
USCA1 Opinion

	




          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.                                                  ______                                         -2-                                          2                                   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.                                              -3-                                          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                                         -4-                                          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                                         -5-                                          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                                         -6-                                          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.                                          -7-                                          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.                                           -8-                                          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.                                             -9-                                          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) & (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) & (f)          establishes that Gomez waived his right to a suppression hearing          by failing to move for such a hearing before trial.  See United                                                               ___ ______                                         -10-                                          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                                         -11-                                          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.                                         -12-                                          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.                                         ____________                                         -13-                                          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)  &  (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)  & (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              ________                                                                           -14-                                          14
