March 29, 1993        [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No. 92-2101

                        UNITED STATES,

                          Appellee,

                              v.

                    RAFAEL TORRES MARRERO,

                    Defendant, Appellant.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

      [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
                                                       

                                        

                            Before

                    Selya, Cyr and Boudin,
                       Circuit Judges.
                                     

                                        

   Rafael Torres-Marrero on brief pro se.
                        
   Daniel  F.  Lopez Romo,  United  States Attorney,    Jose A.
                                                               
Quiles-Espinosa, Senior  Litigation Counsel, and  Ivan Dominguez,
                                                              
Assistant United States Attorney, on brief for appellee.

                                        

                                        

     Per Curiam.  In 1985, in connection with his involvement
               

in the  Cerro  Maravilla incident,  defendant Rafael  Torres-

Marrero was convicted of four  federal offenses: one count of

conspiring  to  obstruct justice,  give  false testimony  and

suborn  perjury, in violation of  18 U.S.C.    371, and three

substantive counts  of perjury, in  violation of 18  U.S.C.  

1623.  He was sentenced to five years in prison on each count

to be served consecutively,  for a total of twenty years.  In

1987, his  convictions and sentence were  affirmed on appeal.

United States v.  Moreno Morales,  815 F.2d  725 (1st  Cir.),
                                

cert. denied, 484 U.S.  966 (1987).  In July  1992, defendant
            

filed a motion under former Fed. R. Crim. P. 35(a) to correct

what  he asserted was an  illegal sentence.   He there argued

that the imposition of  consecutive prison terms with respect

to his three   1623 convictions violated both the statute and

the constitution.   The district court denied the motion, and

defendant now appeals.  We affirm.

     The three perjury convictions under   1623 each involved

false testimony that defendant  gave to a federal  grand jury

on March 6, 1980.   He first argues that, under the  terms of

the  statute, the  maximum  permissible prison  term for  all

false declarations  given on  the  same day  before the  same

grand jury was five  years, regardless of the number  of such

declarations.    We rejected  a  similar,  if not  identical,

contention in  the direct  appeal.   See Moreno Morales,  815
                                                       

                             -2-

F.2d  at  752  ("The  sentences  did not  exceed  the  limits

permitted under  the  relevant federal  perjury statutes,  18

U.S.C.    371,  1621-23.")  Even if  not procedurally barred,

this argument is nonetheless  meritless.  The statute permits

the  imposition of  a five-year  prison term  for "any  false

material  declaration."1   Defendant  relies  on    1623(c)'s

reference  to "two  or  more declarations"  as evidence  that

Congress intended to proscribe consecutive punishment in this

context.2  Yet that  provision is irrelevant, as it  pertains

                    

1.  Section 1623(a) provides in pertinent part:

          Whoever  under  oath  ...  in  any  proceeding
     before  or ancillary to any  court or grand jury of
     the  United   States  knowingly  makes   any  false
     material declaration  ... shall  be fined not  more
     than  $10,000  or  imprisoned  not  more than  five
     years, or both.

2.  Section 1623(c) reads in pertinent part:

          An indictment or information for  violation of
     this  section alleging  that,  in  any  proceedings
     before or ancillary  to any court or  grand jury of
     the  United States,  the defendant  under oath  has
     knowingly made two or more declarations, which  are
     inconsistent  to the  degree  that one  of them  is
     necessarily   false,   need   not   specify   which
     declaration is false if--
               (1) each declaration was material to the
     point in question, and
               (2)  each declaration was made within the
          period of  the statute of  limitations for the
          offense charged under this section.
     In  any prosecution under this section, the falsity
     of  a declaration  set forth  in the  indictment or
     information  shall  be  established sufficient  for
     conviction by proof that the defendant  while under
     oath made irreconcilably contradictory declarations
     material to the point in question in any proceeding
     before or ancillary to any court or grand jury.

                             -3-

only  to "irreconcilably  contradictory  declarations."    As

discussed  below, the declarations giving rise to the three  

1623 convictions  here were not  of this  nature.  We  see no

statutory bar to the imposition of consecutive sentences.

