February 8, 1993

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 92-1254

                          UNITED STATES,

                            Appellee,

                                v.

                       MIGUEL GOMEZ-BENABE,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jose Antonio Fuste, U.S. District Judge]
                                                       

                                           

                              Before

                       Selya, Circuit Judge,
                                           
                  Aldrich, Senior Circuit Judge,
                                               
                   and Boyle,* District Judge.
                                             

                                           

  Francisco  M. Lopez-Romo  with whom  Edgar  R.  Vega Pabon  was on
                                                            
brief for appellant.
  Warren  Vazquez,  Assistant  United  States  Attorney,  with  whom
                 
Charles E.  Fitzwilliam, Acting  United States  Attorney, and Jose  A.
                                                                    
Quiles, Assistant United States Attorney, were on brief for appellee.
    

                                           

                         February 5, 1993
                                           
                   

*Of the District of Rhode Island, sitting by designation.

BOYLE, District Judge.
                     

       Miguel Gomez appeals from judgments of conviction for the

willful, knowing, and unlawful possession with intent to

distribute of a controlled substance, in violation of 21 U.S.C.  

841(a)(1); and for importation of a controlled substance into the

customs territory of the United States from a place outside

thereof, in violation of 21 U.S.C.   952(a).  At trial,

appellant, both at the end of the presentation of the

government's evidence and again after the jury reached its

verdict, moved for a judgment of acquittal pursuant to Fed. R.

Crim P. 29(c) arguing that evidence of pretrial photographic

identifications should have been suppressed at trial since the

identifications were either obtained as the fruit of an illegal

arrest or were so suggestive so as to violate appellant's due

process right.  The district court denied appellant's motion

because of appellant's failure to bring his suppression motion

before trial as required by Fed. R. Crim. P. 12(b)(3) and (f). 

The district court further ruled that the pretrial identification

procedures did not violate appellant's due process rights.  After

careful consideration of the record, we affirm.
                                              

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                         I.  Background  

       On July 21, 1991, the vessel Eurocolombia arrived in

Puerto Rico at the Ponce municipal pier around 7:00 P.M.1  The

Eurocolombia had been under investigation by the United States

Customs Service ("Customs") for eight to nine months.  As part of

an on-going investigation by Customs into narcotics smuggling at

the municipal pier in Ponce, Customs enforcement personnel were

in the practice of using confidential informants to provide

information regarding  narcotics transactions.  One such

confidential informant, a seaman aboard the Eurocolombia,

signalled Customs personnel that contraband was on board the ship

on this particular night.  After seeing the signal, Customs Agent

Jose Ruiz boarded the Eurocolombia and contacted the confidential

informant.  

       The confidential informant showed agent Ruiz a locker

where a Colombian national named Alfonso had placed five one-kilo

packages of cocaine while the Eurocolombia was in port in

Colombia.  Alfonso had given the confidential informant two

telephone numbers and instructed the confidential informant to

call the phone numbers when he arrived in Ponce, ask for "Pepe"

or "Jose", and arrange for the exchange of the drugs.  Although

                    

1Evidence  was presented  at trial  that this  vessel arrives  in
Ponce just about every ten days.     

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                                3

initially frustrated by an out-of-order dockside phone, the

confidential informant eventually reached the Puerto Rico

contacts around 11:00 P.M. using agent Ruiz's cellular phone.

After a series of phone calls, the confidential informant was

instructed to meet "Jose" and a friend, who would be waiting in a

red Toyota four-by-four vehicle, at the Ponce pier gate to make

the exchange.  Agent Ruiz already had arranged for surveillance

units to be placed in and around the municipal pier area.      

       The confidential informant taped the five kilos of cocaine

to his body and walked from the vessel, out of the pier area, and

onto Comercio Avenue where he made contact with the red Toyota. 

Upon entering the vehicle, he found "Jose" in the driver's seat

and appellant in the front passenger seat.  The vehicle moved to

a nearby cash-and-carry where they exchanged $10,000 for the

cocaine.  After the exchange, the confidential informant exited

the vehicle, noted its license plate number, and returned to the

ship.  At this point, the confidential informant had given no

description of the occupants of the Toyota to Customs personnel.  

       After the confidential informant left the Toyota, the

Customs enforcement operation unravelled.  Customs surveillance

units were supposed to stop the vehicle after the transaction was

completed.  The red Toyota, however, sped away from the area

before Customs agents had an opportunity to detain it.  The

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                                4

occupants of the Toyota led agent Ruiz and other Customs agents

on a high-speed chase through Ponce which ended in the town of

Santa Isabel. 

