United States Court of Appeals
`For the First Circuit
`
`No. 01-1347
`
`No. 01-1348
`
`No. 01-1349
`
`No. 01-1356
`
`No. 01-1361
`
`No. 01-1362
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`JUAN SILVA-ROSA,
`Defendant, Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`JUSTINO LÓPEZ-ORTIZ,
`Defendant, Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`EMILIO GARCÍA-CORDERO,
`Defendant, Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`ANGEL GUADALUPE-ORTIZ,
`Defendant, Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`RADAMÉS TIRADO,
`Defendant, Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`AGAPITO BELARDO SALGADO,
`
`
`For the First Circuit
`
`No. 01-1347
`
`No. 01-1348
`
`No. 01-1349
`
`No. 01-1356
`
`No. 01-1361
`
`No. 01-1362
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`JUAN SILVA-ROSA,
`Defendant, Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`JUSTINO LÓPEZ-ORTIZ,
`Defendant, Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`EMILIO GARCÍA-CORDERO,
`Defendant, Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`ANGEL GUADALUPE-ORTIZ,
`Defendant, Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`RADAMÉS TIRADO,
`Defendant, Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`AGAPITO BELARDO SALGADO,
`
`
`
`Defendant, Appellant.
`
`-2-
`
`
`
`No. 01-1378
`
`No. 01-1379
`
`UNITED STATES OF AMERICA,
`Plaintiff, Appellee,
`v.
`JOSÉ CEDRIC MORALES,
`Defendant, Appellant.
`
`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-
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