     Defendant  also contends  that the  three    1623 counts

charged the  same offense and were  therefore multiplicitous,

with  the  consequence  that the  imposition  of  consecutive

sentences  violated  the  double  jeopardy clause.    In  two

unpublished  decisions, we  have  rejected similar  arguments

advanced  by two  of  defendant's codefendants.   See  Moreno
                                                             

Morales v. United States,  No. 92-1157, slip op. at  2-3 (1st
                        

Cir. 1992) (per curiam);  Quiles-Hernandez v. United  States,
                                                            

No.  90-1804, slip op. at  4-8 (1st Cir.  1991) (per curiam).

As  we   there  noted,  claims  of   multiplicity  constitute

"objections based  on defects in the  indictment" which "must

be raised  prior to trial."   Fed. R. Crim. P.  12(b)(2).  As

defendant  failed to raise  this contention at  that time, it

must  be   deemed  waived.    See,  e.g.,  United  States  v.
                                                         

Rodriguez,  858  F.2d 809,  816-17  (1st  Cir. 1988);  United
                                                             

States v. Serino, 835 F.2d 924, 930-31 (1st Cir. 1987).
                

     Defendant's arguments prove meritless  in any event.  As

we  explained  in Quiles-Hernandez,  "[t]he  fact  that [the]
                                  

statements   [were]  uttered  in   the  same   proceeding  is

irrelevant."    Slip  op.  at  6  (citing  United  States  v.
                                                         

Molinares, 700 F.2d 647,  652-53 (11th Cir. 1983)).   So long
         

                             -4-

as  separate  false declarations  "require  different factual

proof  of falsity," they "may properly be charged in separate

counts even though they are all  related and arise out of the

same transaction."  United States v. Scott, 682 F.2d 695, 698
                                          

(8th  Cir. 1982); accord, e.g., United States v. De La Torre,
                                                            

634 F.2d 792, 795 (5th Cir.  Unit A Jan. 1981).  A comparison

of  the three   1623 counts confirms that they satisfied this

standard.  Count 21 involved the factual issue of whether the

two victims  were physically assaulted by the police.3  Count

22  involved  defendant's awareness  of  a  second volley  of

gunshots.4  And count 23 involved  the removal of the body of

one  of  the  victims.5     Each  of  the  defendant's  false

                    

3.  The questions and  answers involved in  Count 21 were  as
follows (the perjured testimony is underlined):

     Q.   With respect to the  man who was taken  to the
     hospital who  had been shooting at  the police, did
     you see  anyone strike  or hit that  person at  any
     time?
     A.  No.
            
     Q.  Referring to the one who was just wounded?
     A.  No.  Nobody was hit.
                             

4.  Count 22 involved the following testimony:

     Q.   After the initial  shooting did  you hear  any
     shots fired later?
     A.  No, no fires--nothing was shot.
                                        

5.  Count 23 involved the following exchanges:

     Q.   You testified about two  wounded persons being
     taken from the scene.
     A.  Yes.
     Q.   One was the Undercover Agent and the other was
     one of the persons who had been shooting at you.
     A.  That's correct.  [continued next page]

                             -5-

declarations  plainly required  different  factual  proof  of

falsity.     Accordingly,   they  each   comprised   distinct

violations  of  law and  were  properly  charged as  separate

counts.

     Affirmed.  
              

                    

     Q.    Which of  the two  was  taken from  the scene
     first?
     A.  I would say the Undercover Agent because by the
     time that  they removed  the other person  from the
     embankment,  must have  taken  one  minute,  a  few
     seconds.  All I know that when the Undercover Agent
                                                        
     was leaving, when the car was already leaving, they
                                                        
     were putting the other injured man inside the car.
                                                       
     Q.  And how  soon in fact  did the second car  with
     the other injured man  leave after the vehicle with
     the Agent had left?
     A.    Another vehicle  was  in  the tower,  arrived
                                                        
     quickly.  It  must have  taken about  two or  three
                                                        
     minutes.  Was a matter of minutes.  As soon  as the
                                                        
     other vehicle  arrived, I  saw the man,  I saw  the
                                                        
     corpse being removed and they took him away.
                                                 

                             -6-
