            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"                                            ____________________            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  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                                            ____________________            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.  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.                                         -5-                 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                                         -6-            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                                         -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).  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                                         -8-            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                 _____                                         -9-            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            ______    _____                                         -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.  Mandate shall                                                   ______   _____________            issue forthwith.            _______________                                         -11-