       Although agent Ruiz testified that the Customs agents

never lost sight of the Toyota, other evidence contradicts his

testimony.  Apparently, at around 4:30 A.M., Customs agents

discovered the abandoned Toyota, which had glanced off a

telephone pole and had smashed into the wall of a funeral home

near the entrance to Santa Isabel.  A search of the vehicle

turned up $15.90 in cash, two cellular phones, a revolver

holster, and a one-kilo package which field-tested positive for

cocaine.  Witnesses at the scene told agent Ruiz and Carlos Ruiz,

another Customs agent, that the two occupants of the red Toyota

fled the vehicle and headed toward town. 

       While at the scene investigating the car accident, Puerto

Rico police officer Juan de Leon received a local police radio

report of a person acting strangely at a local bar-restaurant

about half a kilometer from the accident scene.  Agent Ruiz and

officer de Leon went to the bar where the bar owner told them

that a certain stranger appeared nervous and was shaking.  The

nervous stranger was later identified as appellant Miguel Gomez. 

       At this point, the officers still had no description of

the Toyota's occupants.  Appellant did not appear injured and no

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                                5

other evidence linked him to the accident vehicle.  Nevertheless,

based on the suspect's nervousness and the fact that he was a

stranger, appellant was placed under arrest at around 5:15 A.M.

and was taken first to the scene of the accident and then to the

Customs enforcement office in Ponce.     

       Following defendant's arrest, two Customs officials

questioned the confidential informant aboard the Eurocolombia. 

First, Customs official Manuel Zurita boarded the vessel and

obtained a description of the two occupants of the Toyota from

the confidential informant.  The confidential informant testified

at trial that Zurita's visit took place between 6:00 and 6:30

A.M..  Shortly after the first visit, agent Ruiz went to the

Eurocolombia and showed the confidential informant two

photographs taken of the defendant at the Customs enforcement

office following his arrest.  Ruiz asked if the person in the

photo was the driver of the red Toyota.  The confidential

informant replied that the person in the photo was the passenger

and not the driver.  At around 7:30 A.M., shortly after agent

Ruiz left the ship,  the Eurocolombia departed the port of Ponce

with the confidential informant aboard.    

       Later that morning, at around 9:00 A.M., Officer de Leon

received a phone call from a Santa Isabel resident reporting the

presence of a stranger in the Paso Seco neighborhood.  According

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                                6

to the report, the stranger appeared nervous, wore torn clothes,

and had a wound on his forehead.  Officer de Leon responded to

the report and arrested the stranger who was later identified as

Jose Gonzalez.  Officer de Leon reported this arrest to agent

Ruiz.  No evidence indicated that officer de Leon had received a

description of Gonzalez prior to his arrest.2  One week later,

on July 29, 1990, the remaining four kilos of cocaine were

discovered in the backyard of a home located about twenty-five

meters from where the accident had occurred.

       On August 2, 1991, ten days after the arrest of the

appellant, the Eurocolombia returned to Ponce.  At that time,

agent Ruiz again met with the confidential informant and showed

him two photo arrays each containing six photos.  One array

contained a photo of appellant and the other contained a photo of

Jose Gonzalez.  From the photo arrays, the confidential informant

identified Miguel Gomez and Jose Gonzalez as the occupants of the

red Toyota.

       Before trial, appellant filed a motion for discovery

pursuant to Fed. R. Crim. P. 16 requesting: (1) names and

addresses of all informants which the government was going to use

at trial; (2) materials relating to offers of immunity or

leniency offered by the government to potential witnesses; and

                    

2Jose Gonzalez pled guilty before the trial commenced. 

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                                7

(3) names of the enforcement agents that participated in the

surveillance at the Ponce pier.  Appellant made no pretrial

request, however, to discover documents or photos relating to the

pretrial identification procedures within the possession of the

government pursuant to Fed. R. Crim. P. 16(a)(1)(C).3  At trial,

following the presentation of its case, the government renewed a

prior motion to admit two photo arrays into evidence.4 

Appellant had failed to move to suppress this pretrial

identification evidence before trial as required by Fed. R. Crim.

P. 12(b)(3) and (f).  As a result, it was not until the close of

the government's case-in-chief, when the prosecutor renewed his

motion to admit the photos, that Gomez first moved to suppress

the photos.  After hearing the parties' arguments, the district

court admitted the photo arrays into evidence.5  Appellant

                    

3The government gave open-file  discovery to defendant.  However,
the  parties failed to confirm  in writing what  was contained in
the open-file discovery package.  The defendant claims he did not
see the photos before  trial yet the government claims  they were
available. 

4Twice  during  the  government's  case-in-chief  the  prosecutor
sought to admit the  two photospreads into evidence.   Both times
the  court deferred  ruling  on their  admissibility until  after
appellant had the opportunity to cross-examine the witnesses.

