         United States Court of Appeals
                For the First Circuit


No. 01-1347
               UNITED STATES OF AMERICA,
                  Plaintiff, Appellee,
                           v.
                    JUAN SILVA-ROSA,
                 Defendant, Appellant.

No. 01-1348
               UNITED STATES OF AMERICA,
                  Plaintiff, Appellee,
                           v.
                  JUSTINO LÓPEZ-ORTIZ,
                 Defendant, Appellant.

No. 01-1349
               UNITED STATES OF AMERICA,
                   Plaintiff, Appellee,
                            v.
                 EMILIO GARCÍA-CORDERO,
                  Defendant, Appellant.

No. 01-1356
               UNITED STATES OF AMERICA,
                   Plaintiff, Appellee,
                            v.
                 ANGEL GUADALUPE-ORTIZ,
                  Defendant, Appellant.

No. 01-1361
               UNITED STATES OF AMERICA,
                  Plaintiff, Appellee,
                            v.
                     RADAMÉS TIRADO,
                 Defendant, Appellant.

No. 01-1362
               UNITED STATES OF AMERICA,
                  Plaintiff, Appellee,
                           v.
                AGAPITO BELARDO SALGADO,
Defendant, Appellant.




         -2-
No. 01-1378
                     UNITED STATES OF AMERICA,
                        Plaintiff, Appellee,
                                 v.
                        JOSÉ CEDRIC MORALES,
                       Defendant, Appellant.

No. 01-1379
                     UNITED STATES OF AMERICA,
                        Plaintiff, Appellee,
                                  v.
                            ROBERT RABIN,
                       Defendant, Appellant.



          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]
       [Hon. Aida M. Delgado-Colón, U.S. Magistrate Judge]


                                Before

                    Torruella, Circuit Judge,
                 Kravitch,* Senior Circuit Judge,
                    and Lynch, Circuit Judge.



     Linda A. Backiel, for appellants.
     Francis J. Bustamante, Special Assistant U.S. Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant
U.S. Attorney, Chief, Criminal Division, and Aaron W. Reiman, Special
Assistant U.S. Attorney, were on brief, for appellee.



                         December 19, 2001




*   Of the Eleventh Circuit, sitting by designation.

                                 -3-
          TORRUELLA, Circuit Judge.       Appellants-defendants were

convicted of trespassing onto a United States military installation.

On appeal, appellants collectively and separately challenge several

rulings made by the district court at trial. Because we find no error

in the district court's rulings, we affirm.

                             BACKGROUND

          On October 18, 2000, appellants Juan Silva-Rosa, Justino

López-Ortiz, Emilio García-Cordero, Angel Guadalupe-Ortiz, Radamés

Tirado, Agapito Belardo Salgado, José Cedric Morales, and Robert Rabin

were arrested for trespassing at Camp García, a military installation

on the island of Vieques, Puerto Rico. Appellants were each charged

with violating 18 U.S.C. § 1382, which prohibits entry onto military or

naval property for any unlawful purpose. Upon the government's motion,

the district court consolidated the cases, and a bench trial was set

for February 1, 2001.

          Before trial, appellants Guadalupe-Ortiz, Morales, López-

Ortiz, and Rabin filed motions seeking to disqualify United States Navy

officers from prosecuting the case. Appellants argued that the Navy

officers, appointed as Special Assistant United States Attorneys to

prosecute the case, had an institutional conflict. More specifically,

the ongoing controversy between the Navy and local residents over the

bombing exercises at Camp García prevented Navy personnel from serving




                                 -4-
as disinterested prosecutors. The district court denied appellants'

motions, and the government was represented at trial by Navy officers.

