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    United States v. Torres Marrero, 1st Cir. (1993)

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    The defendant was convicted of four federal offenses related to perjury he committed during his testimony about a 1985 incident. He was sentenced to five years in prison on each count, to be served consecutively for a total of 20 years. In this appeal, the defendant argued that imposing consecutive sentences for the three perjury convictions under 18 U.S.C. 1623 violated the statute and constitution. However, the court affirmed the sentence, finding that each perjury conviction involved false testimony on a different factual issue that required separate proof of falsity, so they were properly charged as separate counts.

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    Public Domain
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    United States v. Torres Marrero, 1st Cir. (1993)

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    Scribd Government Docs
    39 views9 pages
    The defendant was convicted of four federal offenses related to perjury he committed during his testimony about a 1985 incident. He was sentenced to five years in prison on each count, to be served consecutively for a total of 20 years. In this appeal, the defendant argued that imposing consecutive sentences for the three perjury convictions under 18 U.S.C. 1623 violated the statute and constitution. However, the court affirmed the sentence, finding that each perjury conviction involved false testimony on a different factual issue that required separate proof of falsity, so they were properly charged as separate counts.

    Original Description:

    Filed: 1993-03-30 Precedential Status: Precedential Docket: 92-2101

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    The defendant was convicted of four federal offenses related to perjury he committed during his testimony about a 1985 incident. He was sentenced to five years in prison on each count, to be served consecutively for a total of 20 years. In this appeal, the defendant argued that imposing consecutive sentences for the three perjury convictions under 18 U.S.C. 1623 violated the statute and constitution. However, the court affirmed the sentence, finding that each perjury conviction involved false testimony on a different factual issue that required separate proof of falsity, so they were properly charged as separate counts.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    39 views9 pages

    United States v. Torres Marrero, 1st Cir. (1993)

    Uploaded by

    Scribd Government Docs
    The defendant was convicted of four federal offenses related to perjury he committed during his testimony about a 1985 incident. He was sentenced to five years in prison on each count, to be served consecutively for a total of 20 years. In this appeal, the defendant argued that imposing consecutive sentences for the three perjury convictions under 18 U.S.C. 1623 violated the statute and constitution. However, the court affirmed the sentence, finding that each perjury conviction involved false testimony on a different factual issue that required separate proof of falsity, so they were properly charged as separate counts.

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    of 9

    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 the

    Cerro

    In 1985, in connection with his involvement

    Maravilla incident,

    Marrero was convicted of four


    conspiring
    suborn

    to

    Torres-

    federal offenses: one count of

    obstruct justice,

    perjury, in violation of

    substantive counts
    1623.

    defendant Rafael

    give

    false testimony

    18 U.S.C.

    of perjury, in

    and

    371, and three

    violation of 18

    U.S.C.

    He was sentenced to five years in prison on each count

    to be served consecutively,
    1987, his

    for a total of twenty years.

    convictions and sentence were

    United States v.
    _____________

    Moreno Morales,
    ______________

    cert. denied, 484 U.S.

    966 (1987).

    In

    affirmed on appeal.

    815 F.2d
    In July

    725 (1st

    Cir.),

    1992, defendant

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

    he asserted was an

    that the imposition of


    to his three

    illegal sentence.

    consecutive prison terms with respect

    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


    false testimony that defendant
    on March 6, 1980.
    the

    maximum

    false declarations
    grand jury was five

    contention in

    1623 each involved

    gave to a federal

    grand jury

    He first argues that, under the

    statute, the

    declarations.

    He there argued

    permissible prison

    given on

    the

    same day

    terms of

    term for

    before the

    years, regardless of the number

    We rejected
    the direct

    similar,

    appeal.

    if not

    all
    same

    of such

    identical,

    See Moreno Morales,


    ___ ______________

    815

    -2-

    F.2d

    at

    752

    permitted under
    U.S.C.

    371,

    ("The
    the

    sentences

    did not

    relevant federal

    1621-23.")

    Even if

    exceed

    the

    limits

    perjury statutes,

    18

    not procedurally barred,

    this argument is nonetheless


    the

    imposition of

    material
    reference

    a five-year

    declaration."1
    to "two

    meritless.

    or

    The statute permits

    prison term

    Defendant

    relies

    more declarations"

    for "any
    on

    false

    1623(c)'s

    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

    discussed

    contradictory

    declarations."

    As

    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
    charged the
    with

    the

    also contends

    same offense and were


    consequence

    sentences

    violated

    unpublished
    advanced

    that the

    the

    of

    there

    noted,

    "objections based

    In

    two

    arguments
    See
    ___

    Moreno
    ______
    2-3 (1st

    Quiles-Hernandez v. United States,


    ________________
    ______________
    4-8 (1st Cir.

    claims

    of

    on defects in the

    defendant

    failed to raise

    must

    deemed
    858

    consecutive

    No. 92-1157, slip op. at

    prior to trial."

    Rodriguez,
    _________

    of

    rejected similar

    be raised

    be

    imposition

    have

    90-1804, slip op. at


    we

    therefore multiplicitous,

    defendant's codefendants.

    Cir. 1992) (per curiam);

    As

    1623 counts

    jeopardy clause.

    decisions, we

    by two

    three

    double

    Morales v. United States,


    _______
    _____________

    No.

    that the

    1991) (per curiam).

    multiplicity

    indictment" which "must

    Fed. R. Crim. P.
    this contention at

    waived.

    See,
    ___

    F.2d 809,

    816-17

    constitute

    e.g.,
    ____
    (1st

    12(b)(2).

    As

    that time, it

    United States
    ______________
    Cir. 1988);

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

    v.

    United
    ______

    ______

    ______

    Defendant's arguments prove meritless


    we

    explained

    statements

    in Quiles-Hernandez,
    ________________
    [were]

    irrelevant."

    Slip

    uttered
    op.

    Molinares, 700 F.2d 647,


    _________

    in

    at

    in any event.

    "[t]he
    the

    fact

    same

    (citing

    As

    that [the]

    proceeding

    is

    United States
    ______________

    v.

    652-53 (11th Cir. 1983)).

    So long

    -4-

    as

    separate

    proof

    false declarations

    same transaction."

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


    ______ ____ _____________
    ___________

    the three

    standard.

    Unit A Jan. 1981).

    A comparison

    1623 counts confirms that they satisfied this

    Count 21 involved the factual issue of whether the

    two victims
    22

    related and arise out of the

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


    _____________
    _____

    634 F.2d 792, 795 (5th Cir.


    of

    different factual

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

    counts even though they are all

    (8th

    "require

    involved

    were physically assaulted by the police.3


    defendant's awareness

    of

    Count

    second volley

    of

    gunshots.4
    one

    of

    the

    And count 23 involved


    victims.5

    Each

    the removal of the body of


    of

    the

    defendant's

    false

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

    as

    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
    shots fired later?
    A. No, no fires--nothing was shot.
    _______________________________

    5.

    you hear

    any

    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.
    violations

    Accordingly,
    of

    law and

    they
    were

    each

    properly

    comprised

    distinct

    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-

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