5The confidential informant also made  an in-court identification
of defendant at trial.  

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                                8

objected to the district court's ruling and the government rested

its case.  

   Following the government's case-in-chief,  appellant moved for

a judgment of acquittal pursuant to Fed. R. Crim. P. 29.6  After

the district court denied this motion, the defense rested. 

Following a jury verdict of guilty as to both counts of the

indictment, appellant renewed its Fed. R. Crim. P. 29 motion. 

The district court denied this motion as well, United States v.
                                                               

Gomez-Benabe, 781 F. Supp. 848 (D.P.R. 1991), and Miguel Gomez
            

appeals.  

                        II.  Discussion  

       Appellant claims that his constitutional rights were

violated because the photo arrays used for pretrial

identification were unduly suggestive and the product of an

illegal arrest.  The record is clear, however, that appellant

failed to make a Rule 16 motion requesting discovery of the

pretrial identification evidence before trial.  Rather, appellant

only sought pretrial discovery of the identity of the

                    

6 Rule 29(c) provides, in its pertinent part:  
   (c)  Motion after  Discharge of  Jury. If  the jury  returns a
verdict  of guilty  or is  discharged without  having returned  a
verdict,  a motion  for  judgment of  acquittal  may be  made  or
renewed within 7 days after the jury is discharged or within such
further time as  the court may fix during the  7-day period. If a
verdict of  guilty is returned the  court may on such  motion set
aside the verdict and enter judgment of acquittal.    

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                                9

confidential informant, the identities of the law enforcement

agents, and any exculpatory materials in the government's

possession.  More importantly, appellant also failed to make a

Rule 12 motion to suppress the photo identifications before

trial.  The relevant sections of Fed. R. Crim. P. 12 state:

       (b) Pretrial Motions. Any defense, objection, or
           Pretrial Motions.
       request which is capable of determination without
       the trial of the general issue may be raised before
       trial by motion.  Motions may be written or oral at
       the discretion of the judge.  The following must be
                                                          
       raised prior to trial:    
                            
       *     *    *    *    *    *
       (3) Motions to suppress evidence; or 
       *     *    *    *    *    *
       (4) Requests for discovery under Rule 16 . . . .  
       *     *    *    *    *    *
       (f) Effect of Failure to Raise Defenses or
           Effect of Failure to Raise Defenses or
       Objections. Failure by a party to raise defenses or
       Objections
       objections or to make requests which must be made
       prior to trial, at the time set by the court
       pursuant to subdivision (c), or prior to any
       extension thereof made by the court, shall
       constitute waiver thereof, but the court for cause
       shown may grant relief from the waiver. 

Fed. R. Crim. P. 12(b)(3) &amp; (f) (emphasis added).  When, as here,

a defendant has failed to take full advantage of his Rule

16(a)(1)(C) discovery request options, his resulting ignorance of

a photo's existence does not excuse him from Rule 12's

requirement that motions to suppress be filed early.

       The plain language of Fed. R. Crim. P. 12(b)(3) &amp; (f)

establishes that Gomez waived his right to a suppression hearing

by failing to move for such a hearing before trial.  See United
                                                               

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                                10

States v. Leal, 831 F.2d 7, 10 (1st Cir. 1987).  A court may
              

grant relief from this waiver only "for cause shown." United
                                                            

States v. Mendoza-Acevedo, 950 F.2d 1, 3 (1st Cir. 1991); United
                                                                

States v. Gomez, 770 F.2d 251, 253-54 (1st Cir. 1985).  As we
               

have stated before "the decision to grant or deny relief under

Fed. R. Crim. P. 12(f) is committed to the sound discretion of

the trial court and should not be disturbed on appeal absent a

showing of abuse." Gomez, 770 F.2d at 253.  We find no such abuse
                        

in this case.

       Before trial, appellant did not challenge the

circumstances surrounding his arrest or the validity of the

pretrial photo identification.  Appellant made no pretrial

suppression motion on either basis.  As the district court

pointed out, it "had no idea that the pretrial identification

procedures might have been the fruits of an illegal arrest and

subject to the exclusionary rule or that they had been conducted 

in such a way as to possibly violate defendant's due process

right" until evidence was presented at trial. United States v.
                                                              

Gomez-Benabe, 781 F. Supp. 848, 854 (D.P.R. 1991).  
            

       As a matter of policy, suppression issues should be

considered before trial because "'interrupt[ing] the course of

the trial for such auxiliary inquiries impedes the momentum of

the main proceeding and breaks the continuity of the jury's

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                                11

attention.'" Gomez, 770 F.2d at 253, quoting Nardone v. United
                                                              

States, 308 U.S. 338, 342 (1939).  The district judge's decision
      

furthers this sensible and longstanding policy.

