
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          May 7, 1996           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                            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 & Jasper             _______________            _________________     _______________        were on brief for appellant Carreras.             Warren V zquez, Assistant United States Attorney, with whom             ______________        Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, Senior        _____________                          _______________________        Litigation Counsel, Antonio R. Bazan, Assistant United States                            ________________        Attorney, and Miguel A. Pereira, Assistant United States Attorney,                      _________________        were on brief for appellee.                                                                                      ____________________                                                                                      ____________________                                          2                    Per curiam.  Appellants  Humbert Carreras and John Cruz                    Per curiam.                    __________          challenge the district court judgments of conviction and sentence          entered against  them following their  joint jury trial  for pos-          sessing cocaine  with intent  to distribute, and  for conspiracy.          See 21 U.S.C.    841(a)(1), 846 (1994).  We affirm.           ___                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Just before  noon on September 19,  1993, United States          Customs Service Officer Wilfredo  Cruz-Col n ("Officer Cruz") and          "Jo-Jo," a  certified narcotics  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  luggage  ultimately  bound  for  foreign  and  domestic          airports.  Jo-Jo alerted  to nine other suitcases within  a short          time  thereafter.   All ten  bags were  bound for  New York  City          aboard American Airlines Flight 678.  Several bags bore Carreras'          name and address.   Other luggage tags  designated either Nereida          R os-Sol , Mar a Ort z, or  Mar a Due o-Ort z, who were traveling          with Carreras.   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  preparing to  depart for  New York.   After  the four          passengers  had deplaned, Customs  agents examined their boarding          passes and quickly looked  through Carreras' briefcase.  Although                                          3          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  any contraband.   Nor were they          formally  placed under  arrest.   Finally, at  around  8:30 p.m.,          after obtaining  a search warrant,  government agents  discovered          approximately  20 kilograms of cocaine in each suitcase.  At that          point,  Carreras  was given  Miranda  warnings  and placed  under                                       _______          arrest.                    In due  course, Carreras  moved to  suppress admissions          made  during  his extended  detention,  as well  as  the physical          evidence seized  by Customs.   Following  a three-day  hearing, a          magistrate judge  recommended suppression of  all the  challenged          evidence  except  the cocaine  seized  from the  suitcases.   The          district court  later ordered the Carreras admissions suppressed,          but  declined to suppress the  cocaine and the  items seized from          the Carreras briefcase.   United States v. Carreras,  851 F.Supp.                                    _____________    ________          502, 505-06 (D.P.R. 1994).                    On  September 20,  1994,  the district  court issued  a          final scheduling order,  setting October 24,  1994, as the  trial          date and  directing that  all  "[d]ispositive motions,  including                                                                  _________          motions to  suppress, . .  . be filed  not later than  October 5,          _______ __  ________            _____                  _______ _          1994.  There-after  they shall not be  entertained.  See Fed.  R.          ____   ___________  ____ _____ ___ __  ___________   ___          Cr. P. 12(b)." (emphasis added).  On October 5, Carreras' present          counsel  mailed a second motion to suppress  from New York to San                   ______          Juan, which was not  filed with the district court  until October                               _____                                _______          11.    The belated  motion challenged  the  legality of  the "dog          __                                          4          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.  The Carreras Appeal          A.  The Carreras Appeal              ___________________                    Carreras attempts  to resuscitate the claims  raised in          the second  motion to suppress, despite the  undisputed fact that          he failed  to comply with the bar date.  See McIntosh v. Antonio,                                                   ___ ________    _______          71 F.3d 29, 35-37  (1st Cir. 1995) ("filing" occurs  upon receipt          by clerk,  not upon mailing, per  Fed. R. Civ. P.  5(e)); Fed. R.          Crim. P. 49(d) (incorporating  civil case filing rule).   Nor did          Carreras  either request an extension  of the bar  date or invoke          Criminal  Rule 12(f),  which explicitly  authorizes the  district          court to grant relief from  waiver for cause shown.  