          In another pretrial motion, appellants Guadalupe-Ortiz,

Rabin, López-Ortiz, and Morales sought to exclude a document entitled

"Certificate of Non-existence of Record."       Signed by Lieutenant

Commander Neftalí Pagán, the document stated that Navy personnel

searched through government records and did not find appellants' names

among those authorized to enter Camp García. The district court denied

the motion in limine, and the certificate was admitted at trial over

appellants' objection.1

          At trial, appellants tried several times to present a defense

of necessity. They proffered evidence to show that their presence at

Camp García was justified based on their reasonable belief that

trespassing would prevent the Navy from conducting military exercises

that allegedly threaten the lives of Vieques residents and the

environment on the island. After listening to the proffer, however,

the district court excluded the evidence.

          Towards the end of the trial, appellants Tirado, García-

Cordero, and López-Ortiz each took the stand and attempted to testify

as to their state of mind. In particular, appellants were prepared to

testify that their political, religious, and moral beliefs compelled

1 Because the district court ruled that an objection made on behalf of
one defendant would serve as an objection for all of the defendants, we
impute the appeal of the certificate's admission to all appellants.

                                 -5-
them to disobey the law. The district court excluded this portion of

their testimony, as it was "part and parcel of the defense of

necessity."

          The district court found appellants guilty of violating 18

U.S.C. § 1382. Appellants were sentenced to one year of unsupervised

probation, forced to pay a monetary fine of ten dollars, and instructed

not to enter Camp García during the period of probation.

                             DISCUSSION

          Appellants collectively and separately challenge several

rulings made by the district court. First, appellants Guadalupe-Ortiz,

Morales, López-Ortiz, and Rabin challenge the district court's denial

of their motion to disqualify Navy officers from prosecuting their

case. Second, appellants collectively argue that the district court

erred in admitting the Certificate of Non-Existence of Record. Third,

all of the defendants appeal the district court's denial of their right

to present a defense of necessity. Fourth, Tirado, García-Cordero, and

López-Ortiz appeal the district court's refusal to allow them to

testify as to their state of mind. Because we find no reversible error

in any of the district court's rulings, we affirm.

A.   Failure to Disqualify Navy Officers

          Appellants Guadalupe-Ortiz, Morales, López-Ortiz, and Rabin

argue that the district court erred by not disqualifying Navy officers

from serving as the prosecuting attorneys.       In support of their


                                 -6-
argument, appellants rely exclusively on Young v. United States ex rel.

Vuitton et Fils S.A., 481 U.S. 787 (1987). In Young, petitioners were

found guilty of criminal contempt for violating the district court's

injunction prohibiting trademark infringement. To prosecute the

criminal contempt action, the district court appointed the attorney of

the party whose trademark had been infringed.       The Supreme Court

exercised its supervisory power to reverse the convictions, holding

that "counsel for a party that is the beneficiary of a court order may

not be appointed to undertake contempt prosecutions for alleged

violations of that order." Id. at 790. In reaching its conclusion,

the Supreme Court stated that a private attorney appointed by the court

to prosecute a criminal contempt action "should be as disinterested as

a public prosecutor who undertakes such a prosecution."         Id. at 804.

          Appellants argue that the Navy officers assigned to prosecute

their case did not possess the requisite amount of disinterestedness.

At the time of trial, several of the defendants had been actively

involved in political and legal efforts to enjoin the Navy from

conducting its military exercises in Vieques. Appellants claim that

their repeated conflicts with the Navy vested the prosecuting officers

with a passionate resolve to convict appellants that violated the

disinterestedness requirement set forth in Young.

          Notwithstanding appellants' assertions to the contrary, Young

is inapposite for at least one conspicuous and significant reason: the


                                 -7-
Young Court challenged the propriety of a court-appointed prosecutor.

In contrast, the instant case involves prosecutors whom the Attorney

General appointed to serve as Special Assistant United States

Attorneys.     The Attorney General is authorized to make these

appointments under 28 U.S.C. § 543(a), and "[t]his authorization

contains no limitation on the persons whom the Attorney General may

appoint." United States v. Allred, 867 F.2d 856, 871 (5th Cir. 1989).

