
USCA1 Opinion

	




          March 29, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