       Furthermore, there is no legitimate explanation for

appellant's delay in filing a suppression motion that would have

allowed the district court to grant relief from the waiver.7 See
                                                                

United States v. Mendoza-Acevedo, 950 F.2d 1, 3 (1st Cir. 1991). 
                                

In short, the record is that appellant knew all there was to know

about the circumstances surrounding his arrest necessary to bring

a motion to suppress.  We must agree with the district court's

conclusion that "[w]ithout some reason as to why a motion to

suppress was not filed, th[e] court c[ould] find no basis for not

applying the waiver rule.8" Gomez-Benabe, 781 F. Supp. at 854. 
                                        

                    

7At oral argument, appellant  claimed that language in  a certain
FBI report led appellant's trial counsel to believe that at least
one  of   the  photo   identifications  had  occurred   prior  to
appellant's  arrest and served as  a basis for  probable cause to
make that arrest.  Appellant  argues that this report discouraged
his trial counsel from  making a pretrial motion to  suppress the
photo identification as the fruit of  an illegal arrest.  The FBI
report is not part of  the appellate record.  The district  judge
observed   that  appellant  failed  to  present  "any  legitimate
explanation  for  his  failure to  timely  move  to suppress  the
evidence."  United States v. Gomez-Benabe, 781  F. Supp. 848, 854
                                         
(D.P.R.  1991).   In these  circumstances, we  may not  take this
belated explanation into account on appeal.

8In  fact, codefendant  Jose Gonzalez  apparently considered  the
issue  as  a potential  defense. In  his  motion to  continue the
trial, codefendant's attorney advised  the court of his intention
to  look  into  the  pretrial identification  issue.    Gonzalez,
however, pled guilty before filing any motions.

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                                12

It is unnecessary to address the substantive aspects of

appellant's arguments concerning the legality of his arrest,

since appellant has totally failed to put the matter in issue.

       We do  not reach  the  merits of  appellant's due  process

claim  that  the  pretrial  photo   identifications  were  unduly

suggestive.  The district court construed First Circuit precedent

"as    limiting   [appellant's]   waiver   to   challenging   the

identification  procedures  on  'fruit  of  the  poisonous  tree'

grounds."  Gomez-Benabe, 781 F. Supp. at 856.  The district court
                       

went  on  to consider  the substance  of appellant's  due process

claim.9  It is not necessary to make this excursion.

        In United States  v. Barletta, we considered  significant
                                     

the difference between motions to "suppress" and other motions to

merely "exclude" evidence. 644  F.2d 50, 54-55 (1st Cir.  1981). 

Generally,  motions to "suppress" deal with  the operation of the

exclusionary rule or "'police conduct not immediately relevant to

the  question of  guilt.'" Id.  at 54,  quoting, Jones  v. United
                                                                 

States, 362 U.S. 257, 264 (1960).  The upshot of this distinction
      

is that motions  to "suppress"  evidence must  be brought  before

trial  under Fed.  R. Crim.  P. 12(b)(3)  while other  motions to

"exclude" evidence may be brought  after trial has commenced. Id.
                                                                 

                    

9The district  court ultimately  decided that the  pretrial photo
identification procedures were not  unduly suggestive and  denied
appellant's due process claim. Gomez-Benabe, 781 F. Supp. at 859.
                                           

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                                13

at 54-55.   The district court  interpreted Barletta as  removing
                                                    

from the  operation of the Fed. R. Crim. P. 12(f) waiver rule any

cases that do not  implicate the exclusionary rule. Gomez-Benabe,
                                                                

781 F.  Supp. at 856.  Pretrial  photo identification procedures,

however, are "matters of  police conduct not immediately relevant

to the question of guilt" and are therefore the proper subject of

a motion to "suppress" as defined in Barletta and governed by the
                                             

restrictions  of Fed.  R.  Crim.  P.  12(b)(3)  &amp;  (f).  See  id.
                                                                 

Appellant's due process claims, therefore, have also been waived.

                         III. Conclusion

       By  failing  to  file  a  motion  to  suppress  the  photo

identifications before  trial as  required  by Fed.  R. Crim.  P.

12(b)(3)  &amp; (f),  appellant  waived his  right  to challenge  the

admission of the evidence during trial, unless the district court

found good cause  shown.  Here, the district  judge did not abuse

his discretion in denying appellant relief from  the waiver under

Fed. R. Crim. P. 12(f).  Accordingly, the judgments of conviction

are affirmed.   
    affirmed
            

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