          In essence, then, appellants are asking this Court to dictate

to the executive branch whom it can appoint to serve as its

prosecutors.    Such a position would expand the power of judicial

officials to such a degree as to trigger weighty separation of powers

concerns. Appellant’s argument thus takes us far outside the scope of

Young, where the doctrine of separation of powers was not even

implicated. We, therefore, find appellants' reliance on Young to be

misguided and decline their invitation to over-extend our authority and

trample on the executive branch's seemingly exclusive discretion.2

B.   Admission of Certificate of Non-Existence of Record

          Appellants collectively argue that the district court erred

in admitting the Certificate of Non-Existence of Record. For our

analysis on this issue, see United States v. Ventura-Meléndez, No. 01-

2 This case does not present, and we do not reach, any question of an
appointment under 28 U.S.C. § 543(a) of a prosecutor so interested in
the outcome of a case as to raise the "serious constitutional
questions" discussed in Marshall v. Jerrico, 446 U.S. 238, 249-50
(1980).

                                 -8-
1400, slip op. at 7-8 (1st Cir. Dec. __, 2001).3 On the basis of the

analysis set forth in Ventura-Meléndez, we conclude that the district

court was well within its discretion in admitting the certificate.4

C.   Exclusion of the Necessity Defense

          Appellants collectively assert that the district court erred

by finding the defense of necessity irrelevant to their trespassing

convictions and therefore barring its presentation at trial. For our

analysis on this issue, see United States v. Sued-Jiménez, No. 00-2146,

slip op. at 5 (1st Cir. Dec. __ 2001).5 Based on the analysis set forth

in Sued-Jiménez, we conclude that the district court properly precluded

the defense.

D.   Exclusion of State of Mind Testimony


3  The Ventura-Meléndez case also involved an appellant who was
convicted of trespassing onto Camp García in 2000. In her appeal,
Ventura argued that the district court erred in admitting a Certificate
of Non-Existence of Record. Because the certificate in Ventura-
Meléndez is identical to the one that appellants challenge here, we
have decided to dispose of this issue by referencing the Ventura-
Meléndez case rather than repeating its contents.
4 Because the Certificate of Non-Existence of Record is admissible, we
find that there is sufficient evidence for the district court to have
found that appellants were not authorized to enter Camp García. Thus,
appellants' perfunctory and conclusory claim that there was
insufficient evidence to support their conviction necessarily fails.
5  Sued-Jiménez also involved appellants who were convicted of
trespassing onto Camp García in 2000. Appellants in that case argued
that the district court erred in excluding their presentation of a
necessity defense. Because appellants in both cases shared the same
circumstances and set forth identical arguments regarding the necessity
defense, we have decided to dispose of this issue by referencing the
Sued-Jiménez case rather than repeating its contents.

                                 -9-
           Appellants Tirado, García-Cordero, and López-Ortiz challenge

the district court's refusal to allow them to testify as to their state

of mind. Appellants were prepared to testify that their actions were

justified based on their political, religious, and moral beliefs. They

argue that as criminal defendants, they have an unbridled right to

present evidence related to their state of mind.

           Though a criminal defendant is granted much latitude in

presenting a defense, In re Oliver, 333 U.S. 257, 273-74 (1978), he

does not have the right to present irrelevant testimony. United States

v. Maxwell, 254 F.3d 21, 26 (1st Cir. 2001).     Therefore, when the

"proffer in support of an anticipated affirmative defense is

insufficient as a matter of law to create a triable issue, a district

court may preclude the presentation of that defense entirely." Id.; see

also United States v. Bailey, 444 U.S. 394, 414-15 (1980) (finding it

"essential" that defendant's proffered evidence on a defense meet a

minimum standard    as to each element before that defense may be

submitted to the jury).

           In the instant case, appellants were prevented from

testifying as to the political and religious reasons that motivated

them to trespass on Navy property. This testimony is relevant, as the

district court noted, only insofar as it pertains to the necessity

defense.   Because the district court correctly determined        that

appellants could not make out a necessity defense, we find no error in


                                 -10-
the district court's excluding "the presentation of that defense

entirely."   Maxwell, 254 F.3d at 26.

                           CONCLUSION

         For these reasons, the convictions are affirmed.




                              -11-