See  Fed. R.                                                               ___          Crim.  P. 12(f);  see also United  States v. Nu ez,  19 F.3d 719,                            ___ ____ ______________    _____          722-23 (1st Cir. 1994) (noting importance of deciding motions  to          suppress before trial).                    Given the  failure to  present the district  court with          any  reason for  the waiver,  Carreras' claim  that  the district          ___  ______          court abused  its discretion, see United  States v. Gomez-Benabe,                                        ___ ______________    ____________          985  F.2d 607, 611 (1st  Cir. 1993), by  enforcing its scheduling          order and imposing waiver, is utterly frivolous, see id.  Accord-                                                           ___ ___          ingly,  we do not reach  the lame arguments     first broached on                                          5          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  a Fifth and          Sixth  Amendment  challenge  to  the  jury  selection  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  for the  District of Puerto  Rico.  We  hold this          claim  to have been forfeited  for failure to  interpose a proper                                        ____________________               1Moreover, the  claims  raised  in  the  second  suppression          motion were frivolous.  Cf. United States v. Olano, 507 U.S. 725,                                  ___ _____________    _____          732-33 (1993) (Criminal Rule  52 contemplates, at threshold, that          appellant establish "error");  see also Fed.  R. Crim. P.  52(a).                                         ___ ____          First,  as Carreras  concedes,  a "dog  sniff"  is not  a  Fourth          Amendment  "search."  See, e.g.,  United States v.  De Los Santos                                ___  ____   _____________     _____________          Ferrer,  999 F.2d 7, 10 (1st Cir.),  cert. denied, 114 S. Ct. 562          ______                               _____ ______          (1993).    Thus, the  government did  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  (1st Cir. 1992),  cert. denied, 507          ________                                        _____ ______          U.S. 984 (1993).   Furthermore, Jo-Jo's "alert" to the  ten suit-          cases bound for  New York  City provided probable  cause for  the          warrant which  authorized the search that  disclosed the cocaine.          Id.   Similarly,  the challenge  to the  second briefcase  search          ___          fails, since  Carreras neither points to  any evidence introduced          against  him as  a result  of  the first  cursory  search of  the          briefcase,  nor suggests a plausible legal basis for finding that          the subsequent seizure of the briefcase and its contents, immedi-          ately  after he was placed under arrest, was not entirely reason-          able under  any  of several  exceptions to  the Fourth  Amendment          warrant requirement.  See, e.g., Illinois v. Lafayette, 462  U.S.                                ___  ____  ________    _________          640, 645-46 (1983) (inventory  search); Chimel v. California, 395                                                  ______    __________          U.S. 752  (1969) (search incident to arrest); Maldonado-Espinosa,                                                        __________________          968  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).                                            6          objection below, United States v. Flores-Rivera, 56 F.3d 319, 326                           _____________    _____________          (1st Cir. 1995) (refusing relief  absent showing of "manifest" or          "clear"  injustice); see also 28 U.S.C.    1867(a) (1994); United                               ___ ____                              ______          States v. Pion,  25 F.3d  18 (1st Cir.  1994), and  substantially          ______    ____          foreclosed by our precedent as  well.  See, e.g.,  Flores-Rivera,                                                 ___  ____   _____________          56 F.3d at  326 (upholding English-language  requirement); United                                                                     ______          States v. Benmuhar, 658  F.2d 14, 19-20 (1st Cir.  1981) (finding          ______    ________          no "systematic"  exclusion of  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,  we reject  the  request to  vacate  Carreras'          sentence and remand  to the  district court to  consider an  age-          based  downward departure,  since  Carreras failed  to request  a          downward departure  before the district court.  See United States                                                          ___ _____________          v. Catucci, 55 F.3d 15, 18 (1st Cir. 1995).2             _______          B.  The Cruz Appeal                            B.  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"  at Cruz.  On appeal, Cruz  maintains that          his  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.                                          7          56 F.3d at 325.                     As  we  have  noted  in  countless  cases,  significant          benefits derive  from joint trials in  conspiracy cases involving          identical  substantive offenses.    See, e.g.,  United States  v.                                              ___  ____   _____________          DiMarzo, Nos.  95-1441 & 1442,  1996 WL  159365, at *2  (1st Cir.          _______          Apr. 10, 1996).   Cruz has not shown that  the joint trial either          jeopardized  a  specific  trial  right or  risked  an  unreliable          verdict.    See Zafiro  v. United  States,  506 U.S.  534, 538-39                      ___ ______     ______________          (1993) (discussing examples of  prejudice).  Neither the Carreras          closing argument nor the  Carreras cross-examination of a govern-          ment witness generated a significant  risk of unfair prejudice to          Cruz.   See United  States v. Yefsky,  994 F.2d 885,  896-97 (1st                  ___ ______________    ______          Cir. 1993).                    The  district court  properly  denied  the  motion  for          judgment  of acquittal as well.   The jury,  employing its common          sense  in evaluating  the circumstantial  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  and circumstantial  evidence),          cert.  denied,  506 U.S.  1063  (1993),  and that  all  essential          _____  ______          elements of  the crimes charged  had been  duly established,  see                                                                        ___          DiMarzo,  1996  WL 159365,  at  *4-5  (rejecting "mere  presence"          _______          defense).                      Viewed in  the light most favorable  to the government,          see  id. at *4,  the evidence showed that  Carreras and Cruz were          ___  __          close associates  who had agreed  to meet in  Puerto Rico and  to                                          8          transport  a large  quantity  of cocaine  to  New York  City  for          distribution  on the  mainland.   Cruz played  an active  role in          planning, financing, and carrying out the operation.  Among other          things,  he supplied the ten  suitcases in which  the cocaine was          carried and hired two women in Miami to travel with him to Puerto          Rico,  assist in checking the  ten suitcases at  the Airport, and          fly on to  New York.   Cruz and these  two female associates  met          Carreras at the  Airport upon  their arrival from  Miami the  day          before their scheduled flight to New York City.  Later  that eve-          ning, Cruz guarded the  fully-loaded suitcases in Carreras' hotel          room while Carreras went out to dinner.  Immediately prior to the          scheduled  flight to New York  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,  since his  name did not  appear on  the          luggage tags, and  he was traveling to New York  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  able trial counsel          at sentencing,  Cruz contends  that the district  court sentenced          him  in an  unconstitutional  manner by  denying his  last-minute          request for a continuance of the sentencing hearing to permit new          counsel,  who  apparently  was  handling other  criminal  matters          against  Cruz in  Ohio, to  represent him  at sentencing  in this          case.  The district court did not abuse its discretion by denying                                          9          the  late request for continuance.   See United  States v. Betan-                                               ___ ______________    ______          court-Arretuche, 933  F.2d 89, 93  (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.  Despite this accommodation, for          no apparent reason  Cruz' stateside counsel  failed to appear  on          February 8,  nor did  he ever  enter an  appearance in  the case.          Instead, at the February 8  sentencing hearing Cruz requested yet          another continuance on the ground that his stateside counsel  was          unavailable.  The district court acted well within its discretion          in calling a  halt to these "cat and mouse"  tactics.  See United                                                                 ___ ______          States  v. Torres, 793 F.2d 436, 440-41 (1st Cir.), cert. denied,          ______     ______                                   _____ ______          479 U.S. 889 (1986).                    The settled  principle that the "right of an accused to          choose his own  counsel cannot be insisted upon in  a manner that          will obstruct reasonable and  orderly court procedure" applies in          full force here.  Betancourt-Arretuche,  933 F.2d at 93 (citation                            ____________________          omitted).   "'Only an  unreasoning and arbitrary  insistence upon          expeditiousness in  the face of  a justifiable request  for delay          violates  the right  to  the assistance  of  counsel,' and  would          amount to an abuse of [the district court's] discretion."  United                                                                     ______          States  v. Brand, No.  94-1350, 1996 WL  121716, at *3  (1st Cir.          ______     _____          Mar.  26,  1996) (quoting  Morris v.  Slappy,  461 U.S.  1, 11-12                                     ______     ______          (1983)).  Cruz  was given ample  opportunity to secure  stateside          counsel  but failed to explain his failure to do so.  Consequent-                                          10          ly, denial of  the second  request for continuance,  made at  the          rescheduled sentencing hearing and  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
